1. The remaining grounds raise the single issue of the correctness of the answer the judge gave to the preliminary question.
2. The applicant submitted that para (a) of item 2 asked whether the respondent achieved Practical Completion, using the active voice to direct the expert's attention to the prerequisites of Practical Completion, as opposed to the prerequisites for the issue of a Certificate of Practical Completion. The subject of para (a) was the respondent, not the architect. The applicant submitted that, on the respondent's interpretation, para (e) of item 2 duplicated para (a) and served no useful purpose.
3. Next, the applicant submitted that the recitals to the expert determination deed referred to the notice of dispute and the reply, documents which focused on the alleged incomplete or defective items of work and whether they prevented Practical Completion from being achieved, but which did not impugn the conduct of the architect. Similarly, the recitals to the variation deed referred to the third notice of dispute. It was said to be legitimate for the Court to have regard to the documents referred to in the recitals, without first establishing that there was ambiguity in the deed, on ordinary principles of construction, including the 'overriding criterion of how reasonable businesspersons can be taken to have understood' the contract.[13]
4. The applicant also submitted that the terms of cl 28 of the AFL bore directly on the subject matter of the dispute. Clause 28.3 described and defined the dispute that was required to be referred in the context of the Claim and Reply (as defined) and which was in turn required to be the subject of the agreement between the parties and the expert.
5. The applicant submitted that these contextual features indicated that the dispute referred to the expert was the dispute as to the issues in the notices of dispute, on which issue was joined in the reply. The wording of the first four paragraphs of item 2 was taken directly from the first notice of dispute. The respondent's reply had said nothing about the 'operational' requirements of cl 9.3(b) of the AFL.
6. The applicant submitted that there was no evidence that the parties intended to refer a dispute for expert determination other than the one set out in the notices of dispute. That dispute was as to Practical Completion, not merely the requirements for issue of a Certificate of Practical Completion. The respondent had submitted, before the expert, that cl 9.4 of the AFL provided for expert determination of any dispute as to 'whether a Certificate of Practical Completion should or should not be issued',[14] and that this did not extend to expert determination of a dispute as to whether a Certificate of Practical Completion had been correctly issued. The applicant submitted that this overlooked the fact that nothing in the AFL provided that a Certificate of Practical Completion, once issued, was conclusive or binding. By contrast, cl 28.5(a) specified that an expert's determination 'is conclusive and binds both parties'.
7. The applicant submitted that para (a) of item 2 asked whether Practical Completion had been achieved. The answer to that question would then inform the answer to para (d), which asked whether a Certificate should have been issued.
8. In respect of the expert's approach to the specific questions in item 2, the applicant submitted that the expert's incorrect interpretation of item 2 meant that he had failed to decide the questions in paras (a), (b) and (c). He had addressed the question whether there had been compliance with the operational requirements of cl 9.3(b) of the AFL, rather than whether the matters alleged in the notices prevented the respondent from achieving Practical Completion on 29 April 2021. The applicant submitted that, to the extent that the letter of 9 February 2022 addressed paras (d) and (e), the same error affected those answers.
9. The respondent submitted that the applicant was seeking to have additional words read in to para (a) of item 2, namely 'having regard to the various defects alleged by the applicant in its first and third notices of dispute'. It submitted that there was no ambiguity in the text and no principled basis for adding such additional words. In particular, it submitted that regard should not be had to antecedent negotiations or surrounding circumstances in the absence of ambiguity.[15]
10. To the extent that the applicant sought to rely on the notices of dispute and the respondent's replies, on the basis that they were referred to in the recitals to the expert determination deed, the respondent submitted that this was permissible only in cases of ambiguity.[16] It submitted that there was no ambiguity in the present case. The question in para (a) of item 2 was directed at the procedural requirements in cl 9 of the AFL.
11. The 'additional' words were further submitted to be contrary to the express terms of cl 2 of the expert determination deed and the deed of variation, and to raise further questions that the expert was not asked to address.
12. Next, the respondent submitted that the recitals to the expert determination deed did not derogate from the plain meaning of para (a) of item 2 in any event. The notices of dispute, like para (a), stated that the parties were in dispute as to 'whether [the respondent] achieved Practical Completion on 29 April 2021, in accordance with clause 9 of the AFL'.
13. The respondent further submitted that, even if the additional words were incorporated in para (a), this would still not require the expert to replicate the architect's assessment of the allegedly incomplete or defective work. The respondent had submitted to the expert that none of the matters relied on by the applicant gave rise to a failure to substantially complete the works or a defect or omission of a nature that prevented Practical Completion, and that, in any event, Practical Completion was achieved under the AFL when the architect issued the Certificate of Practical Completion under cl 9.3(b). It had submitted that, in those circumstances, there was no warrant to go behind the Certificate and reconsider the content of what it had certified. It submitted that it had been open to the expert to accept these submissions, noting that there was no claim that the determination was vitiated by reason of non-compliance with the criteria for the issue of a Certificate set out in cl 9.3(b), namely that the architect was acting in good faith, professionally and without bias to either party.
14. It was further submitted that there were only two ways in which Practical Completion could be achieved in accordance with cl 9. The first was by agreement of the parties that there was no Further Work or that any Further Work had been completed: cl 9.3(a). The second was where the architect, acting in good faith, professionally and without bias, certified that the Further Work had been completed or was not necessary to be performed in order for Practical Completion to be achieved: cl 9.3(b). In either case, cl 9.3 required the landlord to procure the architect to issue a Certificate of Practical Completion.
15. The respondent submitted that the applicant was propounding a third way of achieving Practical Completion, by expert determination under cl 9.4. But that provision did not allow for expert determination after a Certificate of Practical Completion had been issued, except in the case where the dispute was as to whether the architect was acting in good faith, professionally and without bias. Otherwise, it was submitted, certification was a 'binding process'. The effect of cl 9.4 was to deny the general application of cl 28 with respect to disputes about Practical Completion. The Certificate issued under that process, rather than any determination as to Practical Completion, had the effect of fixing the Commencement Date for the lease. A determination as to Practical Completion, without a Certificate, would not identify that date.
16. Finally, the respondent submitted that its construction did not render para (e) of item 2 otiose. The question in para (e) arose only if the expert determined that Practical Completion was not achieved in accordance with cl 9 on 29 April 2021.

1. It is convenient to begin by considering the operation of cl 9 of the AFL. That is relevant because cl 9 makes provision for disputes to be referred for expert determination under cl 28, and because the expert determination deed defined the dispute in terms that made express reference to cl 9.
2. As has been seen, the AFL provided for two ways in which the respondent's architect could issue a Certificate of Practical Completion, both dependent on the identification and evaluation of any Further Work. 'Further Work' was the work identified as such by the applicant after the respondent had given notice of the anticipated Date of Practical Completion.[17] If there was no Further Work, or if the architect certified either that the Further Work had been completed or that it was not necessary that it be performed in order for Practical Completion to be achieved, cl 9 required the architect to certify that Practical Completion had been reached.
3. The Certificate served to define the 'Date of Practical Completion', which was also one integer in the determination of the Commencement Date for the lease under cl 16. As well, the Date of Practical Completion defined the defects liability period under the AFL.
4. The concept of 'Practical Completion' referred to an objective state of affairs, but in the main the contractual consequences of that state of affairs having been achieved, or not, depended on the issuing of a Certificate of Practical Completion by the architect, and on the Date of Practical Completion as certified in that Certificate.[18] In those circumstances, it would make little sense to have a dispute about the objective fact of Practical Completion, if the architect had issued a Certificate of Practical Completion and the dispute could have no bearing on that Certificate.
5. That consideration is relevant to the meaning of cl 9.4. The respondent submitted that cl 9.4 had a narrow scope, such that in the circumstances of the present case, after issue of a Certificate, it only allowed for a dispute about the good faith, professionalism and lack of bias of the architect. That submission fails to account, however, for the wide language of cl 9.4, which allows not only for a dispute about whether a Certificate of Practical Completion should or should not be issued, but for '[a]ny dispute as to the operation' of cl 9. Part of the operation of cl 9 is the determination of the architect that any Further Work has been completed or is not necessary to be performed in order for Practical Completion to be achieved. Another part is the issuing of a Certificate by the architect stating that Practical Completion has been reached. In both these ways, the architect's assessment as to whether Practical Completion will be, or has been, achieved is made pursuant to cl 9 and is part of the 'operation' of cl 9. A dispute as to that assessment is therefore within the scope of the opening words of cl 9.4 as a dispute that may be the subject of cl 28.
6. Since the issue of a Certificate of Practical Completion is itself part of the operation of cl 9, and cl 9.3 in particular, the decision whether to issue a certificate may potentially be the subject of a dispute under cl 28, depending on the proper construction of cl 9.4. The respondent's preferred construction of cl 9.4, and in particular the expression 'should or should not be issued', is that a Certificate can only be the subject of a dispute, once issued, on the ground of a lack of good faith, professionalism or impartiality on the part of the architect. That construction accepts that 'should or should not be issued' does not have its literal meaning. Once that is accepted, there is no textual foundation for confining a dispute as to the operation of cl 9, after a Certificate has been issued, to a dispute about the good faith (etc) of the architect. Nor is there any apparent purpose in reading down the opening words of cl 9.4 to have such a significant limiting effect, especially in circumstances where the AFL contains no provision that a Certificate has any binding or conclusive operation.
7. The reference in cl 9.4 to a dispute as to whether a Certificate 'should or should not be issued' therefore widens, rather than limits, the scope of cl 9.4, so as to embrace a dispute that arises in anticipation of a Certificate being issued, or not being issued. Otherwise, a dispute after a Certificate has been issued is to be determined under cl 28 if it is a dispute as to the operation of cl 9, including, as explained, a dispute as to whether a Certificate ought to have been issued, including a dispute as to the architect's assessment, under cl 9, as to whether Practical Completion has been achieved.
8. Staying with the AFL, the applicant submitted that the subject matter of the dispute was determined by the operation of cl 28 itself, which required the matters in the notice of dispute to be referred to expert determination in the absence of agreement. The difficulty with that submission is that the expert is not a party to the AFL. He was contractually obliged to determine the dispute as defined in the expert determination deed, not the dispute which the parties were required by the AFL to refer for expert determination (if there was any difference).
9. The fact that the AFL permitted the parties to refer to expert determination a dispute as to whether Practical Completion had been achieved therefore does not determine whether the expert determined the correct question. That is so even though, as the applicant also submitted, the terms of pars (a) to (d) of item 2 replicated the notice of dispute. The expert was bound to answer the questions referred to him under the expert determination deed. The parties agreed by that deed to be bound by the answers to those questions. We therefore turn to consider the deed.
10. The critical question is what dispute the parties referred to the expert for determination. That is a question of construction of the expert determination deed, and in particular item 2.[19]
11. In particular, the ultimate issue is whether the dispute which was referred for expert determination under the deed extended to the question whether the requirements for Practical Completion had been met, and in particular whether para (a) of item 2 embraced that subject matter. A separate issue arises about the extent to which resort may be had to the AFL, the notice of dispute, and the reply, for the purpose of construing the expert determination deed and in particular the delineation of the dispute in that deed. As explained later in these reasons, there is some controversy as to when resort can be had to recitals in construing a contract (including a deed). In the first instance, we will therefore consider the construction of para (a) without resort to such material.
12. There are textual and contextual indications in item 2 itself that para (a) asks whether Practical Completion had been achieved, and not merely whether the architect met the necessary criteria or 'procedural requirements' for issuing a valid Certificate. First, para (a) is framed in the active voice. It asks whether the respondent achieved Practical Completion, not whether there was compliance with cl 9. This points to a dispute wider than the criteria for issue of a valid Certificate, including the eligibility of the architect, by reason of acting in good faith, professionally and without bias to exercise the powers in cl 9, which is the confined subject matter of para (a) on the respondent's construction and as the expert approached the matter.
13. Secondly, the question whether the Certificate ought to have been issued is the subject of para (d) in item 2. On the respondent's construction, that issue was already addressed in para (a), which was said to raise the 'operational requirements' to which the expert referred. Senior counsel for the respondent was unable to point to any operation of para (d), independently of para (a), on the respondent's construction of para (a). In both cases, the issue would be whether the architect had complied with the 'procedural' or 'operational' requirements for the issue of the Certificate.
14. Thirdly, and similarly, para (e) asks a question which presupposes that the answer to one of the earlier questions was that Practical Completion was not achieved on 29 April 2021. That indicates that one of the earlier questions involved asking whether Practical Completion was achieved on that date. The only obvious candidate is para (a), suggesting that its opening words 'Whether [the respondent] achieved Practical Completion on 29 April 2021' mean what they say and are not to be cut back by the phrase 'in accordance with clause 9 of the AFL'.
15. Fourthly, the words 'in accordance with clause 9 of the AFL', forming part of para (a), are capable of describing an inquiry into whether Practical Completion has been achieved. As has been seen, cl 9 raises the question whether Practical Completion has been achieved, either because the parties have agreed that there is no Further Work or because the architect has formed the opinion, either that any Further Work has been completed, or that it is not necessary for that to be done in order to achieve Practical Completion.
16. The matters of text and context pointing in the opposite direction all revolve around the words 'in accordance with clause 9' in item 2. It was contended that this points to the procedure for certification by the architect, which is a mechanical exercise to be performed, relevantly, after the architect has certified that the Further Work has been completed or that it is not necessary to do so in order to achieve Practical Completion. The respondent contended that, because cl 9.4 only contemplates disputes of a confined description being referred to expert determination, para (a) of item 2 is concerned with that same limited class of disputes.
17. We have already addressed and rejected the other arguments advanced by the respondent as a basis for limiting the scope of cl 28. In particular, we construe cl 9.4 as facilitating wide-ranging review of matters in dispute 'as to the operation' of cl 9 rather than excluding, by implication, disputes about whether a Certificate should or should not have been issued (except for the limited case where the procedural requirements for the issue of a valid Certificate are in issue). That means that the outcome to which the respondent pointed, where there is a binding Certificate of Practical Completion but a pending dispute about Practical Completion, cannot arise. In short, the dispute in such a case will flow through to the decision to issue the Certificate, being a decision itself open to 'dispute as to the operation' of cl 9.3. In the present case, the applicant submitted that this issue was raised by para (e) of item 2.
18. We do not find the respondent's contentions persuasive. In our opinion, it is inescapable that para (a) of item 2 is not asking only whether a Certificate was issued in accordance with the criteria in cl 9 of the AFL, but whether the respondent had achieved Practical Completion as at the date of the architect's inspection and assessment of the works. As we have identified, the words 'in accordance with clause 9' are apt to describe the process by which the architect decided that Practical Completion had been achieved, and para (a) of item 2 is to be construed accordingly.
19. The applicant urged us to have regard to the recitals to the expert determination deed, and in particular to documents referred to in those recitals. We do not need to do so, in light of our conclusions above, but the exercise reinforces our conclusion.
20. In opposing this course, the respondent pointed to authorities suggesting that recitals to a contract cannot be used to 'cut down' the operative words of the contract unless the operative words are ambiguous. In Adventure Golf, Santamaria JA stated that where the operative words of an agreement are clear and unambiguous, a recital cannot cut down those words, no matter how clear and unambiguous the words of the recital might be.[20] This principle was applied in GTW Investments (Aust) Pty Ltd v Pacreef Investments Pty Ltd.[21]
21. It is true that longstanding authority supports the proposition that ambiguity in the operative words is required before recourse may be had to recitals.[22] The authorities were canvassed by Campbell JA in Franklins, upon which express reliance was placed in Adventure Golf.[23] But after referring to Re Moon, among other 'authority from the 19th and early 20th century',[24] Campbell JA pointed out that 'more recent authorities ... state that recitals can provide a means of proving background facts that are themselves legitimate aids to construction'.[25] He concluded that:

insofar as ... earlier decisions require a finding of 'ambiguity', and proceed on the basis that it is possible to read the operative provisions without the aid of context, those decisions should not be followed. It would follow then that the recitals in a deed can be looked at as part of the surrounding circumstances of the contract without a need to find ambiguity in the operative provisions of the contract.[26]

1. In that regard, Campbell JA held that the recitals in a deed are a means by which the surrounding circumstances and purpose of the transaction can be ascertained.[27]
2. Allsop P agreed, stating:

I agree with Campbell JA that the approach to documentary interpretation which eschews the need to discern textual or other ambiguity before having resort to extrinsic material supersedes many older authorities which appear to restrict the use of recitals in the construction of operative provisions to cases where the operative provision is ambiguous.[28]

1. The authorities do not speak with one voice on this point. Leeming JA observed in S&C Nicola Pty Ltd v Peter Holmes Investment Pty Ltd:

The inability of a recital to control the operation of an operative clause when the latter is clear and unambiguous was more recently reiterated in Harpur v Levy [2007] VSCA 128; (2007) 16 VR 587 [16], [63] and [102] and OneSteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd [2013] NSWCA 27; (2013) 85 NSWLR 1 [63]. The traditional approach is criticised in JW Carter, The Construction of Commercial Contracts (Hart Publishing, 2013), 445-6, but endorsed in Perry Herzfeld and Thomas Prince, Interpretation (Lawbook Co, 2nd ed, 2020), pp 497-8.[29]

1. It is not necessary in the present case to seek to reconcile the authorities about the use of recitals in the construction of contracts. That is because the recitals with which we are concerned make reference to specific documents which, as explained below, form part of the surrounding circumstances which can be taken into account in construing a contract.
2. The commercial purpose of a contractual instrument is always relevant to its construction.[30] That requires attention to 'the genesis of the transaction, the background, the context' and the market in which the parties were operating, as known to both parties.[31]
3. In Electricity Generation Corporation v Woodside Energy Ltd four members of the High Court said:

The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding 'of the genesis of the transaction, the background, the context [and] the market in which the parties are operating'. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption 'that the parties ... intended to produce a commercial result'. A commercial contract is to be construed so as to avoid it 'making a commercial nonsense or working commercial inconvenience'.[32]

1. In Mount Bruce, French CJ, Nettle and Gordon JJ explained what is meant by 'context' for these purposes:

The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.[33]

1. In the present case, the 'genesis of the transaction', known to all parties, was the notices of dispute and the replies (referred to in the deed and the variation deed), which together triggered the expert determination process. Whether or not ambiguity is needed before resort can be had to recitals for other purposes, it is clear from the authorities that resort may be had to documents referred to in a contract for the purpose of identifying the commercial purpose of that contract, or its genesis, without establishing ambiguity in the other provisions of the contract. There is no reason why that position would not apply in a case where the reference is in recitals to the contract, which are the part of a contract where one would most expect to find reference to its commercial genesis.
2. Both notices of dispute, and the replies, make it abundantly clear that the substance of the dispute between the parties, which they referred for expert determination as they were obliged to do under the AFL, was whether the respondent had achieved Practical Completion. The dispute was about whether the Further Work had been completed and whether, to the extent it had not been, this prevented Practical Completion. These issues were expressly the subject of cl 9.3 of the AFL and apt to be described as being about Practical Completion 'in accordance with' cl 9.
3. Resort to the documents referred to in the recitals therefore confirms our construction of para (a) of item 2.
4. Finally, even if it could be said that the dispute as defined in the expert determination deed in its original form did not extend beyond the procedural requirements of cl 9, the variation deed provided more generally that the expert could determine whether Practical Completion had 'occurred in accordance with the terms of the AFL'. The parties to the variation deed therefore contemplated that, in deciding a 'dispute' under the expert determination deed as varied, the expert might address the broader question whether Practical Completion had been achieved. This possibility would be denied if the reference to cl 9 of the AFL in para (a) of item 2 were to be construed as limiting the scope of the 'disputes' that may be the subject of expert determination.

1. The expert failed to determine the dispute as properly construed in the expert determination deed. Instead of deciding whether Practical Completion had been achieved on 29 April 2021, the expert found that the Certificate of Practical Completion was issued 'properly in accordance with Clause 9 of the AFL' by 'satisfying the operational requirements of Clause 9'. It was no part of his reasoning whether any Further Work remained incomplete, or whether such work, where incomplete, prevented the achievement of Practical Completion. Instead, he observed that: there was no reason to doubt that the architect was 'acting in good faith, professionally and without bias to either party'; the Certificate stated that it had been issued in accordance with cl 9.3(b); and the Certificate addressed the Further Work items. The expert said that it was 'reasonably considered that all requirements and conditions of Practical Completion have, in the professional and unbiased view of the Landlord's Architect acting in good faith, been satisfied'.
2. In other words, the expert confirmed that the architect had gone through the processes required by cl 9 but did not evaluate the correctness of the outcome. The dispute in para (a) was, however, about the outcome, not the process. The expert therefore answered the wrong question.
3. The wrong approach taken to para (a) infected the whole of the determination. The answer to para (a), as properly construed, was relevant to the remaining paragraphs of item 2. The error also meant that cl 2(b) of the variation deed was not 'triggered', because the expert did not determine that Practical Completion had occurred 'in accordance with the terms of the AFL', or at all. The determination therefore failed to fulfil its contractual purpose and is not binding on the parties.
4. The preliminary question should have been answered 'yes'. We will make orders accordingly and hear the parties as to costs. No other relief was ultimately sought in this Court.

[1] Carlisle Homes Pty Ltd v Nexus Office Pty Ltd [2023] VSC 753 [46] (Croft J) ('Reasons').

[2] Clause 1 defined the respondent as the 'Landlord', the applicant as the 'Tenant' and 'Landlord's Works' as the works specified set out in the Plans and Description of Works, which were in Annexure B to the AFL.

[3] Clause 1 defined the Landlord's Architect as 'the architect appointed by the Landlord from time to time'.

[4] It is apparent that the words after sub-para (b)(ii), despite their location, govern paras (a) and (b).

[5] A second notice of dispute and a reply were issued on 9 September 2021 and 22 September 2021 respectively. These notices are not relevant to the issues before this Court.

[7] Reasons [16]. The judge referred to authorities including Legal & General Life of Australia Ltd v A Hudson Pty Ltd [1985] 1 NSWLR 314; Bevendale Pty Ltd v Lucky Eights Pty Ltd [2020] VSCA 312 [256] (Kyrou and McLeish JJA); AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173; Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2013] VSCA 179; (2013) 41 VR 636, 643 [15], 645-6 [19]-[22] (Maxwell P, Ashley JA agreeing at 655 [59], Redlich JA agreeing at 655 [60]); and Schott AG v Melton Willows Pty Ltd [2023] VSC 364 [54]-[55] (Stynes J).

[9] The judge referred to a section of the respondent's submissions at [31] of the Reasons.

[12] Kennedy v Shire of Campaspe [2015] VSCA 47 [14] (Whelan and Ferguson JJA); PCCEF Pty Ltd v Geelong Football Club Ltd [No 2] [2019] VSCA 148 [41] (Whelan, McLeish and Emerton JJA).

[13] Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603, 698 [388] (Campbell JA, Allsop P agreeing at 620 [29],Giles JA agreeing at 621 [43]) ('Franklins'); Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104, 135 [121] (Bell and Gageler JJ) ('Mount Bruce').

[15] The respondent referred to Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, Mount Bruce [2015] HCA 37; (2015) 256 CLR 104, 116 [46] (French CJ, Nettle and Gordon JJ) and Apple and Pear Australia Ltd v Pink Lady America LLC [2016] VSCA 280; (2016) 343 ALR 112, 139-55 [91]-[137] (Tate JA), 178-9 [229]-[232] (Ferguson and McLeish JJA); [2016] VSCA 280.

[16] Strictly speaking, the first notice of dispute and the reply were referred to in recitals to the original expert determination deed, and the third notice and the reply to it were referred to in recitals to the deed of variation, but nothing turns on the difference. The respondent relied on Adventure Golf Systems Australia Pty Ltd v Belgravia Health & Leisure Group Pty Ltd [2017] VSCA 326; (2017) 54 VR 625, 667 [114] (Santamaria JA, Kaye JA agreeing at 675 [140], Ashley JA agreeing at 675 [141]) ('Adventure Golf'), GTW Investments (Aust) Pty Ltd v Pacreef Investments Pty Ltd [2023] VSCA 291; (2023) 74 VR 290, 299 [36] (Ferguson CJ, Niall JA agreeing at 338 [203], Macaulay JA agreeing at 341 [221]) and Franklins [2009] NSWCA 407; (2009) 76 NSWLR 603, 695-6 [380] (Campbell JA), but see 620 [29] (Allsop P), 697 [384], 698 [388] (Campbell JA).

[17] Clause 9.1 required the respondent to give the applicant at least 10 business days' notice of the anticipated date upon which Practical Completion would be achieved.

[18] Clause 9.7 provided for a right of termination in the event that Practical Completion did not occur before a specified Sunset Date for Practical Completion, without reference to the existence or otherwise of a Certificate.

[19] Legal & General Life of Australia Ltd v A Hudson Pty Ltd [1985] 1 NSWLR 314, 335-6 (McHugh JA), Bevendale Pty Ltd v Lucky Eights Pty Ltd [2020] VSCA 312 [256] (Kyrou and McLeish JJA); AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173 [51] (Nettle JA, Maxwell P agreeing at [1], Bongiorno AJA at [83]).

[20] [2017] VSCA 326; (2017) 54 VR 625, 667 [114] (Kaye JA agreeing at 675 [140], Ashley JA agreeing at 675 [141]).

[21] [2023] VSCA 291; (2023) 74 VR 290, 299 [36]-[38] (Ferguson CJ, Niall JA agreeing at 338 [203], Macaulay JA agreeing at 341 [221]).

[22] See, in particular, Ex parte Dawes; Re Moon [1886] UKLawRpKQB 52; (1886) 17 QBD 275, 286 (Lord Esher MR), 289 (Lindley LJ) ('Re Moon'); see also Harpur v Levy [2007] VSCA 128; (2007) 16 VR 587, 601 [63] (Neave JA), 609 [102] (Redlich JA), Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76, 119 [176] (Buss P, Mitchell and Beech JJA agreeing at 133 [262]).

[23] [2017] VSCA 326; (2017) 54 VR 625, 667 [114] (Santamaria JA, Kaye JA agreeing at 675 [140], Ashley JA agreeing at 675 [141]).

[24] Franklins [2009] NSWCA 407; (2009) 76 NSWLR 603, 695 [380(3)] (Allsop P agreeing at 620 [29], Giles JA agreeing at 622 [43]).

[28] Ibid 620 [29]. See also Wright v Lemon [2024] WASCA 19 [536] (Buss P, Vaughan JA agreeing at [1221], Hall JA agreeing at [1229]); SAS (Vic) Pty Ltd v Urban Ecological Systems Ltd [2021] VSCA 335 [85] n 58 (Sifris and Kennedy JJA and Macaulay AJA); Great Northern Developments Pty Ltd v Lane [2021] NSWCA 150 [66] (Bathurst CJ, Leeming JA agreeing at [79], Emmett AJA agreeing at [119]); Lo v Huang [2020] QCA 97 [55] (Brown J, Fraser JA agreeing at [1], Henry J agreeing at [2]); Halikos Hospitality Pty Ltd v INPEX Operations Australia Pty Ltd [2020] NTCA 4 [127] n 52 (Southwood and Hiley JJ and Riley AJ), and compare OneSteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd [2013] NSWCA 27; (2013) 85 NSWLR 1, 21 [63] (Allsop P, Macfarlan JA agreeing at 46 [183], Meagher JA agreeing at 46 [184]); Harpur v Levy [2007] VSCA 128; (2007) 16 VR 587, 592 [17] (Maxwell P); 609 [102] (Redlich JA).

[29] [2022] NSWCA 72; (2022) 108 NSWLR 165, 174 [34] (Leeming JA).

[30] Zhu v Treasurer (NSW) [2004] HCA 56; (2004) 218 CLR 530, 559 [82] (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ), citing Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 351 (Mason J).

[31] Zhu v Treasurer (NSW) [2004] HCA 56; (2004) 218 CLR 530, 559 [82] (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ), citing Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 350 (Mason J).

[32] [2014] HCA 7; (2014) 251 CLR 640, 656-7 [35] (French CJ, Hayne, Crennan and Kiefel JJ) (citations omitted).

[33] [2015] HCA 37; (2015) 256 CLR 104, 116 [48] (emphasis added, citations omitted).