Bensons Property Group Pty Ltd v Key Infrastructure Australia Pty Ltd [2021] VSCA 69

2 In early 2015, KIA identified 103 Beach Street, Port Melbourne as a potential development site. At that time, the site was owned by Bluewater Sands Pty Ltd ('BSPL'). Mandile Nominees Pty Ltd ('MNPL') owned and operated an IGA supermarket on the site. In March 2015, KIA entered into contracts with BSPL and MNPL (together, the 'Mandile parties') to acquire the site and the IGA business ('Mandile contracts'). In June 2015, KIA applied to the City of Port Phillip ('council') for a planning permit for a proposed three-level development ('planning permit' or 'permit').

3 In order to reduce the risk associated with the development, KIA wanted to introduce a third party to the project. It approached the applicant, Bensons Property Group Pty Ltd ('Bensons'), a substantial property developer with experience in large scale developments. In very broad outline, it was agreed that Bensons would acquire the site and business directly from the Mandile parties, KIA would procure the issue of a planning permit and the consent of a covenantor, Mirvac, and KIA would be paid a management fee of $2 million. Payment of the fee was dependent on the issue of the permit and obtaining the consent of Mirvac, the beneficiary of a restrictive covenant, by 31 December 2016 ('sunset date').

4 In April 2016, KIA and Bensons executed a development management agreement ('DMA') which set out their respective obligations. Bensons was obliged to pay KIA a fee of $2 million (plus GST) in four instalments ('development management fee') if KIA procured the issue of a planning permit by the sunset date. However, if KIA failed to meet the deadline, any instalment that had been paid would have to be repaid and the agreement would terminate.

5 By May 2016, it became apparent that the council might further delay or refuse to issue the permit. The Planning and Environment Act 1987 provided that in either circumstance an application could be made to the Victorian Civil and Administrative Appeals Tribunal ('VCAT') which would then stand in the shoes of the council. The DMA provided that Bensons could elect to appeal a decision, which would include a refusal to make a decision, to VCAT but was under no obligation to do so.

6 On 10 May 2016, Bensons wrote to KIA, saying that it would not fund a proceeding in VCAT. On 18 May 2016, two critical events occurred. Bensons wrote to KIA saying that any application to VCAT made by KIA would be a breach of the DMA ('18 May 2016 letter'). However, on the same day, KIA had already commenced an application to VCAT ('first VCAT application'). After receiving the 18 May 2016 letter, KIA withdrew the first VCAT application. KIA reinstated the application on 5 July 2016. On 22 December 2016, VCAT made orders directing the council to issue the planning permit. On 6 February 2017 - that is, after the sunset date - the council issued the permit.

7 KIA sought payment of the balance of the development management fee, but Bensons refused to pay it on the basis that a permit had not issued by the sunset date. In issue was whether the decision of VCAT to grant the permit and order the council to issue it amounted to the issue of the permit for the purposes of the DMA.

8 KIA commenced proceedings in the Trial Division seeking to recover the balance of the development management fee. Bensons counterclaimed for recovery of the first and second instalments. KIA failed on the question whether the permit had issued within time. The primary judge held that the decision of VCAT directing the grant of a permit was not the same as the issue of a permit.

9 However, KIA succeeded on the basis that the 18 May 2016 letter induced it to withdraw its application in VCAT and, as a result, KIA was prevented from securing the issue of the permit by the sunset date. In those circumstances, the primary judge held, either Bensons was prevented from relying on the time limit or was liable in damages for the breach of an implied term to cooperate, sometimes referred to as a duty, because the 18 May 2016 letter prevented KIA from satisfying the condition as to time. As a result, KIA suffered loss and damage comprising the balance of the development management fee and various costs associated with the delay. However, since the site and business had been sold and KIA had been paid some $2.3 million from that sale, the judge found that KIA had fully mitigated its loss and awarded nominal damages.

10 In this application for leave to appeal, Bensons seeks to overturn the findings that it prevented KIA from securing the issue of the permit by the sunset date and breached the implied term to cooperate in the DMA, and seeks to recover the instalments it paid to KIA.

11 Bensons contends that the judge erred in four respects which are reflected in the four proposed grounds of appeal. First, the judge applied the so-called 'prevention principle' independently of any breach of contract. Second, the 18 May 2016 letter did not prevent KIA from satisfying the permit condition. Third, conduct will only prevent another party from satisfying a contractual condition in breach of an implied term to cooperate where the conduct renders satisfaction of the term impossible. Here, satisfaction of the condition was not impossible. Fourth, if there was a breach of an implied term to cooperate, it did not cause any loss or damage because KIA did not establish that it would have satisfied the condition had the breach not occurred.

12 By a notice of contention, KIA contends that the judge wrongly confined the relevant conduct to the 18 May 2016 letter and should have included other conduct engaged in by Bensons.

13 For the reasons that follow, the application for leave must be granted and the appeal allowed. The notice of contention should be dismissed.

14 After identifying the potential for the site, KIA entered into contracts for the acquisition of the site and business. In June 2015, KIA applied to the council for a planning permit for a three-level plus basement development of the site ('planning application'). The council declined to accept the planning application on the mistaken basis that a covenant in favour of Mirvac prevented the grant of the permit. However, KIA overcame that hurdle by providing advice to the council from a planning barrister, Jane Sharp ('Sharp') ('Sharp memorandum').

15 On 1 February 2016, a meeting took place at the site between KIA and Bensons with a view to encouraging Bensons to join the project. Bensons was represented by its chairman, Elias Jreissati ('Jreissati'), its CEO, Rick Curtis ('Curtis') and its development manager with respect to the transactions, George Semenov ('Semenov'). KIA was represented by two of its three directors - Bruno Gatsby ('Gatsby') and Barry Gale ('Gale').[1] At the end of the meeting, Bensons signed a confidentiality agreement and took away certain documents. KIA later provided further information by Dropbox. In February and early March 2016, KIA and Bensons exchanged and discussed offers.

16 On 15 March 2016, Curtis and Semenov met with Gatsby and Gale. They discussed whether Bensons would agree to pay for KIA's stamp duty on the Mandile contracts and for proceeding in VCAT to obtain the planning permit.

17 In this respect it is important to record that, although it was a matter of contest at trial, the judge accepted that by February 2016 there was mutual understanding between KIA and Bensons 'that it was likely that KIA may need to go to VCAT to get the planning permit, that Bensons generally agreed with and approved of that plan, and that Bensons was generally prepared to spend significant moneys going to VCAT to obtain a planning permit'.[2]

18 In March 2016, a terms sheet and heads of agreement were negotiated.

19 On 5 April 2016, Bensons and KIA executed the DMA. Bensons also executed a contract with BSPL to purchase the site and a contract with MNPL to purchase the IGA business ('sale contracts'). By 6 April 2016, Bensons had paid two instalments of the development management fee, totalling $400,000 plus GST.

20 It is convenient at this point to set out the main terms of the DMA.

21 By the DMA Bensons appointed KIA 'to perform the Development Management Services'.[3] The 'development management services' were defined in schedule 1 to the DMA and included the following:

(a) Procure the issue of a Planning Permit in accordance with and pursuant to the Planning Application.

22 The services also included procuring the written consent of Mirvac, as required under a covenant, to the issue of the planning permit and the carrying out of the project; the finalisation of easements in relation to the project; and, following the issue of a planning permit, providing all reasonably necessary assistance to make any required or desired amendments to the drawings or project documentation.

23 By cl 2.2(a), KIA was, amongst other things, required to perform the services at its own cost, expeditiously and with all due care, skill, judgement and attention. KIA was also required to 'keep Bensons fully and regularly informed as to the status and progress of performance of the Development Management Services'.[4]

24 In consideration of the performance of the development management services, and subject to settlement of the proposed sale contracts and satisfaction of the 'development management conditions', Bensons was required to pay KIA a development management fee of $2,000,000 (plus GST) payable in four instalments.[5] The first two instalments, totalling $400,000, were payable on signing of the DMA.[6] The third and fourth instalments were payable as follows:

2.3 Development Management Fee

...

(b) The parties acknowledge and agree that, subject to clauses 2.3(c) and 2.3(d), the Development Management Fee is to be paid in the following instalments and in the following manner:

...

(iii) if settlement under the Sale Contracts occurs prior to the issue of a Planning Permit, a third instalment of $1,400,000.00 (plus GST) is to be paid concurrently upon settlement occurring (Third Instalment). To avoid doubt, Bensons is under no obligation to effect settlement under the Sale Contracts prior to the issue of a Planning Permit; and

...

25 The payment of the instalments was conditional on KIA meeting certain conditions within a stipulated time period. So much was provided by cl 2.3(d). Clause 2.3(e) referred to an appeal from a decision of the council. Those clauses read as follows:

(d) If the Development Management Conditions are not satisfied by the Sunset Date, [KIA] must repay to Bensons the First Instalment, the Second Instalment and if applicable the Third Instalment in full within 14 Business Days. Time is of the essence.

(e) If Bensons elects (without being obliged so to do) to appeal any decision of the Responsible Authority in connection with the Planning Application or the issue of the Planning Permit, all costs in doing so are to be borne by Bensons.

26 As provided for in cl 2.4(a), the 'development management conditions', which were required to be satisfied by the sunset date, included 'the issue of a Planning Permit'. As noted, the sunset date was 31 December 2016.

27 Clause 4.1 provided that the DMA and the appointment of KIA ends on the earlier of the sunset date and the completion of all development management services, including satisfaction of all development management conditions. The agreement also provided for termination in other circumstances by Bensons or by KIA.[7]

28 It follows from the structure of cl 2.3 that Bensons was only liable to pay the development management fee to KIA if the planning permit was issued prior to the sunset date. It also follows that, although the liability to pay the development management fee was subject to satisfaction of that condition, the requirement to release the first instalment and pay the second instalment arose on the signing of the DMA.[8] In the event that the development management conditions were not satisfied by the sunset date, no development management fee was payable and cl 2.3(d) contained an obligation for KIA to refund any instalments that it had already received.

29 It is also apparent that, despite the earlier discussions on the question and what the judge described as the mutual understanding of the parties,[9] the DMA did not require Bensons to participate in or fund proceedings in VCAT. The judge observed that it must have been fairly clear to all concerned that after the council had sat on the application for nearly 12 months it would be necessary to go to VCAT and that was the very reason cl 2.3(e) was added to the DMA.[10]

30 Throughout April 2016, there were communications between KIA, its planner Stephen Axford ('Axford') of AXOS Urban Pty Ltd ('Axos') and the council, as well as between KIA and Bensons, as KIA worked towards obtaining the planning permit. On 6 April 2016, a council planner (who had not earlier been involved in the application) emailed Gatsby a list of concerns that the Office of the Victorian Government Architect ('OVGA') had with KIA's design and proposed a meeting with the council's design expert or an OVGA panel review. Axford prepared a report ('Axos report') responding to the council's email, which was then sent to the council. The Axos report prompted the council to provide a long list of queries about the planning application.

31 On 15 April 2016, Semenov met with Gatsby and Gale. They discussed the Axos report. Just before the meeting, Gatsby notified Semenov by email that he wished to discuss the council's delays in granting the planning permit.

32 On 5 May 2016, Curtis met with Gatsby, Gale and Axford. Axford tabled and spoke to Axos' letter to Brooks dated 2 May 2016, which summarised the current situation and set out the options going forward, the Sharp memorandum was tabled and Gatsby said that KIA wanted to initiate a VCAT proceeding. There was a discussion about going to VCAT, including about potential solicitors and counsel.

33 Separately, on 9 May 2016, Jreissati, Semenov and Curtis met with Rhodie Anderson ('Anderson'), a planning partner of Rigby Cooke and discussed the Mirvac covenant and the Sharp memorandum.

34 On 10 May 2016, Curtis sent an email to Gatsby. It commenced by recording that on 5 May 2016, Gatsby had advised that KIA wished to commence VCAT proceedings to obtain a planning permit because the council had failed to make a decision, and had requested that Bensons fund the VCAT proceedings. The email went on to describe Bensons' position in the following terms:

1. Commencing VCAT or other Court proceedings under clause 2.3(d) of the Development Management Agreement is at the discretion of Bensons. This does not stop KIA from initiating proceedings at its own cost.
2. We have real concerns about whether VCAT proceedings based on the current Planning Permit Application No. 673/2015 would be successful. Bensons does therefore not consent to fund any VCAT or other proceedings at this stage.
3. A key threshold issue is the impact of the Mirvac Covenant. Even if Mirvac where [sic] to properly consent in writing to the development prior to the VCAT proceedings be [sic] commenced, this may not be sufficient for planning purposes. Our preliminary legal advice is that it is likely that the Covenant needs to be formally varied in a number of areas. This can only be done through a Planning Permit application in its own right. Without such a Planning Permit, VCAT is unlikely to have the power to grant a permit for current Permit Application No. 673/2015.
4. We briefed yesterday new planning solicitors. This firm is not Norton Rose as it could not act if there is any dispute with Mirvac. We are also meeting with another firm of urban planners on Thursday. Our desired outcome is to get clear advice as to if and how VCAT proceedings could be successfully run. The issues are reasonably complex and therefore Bensons is unlikely to have a clear position or strategy for at least 2 weeks. We may then still need to obtain Senior Counsel advice.

35 That same day, 10 May 2016, Gatsby emailed Curtis, advising him that KIA was in a position to brief counsel directly and that its files were ready for discovery. Gatsby said to Curtis: 'We had hoped you would work with us and just fund SILK.' Gatsby also took issue with the suggestion in Curtis' email that Mirvac's consent was required before a planning permit could be issued. Gatsby said that KIA had counsel's advice that Mirvac's consent was not a bar to obtaining the planning permit because the permit could issue with a condition that Mirvac's consent under the covenant be obtained.[11]

36 Meanwhile, on 12 May 2016, Curtis and Semenov met with a town planner, Jamie Govenlock, to investigate whether a more intensive development of the site (ie, a taller building) would be possible. There was no evidence that KIA was told of this at the time.

37 On 17 May 2016, Gatsby sent Sharp a draft VCAT application and asked her to review it. Later that day, Sharp returned the draft application, observing that KIA would need to attach relevant documents. Sharp also said that she would like a planner and possibly a traffic engineer to confirm the permit triggers and a planner to look at the statements of grounds.

38 Prior to 18 May 2016 (when Curtis went to China) there was a handover of responsibility for the site from Curtis to Jreissati.

39 On Jreissati's instructions, Will Grinter ('Grinter'), a partner of K&L Gates ('KLG') drafted the 18 May 2016 letter to KIA's solicitors ('MBA').

40 The 18 May 2016 letter referred to the meeting of 5 May 2016, noting that at that meeting Gatsby had sought Bensons' approval to commence a VCAT proceeding and requested that Bensons pay the cost of it. In response, the letter said:

In response to Mr Gatsby's requests, we are instructed to confirm as follows:

1. Bensons does not agree to or approve any proceeding being commenced in the Tribunal in relation to the Property.
2. Bensons does not agree to pay the costs of any proceeding.
3. For the reasons outlined below, any proceeding commenced by KIA in relation to the Property (without the express prior written consent of Bensons which, as noted above, is refused) would constitute a breach by KIA of its obligations under the Agreement. To avoid doubt, any such breach will result in the immediate issue of a written notice under clause 4.2(a) of the Agreement.

41 In the letter, Grinter said that the DMA required KIA to procure the issue of the planning permit from the council. He said:

Accordingly, it is the express obligation of KIA under the Agreement to procure the Planning Permit in accordance with and pursuant to the Planning Application, being the existing application to the Council as defined. KIA cannot satisfy its obligation to procure the Planning Permit by means other than pursuant to the existing Planning Application to the Council, including by way of application to the Tribunal, and would be in breach of its obligations should it seek to do so.

42 Coincidently, on 18 May 2016, KIA lodged the first VCAT application, seeking review of the council's deemed refusal to grant the planning permit. At that time, not yet having received the 18 May 2016 letter, KIA had decided to seek the costs of the VCAT application from Bensons.

43 The 18 May 2016 letter was sent to MBA, KIA's solicitors, at 3:56pm that day. At the time the 18 May 2016 letter was prepared, Bensons was not aware that KIA had lodged the first VCAT application.[12]

44 Grinter gave evidence that he received instructions from Bensons to prepare the 18 May 2016 letter. He said that the contents of the letter reflected his legal opinion that under the DMA, the requirement to procure the issue of the planning permit was from the council as the responsible authority, and that the definition of 'planning application' in the DMA required the issue of the planning permit in that manner. From Grinter's perspective, the purpose of the 18 May 2016 letter was to convey that Bensons had serious concerns about the prospect of a VCAT application. In cross-examination, Grinter repeated his understanding that cl 2.3(e), which was the only clause dealing with an application to VCAT, carried a negative implication that no application to VCAT could be made other than in accordance with Bensons' election. It was not put to Grinter in cross-examination that the 18 May 2016 letter was designed to prevent KIA from securing a permit by the sunset date.

45 Gatsby gave evidence that KIA received the 18 May 2016 letter late in the evening on that day. He said that he became aware of the 18 May 2016 letter because it was forwarded to him by email. He said that occurred late on the day of 18 May or possibly on the morning of 19 May - he was not sure.

46 The only email in evidence forwarding the email which attached the 18 May 2016 letter is the email from Marta Kowalczyk, who worked at MBA, to Gatsby on 19 May 2016 at 9:12am.

47 On 19 May 2016 at 8:11am, KIA emailed VCAT, saying:

Please be advised that late yesterday afternoon we sent above email to determine whether or not it was sent in the correct prescribed manner.

We confirm that yesterday's email wasn't a formal lodgement, and we do not wish to have a lodgement or file number provided by VCAT at this stage as we are awaiting legal advice.

We propose to only defer the lodgement for a few days, and we will formally lodge the required documents and attachments accordingly in due course.

48 Curiously, the email to VCAT appears to precede KIA receiving the 18 May 2016 letter. Be that as it may, the judge found that the decision to withdraw the VCAT application was made in response to the 18 May 2016 letter.[13] That finding is not challenged.

49 On 19 May 2016 at 9:08am, Gatsby emailed Sharp suggesting a conference for the following day, provided that she had reviewed the correspondence, the planning permit documents/drawings that had been prepared for VCAT and a separate brief in relation to the OVGA. That email stated: 'We need to understand the likely VCAT success before lodging.'

50 At 10:23am that same day, Gatsby emailed Semenov. That email commences by thanking Semenov for trying to arrange a meeting with Jreissati. It then goes on to say that there were 'considerable errors of fact in the [KLG] letter' and that the errors were 'very serious indeed, and if not in error, clearly on the evidence, breach fair trading/trade practices'. The email continued:

The contract does not state we need Bensons approval to lodge with VCAT, part of the consideration given in reducing Bensons original offer by $l m was the likely VCAT intervention, the keenness of Bensons to employ VCAT, and the inclusion in the contract, of Bensons funding VCAT, wherein at the 11th hour by a masterful stroke by [KLG], the words were added as 'without being obliged to', the [KLG] commentary in relation to Mirvac is wrong (they differ in opinion to the barristers memorandum and Council solicitors/barristers) and has after discussions with Rick, been again addressed by counsel, we take serious objection to clause 5 and the whole tone of the letter and everything purported to be requested you already have been given and it's up to you whether you do or not.

51 Early in the afternoon of 19 May 2016, Semenov emailed Jreissati saying that he had received an angry call from Gatsby, and summarised Gatsby's points. He said that he had responded by advising that Bensons did not want to exit the project nor put the project at risk through a VCAT hearing and that he would pass on Gatsby's request for a meeting with Jreissati.

52 On 20 May 2016, Gatsby emailed Jim Holdsworth ('Holdsworth'), another consultant retained by KIA in relation to the project, asking him to express his view on the strength of the application to VCAT. Gatsby also informed Holdsworth that Sharp had been contacted by George Borg ('Borg') (from the council) who had suggested that it was not necessary to go to VCAT and that he would like to see Sharp and Gatsby. Gatsby said he was 'very sceptical' about anything Borg said.

53 Later that day, Holdsworth responded, saying that it was interesting that Borg had proposed a meeting to avoid VCAT, which Holdsworth thought indicated that the Borg believed the council was on 'shaky ground' if the matter went to a hearing. Holdsworth said the option was 'to truncate the process by applying to VCAT on the grounds of Failure to Determine' and set out the focus of his expert evidence in the event that he was asked to provide any.

54 On 23 May 2016, Gatsby emailed Semenov, noting that he had not heard back from him since their discussion on 19 May and said that: 'I assume you have sorted out the letter from [Grinter].' Gatsby sought a further meeting with Semenov.

55 On 23 and 24 May 2016, there was a series of email exchanges between Gatsby and Sharp. On 23 May at 4:20pm, Gatsby emailed Sharp seeking a date for a conference and forwarding the design documents. Shortly after receipt of that email, Sharp replied that she was 'in the process of reviewing the material and putting together a table of the issues that may be relevant to a VCAT hearing'. In a further email that day, Gatsby asked Sharp whether she would have completed her review and formed an opinion on the likely prospect of success that week. Sharp replied, suggesting that certain issues required the involvement of Senior Counsel.

56 The following day, 24 May 2016, Gatsby replied to Sharp suggesting that they consider retaining Senior Counsel after she had completed her 'prospects likely outcome review'. Mr Jeremy Gobbo QC ('Gobbo QC') was raised as a possible Senior Counsel.

57 After 19 May 2016, KIA requested meetings with Bensons, but Bensons avoided meeting with KIA to discuss matters raised by the 18 May 2016 letter. Bensons cancelled meetings on 24 May and 31 May.

58 On 2 June 2016, Gatsby emailed Semenov, saying: 'Our silk believes council have no argument'.

59 On 8 June 2016, Holdsworth emailed Gatsby and said that he had been in discussions with council officers. He identified actions that KIA needed to undertake as soon as possible with a view to getting a favourable decision from the council. That email concluded:

In terms of VCAT, I would take Gobbo [QC]'s advice regarding timing of any lodgement of an appeal against Failure to Determine. In any case, Council (and any 'live' objectors) can use OVGA's comments to their advantage, and that is why the range of points raised in the OVGA review needs to be as limited as possible.

60 Later that day, Gatsby responded to Holdsworth's email, saying that he had spoken to Gobbo QC. Referring to what Gobbo QC had told him, Gatsby said:

He said OVGA are a waste of time, they can take 12 months, but we should attend [attempt] to flush out any comments-intelligence and let them know we are in VCAT and we won't put up with their '...' around and that they should just state 6 points relevant and no nonsense.

He was rather aggressive about it all and said that we should lodge at VCAT immediately. [Brooks] has spoken to [Axford] and Bernardo about this, if you can it would be good for you to speak to [Brooks] directly about [Gobbo QC]'s comments.

[Brooks] and I then spoke to Bernard who said he is ringing [Semenov] (fellow Sicilian) and saying if we don't get a planning permit and conditions by Tuesday we are going to VCAT.

61 On 8 June 2016, Bensons served a notice of default on KIA, alleging that KIA had failed to provide information to Bensons as required by cl 2.2(b) of the DMA. There was no evidence that by 16 June 2016 KIA had provided further information to Bensons.[14]

62 On 16 June 2016, KIA's solicitors, MBA, responded to the 18 May 2016 letter. MBA's letter took issue with many of Bensons' contentions and said, amongst other things, that Bensons' prior written consent was not required to commence the VCAT proceeding, Bensons was hindering KIA procuring the planning permit, and that Bensons' conduct was in breach of an implied duty to cooperate and act in good faith. KIA/MBA also said that the alleged breach was 'misguided' and could not be the basis upon which to seek to terminate the DMA. KIA denied that it was obliged under cl 2.2(a) to provide the information which Bensons had requested.

63 On 5 July 2016, KIA lodged a second application with VCAT ('second VCAT application') which was in the same form as the first VCAT application. On 14 July 2016, Bensons' new solicitors, Arnold Bloch Leibler ('ABL'), withdrew the notice of default and stated that Bensons affirmed the DMA.

64 On 8 August 2016, Semenov emailed Gatsby, saying that Bensons was 'very keen' to get an update about where KIA was at in pursuing the planning permit.

65 On 9 August 2016, Gatsby met with Semenov to discuss the progress of the second VCAT application. In a minute of the meeting, there is a note that Gobbo QC advised that the application would be successful.

66 On 18 and 23 August 2016, ABL wrote to MBA, KIA's solicitors, requesting information about the second VCAT application.

67 Sharp provided a memorandum of advice dated 23 August 2016. In that advice, Sharp recorded that on 17 May 2016 she had sent a draft VCAT application under cover of an email which indicated that a planner, and possibly a traffic engineer, should confirm the permit triggers, and a planner should look at the statements of grounds. She further recorded that she had been provided with a copy of the application dated 4 July 2016 in very similar terms to the earlier draft application. Sharp advised that KIA needed not only a planning permit but also planning consent for the use and development of dwellings under the Comprehensive Development Zone Schedule 1. Accordingly, she advised that an application to VCAT needed to be made 'as a matter of extreme urgency' to review the failure of the council to make a decision to give that consent. Sharp noted that if that was filed and served in the next few days it was possible that VCAT would agree to hear both applications at the same time.

68 In accordance with the advice of Sharp, on 26 August 2016, KIA lodged a third application with VCAT (application number P1753/2016) to obtain the necessary consent under Comprehensive Development Zone Schedule 1 ('third VCAT application').

69 Between August and November 2016, the parties' solicitors exchanged correspondence in which each accused the other of wrongdoing. Bensons asserted that in breach of cl 2.2(b), KIA had not kept Bensons fully and regularly informed of the progress of the planning permit application and the proceeding in VCAT. Bensons served another notice of default on KIA on 16 September 2016 on the basis that KIA was in breach of cl 2.2(b). In a letter dated 10 October 2016, Bensons stated that KIA had failed to remedy the default and had repudiated the DMA. KIA asserted that Bensons was attempting to thwart KIA's ability to comply with its DMA obligation to procure the issue of the planning permit.

70 Between 21 and 23 November 2016, the hearing of the second and third VCAT applications took place. On 22 December 2016, VCAT made orders. By those orders, VCAT amended the permit application to substitute certain plans, set aside the decision of the council and approved the use and development of the site under the Comprehensive Development Zone. In relation to the permit, the VCAT order provided that: 'a permit is granted and directed to be issued' for the site in accordance with the endorsed plans.

71 Following those orders, KIA sent an invoice to Bensons for the balance of the development management fee.[15] In addition, on 23 December 2016, KIA obtained the consent of Mirvac in relation to the covenant. In response to the invoice, Bensons contended that the orders of VCAT did not constitute the issue of the planning permit in accordance with the DMA, which required the permit to be issued by the council, and that the invoice was premature.

72 On 9 January 2017, ABL (on behalf of Bensons) wrote to MBA (on behalf of KIA) stating, amongst other things, that due to the non-satisfaction of the planning permit condition the DMA was at an end in accordance with cl 4.1. The letter demanded repayment of the $440,000 paid to KIA as development management fee instalments. Bensons terminated the Mandile contracts.

73 On 6 February 2017, the council issued the planning permit.

74 Following Bensons' exit from the project, the site and IGA business were sold to a third party. KIA received $2.232 million from the sale proceeds.

75 KIA commenced proceedings to recover the development management fee and/or damages for breach of the DMA.

76 In its statement of claim, KIA pleaded that it had satisfied the development management conditions on the basis that the decision of VCAT to grant the permit constituted the issue of a permit which satisfied the requirements of the DMA. It pleaded that the failure to pay the third and/or fourth instalments of the development management fee was a breach of the DMA.

77 KIA also pleaded that by its conduct, which included the sending of the 18 May 2016 letter, Bensons had breached an implied term to cooperate, a term to act in good faith and an obligation to institute or fund an appeal to VCAT which was said to arise from cl 2.3(e).

78 KIA pleaded that the duty to cooperate comprised a duty to do all such things as were necessary on Bensons' part to enable KIA to have the benefit of the DMA; and/or not to do anything which would make it materially more difficult for KIA to satisfy the development management conditions in accordance with the DMA.

79 KIA sought the payment of the development management fee (less the $440,000 it had already received) or alternatively damages.

80 By way of defence, Bensons pleaded that a permit had not issued by the sunset date and KIA was not entitled to the development management fee. By counterclaim, it sought recovery of the instalments already paid. Bensons accepted that every contract is subject to an implied term that each party will do all things that are necessary to enable the other parties have the benefit of the contract. It denied that the DMA imposed an implied duty of good faith.

81 In its reply and defence to the counterclaim, KIA pleaded that if the development management conditions had not been satisfied, Bensons prevented, or otherwise delayed, KIA from satisfying them, and as a result Bensons could not rely on the failure to satisfy the development management conditions to refuse payment of the third and fourth instalments of the development management fee.

82 The pleadings also contained a number of other aspects which are not relevant to the present application. It is convenient to simply record that KIA contended that the decision of VCAT constituted the issue of a planning permit; and that Bensons had elected to appeal to VCAT and was estopped from relying on the sunset date.

83 Based on the pleadings, the judge identified the main issues as follows:

(a) Did Bensons elect to go to VCAT under cl 2.3(e) of the DMA?

(b) If so, did Bensons breach any and what obligations to KIA?

(c) Did KIA procure the issue of the planning permit before the sunset date?

(d) If not, did Bensons prevent KIA from procuring the issue of the planning permit?

(e) Did Bensons owe a duty of cooperation to KIA under the DMA?

(f) Did Bensons owe a duty of good faith to KIA under the DMA?

(g) If so, did Bensons breach those duties:

(ii) by refusing to fund the proceedings in VCAT;

(iii) by instructing KIA not to commence any proceeding in VCAT;

(iv) by informing KIA that any proceeding commenced by KIA in relation to the development without the express prior written consent of Bensons (which consent was refused) would constitute a breach by KIA of its obligations under the DMA;

(v) by seeking to prevent KIA from appealing to VCAT and threatening to terminate the DMA if KIA did appeal?

(h) Is Bensons estopped from relying on the strict wording of cl 2.3(e) of the DMA?

(i) If Bensons did breach the DMA, what loss or damage, if any, was suffered by KIA?[16]

84 Each party had some success. In summary, the judge concluded, in favour of Bensons, that Bensons did not elect to go to VCAT and KIA did not procure the issue of the planning permit by the sunset date. His Honour found that Bensons did not owe a duty of good faith to KIA and was not estopped from relying on the strict wording of cl 2.3(e) of the DMA.

85 However, the judge found in favour of KIA in concluding that Bensons had prevented it from procuring the issue of the planning permit; Bensons owed KIA a duty to cooperate which it breached by sending the 18 May 2016 letter (but not otherwise); and that KIA had suffered loss and damage in the sum of $2,031,505.50. This amount was reduced by the sum received by KIA after the site and business were sold to a third party with the result that KIA was only entitled to nominal damages. It also followed that Bensons was not entitled to the refund of the first and second instalments of the development management fee.

86 In order to place the proposed grounds of appeal in their context, it is necessary to refer to four aspects of the judge's reasons. The first concerns the findings the judge made about whether Bensons knew from the outset that an application to VCAT was likely; the second relates to the findings on the application of the 'prevention principle'; the third relates to the existence and breach of the contractual duty to cooperate; and finally it is necessary to refer to the findings on loss and damage, including on causation.

87 An issue at trial was whether Bensons understood before 10 May 2016 that an application to VCAT was likely. KIA relied on evidence, accepted by the judge, that at the initial meeting, Jreissati was told that although KIA was hopeful of getting a permit from the council, it was likely that they were going to have to go to VCAT and that in response Jreissati said: 'I just give - I understand the position. I just give $1 million to the lawyers, and they take it to VCAT. You should have gone to VCAT last year.'

88 As noted, the judge was satisfied that by February 2016 KIA and Bensons had a mutual understanding 'that it was likely that KIA may need to go to VCAT to get the planning permit, that Bensons generally agreed with and approved of that plan, and that Bensons was generally prepared to spend significant moneys going to VCAT to obtain a planning permit'.[17]

89 The judge identified the relevant question in relation to what he referred to as the 'prevention principle' as being 'whether the conduct of the party alleged to be preventing performance deprived the opposite party of a "substantial chance" of meeting the condition'.[18] In doing so, the judge referred to two decisions in the Trial Division_: Cahill v Kiversun Pty Ltd_[19] and Hera Project Pty Ltd v Bisognin [No 3].[20]

90 In applying that approach, the judge concluded that the 18 May 2016 letter was objectively likely to bring about the withdrawal of any current permit application or prevent the filing of any foreshadowed application, which is what occurred.[21] In particular, the judge concluded that 'the inclusion of an allegation that KIA would be in breach of the DMA was objectively likely to encourage or induce KIA to withdraw or withhold from any application to VCAT'.[22]

91 In addition to the consequences, which the judge determined objectively, the judge said that he was satisfied that the letter was sent as part of a strategy calculated by Bensons and Jreissati to bring about KIA's non-compliance with the permit condition and allow Bensons to exit the DMA without itself being in breach.[23] His reasons for that conclusion were as follows:

the strategy is evidenced by the contradictory correspondence of 10 May 2016 and 18 May 2016, the backtracking of Bensons in the subsequent letter dated 23 August 2016 following further legal advice, and the ongoing failure by Bensons to meet with KIA to resolve the issues concerning the obtaining of the permit. Bensons' conduct during that period falls short of what would be expected of a contracting partner who wished to achieve the object of the contract and was consistent with a party who, while purporting to comply with its obligations, sought to bring to an end the DMA. I am satisfied that the letter of 18 May 2016 was intended to and did deprive KIA of a substantial chance to procure the issue of the permit by the Sunset Date.[24]

92 The judge concluded that 'the consequence of an act of prevention is that the relevant term transforms from one requiring performance at a specific time to one requiring performance within a reasonable time'.[25] He considered that KIA had obtained the issue of the permit within a reasonable time. Expressing himself in the alternative, the judge went on to say that he was 'satisfied on the balance of probabilities that a sufficient causal relationship exists between Bensons' act of prevention and KIA's failure to complete'.[26]

93 The judge then turned to the duty to cooperate and concluded that there was an implied duty to cooperate in the DMA which Bensons breached by sending the 18 May 2016 letter but did not breach by failing to proceed to or fund the VCAT proceeding or by failing to meet with KIA.[27]

94 The judge was not satisfied that KIA had provided Bensons with all relevant information requested.[28] The trial judge found that in May 2016, Bensons no longer wished to proceed with the development under the DMA and he found that the 18 May 2016 letter was sent by Jreissati[29] to enable Bensons to avoid purchasing the planning permit[30] and was a breach of the duty to cooperate.

95 The judge concluded that the duty to cooperate required Bensons to refrain from taking positive steps that would infringe upon or prevent KIA from performing its obligations under the DMA.[31] He concluded:

Bensons decided it no longer wished to proceed with the DMA and set about to bring the DMA to an end. Accordingly, the letter by Bensons which stated that KIA would be in breach of the DMA by doing what it was obliged to do (obtain the permit) is, in my opinion, properly characterised as a breach of the duty of co-operation.[32]

96 Under the heading 'What loss did KIA suffer as a result of Bensons' breach?' the judge found that but for Bensons' 18 May 2016 letter, the planning permit would have been procured by the sunset date.[33] His Honour said that the time which had elapsed between KIA's VCAT applications was approximately seven weeks.[34] He noted that the permit was issued approximately five weeks after the sunset date which included the Christmas and New Year period. His Honour considered that:

KIA has established that it was entitled to the third and fourth instalments, either on the basis that it obtained the issue of the permit within a reasonable time following Bensons' act of prevention, or on the basis that it would have obtained the issue of the permit by the Sunset Date but for Bensons' breach.[35]

97 The judge rejected Bensons' submission that the loss was too remote. He identified the loss in various categories, namely the third and fourth instalments ($1,760,000), and some costs associated with responding to the 18 May 2016 letter and in reselling the site and business, making a total of $2,031,505.50. However, the judge noted that KIA had received $2.232 million as a result of the sale of the site and business. In the result, KIA was awarded nominal damages, fixed at $100.[36]

98 The proposed grounds of appeal contend that the judge:

1. erroneously applied the 'prevention principle' without deciding, as required by authority, that the preventative act was a breach of the DMA.
2. erred in holding that 'prevention principle' applied such that Bensons deprived KIA of a substantial chance of obtaining the permit before 31 December 2016 by sending the 18 May 2016 letter. In particular, in so holding Robson J overlooked the evidence about what KIA did, and why, after receiving that letter.
3. erred in holding that Bensons breached the [implied term to cooperate in the DMA] by sending the 18 May 2016 letter.
4. erred in holding that the sending of the 18 May 2016 letter caused KIA loss and damage. In particular, in so holding [the judge] overlooked the evidence about what KIA did, and why, after receiving that letter.
5. Accordingly, [the judge] erred in dismissing the counterclaim.

99 Under cover of ground 1, Bensons contends that the prevention principle only applies where the act of prevention constitutes a breach of contract and the judge did not recognise or apply that constraint.

100 KIA submits that the judge applied the prevention principle correctly by asking whether Bensons' conduct deprived KIA of a 'substantial chance' of procuring the permit by the sunset date.[37] On KIA's case, it was necessary for Bensons to have engaged in preventative conduct but it was not necessary for it to have breached a term of the DMA. However, if application of the prevention principle requires a breach of a term of the DMA, KIA submits that Bensons breached the implied duty to cooperate and cl 2.3(e).

101 For the reasons that follow, we would uphold ground 1. If the so-called 'prevention principle' applied in this case it could only do so by reference to the DMA and the contractual obligations it imposed on the parties. It cannot be applied as if it were a free standing principle of law that, when breached, carries with it enforceable remedies that are independent of the contract.

102 Generally speaking, a party to a contract must not engage in conduct that prevents the other party from enjoying the benefit of the contract.[38] The principle, which is sometimes couched as a manifestation of the broader concept that a person should not benefit from their own wrongdoing,[39] arises in a number of different ways. They include in an action for damages for a breach of a term of the contract, often implied, requiring the parties to cooperate or use their best endeavours to achieve a certain outcome.[40] The principle has also been deployed where an innocent party has been unable to satisfy a contractual condition owing to the wrongful conduct of the other party.[41] The solution to the preventative act has been to treat compliance as having been satisfied or dispensed with.[42] In some cases, where the preventative act has prevented a party from meeting a contractual time limit, the principle has operated to convert a fixed time limit to one requiring the act to be done within a reasonable time.[43]

103 Perhaps due to the breadth of the remedy that may be granted, the effect of the prevention principle is sometimes characterised as an implicit dispensation,[44] or in terms of waiver or estoppel.[45] How it is used in a given case may depend on whether it is deployed defensively or as part of an action for damages or a claim for specific performance.

104 In the context of a breach of an implied term to cooperate, the general principle is often traced back to Mackay v Dick,[46] in which Lord Blackburn said that there is a general rule that where parties have contracted for a thing to be done, each party agrees to do all that is necessary on its part for the carrying out of that thing though there may be no express words to that effect.[47] The duty to cooperate has also been expressed as a negative covenant 'not to hinder or prevent the fulfilment of the purpose of the express promises made' in the contract.[48]

105 There has long been debate about whether the duty to cooperate arises from the general law of contract (sometimes expressed as a universal rule of construction) or as an implied term which is subject to the usual limitations on implication explained in BP Refinery (Westernport) Pty Ltd v Shire of Hastings.[49] If it is the former, the obligation will condition every contract as a rule of universal application. If it is implied, it will arise when it meets the test of necessity and it cannot be inconsistent with any of the express terms of the contract. Favouring the former approach, Lord Atkin said in Southern Foundries (1926) Ltd v Shirlaw:[50]

Personally I should not so much base the law on an implied term, as on a positive rule of the law of contract that conduct of either promiser or promisee which can be said to amount to himself 'of his own motion' bringing about the impossibility of performance is in itself a breach.[51]

106 In Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd,[52] Mason J treated the rule as applying even where there are no express words to that effect. His Honour cited the statement of Lord Blackburn in Mackay v Dick referred to in para 104[53] above.53

107 Notwithstanding the area of debate, the better view is that the duty to cooperate arises as an implied term of the contract.[54] That was the conclusion reached by this Court in Adaz Nominees Pty Ltd v Castleway Pty Ltd[55] after a detailed analysis of the authorities, and it is, in our respectful opinion, a correct statement of the law.

108 That means that the duty to cooperate, with its positive and negative connotations, is implied because of necessity and must give way to the express terms of the contract. In Adaz Nominees, Whelan JA and Riordan AJA said:

Thus, it seems that the relevant principles are best analysed as terms implied by law. 'Necessity' is the rationale for their existence and the circumstance which must be 'demonstrated' for them to be operative. The requisite necessity is so demonstrated where, absent the implication, the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, seriously undermined; or the contract would be deprived of its substance, seriously undermined or drastically devalued.

On this basis, the law will imply, in appropriate circumstances, a positive obligation to take action (to co-operate and to do all such things as are necessary to enable the other party to have the benefit of the contract), and a negative covenant not to hinder or prevent the fulfilment of the purpose of the express promises made in the contract.[56]

109 The application of the so-called 'prevention principle' has not always proceeded by reference to an identified breach of an implied term to cooperate or the like. For example, in Peter Turnbull,[57] a sale of oats was conditional on the purchaser nominating a vessel for loading in Sydney within a specified time. The seller informed the purchaser that it could not supply the oats in Sydney and the purchaser did not nominate a vessel. The seller relied on the failure to nominate the vessel to excuse its own failure to supply the oats. The High Court held that the seller could not rely on the failure to nominate. Dixon CJ explained:

Now long before the doctrine of anticipatory breach of contract was developed it was always the law that, if a contracting party prevented the fulfilment by the opposite party to the contract of a condition precedent therein expressed or implied, it was equal to performance thereof: Hotham v East India Co.[58] But a plaintiff may be dispensed from performing a condition by the defendant expressly or impliedly intimating that it is useless for him to perform it and requesting him not to do so. If the plaintiff acts upon the intimation it is just as effectual as actual prevention.[59]

110 Although not based on a breach of an implied term, Dixon CJ referred to repudiatory conduct ('anticipatory breach') which expressly or implicitly intimates to the innocent party that it is useless to perform a condition, in consequence of which that party is dispensed from performing the condition.[60] Mason CJ articulated the principle in Foran v Wight[61] as follows:

if the repudiating party by his refusal to perform or other conduct intimates to the innocent party that he need not perform an obligation which is a condition precedent to the performance by the repudiating party of his obligation, and does not retract that intimation in time to give the innocent party an opportunity to perform his obligation, that party may be excused from actual performance of the condition precedent. The repudiating party then waives complete performance of the condition precedent and his conditional promise becomes unconditional.[62]

111 However it is applied, it is clear from the authorities that there are two interrelated aspects of the doctrine. The first is wrongful conduct and the second is its consequences. As to the first, the cases sometimes refer to one party having defaulted,[63] or having engaged in wrongful conduct, without specifying the nature of the obligation or the standard by which the conduct is said to be wrongful. However, ultimately the assessment of the conduct must be rooted in the terms of the contract, often a duty to cooperate or use best endeavours. As Finn J observed in GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd:[64]

Part of our difficulty arises from the fact that, express or implied term apart, we have no other available common law device for imposing obligations on parties that are contractual in character. We do not have the facility, for example, to treat the duty as simply a mandatory rule of contract law as do many European legal systems.[65]

112 In order to gauge whether the acts or omissions are wrongful, the touchstone must be the terms of the contract. The impugned conduct must be measured against the obligations of the contract.

113 In this case, the judge considered the so-called 'prevention principle' separately and in advance of his consideration of whether Bensons' impugned conduct constituted a breach of contract. In doing so, the judge focused his attention only on the consequence of the relevant conduct, that is, did it deprive the other party of a substantial chance of meeting the relevant condition?

114 Given that the prevention principle is commonly a reflection of the obligation on the parties to a contract not to hinder or prevent one another from enjoying the benefit of the contract, and generally the source of the obligation is an implied term that is found in most contracts, it is unsurprising that little time was spent analysing the jurisprudential nature of the obligation. The prevalence of the obligation means that generally the focus will be on the consequences of the impugned conduct for the performance of the contract. That is what occurred here. It might also be thought that where the consequence is established (one party has prevented the other from enjoying the bargain) there will inevitably be an antecedent breach. In our opinion, however, it is an error to consider the prevention principle divorced from the terms of the contract and it is a breach of a contractual term that gives rise to the potential application of the principle.

115 Although the judge applied the prevention principle without first considering whether the conduct amounted to a breach of contract, he went on to hold that the DMA contained an implied duty to cooperate and the 18 May 2016 letter constituted a breach of that term.[66] The conduct relied on by the judge was the same for both of the enlivening of the prevention principle and the breach of the implied duty to cooperate. When the judge turned to the question of relief, he treated those breaches in the same way.

116 If the judge was correct to find that Bensons breached the DMA with the result that KIA was prevented from enjoying the benefit of that contract, then any failure of the judge to articulate the provenance of the term in the treatment of the principle of prevention was not material. It follows that success on ground 1 does not necessarily mean that Bensons must prevail in the appeal.

117 It is convenient next to address ground 3, which is that the judge erred in holding that Bensons breached the implied term of cooperation in the DMA by sending the 18 May 2016 letter.

118 Bensons submits that, to the extent that the DMA contained an implied term that the parties not hinder or prevent the fulfilment of the conditions in the contract, such a term is only breached when the impugned conduct renders satisfaction of the condition impossible.

119 Bensons accepts that the DMA was subject to an implied term, described by it as 'unexceptionable', that each party to it would do all things necessary to enable the other party to have the benefit of the contract. Bensons observes, correctly, that there is a duty to afford the other party the benefit of what he or she has contracted for, not a duty to act generally in the other party's best interests.[67] Bensons also accepts that, generally, the negative covenant identified above will be implied. Bensons does not suggest that such a term would be inconsistent with the express terms of the DMA. That is a correct understanding of the contract.

120 The obligation to procure a planning permit for the project was the central obligation assumed by KIA. KIA's entire remuneration depended on securing the permit within the stipulated time frame. Inevitably, there was some risk that the council would refuse a permit or would delay making a decision. For that reason, the time limit imposed in the DMA added to the risks assumed by KIA under the contract. Ultimately, the decision-making responsibility lay with the planning authority. However, whether the permit was granted either by the council, or on review by VCAT, was a matter within the control of KIA in the sense that KIA was in the position to advance the best case in order to secure the permit.

121 The DMA did not contemplate that Bensons would play any active role in that process. However, it was necessary that Bensons not do anything to thwart satisfaction of the condition for to do so would jeopardise KIA's ability to get the benefit that it had contracted for. It goes without saying that Bensons could not act to frustrate KIA's ability to secure the permit.

122 Under ground 3, Bensons does not contest these propositions but asserts that the implied term to cooperate is only breached where the conduct renders satisfaction of the contract impossible.

123 Some support for this proposition can be found in the quote from Southern Foundries set out at para 105 above. In _GR [68]curities,_68 McHugh JA referred to the principle that '[w]here one party to a contract makes it impossible for a condition of the contract to be fulfilled, the condition is taken as satisf[69]d.'69

124 The 'impossibility of performance' criterion is capable of describing some circumstances in which a party may be in breach of contract. For example, where the satisfaction of the condition depends on a continuing state of affairs and a party acts in a way that removes that underpinning, then performance will become impossible. That was the position in Stirling v Maitland & Boyd,[70] in which Cockburn CJ said:

if a party enters into an arrangement which can only take effect by the continuance of a certain existing state of circumstances, there is an implied engagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances, under which alone the arrangement can be operative.[71]

125 However, the High Court has repeatedly expressed the implied negative covenant on a party as requiring the party 'not to hinder or prevent the fulfilment of the purpose of the express promises made' in the contract.[72] The use of the phrase 'hinder or prevent' is capable of catching conduct that does not render performance impossible. To similar effect, in Shepherd v Felt and Textiles of Australia Ltd,[73] Dixon J said that the implied term meant that the parties to the contract 'should not endeavour to impede or defeat' the benefit for which the contract provided.[74]

126 In Barker,[75] three justices of the High Court said:

In Byrne v Australian Airlines Ltd, McHugh and Gummow JJ emphasised that the 'necessity' which will support an implied term in law is demonstrated where, absent the implication, 'the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, be seriously undermined'... .[76]

127 The reference to the bargain being 'seriously undermined', and the references to 'hinder', or 'impede' show that a test of impossibility of performance sets the bar too high. In our opinion, conduct may hinder or prevent the fulfilment of a condition and constitute a breach of contract even though it does not render performance impossible.

128 As already observed, the term is implied because it is necessary in order to make the contract effective. Freedom to engage in conduct that substantially impedes the opportunity of the other party to satisfy the conditions of the contract would entirely undermine the bargain. The term is implied because it is necessary for the integrity of the bargain to prevent the parties from engaging in such conduct.

129 It follows that Bensons is correct to locate the prevention principle by reference to a breach of the contract. However, the judge held that the DMA contained the relevant implied duty to cooperate. Ground 1 does not assist Bensons in overturning the judgment. Further, for the reasons given, we would reject ground 3.

130 Ground 2 is that the judge erred in holding that the 'prevention principle' applied such that Bensons deprived KIA of a substantial chance of obtaining the permit before 31 December 2016 by sending the 18 May 2016 letter. It is submitted that, in so holding, Robson J overlooked the evidence about what KIA did, and why, after receiving that letter. It gives rise to two issues - first, whether sending the 18 May 2016 letter amounted to a breach of the duty to cooperate; and second, whether as a matter of fact, it prevented KIA from satisfying the permit condition.

131 For the reasons that follow, the 18 May 2016 letter was not a breach of the duty to cooperate. KIA did not frame it as an anticipatory breach that constituted a repudiation of the contract. In any event, it did not prevent KIA from meeting the permit condition. KIA had the capacity, knowledge, legal and planning assistance necessary to secure the permit. It did not render the contract nugatory, worthless or seriously undermined.[77]

132 Bensons denies that the 18 May 2016 letter caused delay, let alone a seven-week delay. Bensons submits that from 18 May to 5 July 2016, when KIA lodged the second VCAT application, there is no evidence that Bensons hindered the ability of KIA to proceed as it did and that KIA was considering a range of options without any constraint imposed by the 18 May 2016 letter.

133 Bensons submits that by 11 May 2016, KIA had retained Sharp, and by 16 May 2016, KIA was asking Sharp to review KIA's entire file for the purpose of advising KIA on its prospects of success at VCAT (rather than about the 2015 planning application as the judge had found). Bensons relies on statements KIA made to VCAT when it withdrew the first VCAT application on 19 May 2016 to support its contention that the 18 May 2016 letter did not stun KIA into an incapacity to proceed in VCAT. In an email to VCAT, KIA said that it was 'awaiting legal advice', proposed to 'only defer the lodgement for a few days' and would 'formally lodge the required documents and attachments ... in due course'.

134 Bensons refers to the email of 19 May 2016, in which Gatsby asserted that there were 'considerable errors of fact' in the 18 May 2016 letter and referred to legal advice KIA had received in support of its contention that the 18 May 2016 letter had not been overbearing, nor silenced KIA, nor had a paralysing effect.

135 Bensons points to the correspondence between Sharp and Gatsby, in the period 20-25 May 2016, about obtaining advice about the merits (and involving Gobbo QC in that process) and about Sharp trying to obtain the planning permit by meeting with the senior council planning officer, Borg, who had approached her about the planning permit. Further, on 20 May 2016, Holdsworth advised Gatsby to try to deter the council (ie, Borg) from going to the OVGA and encouraged KIA to appeal to VCAT. Bensons relies on this as evidence that the 18 May 2016 letter did not restrict or distort KIA's understanding of the options available to it.

136 The letter from MBA (on behalf of KIA) dated 16 June 2016, responding to the 18 May 2016 letter, made it clear that KIA had been advised that the DMA did not prevent KIA from going to VCAT. The letter also denied that KIA was obliged under cl 2.2 to provide any of the information which Bensons had requested.

137 In response to the trial judge's reference to KIA making further attempts to obtain the planning permit from the council (including by participating in the OVGA panel process), Bensons says that was driven by Bernard Mandile ('Mandile'), not the 18 May 2016 letter, and would have delayed KIA from proceeding with its VCAT application until 5 July 2016 irrespective of other reasons for any delay.

138 Bensons denies that it had a strategy to defeat or avoid the DMA or that the 18 May 2016 letter deprived KIA of a substantial chance of obtaining the permit by the sunset date. It refers to six emails from Gatsby, in the period between 3 February and 5 April 2016, in which KIA represented to Bensons that the council was likely to issue the planning permit in April or May 2016 or soon after without VCAT's intervention.

139 Bensons says that when responsibility for the site was handed over to Jreissati prior to 18 May 2016, Jreissati was surprised to learn that the permit would not be issued imminently, that there had been discussion about going to VCAT and that Bensons had been asked to contribute to the costs of that proceeding. Bensons says that the 18 May 2016 letter, which was drafted by Grinter, expressed its bona fide opinion (and that of Grinter) about the construction of the DMA and the consequences if KIA took certain actions.

140 In a submission which it developed in the course of oral argument, Bensons submitted that even if the 18 May 2016 letter involved a repudiation, it did not engage the prevention principle. That is because KIA did not accept the repudiatory breach. Calling in aid the aphorism of Asquith LJ that an unaccepted repudiatory breach is 'a thing writ in water',[78] Bensons submitted that the breach had no impact on KIA's ability to perform its obligations under the DMA.

141 KIA submits that Bensons prevented KIA from meeting the condition by engaging in the following conduct:

(a) Bensons indicated from the first meeting on 1 February 2016 that it would go to VCAT if the council did not make a decision.

(b) No later than 15 March 2016, Bensons knew that the council was prevaricating on issuing the permit, which is why the sunset date was changed.

(c) On 5 May 2016, KIA told Bensons it had to go to VCAT to procure the permit.

(d) Around April and May 2016, Bensons sought to change KIA's plans and build a higher building on the site - Bensons no longer wished to proceed with the development under the DMA.

(e) Bensons knew that Mirvac did not object, and had orally consented to, KIA's development and that there was no requirement to obtain Mirvac's consent before procuring the permit.

(f) After 18 May 2016, Bensons avoided meeting with KIA to discuss the issues or effects of the 18 May 2016 letter despite KIA's numerous attempts. KIA submits that this was a breach of the implied duty to cooperate. It was beneficial to Bensons and detrimental to KIA if KIA did not obtain the permit by the sunset date.

(g) On 8 June 2016, Bensons issued a default notice to terminate the DMA and then withdrew it on 14 July 2016. On 16 September 2016, Bensons issued another notice of default. Between June 2016 and the end of December 2016, Bensons sent another 10 threatening letters.

142 KIA says that it withdrew the first VCAT application as a result of the 18 May 2016 letter and, had it not done so, it would have met the sunset date in the DMA.

143 KIA says that from the outset of its dealings with Bensons on 1 February 2016, it was discussed that it was likely that KIA would apply to VCAT to obtain the permit.

144 KIA says that although the potential need to apply to VCAT was discussed from the start of KIA's dealings with Bensons, the fact that Bensons would not pay for the VCAT application did not crystallise until the email of 10 May 2016. By that time, KIA considered there to be a real risk that the council would refuse the application or not make a timely decision, that Bensons would not pay for the VCAT application and that KIA would have to proceed to VCAT at its own cost in order to secure the permit.

145 KIA submits that the 18 May 2016 letter should be interpreted objectively and that its purpose was to cause KIA to withdraw any application that may have been lodged and to prevent KIA from lodging one in the future.

146 KIA relies on Gatsby's evidence that receipt of the 18 May 2016 letter caused 'panic'. Although KIA did not believe that Bensons' position was correct, the 18 May 2016 letter prompted KIA to make a commercial decision to withdraw the first VCAT application to ensure that it did not breach the DMA and end up in litigation. KIA was cognisant that if the view which Gatsby expressed in his email of 19 May 2016 was incorrect, there would be significant consequences.

147 On 5 July 2016, KIA commenced the second VCAT application. KIA attributes this delay to the actions of Bensons, in particular, the 18 May 2016 letter. KIA says that it did not commence the second VCAT application until 5 July 2016 for two reasons. First, KIA was waiting for legal advice which it did not receive until 16 June 2016, when it responded to the 18 May 2016 letter; and second, KIA was attempting to resolve the dispute with Bensons.

148 KIA submits that from 18 May 2016 and for the remainder of the year it was subject to a continuing threat from Bensons. The context included threatening letters, the notices of default and Gatsby's evidence that Bensons had attempted to prevent Mandile from authorising the VCAT application.

149 On the judge's findings, KIA did not satisfy the development management conditions because of the time it lost by withdrawing the first VCAT application and not lodging the second VCAT application until 5 July 2016. Essentially, the judge reasoned that in May 2016, Jreissati no longer wished to proceed with the development under the DMA and he sent the 18 May 2016 letter to enable Bensons to avoid purchasing the planning permit.[79] Bensons intended that the 18 May 2016 letter would stop KIA making an application to VCAT which meant that it was likely that KIA would not be able to secure the permit by the sunset date.[80] His Honour found that the 18 May 2016 letter caused KIA to withdraw its application to VCAT[81] and that the letter was 'objectively likely to bring about the withdrawal of any current permit application (or prevent the filing of any foreshadowed application) which in fact did'.[82] Further, the 18 May 2016 letter prevented KIA from applying to VCAT for the seven weeks between the withdrawal of the application and the second VCAT application on 5 July 2016.[83] As discussed, the judge concluded that this involved a breach of the duty to cooperate.[84]

150 The critical issue in ground 2 is whether the judge was correct in his assessment of the impact of the 18 May 2016 letter on the ability of the KIA to satisfy the development management conditions. Having regard to what we have said about grounds 1 and 3, it is necessary to connect the letter to the obligations Bensons assumed under the DMA.

151 The judge observed, correctly, that it was necessary to identify relevant contractual obligations in respect of the duty of cooperation.[85] The judge accepted that Bensons was not obliged to fund VCAT proceedings, elect to go to VCAT or meet with KIA and held that Bensons' failure to do these things was not a breach of the duty to cooperate.[86] However, he said that the 18 May 2016 letter was a breach of that duty because Bensons was required to refrain 'from taking positive steps that would infringe upon or prevent KIA from performing its obligations under the DMA'.[87]

152 It can be seen immediately that the act of prevention on which KIA relies is deliberately advancing an erroneous construction of the DMA that dissuaded KIA from continuing with its VCAT application. The erroneous construction involved the assertion that KIA was precluded from seeking a permit from VCAT (as opposed to seeking a permit from the council).

153 With respect, it is very difficult to relate that general description of wrongful conduct to a breach of a duty to cooperate. The performance of KIA's obligations did not require any consent or approval from Bensons, and Bensons had no active role to play in the permit application process. The process did not call for active cooperation on the part of Bensons.

154 In so far as the duty to cooperate embodies an obligation not to interfere with a party's performance of the DMA, that negative covenant does not readily translate into an obligation to correctly construe the terms of DMA.

155 In our opinion, the 18 May 2016 letter did not constitute a breach of the duty to cooperate in either its positive or negative form.

156 Another way to approach the issue might have been to contend that the 18 May 2016 letter constituted an anticipatory breach and a repudiation of the contract. It is well recognised that an erroneous construction of a contract may give rise to a repudiation of the contract.[88] That may occur where the erroneous construction results in the party failing to do that which the contract requires and, as a result, evincing an intention no longer to be bound by the contract or an intention to fulfil the obligations in a manner substantially inconsistent with the contract.[89] Whether the error is bona fide, or arises in the context of an ambiguous term, will be relevant to whether there is a repudiation.[90] However, to describe a repudiatory breach as a breach of the duty to cooperate adds nothing. It is the unwillingness to honour the terms of the contract rather than a want of cooperation that underpins a repudiation. The duty to cooperate is not a catchall to be deployed to cover any repudiatory breach.

Prevention based on repudiation not advanced at trial

157 The findings of the judge considered as a whole entail that Bensons deliberately advanced an erroneous construction of the DMA in order to steer KIA off course and delay the issue of the permit. At the very least, Bensons was saying that it would not pay the development management fee if the permit was issued by VCAT rather than the council. This might properly be characterised as an anticipatory breach because it evinced an intention not to pay in circumstances where Bensons would have been liable to pay. However, to describe such conduct as a breach of the duty to cooperate involves a significant mischaracterisation. In our view, the judge was wrong to frame conduct of that kind as a breach of the duty to cooperate. KIA was well able to, and did, form its own view about whether the development management fee was payable if the permit was issued on the order of VCAT - it did not need Bensons' cooperation to construe the DMA.

158 Of course, both Peter Turnbull,[91] and Mason J's reasons in Secured Income Real Estate,[92] show that an anticipatory breach may produce the result that a condition is either dispensed with or treated as having been satisfied. Such reasoning may produce a result that is indistinguishable from the application of the prevention principle. However, an alternative analysis of the kind considered in Peter Turnbull and Foran v Wight,[93] based on an anticipatory breach, was not relied on and that line of cases may be distinguished.

159 If, as appeared likely, the only way that KIA could satisfy the development management conditions was to proceed in VCAT then it might have been open to KIA to conclude that it would be useless to go to VCAT because Bensons would not accept the outcome. As Lord Mansfield said, where one party stops the other offering performance by showing an intention not to perform 'it is not necessary for the first to go farther, and do a nugatory act'.[94] However, KIA did not put its case in this way and, as will appear, the facts do not bear this out.

160 The requirement to secure the permit by the sunset date was the fundamental obligation that KIA assumed under the DMA. It cannot be inferred that by its conduct Bensons was dispensing with that requirement. The 18 May 2016 letter did not convey or intimate to KIA that it was relieved of the obligation to procure the issue of the permit within time and did not make the proceeding in VCAT any more difficult, or render it less likely to succeed or futile.

The 18 May 2016 letter did not prevent satisfaction of the permit condition

161 Even if KIA could rely on the 18 May 2016 letter as a repudiatory breach, or even a breach of the duty to cooperate, to contend that it was prevented from satisfying the development management conditions, it must establish that an operative reason it withdrew the first VCAT application and did not re-apply for seven weeks, was the 18 May 2016 letter. As will appear, when faced with the 18 May 2016 letter, KIA did not give up at all, let alone because it formed the view that it was futile to attempt to get the permit. It did not proceed on the basis that the VCAT route was unavailable or that the time limit had been enlarged. Rather, it sought advice and formed its own view as to how it would meet the development management conditions.

162 In order to explain why this was the case, it is necessary to refer to some matters of fact.

163 First, Bensons was introduced to the project because KIA was concerned about the costs and risks of the development. KIA needed a funder to assist in the provision of capital, skills, and to reduce its exposure in the venture. As a large-scale and experienced developer, Bensons provided those benefits.

164 Second, before May 2016, KIA was conscious of the potential need to apply to VCAT for the permit. The judge accepted that Bensons also appreciated from the outset of its involvement in the project that it was likely that an application to VCAT would be required.[95] Despite that, KIA was unable to persuade Bensons to accept, as part of the DMA, any responsibility for proceedings in VCAT. Clause 2.3(e) of the DMA provided that Bensons could elect to go to VCAT but was under no obligation to do so. An appreciation of the likely need to go to VCAT may have made it more important that Bensons not impede any such application, but it did not impose any affirmative obligations on Bensons to assist with that process.

165 On 10 May 2016, Bensons made it clear that it would not fund the VCAT proceeding. It was entitled to take that view, even if it made securing the permit more burdensome for KIA. Whatever motivated Bensons' stance, it was tolerably clear from the terms of the DMA that Bensons was not obliged to fund the VCAT application and that KIA was responsible for the costs associated with securing the permit. Although the 10 May email is on its face clear, the correspondence suggests very strongly that KIA had not at that stage abandoned hope that Bensons would pay or contribute to the expenses associated with an application to VCAT.

166 Third, the first VCAT application was withdrawn swiftly after receipt of the 18 May 2016 letter. In hindsight, it appears that it was a knee jerk response. The covering email to VCAT said that KIA had not formally lodged the application and that KIA was 'awaiting legal advice'. In the short interregnum between receipt of the 18 May 2016 letter and the withdrawal, very little consideration, if any, was given to whether KIA should continue with the application.

167 Fourth, in its dealings with Bensons, KIA did not accept what Bensons had asserted in the 18 May 2016 letter. On 19 May 2016, Gatsby wrote to Semenov saying that there were 'considerable errors of fact' in the 18 May 2016 letter. He said, correctly, that KIA did not need Bensons' approval to go to VCAT. In other words, KIA was not induced to act on the basis of a false premise. That remained its position.

168 Fifth, KIA was uncertain as to the prospects of success of a VCAT application and wanted advice on that topic before continuing with the application. The first VCAT application appears to have been filed in some haste on 18 May 2016 and, on any view, the application demanded substantial preparation. KIA sought advice from Sharp and Holdsworth, and then Gobbo QC. Following 18 May 2016, the correspondence between KIA and its advisers centred around preparation for the hearing and an assessment of the prospects of success rather than the import of the 18 May 2016 letter. The 18 May 2016 letter was not identified as an impediment in that correspondence.

169 By 8 June 2016, KIA had received unequivocal advice from its counsel to proceed in VCAT. At the same time, KIA and its advisers continued to deal with the council in the hope of securing a permit. Mandile exhorted KIA to persist with the council.

170 It appears that separately from its preparation for the VCAT hearing, KIA also received advice from another barrister concerning the 18 May 2016 letter. On 16 June 2016, KIA responded to the 18 May 2016 letter, asserting that Bensons' consent was not required for an application to VCAT and that Bensons was in breach of a duty of good faith.

171 Within that context, even if it is accepted, as the judge found, that the 18 May 2016 letter induced KIA to withdraw or pause the first VCAT application, it does not follow that Bensons hindered or impeded KIA from reinstating the application. Given the work being done by Holdsworth, Sharp and Gobbo QC and the unequivocal advice given in early June to proceed in VCAT, it is untenable to suggest that the 18 May 2016 letter blew KIA off course in a way that prevented it from securing the permit by the sunset date.

172 That view of the facts also reflects the evidence of Gatsby and Gale. Gale gave two reasons for the delay between 18 May and 5 July 2016. First, KIA wanted legal advice on the merits of the VCAT application; and second, Mandile (who was associated with the vendor of the land) implored KIA to persist with the council. Gatsby confirmed Mandile's insistence that KIA go to the council and through the OVGA process but said the reason for delay was that KIA was awaiting advice from counsel retained to advise on the 18 May 2016 letter.

173 That conclusion is also reinforced by the fact that when KIA did come to make its second VCAT application, the position of Bensons had not changed. The second VCAT application was not dependent on Bensons giving the go-ahead to proceed in VCAT. Bensons had no role to play in the proceeding and KIA was able to secure the permit without any further cooperation from Bensons. Under the DMA Bensons was entitled to be kept informed as to progress but had no control over the application.

174 This recitation of the facts shows that, apart perhaps from its initial response on receiving the 18 May 2016 letter, KIA was not impeded to any material degree in its VCAT application by the 18 May 2016 letter. The real reasons that KIA was concerned to stay out of VCAT were the risks associated with a VCAT application and the fact that it had to bear all of the costs. After all, Bensons was introduced to the project to provide capital and to reduce risk. And VCAT presented further risks and costs that under the DMA were to be borne by KIA.

175 KIA may well have been hopeful of securing some underwriting from Bensons for the VCAT application. KIA says that Bensons knew about the risk of the need to resort to VCAT all along and had a practice of proceeding to VCAT when required. However, that hope should have been tempered by KIA's inability to secure any funding or assistance pursuant to the DMA.

176 The attitude of Bensons, as expressed in letters from its solicitors, was at times hard-nosed and belligerent. However, Bensons did not have any special knowledge or insight into the DMA and there is nothing to suggest that Bensons believed the 18 May 2016 letter to be wrong. We are not persuaded that the 18 May 2016 letter prevented or hindered KIA from reinstating the VCAT application in any relevant way.

177 Further, in our view, the contention that the permit would have issued by the sunset date had the first VCAT application remained on foot is entirely speculative. In this respect, KIA did not put its case as a loss of a chance but asserted that a permit would have been issued by the sunset date.

178 With respect to the judge, the conclusion that the permit would have issued by the sunset date if the first VCAT application had remained on foot lacks an adequate evidentiary basis. The first VCAT application required further work and Sharp had asked for expert opinions to be obtained before it was lodged. It is far from clear that any work on the application would have been done in advance of assurances as to the prospects of success. It was not until 23 August 2016 that Sharp drew attention to the need for a further application in VCAT addressing the Comprehensive Development Zone. There was no evidence showing what impact this further application would have had on the timetable for hearing in VCAT. There was no evidence about the expected hearing and completion date in VCAT for a matter filed on 18 May 2016.

179 Our conclusions in this regard are not affected by the subjective reasons that motivated Bensons to send the 18 May 2016 letter. It is clear from the judge's reasons that the subjective motivation that he attributed to Bensons was important to his reasoning. The judge found that Bensons wanted to get out of the project and set about achieving that goal by having its solicitors send the 18 May 2016 letter.

180 However, the issue is not whether Bensons repudiated the DMA. KIA did not argue below or in the appeal that Bensons' conduct evidenced an intention no longer to be bound by the contract so as to relieve KIA of the obligation to meet the development management conditions. For immediate purposes, the question is not so much why Bensons acted in the way that it did, but what was the effect of its conduct on KIA's ability to satisfy the development management conditions contained within the DMA.

181 Much time was spent at trial exploring Bensons' change in position between 10 and 18 May 2016. In its email on the earlier date, Bensons said that funding of a VCAT application would be a matter for KIA but made no objection to KIA initiating a proceeding in VCAT at its own cost. The 18 May 2016 letter contended that any VCAT proceeding would be in breach of the DMA. KIA maintained that Bensons always knew that VCAT was a likely pathway and that its position on 18 May was contrived.

182 Whatever the subjective understanding of each of the protagonists, it was abundantly clear that KIA was required, at its cost, to secure the issue of the permit, including by proceeding in VCAT, if necessary. By 5 July 2016, KIA had decided to issue the second VCAT application. The real problem for KIA was not the 18 May 2016 letter but the terms of the DMA and Bensons' decision not to financially support the application to VCAT.

183 Because the conduct of Bensons fell short of impeding or preventing KIA from satisfying the development management conditions, it did not constitute a breach of the implied term of cooperation and did not otherwise engage the principle of prevention.

185 By ground 4, Bensons submits that the judge was wrong to find that any breach by Bensons caused the relevant loss and damage. What we have already said above also covers this ground. In summary, as we have explained, Bensons did not prevent KIA from meeting the deadline and for the same reasons did not cause KIA any loss or damage.

186 Further, KIA did not establish that had the 18 May 2016 letter not been sent, it would have obtained the permit by the sunset date.

187 KIA seeks to support the judgment on two additional grounds contained in its notice of contention.

188 By the first ground, KIA contends that the judge erred in concluding that Bensons' conduct in failing to meet with representatives of KIA after the 18 May 2016 letter did not engage the prevention principle.

189 The judge held that the failure to agree to meetings after 18 May 2016 and the refusal to fund the VCAT proceeding was not a breach of the duty to cooperate. The judge noted that KIA had not identified any express terms of the DMA which supported the argument. Rather, the judge found that cl 2.3(e) of the DMA explicitly did not require Bensons to go to VCAT and the obligations to keep Bensons fully and regularly informed were imposed for the sole benefit of Bensons.[96]

190 In our opinion, the judge's conclusion was correct. At the risk of repetition, it may be observed that the obligation to obtain the permit rested with KIA. The DMA imposed no affirmative obligations on Bensons to assist or participate in that process. The implied duty to cooperate does not impose a duty to act generally in the other party's best interest, nor can it be used to impose an obligation which would be commercially advantageous but for which the contract does not provide.[97]

191 By its second ground of contention, KIA asserts that the judge erred by not considering all of the surrounding circumstances to determine that Bensons breached its obligations to act reasonably or in good faith when exercising its discretion under cl 2.3(e) of the DMA. KIA also seeks to contend that Bensons acted in bad faith in seeking to stop KIA proceeding in VCAT.

192 For the reasons given by the judge,[98] it was not open to imply a duty of good faith into the contract. Essentially, that is because KIA failed to establish that an obligation of good faith was necessary in the sense explained in BP Refinery.[99]

193 In any event, adding an allegation of bad faith would not overcome KIA's failure to establish that the conduct of Bensons prevented or substantially impaired its ability to secure the permit by the sunset date.

195 The application for leave to appeal should be granted and the appeal allowed. The decision of the judge should be set aside and there should be judgment for Bensons on the cross-claim requiring KIA to refund the first and second instalments of the development management fee.

BENSONS PROPERTY GROUP PTY LTD (ACN 063 470 833) Applicant

KEY INFRASTRUCTURE AUSTRALIA PTY LTD (ACN 154 574 937) First Respondent

[1] KIA's third director, Nigel Hutchinson-Brooks ('Brooks'), did not attend the meeting.

[9] See [17] above; Reasons [62].

[13] Ibid [195], [198], [262], [339].

[19] [2017] VSC 641 (Kennedy J) ('Cahill').

[20] [2017] VSC 268 (Riordan J) ('Hera Project').

[29] Ibid [33]-[34], [190]-[192], [196]-[197], [262]-[263].

[33] Ibid [264], [271]-[273], [339].

[38] Mackay v Dick (1881) 6 App Cas 251; Butt v M'Donald (1896) 7 QLJ 68_._

[39] New Zealand Shipping Co v Societe des Ateliers et Chantiers de France (1919) AC 1, 9 (Lord Atkinson), cited with approval in Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, 440-1 (Latham CJ, Williams and Fullagar JJ); Hera Project [2017] VSC 268, [105] (Riordan J_)._

[40] Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25; (1954) 90 CLR 235, 246-7; [1954] HCA 25 (Dixon CJ) ('Peter Turnbull'); GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631, 637 (McHugh JA) ('GR Securities').

[41] Peter Turnbull (1954) 90 CLR 235; [1954] HCA 25; Foran v Wight [1989] HCA 51; (1989) 168 CLR 385, 395-6 (Mason CJ); Cahill [2017] VSC 641, [240]-[241] (Kennedy J).

[43] Hera Project [2017] VSC 268, [106] (Riordan J) citing, amongst others, Foran v Wight [1989] HCA 51; (1989) 168 CLR 385, 458 (Gaudron J).

[44] Peter Turnbull [1954] HCA 25; (1954) 90 CLR 235, 246-7; [1954] HCA 25 (Dixon CJ).

[45] Park v Brothers [2005] HCA 73, [43] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).

[46] (1881) 6 App Cas 251.

[48] Peters (WA) Ltd v Petersville Ltd [2001] HCA 45; (2001) 205 CLR 126, 142 [36]; [2001] HCA 45 (Gleeson CJ, Gummow, Kirby and Hayne JJ) ('Peters').

[49] (1977) 180 CLR 266 ('BP Refinery').

[50] [1940] AC 701 ('Southern Foundries').

[52] (1979) 144 CLR 596; [1979] HCA 51 ('Secured Income Real Estate').

[54] Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 449; [1995] HCA 24 (McHugh and Gummow JJ); Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32 ('Barker').

[55] [2020] VSCA 201 ('Adaz Nominees').

[57] (1954) 90 CLR 235; [1954] HCA 25.

[58] [1787] EngR 48; (1787) 1 TR 638 (99 ER 1295).

[59] [1954] HCA 25; (1954) 90 CLR 235, 246-7; [1954] HCA 25.

[60] Park v Brothers [2005] HCA 73, [42] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ), citing Peter Turnbull [1954] HCA 25; (1954) 90 CLR 235, 246-7; [1954] HCA 25.

[61] (1989) 168 CLR 385; [1989] HCA 51.

[63] Nina's Bar Bistro Pty Ltd v MBE Corporation (Sydney) Pty Ltd (1984) 3 NSWLR 613, 614E (Glass JA), 620F (Mahoney JA) and 632D (Priestley JA); Joseph Street Pty Ltd v Tan [2012] VSCA 113; (2012) 38 VR 241, [47] (Warren CJ, Nettle JA and Cavanough AJA).

[64] (2003) 128 FCR 1; [2003] FCA 50.

[65] Ibid 208 [919] (citations omitted).

[67] Adaz Nominees [2020] VSCA 201, [118], citing Beerens v Bluescope Distribution Pty Ltd [2012] VSCA 209; (2012) 39 VR 1, 13 [54] (Nettle JA).

[68] (1986) 40 NSWLR 631.

[69] Ibid 637 (citations omitted), citing, amongst others, Mackay v Dick (1881) 6 App Cas 251, 270 and Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, 441.

[70] [1864] EngR 752; (1864) 5 B & S 840.

[71] Ibid 1047; Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104, 123 (Mason P, Beazley and Stein JJA).

[72] Peters [2001] HCA 45; (2001) 205 CLR 126, 142 [36]; [2001] HCA 45 (Gleeson CJ, Gummow, Kirby and Hayne JJ).

[75] (2014) 253 CLR 169; [2014] HCA 32.

[76] Ibid 189 [29] (French CJ, Bell and Keane JJ).

[77] Barker (2014) 253 CLR 169; [2014] HCA 32.

[78] Howard v Pickford Tool Co Ltd [1951] 1 KB 417 (CA), 421.

[88] Shevill v Builders Licensing Board [1982] HCA 47; (1982) 149 CLR 620, 625-6; [1982] HCA 47 (Gibbs CJ).

[89] The Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17, 37; [1985] HCA 14 (Mason J).

[90] DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423, 432-3; [1978] HCA 12 (Stephen, Mason and Jacobs JJ).

[91] (1954) 90 CLR 235; [1954] HCA 25.

[92] (1979) 144 CLR 596; [1979] HCA 51.

[93] (1989) 168 CLR 385; [1989] HCA 51.

[94] Jones v Barkley (1781) 2 Dougl 684, 695 [99 ER 434, 440], cited in Foran v Wight [1989] HCA 51; (1989) 168 CLR 385, 397; [1989] HCA 51 (Mason CJ).

[97] Adaz Nominees [2020] VSCA 201, [118] (Whelan JA and Riordan AJA).