CBD Prestige Property Holdings No 3 Pty Ltd v Metropolitan Local Aboriginal Land Council [2013] NSWSC 1005

Supreme Court New South Wales

Medium Neutral Citation: CBD Prestige Property Holdings No 3 Pty Ltd v Metropolitan Local Aboriginal Land Council [2013] NSWSC 1005 Hearing dates: 18 and 19 July 2013 Decision date: 30 July 2013 Before: Ball J Decision: 1. Proceeding dismissed. 2. The plaintiff to pay the defendant's costs. Catchwords: CONTRACT - failure of joint venture agreement - assignment - estoppel - restitution Legislation Cited: Aboriginal Land Rights Act 1983 (NSW) Corporations Act 2001 (Cth) Trade Practices Act 1974 (Cth) (now the Competition & Consumer Act 2010 (Cth)) Fair Trading Act 1987 (NSW) Cases Cited: Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2007) 232 CLR 635 Park v Allied Mortgage Corporation Limited (1993) ATPR (Digest) Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; (1992) 149 CLR 537 Category: Principal judgment Parties: CBD Prestige Property Holdings No 3 Pty Ltd (Plaintiff) Metropolitan Local Aboriginal Land Council (Defendant) Representation: S Galitsky (Plaintiff) S Docker (Defendant) Websters Solicitors (Plaintiff) Surry Partners Lawyers (Defendant) File Number(s): 2012/354375 Publication restriction: Nil

Judgment

Introduction 1In 2003, the defendant, Metropolitan Local Aboriginal Land Council (MLALC), owned land situated in Stokes Avenue, Asquith (the Asquith Land) and Bantry Road, Frenchs Forest (the Frenchs Forest Land). 2On 4 August 2003, MLALC entered into a joint venture agreement (the JVA) with CBD Prestige Property Holdings Pty Ltd (CBD1) for the development of the Asquith Land. In accordance with the terms of the JVA, the agreement was subsequently extended to cover the Frenchs Forest Land. 3CBD1 incurred considerable expenses (the precise amount is in dispute) in obtaining a development approval (DA) in respect of the Frenchs Forest Land which involved subdivision of the land into 15 residential lots. Subsequently, it is said that CBD1 assigned to the plaintiff, CBD Prestige Property Holdings No 3 Pty Ltd (CBD3), its rights in connection with the JVA. CBD3 was at the time a wholly owned subsidiary of CBD1. 4On 20 November 2012 MLALC served a notice purporting to terminate the JVA and on 10 January 2013 it entered into a put and call option in respect of the Frenchs Forest Land with Vigor Master Pty Limited. CBD3 contends that in serving the notice and entering into the put and call option MLALC breached the JVA. It claims the money CBD1 incurred in obtaining the DA as damages in respect of those breaches and seeks other ancillary relief. In the alternative, it makes claims on the basis of an estoppel or restitution. In its further amended statement of claim (FASC), it also claims that MLALC engaged in misleading and deceptive conduct (presumably in contravention of what was then s 52 of the Trade Practices Act 1974 (Cth) (now the Competition & Consumer Act 2010 (Cth)) or s 42 of the Fair Trading Act 1987 (NSW)). However, no submissions were made in support of that claim and it seems that it was abandoned.