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[2026] NSWCA 221
General information, not legal advice.
Court of Appeal (NSW)
2026-10-21
Mitchelmore JA at [1] Stern JA at [116] McHugh JA at [117]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hederics v Spare Weel Pty Ltd [2026] NSWCA 221
Hearing dates: 7-8 July 2026
Date of orders: 21 October 2026
Decision date: 21 October 2026
Before: Mitchelmore JA at [1]
Stern JA at [116]
McHugh JA at [117]
Decision: (1) The appeal is dismissed with costs.
Catchwords: APPEALS — points not taken below — conduct of trial — whether appellants should be permitted to agitate new issues on appeal — where evidence was available at the time of the trial — where possibility that new issues could have been met by evidence below — course adopted by the appellants on appeal impermissible
CONTRACTS — breach of contract — breach of implied terms — where option in favour of the appellants under the contract was subject to a Sunset Date — whether respondent’s breach of contract was causative of delay that prevented appellants from exercising call option — where appellants’ case on causation differed materially from case run below
Legislation Cited: Conveyancing Act 1919 (NSW) s 88B Uniform Civil Procedure Rules 2005 (NSW) r 51.36(2)
Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310
Crowley v Worley Ltd [2026] FCAFC 78
Lam v Liu [2025] NSWCA 254
Magann v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2020] NSWCA 167
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8
Tang v Tannous [2026] NSWCA 156
The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54
The Nominal Defendant v Cordin [2019] NSWCA 85
Tin-Tagel Majikk Pty Ltd v Hockey [2026] NSWCA 72
Texts Cited: Nil.
Category: Principal judgment
Parties: Johnnie Kenneth Hederics (First appellant)
Melisa Gaye Hederics (Second appellant)
Spare Weel Pty Ltd ACN 159 218 390 (Respondent)
Representation: Counsel:
M Green SC, C Bolger, L James (Appellants)
C Tam, T Goldberg (Respondent)
Solicitors:
Holcroft Lawyers (Appellants)
Hickey Lawyers (Respondent)
File Number(s): 2025/4210886
Publication restriction: Nil.
[This headnote is not to be read as part of the judgment]
The appellants, John and Melisa Hederics, carried on a citrus fruit growing and packing business in far west New South Wales in partnership with Mr Kees Weel. The businesses were carried on through two companies, of which Mr Hederics and Mr Weel were directors. The appellants and Mr Weel owned adjoining blocks of land in connection with the businesses.
In September 2020, Mr Weel confronted Mr Hederics about concerns that a company owned by the appellants had been selling citrus fruit grown pursuant to the partnership as its own fruit and retaining all of the profits from those sales. Mr Hederics made certain admissions, and it was agreed that the partnership would be dissolved. When the terms on which the partnership would be dissolved were agreed, it was decided that the appellants would sell certain land, the “Nursery Block”, to the respondent to offset their liability for the misappropriated fruit. However, it was also agreed that following a boundary realignment of that block of land, the appellants would have an option to reacquire a section of the block, being a riverfront parcel known as the “Nursery Riverside Block”.
The appellants entered into a contract for the sale of the Nursery Block to the respondent, and it was common ground that the purchase price did not account for the value of the Nursery Riverside Block, even though it formed part of the Nursery Block and was to be transferred to the respondent under the contract. Annexed to the contract was a Call Option Deed, which provided that in consideration of the appellants paying a call option fee of $1, the respondent granted the appellants an option to call for the sale of the Nursery Riverside Block for a price of $1, on the terms and conditions of a contract in Schedule 1 of the Deed.
Clause 6 of the Call Option Deed provided that the appellants could exercise the call option at any time after the “Call Option Commencement Date” until the “Call Option Expiry Date”. Relevantly, the Call Option Expiry Date was defined to mean the earlier of 30 days after the registration of a plan of subdivision at the NSW Land Registry to create an indefeasible title for the Nursery Riverside Block, and the “Sunset Date”. The Sunset Date was defined as the date that was 15 months from the date of the Call Option Deed, being 18 March 2022.
As at 18 March 2022, the plan creating an indefeasible title for the Nursery Riverside Block was not registered. Registration ultimately occurred on 23 January 2023. The appellants gave written notice on 31 January 2023 of their exercise of the option pursuant to the Call Option Deed. On 9 February 2023, the respondent notified the appellants that it denied the validity of their exercise of the option.
Of the claims advanced before the primary judge below, the only claim pressed on appeal was a claim that the respondent’s breaches of express and/or implied terms of the Call Option Deed caused the appellants to lose their option to purchase the Nursery Riverside Block for nominal consideration. The primary judge accepted that the respondent breached two implied terms of the Call Option Deed, by its acts and omissions that delayed the process of registration of the plan of subdivision. However, her Honour concluded that the appellants had not discharged their onus of proving that one or more of those breaches caused the failure to achieve registration of the plan by the Sunset Date, and the appellants’ resulting inability to exercise the option for the sale of the Nursery Riverside Block prior to its expiry.
To make this finding, the primary judge relied on counterfactual analysis from which her Honour concluded that the Sunset Date would have passed irrespective of the respondent’s breaches. The appellants did not make any attempt to articulate a counterfactual before the primary judge.
On appeal, the appellants contended that the primary judge commenced the counterfactual analysis from the wrong date, failed to take into account delays of the respondent in lodging the revised development application, and drew inferences about the timing and duration of the progress of the application and registration of the plan of subdivision that were inconsistent with earlier findings and the contemporaneous documentary evidence. Their grounds of appeal were addressed collectively, challenging eight of the primary judge’s factual findings which they submitted, on their version, would have led to the registration of the plan of subdivision and the creation of a new title for the Nursery Riverside Block before the Sunset Date when taken together and applied to the counterfactual.
The Court (Mitchelmore JA, Stern and McHugh JJA agreeing) held, dismissing the appeal:
Whether the appellants’ challenge to the counterfactual could be agitated on appeal
(1) The principles surrounding raising a new issue for the first time on appeal are well settled. As a general rule, a party will be bound by the conduct of its case in the court below. The burden of demonstrating that it is possible to agitate an issue for the first time on appeal is heavy, where the existence of even a possibility that the point could have been met by evidence at trial is fatal: [91]-[92] (Mitchelmore JA) (Stern JA at [116] agreeing, McHugh JA at [117] agreeing).
Tin-Tagel Majikk Pty Ltd v Hockey [2026] NSWCA 72; Lam v Liu [2025] NSWCA 254, applied.
(2) The focus of the appellants’ appeal was a submission that the primary judge erroneously concluded that the appellants would not have been able to exercise the call option before the expiry of the Sunset Date irrespective of the respondent’s breaches of the implied terms of the Call Option Deed. The appellants engaged in a granular critique of the primary judge’s counterfactual analysis, in circumstances where they did not make any attempt to articulate a counterfactual below: [72], [85] (Mitchelmore JA) (Stern JA at [116] agreeing, McHugh JA at [117] agreeing).
(3) The appellants’ case on causation departed, in some respects significantly, from the case they ran below. The appellants urged departures from the primary judge’s counterfactual without identifying any corresponding breach on the part of the respondent which was causative of delay. In some instances, reliance on the breaches alleged on appeal was expressly eschewed as a cause of delay below: [85], [87], [90], [110] (Mitchelmore JA) (Stern JA at [116] agreeing, McHugh JA at [117] agreeing).
(4) As the respondent rightly contended on appeal, many of the eight factual matters submitted by the appellants to lead to a different outcome in the counterfactual were not articulated below, nor were they put to the respondent’s witnesses in cross-examination. Had the issues been raised by the appellants below, the respondent could have met them with evidence. The appellants’ assertion that their case was “consistent” with what they had advanced below was insufficient to address this objection: [98], [108], [113] (Mitchelmore JA) (Stern JA at [116] agreeing, McHugh JA at [117] agreeing).
(5) An assessment of the case the appellants ran before the primary judge demonstrated that the case advanced on appeal bore little resemblance to that which was run below. The course adopted by the appellants on appeal was impermissible and unfair both to the respondent and the primary judge: [112]-[113] (Mitchelmore JA) (Stern JA at [116] agreeing, McHugh JA at [117] agreeing).
MITCHELMORE JA: The appellants, John and Melisa Hederics, appeal from the judgment of the primary judge, Williams J, who dismissed their claim for damages for breach of contract against the respondent, Spare Weel Pty Ltd: Hederics v Spare Weel Pty Ltd [2025] NSWSC 1171.
The appellants carried on a citrus fruit growing and packing business in partnership with Mr Kees Weel, in far west New South Wales. As part of the dissolution of that partnership, the appellants agreed to sell certain land to the respondent. The sale was subject to entering into a “Call Option Deed”, pursuant to which the respondent agreed to grant the appellants an option to call for the sale of part of the land to the appellants for $1.00, following a boundary realignment and registration of a plan of subdivision to create a separate folio identifier for that part of the land. The option expired on the earlier of 30 days after the registration of the plan of subdivision or 18 March 2022 (the Sunset Date).
The plan of subdivision was not registered until after the Sunset Date. When the appellants gave notice of exercising the option, following registration of the plan, the respondent disputed the validity of the notice. The appellants commenced proceedings in the Equity Division, relevantly claiming that the plan was not registered by the Sunset Date because of alleged breaches on the part of the respondent of express or implied terms of the Call Option Deed.
The primary judge found that the respondent had breached two implied terms of the Call Option Deed. However, her Honour also determined that the appellants had failed to establish that the breaches caused delay in registering the plan beyond the Sunset Date.
By their notice of appeal, the appellants challenge the primary judge’s conclusion that the appellants would not have been able to exercise the call option before the expiry of the Sunset Date irrespective of the respondent’s breaches. They submit that the counterfactual analysis that her Honour undertook commenced from the wrong date, failed to take into account delays of the respondent in lodging a revised development application, and drew inferences about the timing and duration of the progress of the application for, and registration of, the plan of subdivision that were inconsistent with her Honour’s earlier findings and the documentary evidence.
The grounds of appeal involved a granular analysis of the contemporaneous documents that the appellants did not engage in below, in support of contentions that they did not advance below. An assessment of the case the appellants ran below demonstrates that they cannot discharge the heavy burden that such an approach entails. The appeal should be dismissed.
The following background relies on the reasons of the primary judge unless otherwise stated.
At all material times up to September 2020, the appellants carried on a citrus fruit growing business and fruit packing business in partnership with Mr Weel: at [7]. The fruit growing business was carried on through a company, Belah Heights Pty Ltd (BHPL), of which Mr Hederics and Mr Weel were the directors. The appellants owned 10% of the shares in BHPL, and Mr Weel owned the other 90% of the shares through a corporate vehicle, Belah Heights Property Pty Ltd (BH Property): at [8]. The fruit packing business was carried on through EJT Packers Pty Ltd (EJTP), of which Mr Hederics and Mr Weel were also the directors. The appellants owned 10% of the shares in EJTP through a company, Mallibel Pty Ltd (Mallibel), and Mr Weel owned the remaining 90% through another corporate vehicle, Packing Weel Pty Ltd (Packing Weel): at [9].
The appellants owned Lot 3 in DP7XXXX2, which was referred to in the reasons as the “Nursery Block” and which was shaded green on a map that was Annexure 1 to her Honour’s reasons: at [10]. A small part of the Nursery Block lies between the Murray River and the Sturt Highway, and was referred to as the “Nursery Riverside Block”, while the balance was referred to as the “Nursery Farming Block”: at [10]. The appellants also owned a triangular block of land immediately adjoining the Nursery Block, which her Honour referred to as the Leasehold Block: at [11].
The respondent owned Lot 2 in DP8XXXX1, which was shaded blue on Annexure 1 and was referred to as the Spare Weel Block: at [12]. The respondent also owned Lot 54 in DP7XXXX6, which was a relatively smaller block shaded orange on Annexure 1 and was referred to as the “Spare Weel Riverside Block”: at [13].
The appellants carried out the day to day work of the partnership businesses: at [14]. In around late August 2020, the General Manager of BH Property formed the view that Mallibel had been selling citrus fruit grown pursuant to the partnership as its own fruit and retaining all of the profits from those sales: at [16]. She reported her concerns to Mr Weel, and he, in turn, reported the allegations to police.
At a meeting on 7 September 2020, Mr Weel confronted Mr Hederics, who made certain admissions and agreed to dissolve the partnership: at [16]-[17]. At a further meeting on 8 September 2020, the parties discussed the terms on which the partnership would be dissolved, the value of the partnership assets, the value of the fruit that had been misappropriated, and the value of the Nursery Block that was to be transferred to Mr Weel or one of his companies so as to offset the appellants’ liability for the misappropriated fruit: at [18].
On 9 September 2020, a Heads of Agreement was signed by the appellants, Mr Weel, BHPL, EJTP, Mallibel, BH Property and Packing Weel: at [38]-[39]. Clause 2.1 of the Heads of Agreement recorded a series of transactions that would dissolve the partnership: at [41]. Clause 2.1(i) made provision for an option for BH Property or an associated entity to acquire the “Nursery Block Assets”, being the Nursery Block and the Leasehold Block, together with associated water access licences, for a price to be agreed or otherwise determined by an independent valuer. Clause 2.1(l) provided:
“A further option for [the appellants] to acquire the river front parcel of the Nursery Block (refer to Annexure B) [namely, the Nursery Riverfront Block] post a proposed subdivision being granted for a consideration of $10. Belah Heights Property will provide the necessary consents for the proposed subdivision. All costs related to the Subdivision will be borne by [the appellants].”
The proposed subdivision referred to in cl 2.1(l) was necessary in order for an entity associated with Mr Weel to own the Nursery Farming Block and for the appellants to own the Nursery Riverside Block. Mr Hederics gave evidence, which the primary judge accepted, that an application for a boundary realignment could alter the boundaries between two or more lots owned by the same owner without creating additional lots. According to the evidence of one of Mr Weel’s accountants, Ben Dean, Mr Hederics explained at the 8 September 2020 meeting that “there would need to be an application to the Wentworth Shire Council for development consent to realign the boundaries, by creating out of the two existing titles for the whole of the Nursery Block and the Spare Weel Block one title for the Nursery Farming Block and the Spare Weel Block, and a second title for the Nursery Riverside Block”: at [20].
On 2 October 2020, the appellants entered into a contract for the sale of the Nursery Block with the respondent (Nursery Block Contract). It was common ground that the purchase price ($1,000,960) did not account for the value of the Nursery Riverside Block even though it formed part of the Nursery Block and was to be transferred to the respondent: at [55].
Clause 40 of the Nursery Block Contract provided that on completion, the parties were to enter into the option agreement annexed to the Contract: at [56]. The parties to the annexed option agreement, titled “Call Option Deed”, were the respondent (Grantor) and the appellants (Grantee). The subject of the Call Option Deed was “the Land”, which was defined as “the separate indefeasible title created for the Proposed Lot”. The “Proposed Lot” was identified by a diagram depicting the area of the Nursery Riverside Block: at [57].
Clause 5.1 of the Call Option Deed provided that in consideration of the appellants paying a call option fee of $1, the respondent granted the appellants an option to call for the sale of the Nursery Riverside Block for a price of $1, on the terms and conditions of a contract in Schedule 1 of the Deed: at [58]. Clause 6 provided that the appellants could exercise the call option at any time after the “Call Option Commencement Date”, and on or before 5:00pm on the “Call Option Expiry Date”. Those two terms were defined in the Items Schedule to the Deed as follows:
“Call Option Commencement Date:
The later of
a) 42 days from the date of this Deed; and
b) The date of satisfaction of clause 3.1(a).
Call Option Expiry Date:
The earlier of:-
a) 30 days after satisfaction of 3.1(a); and
b) the Sunset Date.”
Clause 3.1(a), to which both of the above definitions referred, required “registration of a survey plan at the NSW Land Registry substantially in accordance with the Plan to create an indefeasible title for the Proposed Lot”. The “Plan” was in Schedule 3 to the Call Option Deed, and depicted the Nursery Riverside Block: at [62]. The “Sunset Date” was defined in cl 1.1 as the date that was 15 months from the date of the Call Option Deed, being 18 March 2022: at [61].
Pursuant to cl 3.1(b) of the Call Option Deed, the appellants were responsible for the costs of applications for relevant development approvals and permits to effect the creation of the Proposed Lot, whether by way of subdivision, boundary realignment or other process (collectively defined as the “ROL Application”: cl 1.1). Clause 3.1(c) provided that if cl 3.1(a) was not satisfied on or before the date that was 12 months after the date of the Call Option Deed, either party could terminate the Call Option Deed “by notice to the other given at any time prior to satisfaction of the condition”.
Cl 4.1(a) of the Call Option Deed provided that the respondent consented to the appellants making the ROL Application. Clause 4.1(b) required the respondent to provide any written consent as the owner of the Parent Lot (being the Nursery Block), to do all other acts and things the appellants may reasonably require to enable them to lodge the ROL Application, and to promptly sign any documents required in connection with the creation of a separate indefeasible title for the Proposed Lot on request from the appellants, including, if necessary, to amalgamate the Nursery Block with the Spare Weel Block: at [65]-[66].
Clause 12 of the Call Option Deed provided that time was to be of the essence, while cl 13 provided:
“Each party must do, sign, execute and deliver and must ensure that each of its employees and agents does, signs, executes and delivers, all deeds, documents, instruments and acts reasonably required of it or them by notice from another party to effectively carry out and give full effect to this Deed and the rights and obligations of the parties under it.”
“(1) from the later of:
(i) 29 January 2021 (being 42 days after the date of execution); and
(ii) the date of registration of the plan required by cl 3.1(a) of the Call Option Deed; until
(2) on or before 5:00pm on the earlier of:
(i) 30 days after the date of registration of the plan required by cl 3.1(a); and
(ii) the Sunset Date, being 18 March 2022.”
As at 18 March 2022, the plan required by cl 3.1(a) of the Call Option Deed was not registered. Mr Hederics gave evidence that he was aware that the Call Option Deed had a Sunset Date, but he could not otherwise recall what he had in mind about the timing of the exercise of the option when he signed the Deed. He also gave evidence that he did not realise that the Sunset Date came and went because he had not turned his mind to what that date was. Mrs Hederics’ evidence was that she “probably didn’t understand it enough in regards to the timings, like the times that are required on the document”: at [76].
Registration of the plan of subdivision referred to in cl 3.1(a) of the Call Option Deed ultimately occurred on 23 January 2023. By written notice dated 31 January 2023, the appellants gave notice of their exercise of the option pursuant to the Call Option Deed. On 9 February 2023, the respondent notified the appellants that it denied the validity of their exercise of the option.
By the time the Call Option Deed was executed on 18 December 2020, Mr Weel was negotiating with Costa Group Holdings Ltd (Costa Group) for the sale of the fruit growing and fruit packing businesses, as well as land holdings including the Leasehold Block, the Nursery Farming Block, and part of the Spare Weel Block: at [77]. On 4 March 2021, the respondent and BH Property entered into a contract for the sale of land and water access licences to a subsidiary of Costa Group, Yandilla Park Pty Ltd (Costa Group contract).
The land to be sold to Costa Group was described in the Costa Group contract by reference to an annexed draft subdivision plan. It included an area described as “Proposed Lot 3”, and, subject to one qualification, excluded “Proposed Lot 1” and “Proposed Lot 2”: at [86]. Proposed Lot 1 was the Nursery Riverside Block, while Proposed Lot 2 was the Spare Weel Riverside Block combined with the part of the Spare Weel Block that was on the river-side of the Sturt Highway. As the primary judge noted at [87], cl 39.2 of the Costa Group contract required the vendors to use their best endeavours to obtain all permits, consents and approvals from the relevant authorities for the annexed draft subdivision plan as well as the “Lot 54 easement”. The latter easement provided a right of access through Proposed Lot 2 to the Murray River, for the purposes of the water access licences that Costa Group was purchasing: at [87].
Relevantly for present purposes, cl 39.2(c) of the Costa Group contract provided that the purchaser could withhold consent in respect of the draft plan of subdivision and documentation required for the Lot 54 easement if it did not incorporate all easements and access rights to the water supply works and pumps in the Spare Weel Riverside Block which the purchaser reasonably required: at [88]. The parties agreed to defer completion of that part of the contract that related to Proposed Lot 3 until 14 days after the vendors notified the purchaser in writing of registration of the draft plan of subdivision and Lot 54 easement. Clause 39.5(a) provided that if the draft subdivision plan and Lot 54 easement were not registered by the “Subdivision Date”, the purchaser could elect to require the vendors to complete the contract by transferring the land in Proposed Lot 1 and Proposed Lot 2 which the vendors were otherwise entitled to retain: at [90]. The “Subdivision Date” was defined as 18 months after the date of the Costa Group contract, being 4 September 2022: at [91].
On 12 October 2021, the Costa Group contract was completed, save in respect of Proposed Lot 3: at [109]. Mr Weel left it to Mr Shoobridge, one of his accountants, to oversee the work necessary to realign the land boundaries to facilitate the Costa Group contract: at [78].
On 2 December 2020, before completing the Nursery Block Contract and executing the Call Option Deed, the appellants submitted a development application to Wentworth Shire Council (the Council) to realign the boundaries of the Nursery Block so as to create the Nursery Riverside Block. They engaged Andrew Saunders, of Danson & Blaby Surveyors, to lodge the application: at [70].
In cross-examination, Mr Hederics accepted that the development application that Mr Saunders first submitted did not reflect what the parties had agreed. If approved, that development application would have created a new title comprising the Nursery Riverside Block and the portion of the Spare Weel Block on the river side of the Sturt Highway: at [72]-[73].
On 21 December 2020, Mr Shoobridge emailed Mr Saunders, requesting a cost and time estimate to prepare a plan to realign the boundaries of the Spare Weel Block and the Spare Weel Riverside Block so as to create Proposed Lot 2 under the Costa Group contract. In his reply email, Mr Saunders informed Mr Shoobridge of the development application the appellants had lodged. Mr Shoobridge’s evidence was that this was the first time he learned of that development application, and became aware that it contained a mistake.
Rather than asking Mr Hederics to correct the mistake, Mr Shoobridge expanded the scope of his requirements of Mr Saunders so as to address both the issue with the appellants’ development application and the boundary realignment required under the Costa Group contract. Mr Saunders then prepared a revised development application on behalf of the respondent, to realign the boundaries between the Spare Weel Riverside Block, the Spare Weel Block and the Nursery Block, so as “to create two river frontage titles and one title for the horticultural property”: at [82].
On 28 January 2021, Mr Saunders submitted the revised development application to the Council, describing it as “replacing the original Development Application lodged on 23rd November 2020”: at [84]. The revised development application contained three proposed lots: Proposed Lot 3 was the “horticultural property”, Proposed Lot 2 was the block of land situated on the river side of the Sturt Highway that Mr Weel was to retain pursuant to the Costa Group contract, and Proposed Lot 1 was the Nursery Riverside Block.
The Council did not treat the revised development application as formally lodged until 14 April 2021: at [85]. On 16 August 2021, the Council approved the development application: at [100]. The approval was subject to a number of conditions: at [101]. Condition 5 required that access was to be provided to Proposed Lot 1 to Council’s requirements: at [102]. Condition 6 required an application for a subdivision certificate to be lodged and issued before the Council would sign the plan of subdivision for lodgement and registration. Condition 8 required that before a subdivision certificate would issue, “written advice … is to be submitted to [the Council] from Essential Energy that its requirements for the provisions [sic] of electricity services have been satisfied”. Condition 9 stipulated that no dwellings would be approved or allowed for Proposed Lots 1 and 2.
There was no evidence that between 24 August 2021 and 1 February 2022, Mr Shoobridge or any other person on behalf of the respondent “turned their attention to the work that was required to comply with all of the conditions of the development consent in order to prepare a compliant application for a subdivision certificate and obtain the Council’s endorsement of the plan of subdivision … so as to create titles for each of Proposed Lot 1, Proposed Lot 2 and Proposed Lot 3”: at [117] (emphasis added). In an email to Mr Shoobridge on 24 August 2021, Mr Saunders said that the field work and plan drawing would take about one month, and he “would be aiming for the end of the year for titles”: at [106]. Her Honour did not read that response as Mr Saunders advising that he aimed to achieve registration of title by the end of the year. As her Honour stated, that outcome “was dependent on the defendant attending to the work necessary to satisfy conditions 5 and 8”: at [107].
On 8 September 2021, the appellants’ solicitor at the time, Mr Lock, wrote to Mr Saunders requesting a copy of the draft plan once the field work had been completed. Mr Saunders replied to Mr Lock and Mr Shoobridge on 17 September 2021, informing Mr Lock that preparation of the draft survey plan would be a priority in the week of 27 September 2021: at [108]. On 8 December 2021, Mr Saunders sent a first draft of the plan of subdivision to Mr Lock and Mr Shoobridge, which marked the boundaries of the three lots in accordance with the development consent. The draft plan also included a right of way marked “E”, which was to be created pursuant to s 88B of the Conveyancing Act 1919 (NSW) and which burdened Proposed Lot 2. That right of way, referred to as easement E, was required pursuant to cl 39.2(b) of the Costa Group Contract: at [112].
On 18 December 2021, the appellants and the respondent became entitled to terminate the Call Option Deed, as the survey plan had not been registered one year after the date of the Call Option Deed. Neither party exercised this right: at [113].
On 1 February 2022, Mr Shoobridge became aware that Mr Saunders no longer worked for Danson & Blaby: at [118]. Correspondence passed between Mr Shoobridge and the firm’s office manager, Ms Forbes, in February and March 2022, about whether compliance with any of the development consent conditions remained outstanding.
I pause at this point of the chronology to note that 18 March 2022 was the Sunset Date.
On 28 March 2022 Danson & Blaby lodged an application with Essential Energy on behalf of the respondent for the issue of a Notice of Arrangement in respect of the three proposed lots. As the primary judge noted, this was the first step towards satisfying condition 8 of the development consent: at [130].
On 10 May 2022, Essential Energy requested additional information from Danson & Blaby about the application, including the final draft of the proposed plan of subdivision. Essential Energy reiterated its request for the plan on 26 May 2022, which Danson & Blaby provided the next day: at [132]-[133].
On 3 June 2022, Mr Bryce of Essential Energy advised Danson & Blaby that Essential Energy may require some easements before it would enter into a Notice of Arrangement. He requested a further draft plan marked up to indicate the precise location of two electricity assets which appeared to encroach on Proposed Lot 2: at [134]. Emails passing between Mr Shoobridge and Ms Forbes indicated that Danson & Blaby did not begin preparing a survey plan showing the location of those two electricity assets until about 6 July 2022: at [135]. On 14 July 2022, Danson & Blaby’s surveyor attended the site and marked the location of the electricity assets, confirming that they did encroach on Proposed Lot 2: at [136]-[137].
On 1 August 2022, Danson & Blaby sent the revised draft plan to Essential Energy, showing the location of the electricity assets and proposing that they be addressed by easements in favour of Essential Energy, which were referred to as easements F and G. On 2 August 2022, Mr Bryce replied to Danson & Blaby, stating that until the easements were registered or a deed was in place, a Notice of Arrangement was not available: at [141]. After some misunderstanding on Mr Shoobridge’s part as to who was responsible for preparing the easements, on 11 August 2022 he sent a draft s 88B instrument for proposed easements E, F and G to, inter alia, Danson & Blaby and Mr Weel, noting that Costa Group may have some small changes. Her Honour observed that there was no evidence that Costa Group had previously received any draft of the plan or a proposed s 88B instrument: at [144].
As matters transpired, Costa Group did require a change to the proposed route of the right of way (being easement E), of which they notified Mr Shoobridge on the afternoon of 11 August 2022. This required a third iteration of the draft plan of subdivision, which Danson & Blaby prepared and forwarded to Mr Shoobridge on 24 August 2022: at [145]. On 2 September 2022, Ms Forbes provided Essential Energy with the final version of the third iteration of the plan, together with the s 88B instrument signed by Mr Weel: at [147]. On 20 September 2022, Essential Energy issued a Notice of Arrangement: at [148].
By 14 October 2022, Danson & Blaby had lodged with the Council the application for a subdivision certificate with all of the required supporting documents: at [151]. On 19 October 2022, the Council approved the application: at [152]. On 31 October 2022, Danson & Blaby lodged the plan of subdivision and s 88B instrument for registration with NSW Land Registry Services: at [152].
On 16 November 2022, NSW Land Registry Services raised 15 requisitions in relation to the endorsed plan of subdivision which required further work on the plan and the s 88B instrument: at [154]. On 20 December 2022, amended versions of the documents were lodged with NSW Land Registry Services, and on 23 January 2023 the documents were registered and the three new Lots were created: at [157].
In their closing submissions before the primary judge, the appellants pressed two claims. The first was a claim in estoppel, which did not succeed and was not the subject of appeal. The second, as the primary judge summarised it, was “that the defendant breached the express and/or implied terms of the Call Option Deed and their claim for an order for specific performance of the Call Option Deed or, alternatively, damages for breach of contract equivalent to the value of the Nursery Riverside Block which the plaintiffs say they lost their option to purchase for nominal consideration by reason of the defendant’s alleged breaches”: at [178].
In their statement of claim, the appellants pleaded that the Call Option Deed contained a number of implied terms. As ultimately pressed, the first implied term on which the appellants relied was that “each party was obliged to do all things reasonably necessary to secure performance of those agreements to enable the other party to have the benefit of those agreements”: at [206]. The respondent conceded in closing submissions that the Call Option Deed contained an implied term to that effect. The respondent also conceded that when the appellants’ development application was withdrawn and effectively superseded by the revised development application, the implied obligation required it to do all things reasonably necessary to secure development consent and achieve registration of the plan of subdivision to create the Nursery Riverside Block before the Sunset Date: at [208]. The primary judge found that both of those concessions were properly made: at [209].
The second implied term that the appellants pleaded was that the parties would act in good faith in undertaking the transactions contemplated by, and in the performance of, the agreements: at [206]. The primary judge found that this term was also implied in the Call Option Deed: at [209].
In their statement of claim (SOC), the appellants alleged that in breach of, relevantly, the implied terms, the respondent (SOC [74]):
did not take reasonable steps to enable registration of the development application that they (that is, the appellants) had submitted, which would have led to registration of the plan included in the Call Option Deed;
arranged for the lodgement of its own development application, for a different plan, in preference to the appellants’ development application;
prevented the appellants from obtaining determination of the development application they had lodged; and
did not return a signed counterpart contract by 7 February 2023.
These four matters were collectively defined as the “Breaches”.
The appellants next pleaded that if the time for exercise of the option pursuant to the Call Option Deed was limited to a date that was 15 months from the date of the execution of the Deed (which they ultimately accepted in not pressing their rectification claim), then “as a result of the Breaches, the registration of a survey plan pursuant to clause 3.1(a) of the Call Option Deed was substantially delayed such that the Commencement Date of the Option arose only after the [Sunset Date]”, depriving the appellants of the benefit of the option (SOC [75]). The appellants supported this allegation by reference to particulars that foreshadowed further particulars after discovery and otherwise referred to:
the withdrawal of the appellants’ development application and lodgement of the respondent’s application (SOC [27]), material differences between the former and the latter (SOC [30]), and the period that followed the grant of development consent on 16 August 2021 (SOC [33]-[45]);
the subdivision proposed in the respondent’s development application, which required creating an easement for existing electrical infrastructure and compliance with the existing encumbrances in favour of Essential Energy as noted on the title of the Spare Weel Riverside Block; and
the need to create a carriageway easement as part of that subdivision.
The appellants provided on the appeal a document titled, “Aide Memoire in the Appellant’s [sic] Opening and Closing Submissions before the Primary Judge”, in which they identified the universe of what they submitted below, both orally and in writing, on their breach of contract claim. The appellants’ opening written submissions below made passing reference to their breach of contract claim based on the implied terms, primarily in the paragraph addressing the relief that they sought (at [55(c)]). Without referring directly to this claim, the appellants also referred to certain events, including the events to which they made reference in SOC [75] (at [53]). The appellants relied on these events, which were reiterated in counsel’s oral opening before the primary judge (Tcpt 28/07/25, 16.20-18.7), in aid of the submission that because the respondent assumed responsibility to register the survey plan upon which exercise of the call option was contingent, it would be unconscientious for it to insist on its legal rights to terminate the Call Option Deed: at [53]-[54].
The appellants did not provide any closing written submissions. In their submissions in reply on the appeal, the appellants submitted that at the conclusion of the evidence on the third day of the hearing, they proposed that the proceedings be adjourned to allow the parties to prepare closing written submissions; and that this application was refused. This is an incomplete description of what occurred. In response to counsel’s request for an indulgence to commence submissions the following day, the primary judge expressed a preference to commence immediately. Her Honour also said that to the extent that there were particular issues that counsel identified in the course of submissions for which he wished to provide an aide memoire or summary of the evidence, she would consider giving leave to do that. No such issues were identified and no leave was requested.
In the course of closing oral submissions below, the appellants’ counsel accepted, as a fair summary, that when Mr Shoobridge was shown the development application that the appellants had submitted, he formed the view, correctly, that it was incorrect; and that the respondent decided to lodge a development application which would achieve what was required for the Call Option Deed and also what it wanted to achieve for the Costa Group contract. Counsel for the appellants submitted that “the cause and root of the problem” was not the development application per se but the obligations in the Costa Group contract, specifically the obligations in cl 39.2, in circumstances where the sale to Costa Group was not disclosed to the appellants. Counsel clarified the position in the following exchange with the primary judge (Tcpt 30/07/25, 177.4-24):
“HER HONOUR: Does the problem lie not so much in the fact that the defendant entered into obligations to do things in relation to land that didn’t affect the land that the plaintiffs had the option to acquire, but rather the time that might require, and the fact that that time might extend beyond the sunset date in the option deed as it ultimately did.
BOLGER: It is, your Honour, and without notice to the plaintiffs, where they could have done anything about it, and in circumstances where the defendant, through clause 39.2, became beholden to the approvals from the Costa Group once the access and easements had actually been finalised, the negotiations had been finalised and agreed. And the evidence, your Honour, shows that those negotiations – well, first of all, the Costa Group had to approve the final plan. And there’s evidence that in December 2022, well and truly after the expiration of the sunset clause in the Call Option Deed with the plaintiff, the approval was still pending or was still ongoing with the Costa Group, so much so that it was only in January 2023 that the subdivision plan was ultimately registered. And the proposed lot, because of the fact the defendant changed the development application, which was just the two lots, on the plaintiffs to achieve what was required in the sale and share agreement. And the Call Option Deed entered into by the plaintiff to include these other aspects then caused the delay because it was all tied together.”
The primary judge made it clear to the appellants’ counsel that she would need to be taken through “the evidence about that cause of delay, that it was caused by the defendant or the Costa Group with whom they’d contracted, for example, as opposed to by the council, which may have been outside the defendant’s control, as it were” (Tcpt 30/07/25, 177.26-30).
In support of the contention that it was matters associated with the Costa Group contract that were the cause of delay, the appellants submitted that condition 5 was the only condition of the development approval that affected Proposed Lot 1, being the Nursery Riverside Block. Counsel submitted that all of the other matters that needed to be addressed to permit registration of the plan of subdivision pertained to Proposed Lot 2 and access through that lot to Proposed Lot 3. The appellants referred in this context to the correspondence between Danson & Blaby and Essential Energy, commencing on 28 March 2022. Counsel accepted that the Notice of Arrangement related to the three lots, but submitted that the requirements that Essential Energy ultimately stipulated related only to Proposed Lot 2 and Proposed Lot 3. Her Honour summarised the appellants’ submission as follows (Tcpt 30/07/25, 186.15-27):
“HER HONOUR: So, all of those documents you’ve just taken me to, as I understand your submission, show that at least from August 2021, when the council granted the development approval subject to those conditions, the delay, or the time taken, I should say, to meet those conditions and get the relevant documents registered with the Land Titles Office to create the separate title was attributable to the complexities associated with the Costa Group sale.
BOLGER: That’s right, and the requirement, or what Mr Weel wanted, being his own riverside block.
HER HONOUR: Yes, I’m including that within the Costa Group sale arrangements, yes.”
(Emphasis added.)
The appellants’ counsel then took the primary judge to a series of documents which were said to show “the reason for the delay by reason of what occurred in respect of the Costa Group contract and the defendant’s need to comply with the terms of that contract before it could register the subdivision certificate” and, in particular, “because of the matters going to what the defendant wanted to do with lot 2”. Counsel submitted that much more limited action was required for a subdivision certificate to be finalised for what became Proposed Lot 1.
In relation to the estoppel claim, the appellants submitted that in entering into the Costa Group contract (which was not disclosed) and then taking control of the development application and the subdivision registration (in order to meet the Costa Group contract requirements), the respondent “was not acting consistently with that representation to do things all [sic] reasonable and necessary to get the plaintiff’s plan registered so that they could exercise the option”. In relation to the breach of contract claim, in their closing submissions the appellants referred to the breaches pleaded in SOC [31], [74] and [75] (Tcpt 30/07/25, 203.14-31):
“withdrawing the plaintiff’s development application … and then seeking to submit a separate development plan which was not substantially in accordance with the plan contemplated in the Call Option Deed”;
entering the sale contract for land and water rights to Costa Group, which obliged the respondent to prepare a further updated plan of subdivision which included specific additional requirements; and
thereafter seeking to comply with the terms of the Costa Group contract “in disregard or preference to any obligations to the plaintiffs” and delaying the lodgement of the plan of subdivision, or negotiating with Costa Group about the easement until after the expiry of the option granted to the appellants.
On the issue of causation, counsel for the appellants made the following limited submission (Tcpt 30/07/25, 203.33-35):
“The plaintiffs submit that each of those matters is a clear breach of the implied terms. And by reason of that the plaintiffs have suffered loss and damage being the loss of the ability to exercise the option and to retain the property.”
The appellants also referred to the objection that the respondent lodged to condition 9, some 12 months after the approval was granted. They accepted that the removal of condition 9 assisted them because they ultimately wanted to live on the Riverside Block, but submitted that any issue going to that condition would be a “red herring” in relation to why the subdivision certificate was not registered before it was.
In the respondent’s submissions to the primary judge, in relation to causation counsel referred to what he described as the appellants’ “conclusory submission” that it had caused delay, and pointed to the absence of any attempt “to connect the matters [on which the appellants relied] with, in terms of contractual causation, with any loss or damage which the plaintiff[s] suffered”. Counsel also referred to the absence of any expert evidence on this issue (Tcpt 30/07/25, 207.49-208.20). The respondent otherwise focused upon the easements that Essential Energy required on Proposed Lot 2, which were required quite apart from the Costa Group contract. The respondent submitted that the issues with Essential Energy, together with the requisition process following lodgement of the plan of subdivision and s 88B instrument for registration, took some six months to address in any event.
In the course of the appellants’ submissions in reply, the primary judge specifically raised with the appellants’ counsel whether he cavilled with the respondent’s submission that the Essential Energy matters would have had to be addressed even in the scenario where the appellants had corrected their application, stating that this seemed “rather persuasive”. In response, the appellants’ counsel accepted that the boundary realignment pursuant to the Call Option Deed entailed at least one of the easements that Essential Energy required, being Easement F, if not also Easement G. However, counsel submitted, it was not compliance with condition 8 that delayed the process but, rather, the need to get approval from Costa Group to finalise the subdivision plans and the s 88B instrument. It was on that basis that the appellants submitted that it was not right for the respondent to attribute a period of six months to the Essential Energy process (Tcpt 31/07/25, 237.34-40; 238.10).
“I make the following findings on the basis of the whole of the evidence referred to at [70]-[73], [79]-[93] and [100]-[157] above:
(1) the mistake in the plaintiffs’ development application caused a delay of approximately three months in the overall process from the lodgement of that application on 2 December 2020 until 9 March 2021 when it was withdrawn and superseded by the defendant’s development application, with Mr Hederics’ consent, after the defendant discovered the plaintiffs’ mistake and prepared their own application;
(2) the defendant’s delay in paying the lodgement fee for its own development application caused a delay of almost three weeks from 26 March 2021 (when the Council confirmed that the application could be lodged subject to payment of the fee) until 14 April 2021 (when the fee was paid);
(3) a period of four months elapsed between the date of lodgement of the defendant’s development application on 14 April 2021 and the Council’s issue of notice determining that application by granting consent subject to conditions on 16 August 2021;
(4) for a period of approximately six months after Mr Saunders forwarded the development consent and conditions to the defendant’s advisor Mr Shoobridge on 24 August 2021, until 18 February 2022, the defendant was aware that Mr Saunders was in the process of preparing a draft plan of subdivision and instructed Mr Saunders to include the Lot 54 Easement required by the Costa Group in that plan, but the defendant failed to take any other steps towards satisfying the conditions of the development consent, including condition 8;
(5) the defendant began to take such steps on 18 February 2022, when Mr Shoobridge sought Danson & Blaby’s assistance in complying with condition 8;
(6) despite having asked Danson & Blaby to expedite matters on 18 February 2022, the defendant permitted (or failed to prevent) a delay of some six weeks by Danson & Blaby before they made the application to Essential Energy for a Notice of Arrangement on 28 March 2022;
(7) the defendant permitted (or failed to prevent) a delay of one month before Danson & Blaby commenced work on 6 July 2022 on preparing the survey plan requested by Essential Energy showing the location of the two electricity assets that it had identified as potentially encroaching on proposed Lot 2;
(8) the defendant permitted a further period of almost two months to elapse before that survey plan was completed (including incorporating a change to the Lot 54 Easement required by the Costa Group) and a s 88B instrument was prepared on 2 September 2022, creating easements F and G in favour of Essential Energy in respect of the confirmed encroachment of the electricity assets on proposed Lot 2, and easement E as required under the Costa Group contract;
(9) the defendant did not lodge its application for the issue of a subdivision certificate with the Council until 14 October 2022, being a little more than three weeks after Essential Energy issued the Notice of Arrangement on 20 September 2022;
(10) after the Council issued the Subdivision Certificate and endorsed the plan of subdivision on 19 October 2022, the defendant submitted the plan and s 88B instrument to NSW Land Registry Services for registration on 31 October 2022;
(11) after NSW Land Registry Services issued requisitions on 16 November 2022, the defendant took approximately one month to respond on 20 December 2022; and
(12) notwithstanding that the revised plan and s 88B instrument addressing the requisitions were lodged with NSW Land Registry Services immediately before the commencement of the Christmas and New Year holiday period, they were registered on 23 January 2023.”
The primary judge found that the appellants’ mistake with the first development application “caused a delay of approximately three months in the overall process of achieving boundary realignment and a separate title for the Nursery Riverside Block*”*. Her Honour further found that it was “likely that it would have occasioned a longer delay if the [respondent] had not discovered the mistake in late December 2020”: at [159].
Her Honour found that “[s]tages 2, 4, 6, 7, 8 and 9 were delayed by the [respondent]”. Her Honour did not have any evidence from an expert surveyor or planner “addressing the time within which those stages, and the overall process, could reasonably have been completed”. Nonetheless, her Honour found that taken together, those delayed stages “accounted for a little over ten months of the total time of approximately 25 months taken to achieve registration of a separate title for the Nursery Riverside Block from 2 December 2020 until 23 January 2023”: at [160].
At [162], her Honour referred to the appellants’ contention that the delays were occasioned by the respondent’s obligations under the Costa Group contract. Her Honour rejected that contention. In so concluding, her Honour found that:
the respondent’s failure to commence work towards satisfying condition 8 was “the principal cause of the delays”: at [162];
a condition to the effect of condition 8 would likely have been included in the conditions of any development consent for the realignment of boundaries provided for in the Heads of Agreement and Call Option Deed; and
any application to Essential Energy for a Notice of Arrangement would “probably have caused Essential Energy to identify the potential encroachment of one of the two electricity assets on part of the Spare Weel Block [being part of Proposed Lot 3] and, ultimately, to require easements permitting that encroachment”: at [163].
Her Honour said that it did not follow from her finding at [160] that the respondent was “responsible” for the delay of just over ten months: at [164]. Given the significance to the appeal of her Honour’s reasons on this issue, I will set out the balance of [164] and [165] in full:
“[164] … Each of the delayed stages would have required some time to be completed efficiently. As the defendant submitted, the plaintiffs did not adduce any expert evidence that would assist the Court in determining the time that each stage, and the overall process, would have taken without the delay that I have found the defendant caused. Nor did the plaintiffs’ submissions articulate the time that they contend would have been taken by each stage of the process but for the defendant’s delay. The plaintiffs’ submissions merely asserted that the delay was occasioned by the need for the defendant to discharge its obligations under clause 39 of the Costa Group contract. I have rejected that assertion.
[165] Doing the best I can based on the documentary evidence of what in fact happened, I am not persuaded that the plan of subdivision creating Lot 1 (being the Nursery Riverside Block show in green on Annexure 2), Lot 2 (being the Nursery Farming Block and most of the Spare Weel Block shown in blue on Annexure 2) and Lot 3 (being the remainder of the Spare Weel Block and the Spare Weel Riverside Block shown in orange on Annexure 2) and the s 88B instrument creating easements E, F and G, would have been registered before about mid-May 2022 if the defendant had not occasioned the delays I have found. I have arrived at that conclusion by analysing the counterfactual scenario as follows:
(1) development consent for the boundary realignment was granted on 16 August 2021;
(2) noting that it took Danson & Blaby almost three months thereafter to prepare the first draft of the plan of subdivision which it sent to the defendant on 8 December 2021, and a further three and half months thereafter for the defendant to turn its mind to what was required to comply with the conditions of the development consent and for Danson & Blaby to apply to Essential Energy on behalf of the defendant for a Notice of Arrangement on 28 March 2022, I infer that a period of approximately two months would reasonably have been required after the grant of development consent in the counterfactual scenario for the preparation of the first draft of the plan together with a draft s 88B instrument for the Lot 54 Easement (or easement E), for the defendant to obtain the Costa Group’s approval of the plan and s 88B instrument, and for the defendant to submit the plan to Essential Energy in support of an application for a Notice of Arrangement;
(3) noting that Essential Energy took approximately six weeks to review the application made on 28 March 2022 and request further information, I infer that the same period would have elapsed in the counterfactual scenario and that Essential Energy would therefore have requested that the draft plan be revised to show the location of the electricity asset that ultimately became the subject of easement G on or about 30 November 2021, being about six weeks after submission of the application for the Notice of Arrangement on about 16 October 2021;
(4) noting that Danson & Blaby took approximately two months after receiving such a request from Essential Energy on 3 June 2022 to prepare and submit a revised plan marking the location of two electricity assets on 1 August 2022, but that they did not begin preparing that plan until about 6 July 2022, I infer that in the counterfactual scenario Danson & Blaby could reasonably have prepared and submitted to Essential Energy a revised plan marking the location of the electricity asset that was the subject of easement G within three weeks by just before Christmas 2021;
(5) allowing some time for offices to be closed during the Christmas and New Year holiday period, I consider that it would have been about 15 February 2022 in the counterfactual scenario by the time Essential Energy confirmed its requirement for an easement in respect of that electricity asset, the defendant prepared a revised plan and s 88B instrument including that easement with the assistance of Danson & Blaby, the Costa Group approved the revised plan & s 88B instrument, and those documents were submitted to Essential Energy on behalf of the defendant (somewhat longer than the one-month period taken in the events which happened, with no intervening holiday period);
(6) noting that Essential Energy issued a Notice of Arrangement 18 days after those documents were submitted to it in the events which happened, I infer that a Notice of Arrangement would have been issued by about 5 March 2022 in the counterfactual scenario;
(7) noting that it took about three and half weeks after the issue of the Notice of Arrangement for Danson & Blaby to submit the defendant’s application to the Council for a subdivision certificate in the events that happened, I infer that the application would have been submitted to the Council no earlier than about 21 March 2022 in the counterfactual scenario;
(8) noting that it took the Council five days to approve the application and issue the Subdivision Certificate and endorsed plan of subdivision in the events which happened, I infer that this would have occurred no earlier than about 26 March 2022 in the counterfactual scenario;
(9) noting that defendant took almost two weeks to lodge the endorsed plan of subdivision and s 88B instrument with NSW Land Registry Services for registration in the events which happened, I infer that this would have required at least a week in the counterfactual scenario which brings us to 2 April 2022;
(10) noting that it took 16 days for NSW Land Registry Services to issue extensive requisitions affecting many different parts of the plan of subdivision in the events which happened, I infer that requisitions would have been issued in the counterfactual scenario by no earlier than 14 April 2022 assuming that the requisitions would have been somewhat less extensive;
(11) noting that it took the defendant a month to submit a revised plan and s 88B instrument addressing the requisitions in the events which happened, I infer that this would have occurred no earlier than 28 April 2022 in the counterfactual scenario; and
(12) noting that it took NSW Land Registry Services one month to register the plan of subdivision creating the titles for Lots 1, 2 and 3, including the Christmas and New Year holiday period, in the events which happened, I infer that this would have taken approximately two weeks in the counterfactual scenario and that the titles would therefore not have been created until about 13 May 2022.”
(Emphasis added.)
As her Honour stated at [166], the Sunset Date in the Call Option Deed passed between stages 6 and 7 in her Honour’s counterfactual scenario.
The primary judge summarised the breach of contract case that the appellants articulated in closing in the following way: “that the defendant had breached the implied obligations referred to at [208]-[209] above [being the two implied terms] by failing to do all things reasonably necessary on its part to secure development consent for the boundary realignment and registration of a plan of subdivision creating a separate title for the Nursery Riverside Block prior to the Sunset Date”: at [212]. Her Honour found that the respondent breached the two implied obligations “by its acts and omissions which resulted in the delay of stages 2, 4, 6, 7, 8 and 9 of the process referred to at [158] above”.
However, her Honour concluded that the appellants had not discharged their onus of proving “that one or more of those breaches, separately or cumulatively, caused the failure to achieve registration of the plan and the creation of a separate title for the Nursery Riverside Block by the Sunset Date and the plaintiffs’ resulting inability to exercise the option prior to its expiry”: at [212]. In reaching this conclusion, her Honour referred to her reasons in [164]-[166].
The focus of the appellants’ appeal was the primary judge’s conclusion that they would not have been able to exercise the call option before the Sunset Date notwithstanding her Honour’s finding at [160] that the respondent had delayed a number of the stages. They contended in writing that her Honour commenced the counterfactual analysis from the wrong date, failed to take into account delays of the respondent in lodging the revised development application, and drew inferences about the timing and duration of the progress of the application and registration of the plan of subdivision that were inconsistent with earlier findings and the contemporaneous documentary evidence.
Notwithstanding the factual focus of the appeal, the appellants did not file a statement pursuant to r 51.36(2) of the Uniform Civil Procedure Rules 2005 (NSW). As Payne JA observed in Tang v Tannous [2026] NSWCA 156 at [4], the rule is not optional, and is of particular focus in a fact-intensive matter. His Honour referred to Magann v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2020] NSWCA 167, in which Bell P (Macfarlan and Payne JJA agreeing) referred to at least three reasons why adherence to the rule is important, at [56]:
“First, it serves to focus the mind of the lawyer drafting the submissions on precisely what factual errors are relied upon to underpin the appeal, and whether there is a proper basis in the evidence to challenge that finding or those findings. Secondly, adherence to the rule is important as a means of putting the respondent on fair notice as to the level of detail at which the decision at first instance is to be challenged. Thirdly, adherence to the procedure is vitally important in delineating this Court's task on appeal and assisting the Court with all relevant evidentiary references. The high volume of appellate work conscientiously undertaken by this Court demands that practitioners who should have the closest familiarity with the evidentiary record in a given matter, frequently running to thousands of pages of documentary evidence and transcript, assist the Court with precise and accurate references to that record, as required by the rules, in respect of those findings of primary fact which are sought to be challenged.”
The lack of focus brought to the question of what factual findings the appellants were challenging led, for example, to senior counsel for the appellants accepting, in the course of oral submissions, that their arguments necessarily involved a challenge to the correctness of her Honour’s finding in [158(1)], even though such a challenge was not expressed in the grounds of appeal.
The appellants’ written submissions did not address their seven grounds of appeal individually. Instead, under the heading “Grounds 1-6 – findings of fact, drawing of inferences and or conclusions as to the time for events to occur”, the appellants referred to nine matters which “when taken in combination, and applied to the Counterfactual”, would have led to registration of the plan of subdivision and the creation of a new title for the Nursery Riverside Block before the Sunset Date. Those matters were as follows:
The timing of the grant of development consent: The appellants submitted in writing that the date should have been 21 July 2021, not 16 August 2021, on the basis that the former date was when the consent was “granted” at a meeting of the Council. At the hearing, this item was not pressed, which was appropriate in circumstances where the consent was only operative from 16 August 2021.
The commencement of the counterfactual from 16 August 2021: The appellants submitted that it was not open to the primary judge to find that the appellants were responsible for a delay of three months, and that any mistake in the development application submitted on their behalf only caused a delay up to 28 January 2021.
The time afforded to prepare the first draft plan of subdivision and s 88B instrument: Relying on Mr Saunders’ email to Mr Shoobridge of 25 August 2021, the appellants submitted that it was not open to the primary judge, in [165(2)], to consider on the counterfactual, in the absence of any evidence to contradict the evidence of the surveyor that the field work and plan drawing would take about a month, that this stage should have taken a period of two months.
The time afforded for the involvement of Costa Group: The appellants submitted that the primary judge also erred in [165(2)] in failing to find that the delays associated with the Costa Group contract were a cause of the delay in registering the plan of subdivision. They submitted that as “a matter of commonsense”, the Costa Group contract introduced steps that were not necessary for the subdivision that the Call Option Deed required and “consequently added time to the process which caused delay”. In so far as the primary judge allowed time on the counterfactual allow for the respondent to obtain Costa Group’s approval of the plan of subdivision and s 88B instrument, this was in error.
The time that Essential Energy took to respond to the application of 28 March 2022: The appellants submitted that the primary judge’s allowance, in [165(3)], of six weeks for Essential Energy to review the application made on 28 March 2022 was factually incorrect and not in accordance with the evidence. The appellants submitted that Essential Energy’s response of 10 May 2022 was to an application for a Notice of Arrangement submitted on 29 April 2022. In those circumstances, Essential Energy responded in 11 days, meaning that her Honour should not have allowed for 43 days.
The time taken for the revision and resubmission of a draft plan to Essential Energy: The appellants submitted that the three week period that her Honour allowed in [165(4)] for the respondent to prepare and submit a revised plan showing the electricity asset that was the subject of easement G was erroneous, in circumstances where Essential Energy’s requirements “had been known since the issue of the notice of the Development Consent”. The appellants submitted that had the respondent made inquiries at any time between 16 August 2021 and 8 December 2021, “Danson & Blaby would have been able to incorporate the location of the electricity asset into their initial plan, and this stage would not have been required at all” (emphasis added). The appellants submitted that in any event, such work would have been completed well before Christmas 2021 “and could have been prepared simultaneously with the steps set out in PJ [165(2)]”.
Allowing further time for the resubmission to Essential Energy (matters 7 and 8): The appellants submitted that the allowance, in [165(5)], for the end of year office closure period should not have been made in circumstances where the relevant steps would have been performed before then. The appellants submitted that the respondent “could have, and ought to have complied with its obligations under clause 39 of the Costa Group contract and condition 8 of the Development Approval at the time of the preparation of the first draft plan, in which case it is reasonable to assume that the time taken for registration of the survey plan would not have been delayed by those obligations”. At most, 7 days should be allowed, not the 53 days her Honour allowed.
As noted in (7) above, the appellants addressed (7) and (8) together.
The time afforded to the respondent to delay submitting the application for a subdivision certificate: The appellants submitted that the primary judge should not have allowed for the three and a half week period between Essential Energy issuing the Notice of Arrangement and Danson & Blaby submitting the application for a subdivision certificate to Council, in [165(7)].
Ground 7 was addressed to the relief that should be granted in the event that the requisite causal link was established.
The applicable legal principles may be addressed briefly as they did not ultimately loom large in the appeal. The appellants emphasised Alexander v Cambridge Credit Corp**oration Ltd (1987) 9 NSWLR 310 at 315, that the test for causation required them to show that “one or more of the Respondent’s breaches, separately or cumulatively, were ‘a cause’ of, not ‘the sole or dominant cause’ of the appellants’ loss”. If the evidence was suggestive of multiple causes, the appellants submitted, the relevant inquiry was whether the respondent’s default was a cause of the appellants’ loss.
As the respondent submitted, the appellant’s recitation of principle was incomplete. The applicable principle, confirmed in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 at [13], is that damages for breach of contract are to put the promisee, so far as money can do it, in the same situation as if the contract had been performed as promised. In Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 349-350; [1994] HCA 4 (“Sellars”), Mason CJ, Dawson, Toohey and Gaudron JJ observed that when it comes to the assessment of damages, courts will proceed “by reference to the probabilities or possibilities of … what would have happened”.
As the Full Court of the Federal Court observed in Crowley v Worley Ltd [2026] FCAFC 78 at [381], “the particular nature and characteristics of that which is required to be proved will define the court’s task”. The Court referred in this context to the High Court’s holding in Sellars that by reason of the peculiar difficulties associated with the proof and evaluation of future possibilities and, relevantly for present purposes, past hypothetical fact situations, the civil standard of proof will not apply to determination of the latter for the purposes of assessing damages: Sellars at 355. The assessment of damages “does sometimes, of necessity involve what is guesswork rather than estimation”: The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83; [1991] HCA 54.
The appellants annexed to their written submissions an additional five-page document titled “Comparative Counterfactual Chronology”, and a spreadsheet document titled “Summary Analysis of Actual and Counterfactual Dates”, both of which were directed at illustrating that on the findings for which they contended, the plan of subdivision would have been registered before the Sunset Date. Amended versions of both documents were handed up at the hearing of the appeal, along with an eight-page document titled “Aide Memoire to Factual References in the Appellant’s Summary of Argument”, which contained a series of evidentiary references to paragraphs of the appellants’ written submissions, only some of which appeared in their written submissions.
All of this material was directed to a granular critique of the primary judge’s counterfactual analysis — which her Honour undertook without meaningful assistance from the appellants — in order to reduce the periods that her Honour found would have been involved in certain tasks but for the respondent’s delay. The aim of the analysis was to retrofit the process leading to registration of the plan of subdivision, in satisfaction of cl 3.1(a) of the Call Option Deed, into a timeframe that would have permitted the appellants to exercise the call option before the Sunset Date.
The steps in the appellants’ analysis bore little resemblance to the case they ran below. As the primary judge observed in [211], the appellants in closing did not press the allegations that the respondent breached the implied terms of the Call Option Deed by causing their development application to be withdrawn and lodging its own development application. Indeed, as the respondent pointed out on the appeal, counsel for the appellants submitted to her Honour in closing that “it’s not the development application which causes the delay” (Tcpt 30/07/25, p179.50-180.1).
Of the “Breaches” that the appellants pleaded (as defined in SOC [74]), the only breach that the appellants maintained in closing was the respondent’s entry into the Costa Group contract and the time that the appellants submitted was taken up with satisfying the obligations in cl 39. In their written reply on the appeal, the appellants submitted that they spent significant time in closing setting out the effect of the evidence as to the delay in registering the plan of subdivision. However, the focus of those submissions was the Costa Group contract. The primary judge’s description at [164] of the appellants’ approach, as resting on an assertion that delay was occasioned by the need for the respondent to discharge its obligations under cl 39, was accurate. Her Honour rejected that assertion.
Her Honour’s summary of the breach of contract case that the appellants articulated in closing, that the respondent had breached the implied obligations “by failing to do all things reasonably necessary on its part to secure development consent for the boundary realignment and registration of a plan of subdivision creating a separate title for the Nursery Riverside Block prior to the Sunset Date”, was in my view unduly generous. So also was her Honour’s finding that the respondent breached the implied obligations “by its acts and omissions which resulted in the delay of stages 2, 4, 6, 7, 8 and 9 of the process referred to at [158]”.
In the face of this generosity, the appellants undertook on appeal a detailed and granular analysis of the counterfactual that the primary judge adopted on the issue of causation in a manner that departed, in some respects significantly, from the case they ran below. More significantly, the analysis did not engage with the basis on which her Honour’s counterfactual rested. The breaches that her Honour identified took the form of delay in the progress of registering the required plan of subdivision, by specific periods. The appellants urged departures from the primary judge’s counterfactual without identifying any corresponding breach which was causative of delay. The difficulty the appellants encountered in this respect was the product of not having clearly articulated their case on breach at first instance, and not having made any attempt to articulate a counterfactual. Senior counsel accepted as much in the following exchange:
“GREEN: …. On one view, it may be that her Honour just took the view, as her Honour seems to have done, the language that her Honour used in [166] on 124, that the counterfactual scenario was so far off the mark that the option deed, the Call Option Deed passed, the sunset date passing the stages 6 and 7, that it wasn’t necessary to go to the more granular analysis that the appellant in these proceedings seeks to do. But unfortunately --
MITCHELMORE JA: To be fair to her Honour, I don’t think her Honour received any assistance as to this counterfactual at all.
GREEN: Absolutely. I make no criticism of her Honour. As I made clear earlier, I hope, there is no criticism at all. It is a difficult case. There’s a lot, as your Honours appreciate, a lot of factual material and it’s correct to say, and her Honour said as much, her Honour did the best as her Honour could in the circumstances. That said, unfortunately, there was material there that perhaps for whatever reason was overlooked and we say, with the greatest of respect to her Honour, it leads to a different result in relation to the computation of the counterfactuals.”
As I noted above, in closing submissions the appellants eschewed any reliance on the development applications as a cause of delay. Accordingly, and unsurprisingly, the primary judge commenced the counterfactual analysis from the date of notification of the development approval, being 16 August 2021. On appeal, however, the appellants sought to backdate the start of the counterfactual to well before 16 August 2021. This entailed not only challenging her Honour’s finding, in [158(1)], that the appellants’ mistake in the original development application led to a three-month delay, but also contending that the respondent had breached the implied terms in the Call Option Deed in a manner that had caused delay from 28 January 2021. Her Honour had found only that the respondent was responsible for a three-week delay in paying the application fee: in [158(2)].
The appellants were pressed to identify the relevant breach of either of the implied terms in this regard. In response, the appellants’ second junior counsel, who was also the second junior in the trial, submitted:
“What we seek to raise, with stage two in particular, is that because of the events which have occurred, and the nature of the failure to pay having arisen as a result of what has occurred on the lodgement on 28 January of the documents, and then any failure on 9 March not being at the feet of the plaintiffs, we say that that date of 26 March should, in fact, be 15 days prior.
I accept … that the breach ultimately then dictates the period of time of the delay. We say that the breach would have occurred, on the proper counter-factual analysis, at a slightly earlier point than what her Honour has found of 26 March, because of the events that occurred from the lodgement of the document by Mr Saunders [on 28 January 2021].
And that Mr Saunders’ lodgement of the document is where the time period should commence, and that the delay in clarifying the cancellation of the earlier development application is one part in parcel of that same period of time; that is, a delay in ultimately paying the fees. Those two things are wrapped up together, and the fee was unable to be confirmed because of what occurred on the lodgement.”
“JAMES: We say that flows from the breach finding that her Honour did in fact make, at [212]; but to the extent that there’s any immediate difficulties*;* the breach was found to be as a result of the acts and omissions that caused the delay. The breach ultimately found is not the singular isolated event of a failure to pay from the date in which counsel sent an email, but the breach is that the acts and omissions that caused those delays, of each stage, were the breach.
We say the breach, as ultimately found by her Honour, is wider than simply saying that there was a non-payment after the confirmation of the fee, but as a result of the acts and omissions that caused the delay. The delay in stage two, we say, was caused by the acts and omissions that caused the confusion between 28 January and 9 March, and then ultimately, the failure to pay after confirmation of the fee. …
MCHUGH JA: If I’ve understood you correctly, you’re saying we should read her Honour’s judgment as making a finding that there’s a breach from some point well before 26 March?
JAMES: Yes. …”
(Emphasis added.)
Three principal problems attended these submissions. The first was that the appellants did not ultimately allege below that the respondent breached either of the implied terms of the Call Option Deed specifically by reason of acts or omissions in the period before lodgement of the respondent’s development application on 28 March 2021. As I noted above, in closing submissions counsel eschewed reliance on any delay arising from issues surrounding the lodgement of the original and revised development applications.
The principles surrounding the raising of a new issue for the first time on appeal are well settled and were recently summarised in Tin-Tagel Majikk Pty Ltd v Hockey [2026] NSWCA 72 at [145] (Price AJA, Kirk and Adamson JJA agreeing):
“As a general rule, a party is bound by the conduct of its case in the court below and will ordinarily not be permitted to rely on new issues not raised below: Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349 at [39] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ) and the authorities there cited. While that rule ‘is not absolute’, it is well established that a new issue cannot be raised when there is a possibility that it could have been met by evidence at trial: see, eg, Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 (Latham CJ, Williams and Fullagar JJ); [1950] HCA 35; O’Brien v Komesaroff (1982) 150 CLR 310 at 319 (Mason J); [1982] HCA 33; Coulton at 7-8 (Gibbs CJ, Wilson, Brennan and Dawson JJ); Water Board v Moustakas (1988) 180 CLR 491 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ); [1988] HCA 12; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 at [51]-[52] (Gleeson CJ, McHugh and Gummow JJ); Park v Brothers [2005] HCA 73; (2005) 80 ALJR 317 at [34] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); see also University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 483 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).”
As Free JA observed in Lam v Liu [2025] NSWCA 254 at [48] (Bell CJ and Payne JA agreeing), the burden of demonstrating that it is permissible to agitate an issue for the first time on appeal is “a heavy burden”, to which the existence of even a possibility that the point could have been met by evidence at trial is fatal. The appellants did not seek to meet this burden. They simply asserted, in their written reply, that they put their case below “on the basis that the respondents breached the implied terms of the Call Option Deed and that breach caused the registration of the survey plan to be delayed so that the option could not be exercised within the time prescribed by the Call Option Deed”. They also submitted that they had spent significant time in closing setting out the effect of the evidence “as to that delay”. For the reasons I have already explained in some detail, the appellants’ breach of contract case was much narrower than those submissions suggested, as was their survey of the evidence and the end to which that survey was directed.
The second problem, related to the first, is that the appellants did not make any submissions to the primary judge as to what counterfactual her Honour should use, let alone one in which the timing of development approval was moved to a date before 16 August 2021.
The third problem is that, contrary to the appellants’ submissions, the primary judge did not make a finding at the level of generality that the appellants required. Her Honour’s finding, in [212], was that the respondent breached the implied terms “by its acts and omissions which resulted in the delay of stages 2, 4, 6, 7, 8 and 9 of the process referred to at [158] above”.
Particularly when these problems are considered in combination, the appellants’ attempt to rely on her Honour’s finding at [212] as supporting an unspecified breach or breaches on the part of the respondent, which they did not raise below, arising at a point well before the first delay for which her Honour found the respondent responsible, is unsustainable.
The manner in which the appellants proceeded to shave time from the ensuing subparagraphs of [165] was similarly problematic. The second of the eight matters on which the appellants relied involved effectively halving the two month period that the primary judge allowed in the counterfactual, for the respondent to prepare a first draft of the plan of subdivision together with a draft s 88B instrument for the Costa Group easement (Easement G). The appellants submitted that “the evidence” of Danson & Blaby, in the email from Mr Saunders to Mr Shoobridge dated 25 August 2021, was that “the field work and plan drawing will [take] about a month”. As the respondent submitted, this was not a submission that was advanced to the primary judge with the appellants taking the primary judge to this document only to establish that the respondent was aware of the development approval having been granted.
The most ready answer to the argument is the context in which Mr Saunders sent the email of 25 August 2021. From at least August 2021, restrictions associated with the COVID-19 pandemic delayed the undertaking of survey work. In his email to Mr Shoobridge of the previous day, 24 August 2021, Mr Saunders had notified Mr Shoobridge of the development approval and, in doing so, wrote: “Will lock in the field work over the next few weeks, subject to Covid issues and permits etc”. What was clear from that email was that field work would not commence straight away. The appellants’ then solicitor, in an email to Mr Saunders dated 8 September 2021, confirmed his understanding that “the current restrictions will delay the undertaking of survey work in NSW”. Mr Saunders then went on leave and returned to work on 27 September 2021, from which point he had foreshadowed in an email dated 17 September 2021 to Mr Shoobridge that he would be making the job a “priority”. He ultimately provided the first draft of the plan on 8 December 2021.
The appellants sought to reduce the amount of time that her Honour allowed in [165(2)] to one month. That reduction was unrealistic and against the weight of the evidence. Further, as the respondent submitted at the hearing, if this issue had been raised below, the respondent could have sought to meet it with evidence.
The fifth, sixth, seventh and eighth matters on which the appellant relied related to the respondent’s engagement, through Danson & Blaby, with Essential Energy. The appellants first contended that the primary judge should not have allowed six weeks for Essential Energy to review the application made on 28 March 2022 and request further information, submitting that this was factually incorrect and not in accordance with the evidence.
The appellants did not challenge that Danson & Blaby submitted an application to Essential Energy on 28 March 2022. Ms Forbes emailed an application of that date to Essential Energy, with both the email and application in evidence below. Rather, in contending that the period should have been 11 days rather than six weeks, the appellants relied on a second application document submitted on behalf of the respondent that was dated 28 April 2022. An email dated 29 April 2022 from Ms Forbes to Essential Energy, attaching this second application, was also in evidence. An email from Essential Energy to Ms Forbes dated 10 May 2022, which corresponds with the date that the primary judge relied upon, formed part of a chain with Ms Forbes’ email of 29 April 2022.
The appellants next relied on an Essential Energy Fact Sheet, which was attached to the email from Essential Energy of 10 May 2022, as indicating that “it was known by the surveyors, acting on behalf of the defendants, from at least this time, precisely what it is that would be required”. The gravamen of the submission was that in light of the content of the Fact Sheet, the application to Essential Energy should have included all relevant documents, such that no allowance should have been made for any resubmission of the application.
At the hearing before the primary judge, the appellants advanced no argument relying on the application dated 28 April 2022 or the Essential Energy Fact Sheet. In response to a question from her Honour as to what evidence he relied upon “in support of the contention that it was the matters associated with the [Costa] sale contract that were the cause of the delay”, counsel referred to the application of 28 March 2022, and the response from Essential Energy of 10 May 2022.
I accept the respondent’s submission that the further application of 28 April 2022 was a new issue which it could have led evidence to explain, including from Ms Forbes, as the author of the emails to Essential Energy. Mr Shoobridge’s affidavit included a reference to this correspondence and he was not cross-examined in relation to it. That was unsurprising in circumstances where, as I noted above, it was the respondent that relied on the engagement with Essential Energy. As counsel for the respondent submitted in this Court, the respondent submitted that even if the appellants’ core point were correct, and the Costa Group contract was the “cause and root” of the problem, the time it took to obtain the Notice of Arrangement from Essential Energy, and to address the requisitions from NSW Land Registry Services, meant the Sunset Date would in any event have passed without the plan of subdivision being registered.
Consistently with this position below, when asked in the appeal hearing to identify where arguments based on the 29 April 2022 email and Fact Sheet were put to the primary judge, second junior counsel for the appellants submitted that the dates were drawn to her Honour’s attention “only by reference to the communications themselves”. He relied in this context upon a reference in the respondent’s written submissions to this email, in a list of references to communications between Danson & Blaby and Essential Energy.
The same difficulties attend the next issue the appellants took with her Honour’s counterfactual, namely, in [165(4)], the allowance of three weeks for Danson & Blaby to prepare and submit a revised plan that marked the location of the electricity asset on Proposed Lot 2, that was the subject of easement G. As her Honour noted in that subparagraph, Essential Energy first raised a potential issue relating to this asset on 3 June 2022. Her Honour found that it took Danson & Blaby approximately two months to prepare and submit this plan, but they did not commence that work until about 6 July 2022: at [158(7)-(8)].
The appellants submitted that in circumstances where the requirements of Essential Energy “had been known since the issue of the notice of the Development Consent”, inquiries could have been made of Essential Energy at any time during preparation of the first draft plan of subdivision. The appellants submitted that if the respondent had made such inquiries, it would have been able to incorporate the location of the electricity asset into the initial plan, and this stage would not have been required at all. Accordingly, contrary to her Honour’s allowance of three weeks, the appellants contended that no time should have been permitted.
Again, and as the respondent submitted, this contention was not articulated below, nor was it put to Mr Shoobridge in cross-examination. In those circumstances, the respondent did not adduce any evidence from Danson & Blaby to explain why it did not take any steps in relation to condition 8 in 2021. I accept the respondent’s submission that it is not open to the appellants to run this point on appeal.
The same issues arise in relation to the appellants’ seventh and eighth matters, which related to her Honour’s allowance, in [165(5)], of the period between just before Christmas 2021 and 15 February 2022 for Essential Energy to confirm its requirement for easement G and for the respondent to prepare a revised plan and s 88B instrument with Danson & Blaby’s assistance, obtain Costa Group’s approval and submit it to Essential Energy. Apart from the Christmas and New Year period, which as I have noted above the appellants’ much shorter period would not have encompassed, the appellants reiterated that the position regarding Essential Energy’s electricity assets had been known to the respondent’s representatives since the development approval. They submitted that the respondent could have, and ought to have, complied with its obligations under cl 39 of the Costa Group contract and condition 8 of the development approval at the time of preparing the first draft plan. For the reasons I have addressed above, it is not permissible for the appellants to raise these issues on appeal when the respondent could have led responsive evidence.
“This may be a case – the case below, and no disrespect to her Honour, but the way in which it was conducted may be a case study of a generalist approach where everything is put forward to her Honour and her Honour is asked to decide the issues. I don’t say that to shy away from that, your Honour. …”
“Consideration of the challenges to the primary judge’s findings must be made in the context of the issues litigated at trial. Identification of the issues is the role of counsel; it is the role of the trial judge to determine the issues presented for determination: see Australia and New Zealand Banking Group Ltd [v Haq] [2016] [NSWCA] 93 at 106.”
I propose the following order:
The appeal is dismissed with costs.
STERN JA: I agree with Mitchelmore JA.
McHUGH JA: I agree with Mitchelmore JA.
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Hederics
Spare Weel Pty Ltd
[2009] HCA 8
(1987) 9 NSWLR 310
(1994) 179 CLR 332
(2009) 236 CLR 272
(1991) 174 CLR 64
(2024) 98 ALJR 1349
(1950) 81 CLR 418
(1982) 150 CLR 310
(1988) 180 CLR 491
(2003) 77 ALJR 1598
(2005) 80 ALJR 317
(1985) 59 ALJR 481