Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234

New South Wales Court of Appeal

CITATION: Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234

HEARING DATE(S): 11 June 2009

JUDGMENT DATE: 5 August 2009

JUDGMENT OF: Allsop P at 1; Basten JA at 4; Campbell JA at 5

(1) Appeal allowed. (2) Set aside the orders made on 9 April 2008 in the Court below. DECISION: (3) Third Respondent to pay the costs of the Appellant of the appeal, but to have a certificate under the Suitors' Fund Act 1951 if qualified. (4) Remit the matter to the Commercial List of the Equity Division for retrial. (5) Reserve the costs of the first trial, to abide the order of the judge who hears the new trial.

CATCHWORDS: APPEAL – new trial – whether the trial judge failed to resolve evidence concerning the pleaded agreement - CONTRACTS – partly written and partly oral – principles for determining whether a contract is wholly written, partly written and partly oral, or wholly oral – role of surrounding circumstances – admissibility of evidence of subsequent conduct – scope of operation of the parol evidence rule to partly written and partly oral contracts - CONTRACTS – general contractual principles – construction and interpretation of contracts – whether surrounding circumstances can be looked to without needing to find ambiguity – present state of High Court authority on whether ambiguity is a precondition to using surrounding circumstances - INTERPRETATION – construction of undertakings and court orders – admissibility of evidence of surrounding circumstances - EVIDENCE – whether evidence not cross-examined upon must be accepted by the judge or jury – circumstances when a judge can reject evidence not cross-examined - EQUITY – equitable remedies – specific performance – part performance – part performance to be pleaded in reply