SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2016] NSWSC 362

Supreme Court New South Wales

Medium Neutral Citation: SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2016] NSWSC 362 Hearing dates: 29 and 30 March 2016 Decision date: 04 April 2016 Jurisdiction: Equity - Expedition List Before: Stevenson J Decision: Contract to be rectified Catchwords: CONTRACT – rectification – auction – where contract specified purchase price to be inclusive of GST -whether common intention that purchase price be exclusive of GST Cases Cited: Ashton v Monteleone [2010] NSWSC 258 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 Pukallus v Cameron (1982) 180 CLR 447 Category: Principal judgment Parties: SAMM Property Holdings Pty Ltd (Plaintiff) Shaye Properties Pty Ltd (Defendant) Representation: Counsel: G George with J Bennett (Plaintiff) M P Cleary (Defendant)

Solicitors: Reimer Winter Williamson (Plaintiff) Newhouse & Arnold Solicitors (Defendant) File Number(s): SC 2015/322545

Judgment 1. The defendant, who I will call the "Vendor", listed its industrial property at Wetherill Park for public auction on 19 August 2015. 2. The plaintiff, who I will call the "Purchaser", sent its agent, Mr Jody (referred to in the evidence as "Joe") Parker, to the auction to bid on its behalf. 3. Ultimately, Mr Parker bid $3.325 million to purchase the property. The auctioneer, Mr Jesse Davidson (who I will call the "Auctioneer") accepted that bid. 4. Contracts were executed and exchanged in the form of a draft that had been circulated prior to the auction. 5. The box on the front page of the contract marked "GST: Taxable supply…yes in full" was crossed "X". 6. Clause 13.2 of the contract read: "Normally, if a party must pay the price…to the other party under this contract, GST is not to be added to the price...". 1. Clause 1 of the contract defined "normally" as "subject to any other provision of this contract". 2. There was no "other provision" in the contract modifying the effect of cl 13.2. 3. Thus, the effect of the contract, as executed, was to provide for a purchase price of $3.325 million inclusive of GST. 4. The Vendor alleges that, despite the form of the contract as executed, the "clear and common intention" of the parties was that the contract price be $3.325 million plus GST and seeks rectification of the contract accordingly. 5. This case raises issues similar to those considered by Gzell J in Ashton v Monteleone [2010] NSWSC 258.