Lend Lease (Millers Point) Pty Limited v Barangaroo Delivery Authority [2013] NSWSC 1848

Supreme Court New South Wales

Medium Neutral Citation: Lend Lease (Millers Point) Pty Limited v Barangaroo Delivery Authority [2013] NSWSC 1848 Hearing dates: 27, 28 March and 24 May 2013 Decision date: 12 December 2013 Jurisdiction: Equity Division Before: Lindsay J Decision: Subject to allowing the parties an opportunity to make submissions as to the form of the orders to be made in disposition of the proceedings, the Court proposes to declare that, upon the proper construction of the Project Development Agreement for the Barangaroo Project, an Approved Valuer making a determination of the Current Market Value for the grant of a Lease of the Premises on which the proposed buildings C4 and C5 are to be constructed (for the purpose of clause 1.2 of Schedule 3 to the PDA) is not entitled to input as cash inflows, in performing a discounted cash flow valuation for the purpose of paragraph (g) of the definition of Current Market Value in clause 1.1 of PDA Schedule 3, those cash contributions paid before Practical Completion to the Developer (by the Nominee nominated by the Developer to accept a Call Offer) respectively referred to in clause 18 of the C4 Agreement and clause 19 of the C5 Agreement. Catchwords: CONTRACT - Construction - Dispute resolution clauses - Expert Valuation - Dispute about terms of instructions to Valuers - Declarations sought as to proper construction of contract - Declaratory relief available REMEDIES - Declarations - Declarations without consequential relief - Construction of contract - Commercial contract - Dispute resolution clauses - Declarations granted in aid of contractual dispute resolution procedure Legislation Cited: Barangaroo Delivery Authority Act 2009 NSW Court Suppression and Non-Publication Orders Act 2010 NSW Government Information (Public Access) Act 2009 NSW Supreme Court Act 1970 NSW Valuers Act 2003 NSW Cases Cited: AG Robertson Limited v Valuer-General (1952) 8 LGR (NSW) 261 at 262 Albany v Commonwealth (1976) 60 LGRA 287 at 293-294 Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 at 109 Australian Provincial Assurance Association Limited v Commissioner of Land Tax [1942] ALR 156 at 158 Blair v Curran (1939) 62 CLR 464 at 531-533, that render them binding on the parties Boland v Yates Property Corp Pty Limited (1999) 74 ALJR 209 at 268 Codelfa Constructions Pty Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 at 350, 352 Equuscorp Pty Limited v Glengallan Investments Pty Limited (2004) 218 CLR 471 at 483 [34] Fitzgerald v Masters (1956) 95 CLR 420 at 426-427; 436-438 Hogan v Hinch (2011) 243 CLR 506 at 531 [21]) John Fairfax & Sons Limited v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477 Legal & General Life of Australia Limited v A Hudson Pty Limited (1985) 1 NSWLR 314 at 335D-336B Pacific Carriers Limited v BNP Paribas (2004) 218 CLR 451 at 461-462 [22] Royal Botanic Gardens and Domain Trust v South Sydney City Council (2009) 240 CLR 45 at 62-63 [39] Spencer v The Commonwealth (1907) 5 CLR 418 at 432, 436-437 and 440-441 Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 at 179 [40] Western Export Services Inc v Gireh International Pty Limited [2011] HCA 45; 86 ALJR 1 at [3]-[5] Texts Cited: K Lewison and D Hughes, The Interpretation of Contracts in Australia Law Book Co, Sydney, 2012) paragraph (7.02) JW Carter, The Construction of Commercial Contracts AA Hyam, The Law Affecting Valuation of Land in Australia (Federation Press, 3rd ed, 2004, Sydney), pp 124-126; 143-149 Category: Principal judgment Parties: First Plaintiff: Lend Lease (Millers Point) Pty Limited (ABN 15 127 727 502) Second Plaintiff: Lend Lease Corporation Limited (ABN 32 000 226 228) Defendant: Barangaroo Delivery Authority (ABN 94 567 807 277) Representation: IM Jackman SC with SA Lawrance (Plaintiffs) B Walker SC with G Rich and S Nixon (Defendant) Herbert Smith Freehills (Plaintiffs) Clayton Utz (Defendant) File Number(s): 2012/000379741