Birchill & Ors v Premier Holdings Pty Ltd & Anor [2011] NSWSC 1020

Supreme Court New South Wales

Medium Neutral Citation: Birchill & Ors v Premier Holdings Pty Ltd & Anor [2011] NSWSC 1020 Hearing dates: 18 August 2011 Decision date: 22 August 2011 Jurisdiction: Equity Division Before: Brereton J Decision: Provisions in agreement obliging residents to give manager exclusive right to sell lots in retirement village at particular price unenforceable. Provisions in agreement obliging residents to first give manager an exclusive sole agency to sell lots unenforceable Where resident sets price of sale, appoints selling agent or otherwise conducts sale independently of manager such sales not "pursuant to deed" entitling manager to management profit. First defendant to pay the plaintiffs' costs up to and including 12 March 2011. Second defendant to pay the plaintiffs' costs on and from 13 March 2011 Catchwords: STATUTORY INTERPRETATION - (NSW) Retirement Villages Act 1999 - residents of retirement village enter into deeds empowering manager to sell strata lots - deeds do not allow residents to sell lot at price determined by them - s 168 and s 169 of Retirement Villages Act confer on residents right to control process of sale - s 168 and s 169 render such clauses unenforceable - deed requires resident to give manager an exclusive sole agency to carry out sale - Retirement Villages Act s 168(4) renders such clauses void - alternatively s 168(1)(a) and s 199 render such clauses void. STATUTORY INTERPRETATION - Deeds of charge registered as (NSW) Conveyancing Act s 88B instruments to secure management profit and other service fees - whether any invalidity cured by registration - registration does not validate terms and conditions of instrument - provisions of deeds not 'estates or interests' - Conveyancing Act s 88(3) provides that registration of restrictions does not give restrictions greater effect than they otherwise have - Retirement Villages Act later in time than Conveyancing Act - Retirement Villages Act s 199 prevails over provisions of Conveyancing Act. CONTRACTUAL INTERPRETATION - Provision of deed confers on manager entitlement to management profit if sales undertaken "pursuant to this deed" - construction of "pursuant to" - means "consequent to", "conformable with" or "in accordance with" - phrase connotes interconnection between an act and source of power for the act - phrase deals with sales that occur by reference to the deed - sales not occurring by reference to deed do not entitle manager to management profit. Legislation Cited: (NSW) Civil Procedure Act 2005, s 98 (NSW) Conveyancing Act, 1919, s 88, s 88B (NSW) Retirement Villages Act 1999, s 4, s 5, s 7, s 149, s 166, s 168, s 169, s 174, s 199 (NSW) Uniform Civil Procedure Rules 2005, r 20.26, r 42.13, r 42.15 Cases Cited: Brisbane City Council v Mainsel Investments Pty Ltd (1989) 2 Qd R 204 Goodwin v Phillips (1908) 7 CLR 1 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1992) 40 FCR 409 Nelson v Nelson (1995) 184 CLR 538 PT Ltd and Another v Maradona Pty Ltd and Others (1992) 25 NSWLR 643 The Uniting Church v Takacs (No 2) [2008] NSWCA 172 Waters v PC Henderson (Aust) Pty Ltd (Court of Appeal, Kirby P, Mahoney and Priestly JJA, 6 July 1994, unreported) Category: Principal judgment Parties: Kevin Charles Birchill & 69 Ors (plaintiff) Premier Holdings Pty Ltd (first defendant) Gregg Ritchie & Associates Pty Ltd (second defendant) Representation: Counsel: Mr DH Murr SC with Ms P Lane (plaintiffs) Mr M W Sneddon (second defendant) Solicitors: Robertson Saxton Primrose Dunn (plaintiffs) A.I. Legal (second defendant) File Number(s): 2010/245883