Penrith Whitewater Stadium Ltd & Anor v Lesvos Pty Ltd & Anor [2007] NSWCA 176

Reported Decision: (2007) NSW Conv R 56-189(2007) Aust Contract Reports 90-265 Appeal Outcome: Special leave refused with costs by the High Court - 14 December 2007

New South Wales Court of Appeal

CITATION: Penrith Whitewater Stadium Ltd & Anor v Lesvos Pty Ltd & Anor [2007] NSWCA 176 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 05/07/07

JUDGMENT DATE: 19 July 2007

JUDGMENT OF: Ipp JA at 1; McColl JA at 80; Campbell JA at 81

DECISION: (1) The appeal is upheld. (2) The orders made by Grove J are set aside. (3) Judgment for the appellants and the respondents' claims should be dismissed. (4) The appellants should have seven days after the publication of these reasons to raise, by affidavit and written argument, their contentions concerning the making of a Calderbank offer, and the respondents should have seven days thereafter in which to reply.

CATCHWORDS: CONTRACTS – construction – whether the contract was an agreement for lease – whether the appellants were required to have an interest in, or a contractual right to acquire an interest in, the land for the contract to be one "for…the disposition of land or any interest in land", as that phrase is understood in s 54A(1) of the Conveyancing Act 1919 (NSW) – part performance – whether O'Rourke v Hoeven [1974] 1 NSWLR 622 and Powercell Pty Ltd v Cuzeno Pty Ltd (2004) 11 BPR 21,429 were wrongly decided – whether the 'fusion' doctrine allows for the remedy of common law damages to be granted based on part performance of a contract otherwise struck down by s 54A(1) of the Conveyancing Act – unconscionability – whether it was unconscionable for the appellants to rely upon s 54A(1) by reason of their repudiation of the contract. - TRADE PRACTICES – misleading or deceptive conduct – whether, by reason of their agreement to the terms (found by the trial judge as being the 'elements') of the contract, the appellants had made representations to the respondents that they intended to comply with the contract and that the contract was, in fact, valid – whether, if such representations were made, the appellants had that intention at the time the contract was made. - COSTS – prolixity of grounds of appeal – 58 grounds of appeal – no decision made on vast majority – Re Minister for Immigration and Ethnic Affairs - Ex parte Lai Qin (1997) 186 CLR 622 applied – no order made on costs of appeal in regard to those grounds that were unnecessary to decide. D