MK & JA Roche Pty Limited & Ors v Metro Edgley Pty Limited & Anor [2006] NSWSC 810

New South Wales Supreme Court

CITATION : MK & JA Roche Pty Limited & Ors v Metro Edgley Pty Limited & Anor [2006] NSWSC 810 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 07/08/06, 08/08/06, 09/08/06

JUDGMENT DATE : 25 August 2006

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

DECISION : Defendant unable to establish both of the estoppel and election defences. Findings on matters remitted by Court of Appeal. Findings on new issues litigated

CATCHWORDS : Contract - Construction - Principles - Whether provision for automatic rescission on non-satisfaction of conditions self executing or requires the giving of notice - Whether awareness of circumstances entitling party to terminate contract - Whether action adverse to other party established - Conventional estoppel - Whether distinct from equitable estoppel - Whether reliance by and detriment to party seeking to raise estoppel established - Whether the party against whom estoppel asserted played such a part in adoption of assumption that it would be unjust if it were left free to ignore it - Election - Proceedings before the Court on remitter from Court of Appeal for the purpose of the Court making factual findings necessary to determine whether defendant had proven its estoppel and election defences - Proceedings also remitted in order for findings to be made in respect of liability of the guarantors - Parties elect to amend pleadings to embrace events taking place following first instance judgment - Whether plaintiff entitled to litigate an issue which could have been but was not litigated at first instance

Civil Procedure Act LEGISLATION CITED : Crown Lands Act 1989 (NSW) Luna Park Site Act, 1990 (NSW)