Norcross Pictorial Calendars Pty Ltd v Central Coast Council [2018] NSWSC 1475

Supreme Court New South Wales

Medium Neutral Citation: Norcross Pictorial Calendars Pty Ltd v Central Coast Council [2018] NSWSC 1475 Hearing dates: 27 August 2018 Date of orders: 02 October 2018 Decision date: 02 October 2018 Jurisdiction: Common Law Before: Lonergan J Decision: Pursuant to Uniform Civil Procedure Rules r 14.28(1)(a) the plaintiffs' Statement of Claim is struck out. Catchwords: CIVIL PROCEDURE – application for claim to be summarily dismissed or struck out Legislation Cited: Uniform Civil Procedure Rules 2005 rr 13.4, 14.28 Cases Cited: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Johnson v Gore Wood & Co (a firm) [2001] 1 All ER 481; [2000] UKHL 65; [2002] 2 AC 1; [2001] 2 WLR 72 Category: Procedural and other rulings Parties: Norcross Pictorial Calendars Pty Limited (Plaintiff) Central Coast Council (Defendant) Representation: Counsel: D H Murr SC (Plaintiff) R D Marshall SC; E A Walker (Defendant)

Solicitors: Holman Webb (Plaintiff) Central Coast Council (Defendant) File Number(s): 2017/348639

Judgment 1. The defendant, Central Coast Council, seeks summary dismissal of the proceedings and in the alternative that the Statement of Claim be struck out.

Background 1. The proceedings arise from a joint venture agreement in 2002 between the first plaintiff, Norcross Pictorial Calendars Pty Ltd ("Norcross") and Gosford City Council (now amalgamated with Wyong Shire Council to comprise Central Coast Council) ("the Council"). 2. The Joint Venture Agreement ("JVA") included express terms that Norcross would construct a car park for the benefit of the Council. The Council would remain registered proprietor of the land until the option was exercised or lapsed. The JVA also warranted that Council had complied with all environmental laws and that the land had not been used for activity involving pollutants, contaminants or waste. 3. There was a specific term in the JVA that the Council would indemnify Norcross against any loss, claim, liability, cost or expense suffered by them in respect of any contamination or pollution of the land, or carrying out any remediation work required to remove contamination from the land. 4. There was provision in the JVA for a "successor" (not defined) to take over rights and obligations under the JVA: 19.9 Successors and Assigns The obligations imposed and the rights conferred on the parties under this Agreement are binding upon any successor to the party and such successor must upon such succession assume all rights and by the provisions of this Agreement, mutatis mutandis, as if such successor were named in this Agreement as a party, but this clause does not permit the obligations and rights to be transferred or otherwise dealt with or disposed of by any of the parties (whether upon a sale or for security or upon enforcement of a security or otherwise) otherwise than in accordance with the terms and conditions of this Agreement. 1. The Council granted a call option to Norcross to purchase (or for a nominee of Norcross to purchase) a specified part of the land for the price of $1. 2. Between 2002 and 2004 the car park was built. 3. On or about 18 March 2005, Norcross appointed PTL Land Pty Ltd ("PTL Land Co"), a wholly owned subsidiary of Norcross, as its nominee for the purpose of the option. PTL Land Co exercised the option to purchase the land, and a contract for sale of the land in exchange for $1 was completed, also on 18 March 2005. 4. In about February 2015, PTL Land Co commenced a development on the land, including an underground car park, led to the discovery of contamination on the land comprising asbestos, acid sulphate soil and general solid waste.