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[2025] NSWCA 258
respondent. Appeal dismissed with costs: [113].
The deed allowed Lendlease to vary the proposed subdivision, but not to replace the agreed plan with one that was no longer based upon it. The Court upheld the finding that Lendlease’s July 2024 plan did not meet that requirement. The deed also treated the five property purchases as sequential and linked later option periods to completion of the first contract. Because the first contract could no longer be completed, the Court agreed with the primary judge’s reasoning that the later acquisitions could not proceed. The appeal was dismissed with costs.
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2,361 words · generated 06/10/2026
The dispute concerned a deed dated 17 April 2015 for the staged sale of farmland south of Campbelltown. Lendlease Communities (Figtree Hill) Pty Limited and Lendlease Communities (Australia) Limited were the Lendlease entities; Mount Gilead Pty Limited and Mount Gilead (Access) Pty Ltd were the Landowners. The Deed provided for Properties 6 to 10 to be sold through put and call options, after the Balance Land had been subdivided. Properties 1 to 5 were dealt with under a separate deed: [3]–[4].
2 cited instruments linked from this judgment.
The subdivision was important to the option arrangements. Annexure 2 to the Deed contained a draft plan showing five parcels, numbered 6 to 10: [9]. Under cl 7.1, Lendlease had to provide the Landowners with the form of plan it required for the subdivision application. Clause 7.1 permitted variation from Annexure 2 in the manner provided by cl 7.3. Clause 7.3 allowed specified types of variation, including changes to lot boundaries and dimensions, subject to stated limits and a requirement that variations not materially adversely affect the parties’ ability to obtain approval: [13]–[19].
The dispute followed Lendlease’s failure to acquire Property 6 during its offer period. After the conditions were waived on 20 May 2024, the Sale Offer Period for Property 6 ran from 25 May to 9 June 2024. Lendlease’s initial attempt to accept the offers for all five Properties was not contractually effective, and it did not effectively accept the Property 6 offer by 9 June: [37]–[40].
Lendlease later supplied a plan dated 12 July 2024 and said it was the Plan of Subdivision (Balance Land) required by cl 7.1. The plan differed substantially from Annexure 2. Among other changes, the lot corresponding to Property 6 was reduced to 1.41 hectares, compared with 35.6 hectares in Annexure 2; other parcels were reshaped, relocated or divided into separate areas: [44], [59]. Lendlease said the Landowners were required to pursue subdivision consent based on that plan. The Landowners disputed that obligation.
A second issue concerned whether losing the right to acquire Property 6 also prevented Lendlease from acquiring Properties 7 to 10. The offer periods and other provisions in the Deed tied important steps to completion of Contract 6. The primary judge found that the plan was not “based upon” Annexure 2 and that Lendlease could not acquire the later Properties after losing the right to acquire Property 6: [48]–[59], [60]–[65].
The Court of Appeal, with Griffiths AJA giving the principal reasons and Payne JA and Harrison JA agreeing, dismissed the appeal with costs: [1]–[5], [113]. It upheld the primary judge’s construction on the subdivision-plan issue. Although it was strictly unnecessary to determine Ground 2, the Court also agreed with the primary judge’s reasoning about the consequences of failing to complete Contract 6: [107]–[112].
The Court set out the familiar approach to commercial contract construction from Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd: rights and liabilities are determined objectively by reference to contractual text, context and purpose. The inquiry asks what a reasonable businessperson would understand the terms to mean, having regard to the language, circumstances addressed and commercial purpose: [84].
On Ground 1, the central text was the cl 1.2 definition of “Plan of Subdivision (Balance Land)”. It required a plan of subdivision “based upon” the draft plan in Annexure 2, as varied under the relevant contractual provisions. The Court agreed that “based upon” was not merely descriptive. It imposed a constraint alongside the express limits in cl 7.3: [102], [106]. The power to vary the plan therefore did not allow Lendlease to substitute a new plan detached from the Annexure 2 plan.
The Court also considered the Proposal that preceded the Deed. It contemplated sale of the Balance Land in five tranches under interdependent contracts, with draft plans to be agreed for parcels before acquisition. The Court treated that background as consistent with the primary judge’s finding that Annexure 2 had its provenance in the Proposal and was material to the parties’ arrangement: [90], [102]–[103]. The Court noted that although there had been uncertainty about how the development would proceed, the Proposal contemplated five transactions and parcels that were not de minimis. It recorded that the lowest nominated price for any parcel was $10 million: [103].
The Court rejected the argument that only the limitations expressly listed in cl 7.3 restricted Lendlease’s variation power. The defined term applied wherever “Plan of Subdivision (Balance Land)” appeared. Read together, the definition and variation provisions meant that the plan could be varied under cl 7.3 but still had to remain based upon Annexure 2: [104], [106].
Commercial consequences reinforced that reading. Under cl 11, the Landowners could be required to transfer Utility Land for $1.00. Clause 18.1(d) provided for possible transfer of Biodiversity Credits. The Court considered it commercially unlikely that those obligations would apply where Lendlease acquired only one small lot and left the Landowners with most of the Balance Land: [91]–[94]. The Court also considered the risk that a council could impose potentially onerous conditions on subdivision approval while the Landowners retained most of the land: [101].
The Court rejected the idea that the Landowners’ put options solved those concerns. It accepted that the Deed contemplated sequential acquisition of all five Properties, and the options for Properties 7 to 10 were linked to events following completion of Contract 6: [90], [95]–[100]. In particular, the relevant Purchase Offer Periods could not commence without completion of Contract 6. Nor was the problem cured by construing the dates as periods after the date on which Contract 6 could have completed. The Court agreed that this would require adding words to the Deed and conflict with its sequencing: [99]–[100].
The judgment does not purport to establish a new general rule of contract construction. It applies the objective approach stated in Mount Bruce Mining, which it quotes at [84]. The focus remains the text of the particular agreement, read in context and in light of its commercial purpose.
The practical clarification in this judgment is about how that approach operated in this particular deed. A contract may grant a broad power to vary a document while also defining the relevant document by reference to an original plan. Here, the Court held that “based upon” supplied a further limit on the variation power, rather than merely identifying the starting document: [102], [106]. The Court did not establish a general test for how much variation is permissible whenever a contract uses similar language. It concluded that the 12 July Plan’s departures were sufficiently substantial on these facts: [105].
The judgment also demonstrates the significance of reading option provisions with the rest of the contract. The Court did not treat the option clauses in isolation. It considered the Key Items Schedule and provisions whose operation depended on completion of Contract 6, including cll 11, 18, 20.2 and 27: [64], [94], [109]–[111]. The decision is therefore grounded in the particular sequencing and interdependence of this Deed, not a universal rule that staged options always require purchase of every parcel.
The reasons do not describe a “before” legal position that was changed by the appeal. The primary judgment had already adopted the construction upheld by the Court of Appeal. The appellate decision left that result standing: [86], [106], [113]. Nor does the supplied judgment contain later judicial treatment of this decision. Any account of subsequent application would require sources beyond the judgment provided.
At [84], the Court adopted the objective approach in Mount Bruce Mining: the meaning of a commercial contract is determined by its words, context and purpose, viewed through what a reasonable businessperson would understand. In plain English, the Court did not decide what either party privately intended. It read the agreement as a whole and assessed what its terms conveyed in their commercial setting.
At [102], the Court said “based upon” was “not merely descriptive but imposes a constraint”. In plain English, Annexure 2 was not just an illustration that Lendlease could disregard. It was a contractual reference point that limited how far the subdivision plan could depart from it.
At [106], the Court explained that cl 7.3’s express restrictions were not exhaustive because the definition itself required the plan to remain based upon Annexure 2. In plain English, satisfying the listed size and approval limits was not enough if the plan also failed the separate “based upon” requirement.
At [101], the Court discussed the risk of subdivision approval conditions being imposed on the Landowners while they retained most of the land. In plain English, the Court considered the effects on both parties of Lendlease’s proposed interpretation, not only whether the wording could be read in isolation to permit extensive changes.
At [109], the Court said completion of Contract 6 was an “essential prerequisite” to exercising options for the remaining Properties. In plain English, the later options did not operate independently of the first sale under this Deed. The Schedule tied their operation to the first contract’s completion.
At [112], the Court rejected the contention that its construction turned the Deed into a straight sale agreement. It said the Deed remained a put and call option arrangement, but the options could not be exercised because Contract 6 had not been completed in accordance with the Deed. In plain English, the Court’s reasoning did not erase the options; it treated their exercise as subject to the scheme and timing the parties had written.
The judgment is most directly relevant where a contract defines a later plan, design or other deliverable as being “based upon” an earlier document, while separately granting one party a power to vary it. The decision shows that the defined relationship to the earlier document may impose a constraint additional to express variation limits. The wording and structure of the particular contract remain central: [102], [104], [106].
It may also be relevant to staged land transactions where option periods or later rights are measured from completion of an initial transaction. In this case, the Court treated references in the Key Items Schedule to completion of Contract 6 as important to whether later options could be exercised: [96]–[100], [109]–[111]. The judgment’s reasoning may be worth examining where the first stage fails to complete and later stages have time periods or obligations dependent on that event.
The commercial consequences may matter where one interpretation would leave a landowner subject to subdivision obligations, regulatory conditions or other burdens while the purchaser acquires only a small part of the relevant land. Here, the Court considered those consequences in construing the plan and option provisions: [91]–[95], [101]. It did not treat commercial consequences as a substitute for contractual text; it used them as part of the objective construction exercise.
The decision is not a determination that every multi-stage option arrangement requires acquisition of every parcel. The Court relied on this Deed’s words, the Key Items Schedule, the Proposal and the provisions tied to Contract 6. Any comparison with another agreement would depend on its own text and structure.
The supplied judgment does not cite any later decisions applying or distinguishing this Court of Appeal decision. It records the appeal outcome on 3 December 2025, so the source provided cannot establish how later courts treated it.
The authorities identified in the judgment are Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd and Perpetual Custodians Ltd v IOOF Investment Management Ltd. Mount Bruce Mining is cited for the general principles of commercial contract construction at [84]. Perpetual Custodians appears in Lendlease’s submission about construing a defined term harmoniously, rather than mechanically: [69]. The Court’s reasons do not give a separate analysis of that authority. They instead resolve the issue by construing the particular definition and variation clauses together: [102], [106].
The primary judgment, Lendlease Communities (Figtree Hill) Pty Ltd v Mount Gilead Pty Ltd (No 3) [2025] NSWSC 334, is the decision under appeal. The Court of Appeal agreed with its construction of the “based upon” requirement and, while not formally needing to decide Ground 2, agreed with its reasoning about the later options: [3], [86], [107]–[112]. This is appellate consideration of the decision below, not later treatment by another court.
The judgment does not formulate a general measure for deciding how much resemblance is required for a plan to be “based upon” an earlier plan. It held that an evaluative comparison was not difficult on these facts because the differences between the Annexure 2 Plan and the 12 July Plan were striking: [105]. Questions about less extensive or more ambiguous changes remain dependent on the contract wording and the evidence relevant to the comparison.
The decision also does not establish that a purchaser must always exercise every option in a staged transaction. Its conclusion depended on the wording and structure of this Deed, including the Key Items Schedule and provisions tied to the completion date of Contract 6: [96]–[100], [109]–[111]. A different agreement may expressly allow selection among lots or provide alternative dates when an initial contract does not complete.
The Court did not need formally to determine Ground 2, because Lendlease accepted that it needed to succeed on both grounds for the appeal to succeed: [107]. It nevertheless agreed with the primary judge’s reasoning that Contract 6 was an essential prerequisite to later options: [108]–[112]. The distinction between an issue necessary to the disposition and additional appellate agreement with the reasons below is therefore relevant when characterising the status of the Ground 2 discussion.
The supplied judgment does not address whether the parties could have agreed to a different outcome after the failure to complete Contract 6, or how any later dealings might affect their position. It decides the appeal by construing the Deed and the events described in the reasons. No further conclusion about consequences beyond those findings can be drawn from this source alone.
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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: Lendlease Communities (Figtree Hill) Pty Limited v Mount Gilead Pty Limited [2025] NSWCA 258
Hearing dates: 23 September 2025
Date of orders: 03 December 2025
Decision date: 03 December 2025
Before: Payne JA at [1];
Harrison JA at [2];
Griffiths AJA at [3]
Decision: Appeal dismissed with costs
Catchwords: CONTRACTS — construction — where parties entered into deed for staged sale by put and call options of parcels of land identified as Properties 6 to 10 — where appellants were required to provide respondents with plan of subdivision — whether primary judge erred in finding that plan of subdivision must be “based upon” draft plan annexed to deed — whether primary judge erred in finding that rights to acquire Properties 7 to 10 are lost when right to acquire Property 6 is lost
Cases Cited: Lendlease Communities (Figtree Hill) Pty Ltd v Mount Gilead Pty Ltd (No 3) [2025] NSWSC 334
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Perpetual Custodians Ltd v IOOF Investment Management Ltd [2013] NSWCA 231; 304 ALR 436
Category: Principal judgment
Parties: Lendlease Communities (Figtree Hill) Pty Limited (First Appellant)
Lendlease Communities (Australia) Limited (Second Appellant)
Mount Gilead Pty Limited (First Respondent)
Mount Gilead (Access) Pty Ltd (Second Respondent)
Representation: Counsel:
JC Giles SC, DA Hughes and AJ Carr (Appellants)
BA Coles KC, M Castle and B Haines (Respondents)
Solicitors:
King & Wood Mallesons (Appellants)
Woolf Associates Solicitors (Respondents)
File Number(s): 2025/00213714
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
On 17 April 2015, the appellants, Lendlease Communities (Figtree Hill) Pty Limited and Lendlease Communities (Australia) Limited (together, Lendlease) entered into a Deed with the respondents, Mount Gilead Pty Limited and Mount Gilead (Access) Pty Ltd (together, Landowners) for the sale of several parcels of land. In broad terms, the Deed provided for the staged sale to Lendlease by put and call options of a large area of farmland located south of Campbelltown near the Nepean River. The properties were identified as Properties 6 to 10.
Under the Deed, the Landowners’ land was first to be subdivided to create the land known as the Balance Land. This occurred. The Balance Land was then to be further subdivided into Properties 6 to 10. The subdivision of the Balance Land was governed, inter alia, by the following provisions of the Deed:
Clause 8 of the Deed dealt with Sale and Purchase Offers. Clauses 8.1 and 8.6 respectively referred to the Landowners offering irrevocably to sell, and Lendlease offering irrevocably to buy, “each” Property. The Key Items Schedule to the Deed set out the Sale Offer Period, the Purchase Offer Period, the Price, the Sale Offer Fee and the Completion Date for each of Properties 6 to 10. Relevantly, the period for acceptance of the Sale Offer for Property 6 commenced on 25 May 2024 and expired on 9 June 2024. The period of acceptance of the Sale Offer for Properties 7 to 10 commenced on the same date, but expired on the dates which were 11, 35, 59 and 83 months after the completion of the contract for sale for Property 6 respectively.
In the event, Lendlease did not effectively accept the Sale Offer for Property 6 by 9 June 2024 and so lost the right to acquire Property 6. On 12 July 2024, Lendlease provided a plan to the Landowners, purportedly in discharge of its obligations to provide the Plan of Subdivision (Balance Land) under cl 7.1 of the Deed (12 July Plan). A dispute subsequently emerged as to whether the Landowners were obliged to lodge the 12 July Plan with the Council. The parties were also in dispute as to whether, having lost the right to acquire Property 6, Lendlease retained the right to acquire Properties 7 to 10.
The primary judge found that the 12 July Plan was not a “Plan of Subdivision (Balance Land)” within the meaning of the Deed, because it was not “based upon” the Annexure 2 Plan, whether as varied by Lendlease under cl 7.3 of the Deed or at all. His Honour also found that the word “each” in cll 8.1 and 8.6 of the Deed meant “every one of” the Properties referred to in the Key Items Schedule. It followed that, having lost the right to acquire Property 6, Lendlease had lost the right to acquire Properties 7 to 10.
Lendlease appeals against the primary judgment on two grounds. Ground 1 contends that the primary judge erred in reading the words “based upon” as imposing a limitation on Lendlease’s power of variation under cl 7.3. In Lendlease’s submission, the only constraint on the power of variation other than those specified in cl 7.3 itself is that the Plan of Subdivision (Balance Land) must relate to the entirety of the Balance Land. Ground 2 contends that the primary judge erred in construing the word “each” in cll 8.1 and 8.6 of the Deed to mean “every one of”. In Lendlease’s submission, the word should instead be construed as meaning “any of” or “any one or more of” Properties 6 to 10.
The Court held (Griffiths AJA, Payne and Harrison JJA agreeing) dismissing the appeal with costs:
As to Ground 1
As to Ground 2
PAYNE JA: I agree with Griffiths AJA.
HARRISON JA: I agree with Griffiths AJA.
GRIFFITHS AJA: This is an appeal from a judgment and orders of Stevenson J in Lendlease Communities (Figtree Hill) Pty Ltd v Mount Gilead Pty Ltd (No 3) [2025] NSWSC 334 (PJ or p****rimary j****udgment). His Honour dismissed proceedings brought by the now appellants, Lendlease Communities (Figtree Hill) Pty Limited and Lendlease Communities (Australia) Limited (together, Lendlease). Lendlease had sought declaratory relief and damages concerning an agreement between it and the respondents, Mount Gilead Pty Limited and Mount Gilead (Access) Pty Ltd (together, Landowners) for the sale and development of parcels of land owned by the Landowners. The agreement, which is dated 17 April 2015 (the Deed), is essentially a put and call option deed. Lendlease claimed that it had validly exercised purchase rights in relation to part of the land and could exercise further rights in the future. In contrast, the Landowners denied that the purchase rights had been validly exercised and claimed that Lendlease no longer had any rights to purchase the land.
In broad terms, the Deed provided for the staged sale to Lendlease, by put and call options, of a large area of farmland. The properties were identified in the Deed as Properties 6 to 10. Properties 1 to 5 (referred to by the parties as the MDP Land) were the subject of a separate deed which was executed by the parties on the same date.
For the following reasons, I propose that the appeal be dismissed with costs.
(a) Background to the Deed. (b) The Deed summarised. (c) Some further background facts. (d) Primary judgment summarised. (e) The parties’ primary submissions summarised. (f) Consideration and disposition. (g) Conclusion.
The land the subject of the Deed is located south of Campbelltown on the eastern side of the Hume Highway. The land, which is generally described as the “Balance Land”, is bounded on its western side by the Nepean River. Menangle Creek marks part of its northern boundary. The remainder of the northern boundary is adjacent to what is described as the “Homestead Lot”, which is controlled and is to be retained by the Landowners. The Balance Land is bisected by a canal owned by Sydney Water which does not form part of the Balance Land. To the east is a development known as “Figtree Hill”, which is land that is being developed by Lendlease from Properties 1 to 5 forming part of the MDP Land. As the primary judge noted at PJ[8], these matters, together with proposed access, are shown in the following diagram (while noting that this diagram does not show the proposed five subdivided lots comprising the Balance Land):
By way of further background, on 18 December 2014, Lendlease sent a proposal to the Landowners, which was accepted by them on that day (Proposal). Under the Proposal, Lendlease would pay $200 million for the sale of both the MDP Land and the Balance Land. The price and timing for the sale of the land would occur by the making and acceptance of “Sale Offers” by the Landowners and “Purchase Offers” by Lendlease over 12 years. The Proposal did not specify the size of any of the lots within either the MDP Land or the Balance Land, but prices for each lot were specified. In the case of the Balance Land, the prices ranged from $10 million to $40 million for the five parcels. The Proposal stated that “[a] draft plan of subdivision for each parcel will be agreed between the parties prior to entering into agreements”.
As noted above, the Deed was entered on 17 April 2015. Annexure 2 to the Deed is an important document, for reasons which will emerge. It is headed “Draft Plan of Subdivision (Balance Land)” and is dated 20 March 2015. It comprises a draft plan of subdivision of five parcels of land numbered 6 to 10 running generally from east to west (Annexure 2 Plan):
As noted by the primary judge at PJ[9], the Deed is “a lengthy and complicated document”, with numerous defined terms.
For the purposes of the appeal, it is convenient to be guided by what Lendlease identifies as the key relevant provisions of the Deed.
By cl 4, the Landowners’ land was to be first subdivided to create the land known as the Balance Land. That step occurred. The Balance Land was then to be further subdivided into Properties 6 to 10.
The method of that further subdivision was governed by cll 5 and 7. As these provisions are at the heart of the appeal, they will be set out without alteration:
5 Subdivision Development Consent (Balance Land)
5.1 Obtaining Subdivision Development Consent (Balance Land)
Subject to clause 7, upon receipt by the Landowners of the form of the Plan of Subdivision (Balance Land) in accordance with clause 7.1:
(a) the Landowners must use their best endeavours to obtain and diligently pursue a Subdivision Development Consent (Balance Land) within 4 months of satisfaction of the Condition in clause 3.1(e);
(b) Lend Lease must use its best endeavours to assist the Landowners in obtaining and diligently pursuing a Subdivision Development Consent (Balance Land) within 4 months of satisfaction of the Condition in clause 3.1(e); and
(c) Lend Lease will pay the reasonable costs of the Landowners incurred in obtaining and diligently pursuing the Subdivision Development Consent (Balance Land).
5.2 Lodgement of Subdivision Development Consent (Balance Land)
(a) The Landowners must lodge an application for a Subdivision Development Consent (Balance Land) with the Authority responsible for approving it within 10 Business Days of being provided with the form of Plan of Subdivision (Balance Land) by Lend Lease pursuant to clause 7.1.
(b) If the Landowners fail to comply with clause 5.2(a):
(i) Lend Lease may itself lodge an application for a Subdivision Development Consent (Balance Land) with the Authority responsible for approving it; and
(ii) the Landowners must, within 10 Business Days of a written request by Lend Lease, provide to Lend Lease all documents and consents reasonably required by Lend Lease to lodge, pursue and obtain a Subdivision Development Consent (Balance Land).
5.3 Failure of Landowners to obtain Subdivision Development Consent (Balance Land)
If the Landowners fail to obtain a Subdivision Development Consent (Balance Land) within 4 months of satisfaction of the Condition in clause 3.1(e):
(a) the Landowners must provide to Lend Lease all documentation, correspondence and applications relevant to their attempts to obtain a Subdivision Development Consent (Balance Land) pursuant to clause 5.1(a);
(b) Lend Lease must use its best endeavours to obtain and diligently pursue a Subdivision Development Consent (Balance Land) by the Sunset Date; and
(c) the Landowners must use their best endeavours to assist Lend Lease in obtaining and diligently pursuing a Subdivision Development Consent (Balance Land) by the Sunset Date.
5.4 Rejection of Subdivision Development Consent (Balance Land)
If an application for a Subdivision Development Consent (Balance Land):
(a) is rejected by the Authority responsible for approving it; or
(b) is refused or deemed to be refused pursuant to the EP&A Act,
the provisions of Schedule 2 will apply.
7 Plan of Subdivision (Balance Land)
7.1 Formulation of Plan of Subdivision (Balance Land)
Lend Lease must, by the date which is 30 days after the date of the satisfaction of the Condition in clause 3.1(e), provide to the Landowners:
(a) the form of Plan of Subdivision (Balance Land) which it requires to be submitted by the Landowners as part of the application for the Subdivision Development Consent (Balance Land); and
(b) notification of the Property to which each lot in the Plan of Subdivision (Balance Land) corresponds.
The Landowners acknowledge and agree that Lend Lease may vary the form of the Plan of Subdivision (Balance Land) from the version contained in Annexure 2 (in the manner provided in clause 7 .3(a)) in order to facilitate Lend Lease's development and staging of the Balance Land.
7 .2 Landowners Amendments to the Plan of Subdivision (Balance Land)
The Landowners must not make or permit any amendment to the Plan of Subdivision (Balance Land) without the prior approval of Lend Lease (which may be granted or withheld in the absolute discretion of Lend Lease), apart from amendments that both:
(a) are required by an Authority in order for that Authority to grant the Subdivision Development Consent (Balance Land) or register the Plan of Subdivision (Balance Land); and
(b) do not:
(i) materially adversely affect Lend Lease's ability to develop the Balance Land;
(ii) alter the boundaries of any lot in a manner which materially adversely affects the later subdivision of that land; and
(iii) reduce the area of any individual lot by more than 10%.
7.3 Lend Lease's variations to the Plan of Subdivision (Balance Land)
(a) The Landowners acknowledge and agree that Lend Lease's variations to the Plan of Subdivision (Balance Land) may include any of the following:
(i) the variation of the boundaries and dimensions of any proposed lot, provided that:
(A) the total area of the lot corresponding to Contract 6 is no greater than 46.3 hectares
(B) the total area of the lot corresponding to Contract 7 is no greater than 46.3 hectares;
(C) the total area of the lot corresponding to Contract 8 is no greater than 92.7 hectares; and
(D) the total area of the lot corresponding to Contract 9 is no greater than 185.3 hectares.
(ii) the creation of any easements or other affectations that do not burden or benefit the Homestead Lot;
(iii) the creation of any easements or other affectations required by any Authority; and
(iv) the creation of any easement or other affections pursuant to the Homestead Deed,
provided always that those variations do not materially adversely affect the ability of the parties to obtain the approval of any Authority in relation to the Plan of Subdivision (Balance Land).
7.4 Registration of Plan of Subdivision (Balance Land)
Upon the granting of the Subdivision Development Consent (Balance Land) pursuant to clause 5;
(a) the Landowners must use their best endeavours to register the Plan of Subdivision (Balance Land) within 4 months of satisfaction of the Condition in clause 3.1(e);
(b) Lend Lease must use its best endeavours to assist the Landowners to register the Plan of Subdivision (Balance Land) within 4 months of satisfaction of the Condition in clause 3.1(e); and
(c) Lend Lease will pay the reasonable costs of the Landowners incurred in registering the Plan of Subdivision (Balance Land).
7 .5 Failure of Landowners to register Plan of Subdivision (Balance Land)
Provided that a Subdivision Development Consent (Balance Land) has been granted pursuant to clause 5, if the Landowners fail to register the Plan of Subdivision (Balance Land) within 4 months of satisfaction of the Condition in clause 3.1(e);
(a) the Landowners must provide to Lend Lease all documentation, correspondence and applications relevant to their attempts to register the Plan of Subdivision (Balance Land) pursuant to clause 7.4(a);
(b) Lend Lease must use its best endeavours to register the Plan of Subdivision (Balance Land) by the Sunset Date; and
(c) the Landowners must use their best endeavours to register the Plan of Subdivision (Balance Land) by the Sunset Date.
7.6 Further consolidation and subdivision of the Balance Land
The Landowners acknowledge and agree that, following the registration of the Plan of Subdivision (Balance Land), Lend Lease may, for the purposes of facilitating the development of the Balance Land, require:
(a) the registration of plans of consolidation and subdivision of the lots contained in the Plan of Subdivision (Balance Land) or the variation of the boundaries and dimensions of any lot contained in the Plan of Subdivision (Balance Land), provided that:
(i) such subdivision, consolidation or variation complies with clause 7.3(a)(i); and
(ii) the relevant registration or variation does not create more than 5 lots, corresponding to the 5 Properties;
(b) the creation of additional easements or other affectations that do not burden or benefit the Homestead Lot; and/or
(c) the creation of any easements or other affectations required by any Authority.
7. 7 Execution of plans of subdivision and presentation of titles
The Landowners must, when requested in writing by Lend Lease:
(a) execute any plan or other dealing referred to in clauses 6 or 7; and
(b) produce the original certificates of title of the Balance Land (or any land forming part of the Balance Land) at the LPI for the purposes of registration of the plans or dealings referred to in paragraph (a); and
(c) execute all documents and do such things as are required, in the opinion of Lend Lease (acting reasonably), to facilitate the registration of the plans or dealings referred to in paragraph (a) and the registration of any covenants or other affectations required by any Authority in relation to the Balance Land as a result of the activities contemplated in clause 3.
Clauses 7.1 to 7.3 deal with how the Plan of Subdivision (Balance Land) is to be drawn. Clause 5 places obligations on the Landowners to pursue subdivision in accordance with the Plan of Subdivision (Balance Land) so determined. It is convenient to deal with these clauses in that order.
Clause 7.1 requires Lendlease to provide to the Landowners, within 30 days of the satisfaction of the Condition in cl 3.1(e) (the rezoning of the Balance Land), “the form of Plan of Subdivision (Balance Land) which it requires to be submitted by the Landowners as part of the application for the Subdivision Development Consent (Balance Land)”. Lendlease claims to have carried out this step by the provision of a plan dated 12 July 2024 (12 July Plan).
Clause 7.1 expressly contemplates that Lendlease can vary the Annexure 2 Plan in the manner provided in cl 7.3(a) in order to facilitate Lendlease’s development and staging of the Balance Land.
Clause 7.3 contains a broad power of variation for Lendlease. The power of variation expressly permits “the variation of the boundaries and dimensions of any proposed lot” subject to (at least) the following three constraints:
(a) the size of the proposed Lots 6 to 9 must not exceed the specified maxima; (b) limitations on the creation of easements or other affections as specified in sub-clauses (ii)–(iv); and (c) the variations must not materially adversely affect the ability of the parties to obtain the approval of any Authority in relation to the Plan of Subdivision (Balance Land).
Lendlease emphasised the breadth of its variation power under cl 7.3 when contrasted with cl 7.2. The latter provision states that the Landowners cannot “amend” the Plan of Subdivision (Balance Land) without Lendlease’s approval, other than amendments that are required by an Authority to grant consent, do not adversely affect the ability to develop the land and do not “reduce the area of any individual lot by more than 10%”.
Clause 5 requires the Landowners to seek subdivision consent for the Plan of Subdivision (Balance Land) drawn up in accordance with cll 7.1 to 7.3. Clause 5.1(a) requires the Landowners, upon receipt of the Plan of Subdivision (Balance Land) provided in accordance with cl 7.1, to “use their best endeavours” to obtain and diligently pursue development consent for the proposed subdivision within four months. More particularly, cl 5.2(a) requires the Landowners to lodge an application for such approval with the relevant Authority within ten Business Days of being provided with the form of such Plan. Under cl 5.2(b), if the Landowners fail to comply with cl 5.2(a), the first appellant can itself lodge an application for a Subdivision (Balance Land) with the Authority responsible for approving it. The Landowners are required, within ten Business Days of a written request by the first appellant (cl 5.2(b)(i)), to provide the appellants with all documents and consents reasonably required by the first appellant to lodge, pursue and obtain a Subdivision Development Consent (Balance Land) (cl 5.2(b)(ii)).
Clause 8 concerns the Sale and Purchase Offers. Clause 8.1 provides:
8.1 Sale Offer
In consideration of Lend Lease paying the Sale Offer Fee, receipt of which is acknowledged, each Landowner irrevocably offers to sell to each Offeree each relevant Property (in respect of which the relevant Landowners is an owner) for the Price and on the other terms set out in the Sale Contract and in this deed.
(a) “Sale Offer” is defined as the Offer which the Landowners in relation to a Property irrevocably grant to each Offeree under cl 8.1. This is the call option. (b) “Sale Offer Fee” is defined in respect of each Property as the amount set out in the Key Items Schedule and payable under cl. 9. This is the call option fee. (c) “Offeree” is defined by reference to various Lendlease entities, which includes the appellants. (d) “Property” is defined as each parcel of land, as notified by the first appellant under cl 7.1(b), comprising part of the Balance Land and as described in the Key Items Schedule. (e) “Price” is defined in relation to each Property as the purchase price under the Sale Contract, being the amount specified for the particular Property in the Key Items Schedule. (f) “Sale Contract” is defined as a contract for the sale of a Property formed on the acceptance of an Offer, on the terms set out in the contract form in Sch 5.
The Key Items Schedule sets out the Sale Offer Period, the Purchase Offer Period, the Price, the Sale Offer Fee and the Completion Date for each of Properties 6 to 10.
For Property 6:
(a) The Sale Offer Period is identified in the Key Items Schedule as follows:
The period:
(a) commencing on the date which is 5 days after the date on which the Conditions are satisfied or waived in accordance with cl. 3, and
(b) ending on the later of:
(i) where the Irrevocable Offer Document (MDP Land) has not been terminated, the later of:
(A) 11 months after the date of Contract 5; and
(B) 15 days after the commencement date under paragraph (a);
(ii) where the Irrevocable Offer Document (MDP Land) has been terminated, the later of:
(A) 15 days after the commencement date under paragraph (a); and
(B) 5 years after the Board Approval Condition Date.
(b) The Purchase Offer Period for Property 6 is defined as the period commencing on the date after the end of the Sale Offer Period and ending 20 days later. (c) The Price is $7.4 million (plus GST). (d) The Sale Offer Fee is identified as the amount determined in accordance with cl 9.1, being $500,000 (plus GST) within 5 Business Days of the Board Approval Condition, and $500,000 (plus GST) on each anniversary of the date of the Board Approval Condition being satisfied. (e) The Completion Date is 30 days after the date of Contract 6.
The Sale Offer Period for Properties 7 to 10 also commences on the date which is five days after the date on which the Conditions are satisfied or waived in accordance with cl 3 (i.e., the same as for Property 6), but expires on the date which is 11, 35, 59 and 83 months after the completion of Contract 6, respectively, or alternatively (on the appellants’ construction) on the date which is 11, 35, 59 and 83 months after the date Contract 6 could have completed.
Ground 2 of the appeal is concerned with the consequences of the fact that Contract 6 was not formed and, as is common ground, cannot now be formed. The primary judge’s conclusion was that if Contract 6 was not formed, the Sale Offers for Contracts 7 to 10 could not be accepted (PJ[245]–[246]). Indeed, his Honour concluded that, on the proper construction of the Deed, Lendlease was required to purchase each of Properties 6 to 10, in sequential order (PJ[195]–[197] and [239]).
Clause 8.3 of the Deed sets out how a Sale Offer in relation to a Property can be accepted by the provision to the Landowners during the Sale Offer Period (which is the period specified in the Key Items Schedule) of specified documents, including a notice and executed counterparts of a contract of sale.
By cl 8.4, each Sale Offer is expressed to be “irrevocable” unless the Deed is validly terminated. And by cl 8.5, the acceptance of an Offer by any Offeree does not affect any of the other Sale Offers contained in the Deed, or the first appellant’s obligations under the Deed, or the Landowners’ rights and remedies.
Clauses 8.6 to 8.8 and cl 8.10 deal with Purchase Offers (i.e., the Landowners’ put options). Clause 8.6 states:
8.6 Purchase Offer
In consideration of the Landowners paying the Purchase Offer Fee, receipt of which is acknowledged, Communities irrevocably offers to buy from the Landowners each Property for the Price and on the other terms set out in the Sale Contract and on the other terms set out in this deed.
Clause 8.9 deals with the acceptance of both Sale and Purchase Offers. Relevantly, under cl 8.9(b), the Offer Periods start on the first day in the stated periods and end at 5:00 pm on the “last day in the stated periods” in the Key Items Schedule. Under cl 8.9(c), the time limits for exercising the Offers are strictly to apply, and an Acceptance Notice served outside the relevant Offer Period is ineffective and no contract will be formed.
Clause 8.10 provides that the Purchase Offer in respect of a Property lapses upon acceptance of the corresponding Sale Offer.
Clause 12 is headed “Sale Contract”. Clause 12.1 provides that, upon the acceptance of an Offer, a contract for sale for the Property is formed on the terms of the Sale Contract. Clause 12.2 deals with the mechanics of the execution of the Sale Contracts (and specifies that if a party fails to execute the contract, the other party can rely on the terms of the Deed as sufficient to form the contract for sale). Clause 12.3 deals with amendments to a Sale Contract.
Clause 19 concerns Powers of Attorney. By cl 19.1, the Landowners are required to execute Powers of Attorney in the form attached at Sch 6. That occurred on 17 April 2015. The Powers of Attorney authorise the second appellant to execute and deliver on behalf of the Landowners certain documents including, relevantly, an application for a subdivision approval under cl 5.2(a) of the Deed.
Clause 21 provides that the Landowners must not make any objection to an Authority or court in relation to any development application or other planning activity by or on behalf of the first appellant in relation to the Balance Land, subject to the first appellant complying with its obligations under the Deed and any Law (as defined in cl 1.2).
Clause 27 provides inter alia for the first appellant to give Bank Guarantees to the Landowners in respect of Contracts 7 to 10 prior to the date of completion of Contract 6.
Clause 29.8 obliges the parties upon request to do everything reasonably necessary to give effect to the Deed and the transactions it contemplates, including executing documents.
The “Sunset Date” is defined in cl 1.2. By cl 3.5, Lendlease is entitled in its absolute discretion to extend the Sunset Date by a period of 1 year on the giving of notice and payment of $1.5 million to the Landowners. Lendlease exercised this power such that the Sunset Date was extended to 21 May 2024. Either party can terminate the Deed after that date unless the conditions precedent set out in cl 3.1 are either satisfied or waived by Lendlease.
On 20 May 2024 (i.e., the day before the extended Sunset Date), Lendlease notified the Landowners that it had waived those conditions.
The effect of the waiver was that the period for acceptance of the Sale Offer for Property 6 commenced on 25 May 2024 and expired on 9 June 2024.
Lendlease then took steps in an attempt to acquire all of the Properties before the Sale Offer for Property 6 expired. Lendlease accepted below that its initial attempt was not contractually effective. So, on 23 May 2024, Lendlease provided the Landowners with a draft Plan of Subdivision (Balance Land), and on 27 May 2024, Lendlease sent a notice attempting to accept all of the Sale Offers for Properties 6 to 10 in a single block.
On 9 June 2024, the time for acceptance of the Sale Offer for Property 6 lapsed.
On 14 June 2024, the Balance Land was rezoned (PJ[153]).
As noted above, on 12 July 2024, in a second attempt (which Lendlease says was effective), Lendlease sent the 12 July Plan to the Landowners as the Plan of Subdivision (Balance Land) (PJ[163]). By this step, Lendlease says it provided a Plan of Subdivision (Balance Land) under cl 7.1, and so cl 5 required the Landowners to use their best endeavours to obtain development consent for subdivision in accordance with the 12 July Plan (cl 5.1) and to lodge an application for that consent within 10 business days (cl 5.2(a)), failing which Lendlease could do so on the Landowners’ behalf (cl 5.2(b)).
The 12 July Plan (which is to be contrasted with the Annexure 2 Plan as reproduced at [9] above) is as follows:
It is notable that the numbering, location and size of the five parcels has changed, perhaps most notably in respect of Lot 1 on the 12 July Plan, which is coloured orange and is only 1.410 ha. The smallest sized parcel in the Annexure 2 Plan is 35.6 ha (i.e., both Lots 6 and 7). The primary judge described some other “striking differences” between the 12 July Plan and the Annexure 2 Plan at PJ[165] (see at [59(c)] and [59(d)] below).
On 31 July 2024, the Landowners wrote to Campbelltown City Council foreshadowing that Lendlease might attempt to lodge a development application for subdivision consent. The Landowners notified the Council that they did not consent to any such application.
Subsequently, when Lendlease lodged such an application on 17 September 2024 using the Power of Attorney, the Council rejected it because it was not signed by the Landowners.
In Ground 1 of the notice of appeal, Lendlease challenges the primary judge’s construction of cl 7.1 of the Deed, which underpinned his Honour’s finding that the 12 July Plan was not a Plan of Subdivision (Balance Land) within the meaning of the Deed. In brief, this was because his Honour considered that the 12 July Plan was not “based upon” the Annexure 2 Plan, whether as varied by Lendlease under cl 7.3 or at all.
“Plan of Subdivision (Balance Land)” is defined in cl 1.2 of the Deed as follows:
Plan of Subdivision (Balance Land) means:
(a) a plan of subdivision of the Balance Land …
based upon the draft plan which is contained in Annexure 2, as varied pursuant to clause 7.2, and including any easements or affectations required to be created pursuant to clause 7.2.
After noting the two references in this definition to “clause 7.2”, his Honour said that these were mistakes, and they should be read as referring to cl 7.3 of the Deed (see PJ[38]–[48]).
His Honour then considered the provenance of the Annexure 2 Plan. He inferred that the Annexure 2 Plan was the “draft plan of subdivision for each parcel”, as referred to in, and contemplated by, the terms of the Proposal (PJ[63]). This inference was drawn, inter alia, on the basis of the “close temporal and textual relationship between the Proposal and the Deed” (PJ[60]).
The primary judge rejected Lendlease’s submission that the words “based upon” should be read descriptively, as “meaning within or in exercise of Lendlease’s ‘limited power conferred by clauses 7.1 and 7.3’” (PJ[65]). His Honour considered that they should instead be read as words of constraint, such that the “plan of subdivision of the Balance Land” had to be “based upon” the Annexure 2 Plan (PJ[67]). This conclusion was said to follow from “the words the parties have used”, and to be consistent with “the mutually known fact … that the provenance of the Annexure 2 Plan was the Proposal” (PJ[68]–[69]).
As to the work done by the words “as varied” in the definition of “Plan of Subdivision (Balance Land)”, the primary judge considered that these words required the Plan of Subdivision (Balance Land) to be “based upon” a “permissibly varied state of the Annexure 2 Plan following the exercise by Lendlease of its power of variation, which is found in cl 7.3 of the Deed, as qualified by the chaussure to cl 7.1” (PJ[71]). Crucially, however, his Honour considered that the product of any permissible variation still needed to be “based upon” the Annexure 2 Plan (PJ[73]). He reasoned as follows (at PJ[74], footnote omitted):
The words the parties have used bespeak their intention that a Plan of Subdivision (Balance Land) cannot be a plan that can no longer be said to be “based upon” the Annexure 2 Plan. I will return to Lendlease’s power of variation in cl 7.3, but the words the parties have used in the definition of Plan of Subdivision (Balance Land) show that cl 7.3 cannot be seen as a licence for Lendlease to create a plan that has so little resemblance to the Annexure 2 Plan that it can no longer be seen as being “based upon” it.
The primary judge returned to this issue at PJ[86] (after explaining, at PJ[78]–[83], why reading the definition of “Plan of Subdivision (Balance Land)” into cl 7.1 did not alter his construction). His Honour rejected the proposition that cl 7.3 should be read as allowing Lendlease to vary a plan already “based upon” a permissible variation to the Annexure 2 Plan (PJ[86]–[87]). Nor did he accept that a plan varied under cl 7.3 “need not in any way be tethered to the Annexure 2 Plan”. The latter proposition was rejected on the basis that it would “subsume within cll 7.1 and 7.3 the definition of Plan of Subdivision (Balance Land) without giving any effect to the words ‘based upon’ in the definition and the parties’ obvious intention, in using those words, that there be some relationship between the plan ultimately submitted … under cl 7.1 and the Annexure 2 Plan”.
As to the required relationship, his Honour said at PJ[93]:
The required relationship is that the plan provided by Lendlease to the Landowners under cl 7.1 must be seen to have been ‘based upon’ a permissible variation under cl 7.3 of the Annexure 2 Plan, and not be a variation on that variation having no relationship to the Annexure 2 Plan”.
The primary judge considered that there were good reasons why the parties would have required the plan ultimately submitted by Lendlease to have some relationship with the Annexure 2 Plan, including that: (1) the Key Items Schedule of the Deed specified the prices at which Lendlease could acquire Properties 6 to 10, which closely resembled the figures in the Proposal; and (2) Annexure 2 Plan had its provenance in the Proposal (PJ[95]–[97]).
His Honour further considered that there were indications, particularly in the terms of cl 7.6(a)(ii), that the parties intended Properties 6 to 10 to remain contiguous for the purposes of any variation to the Annexure 2 Plan, while noting that this was “not a dispositive conclusion” (PJ[102]).
The primary judge ultimately concluded that the 12 July Plan was not “based upon” the Annexure 2 Plan (PJ[175]). This was primarily because the 12 July Plan provided in substance for a subdivision of the Balance Land into only four Lots (corresponding to Properties 7 to 10 and excluding Property 6), as opposed to the five Lots contemplated by the Annexure 2 Plan.
It followed that Lendlease “did not timeously comply with its obligation under cl 7.1 of the Deed to provide the Landowners with a Plan of Subdivision (Balance Land), with the result that the Landowners came under no obligation to lodge any Plan of Subdivision” (PJ[176]). In reaching this conclusion, the following matters were emphasised by the primary judge:
(a) The sequence of events preceding the provision of the 12 July Plan indicated that, by 23 May 2024, Lendlease had formed the view that its intended development and staging of the Balance Land could not be regarded as “based upon” the Annexure 2 Plan, which it by then regarded as cost-ineffective and prohibitive to the development (PJ[147]–[148]). His Honour observed that “Lendlease’s preferred proposal for the development and staging of the Balance Land required that it ignore completely the Annexure 2 Plan and seek to use its powers of variation to produce a plan for submission to the Landowners that bore no resemblance to the Annexure 2 Plan” (PJ[172]). (b) The 12 July Plan proposed a “shrinking” of Lot 1 (which corresponded to Property 6 in the Annexure 2 Plan), reflecting Lendlease’s inability to acquire that lot. The primary judge described this as a fundamental departure from the bargain reflected in the Deed (PJ[158]) and he added that the subdivision of the Balance Land proposed in the 12 July Plan was “fundamentally different to that contemplated in the Annexure 2 Plan” (PJ[171]). (c) The “striking differences” between the 12 July Plan and the Annexure 2 Plan included the reshaping of multiple lots and the fact that the lots in the 12 July Plan were no longer contiguous (PJ[164]–[166]) – noting, however, that the primary judge previously described this difference as not being dispositive (PJ[102]). Other differences were as follows (PJ[165]):
as confirmed by Lendlease’s solicitor in a letter dated 12 July 2024, Property 6 corresponded to Lot 1 in the 12 July Plan, which is now only 1.41 ha and not 35.6 ha as in the Annexure 2 Plan;
Property 7 corresponded to the blue-shaded Lot 2, which is now significantly reshaped and relocated;
Property 8 corresponded to the purple-shaded Lot 3 which has also been significantly reshaped;
Property 9 corresponded to the three separate, yellow-shaded Lots 4 in the 12 July Plan; and
Property 10 corresponded to the multiple separate, green-shaded Lots 5.
(d) The most important of these differences, however, was that the 12 July Plan “in substance provided for a subdivision of the Balance Land only into four ‘Lots’, being Lots 2, 3, 4 and 5, said to correspond to Properties 7, 8, 9 and 10: rather than the five lots contemplated by the Annexure 2 Plan” (PJ[167]). His Honour acknowledged at PJ[168] that although numerically the 12 July Plan proposed subdivision into five Lots, it was notable that the “landlocked 1.41 ha rump said to correspond to Property 6, could not now be called for by Lendlease, nor put by the Landowners to Lendlease, and necessarily was to remain owned by the Landowners”.
Ground 2 of the appeal concerns the primary judge’s finding that Lendlease was not entitled to acquire Properties 7 to 10, having lost its right under the Deed to acquire Property 6.
As noted above, cl 8 of the Deed effectively creates call and put options in favour of Lendlease and the Landowners, the latter only to be exercised if the former was not. In determining whether Lendlease retained its rights to acquire Properties 7 to 10 in circumstances where the right to acquire Property 6 had been lost, the primary judge identified the dispositive question as “the meaning to be given to the word ‘each’ in cll 8.1 and 8.6” (PJ[193]).
The primary judge rejected Lendlease’s submission that the reference to “each” in both these clauses (which are set at [20] and [28] above) meant “any of”, or “any one or more of” the Properties, such that Lendlease was entitled to “pick and choose” which of the remaining Properties it wished to acquire having lost the right to acquire Property 6. When cll 8.1 and 8.6 were read together with the Key Items Schedule, his Honour was satisfied that “each” meant “every one of” the Properties referred to in the Schedule (PJ[195]). His Honour did not regard this conclusion as inconsistent with the terms of cll 8.4 and 8.8, which provide respectively that “each Sale Offer” and “each Purchase Offer” are “irrevocable unless this deed is validly terminated” (PJ[198]).
In reaching this conclusion, the primary judge emphasised the precise sequencing of the completion dates provided for in the Key Items Schedule. This was said to bespeak “the parties’ intention, consistently with the Proposal, that there would be sale of each, that is every one of, Properties 6 to 10; and in that order” (PJ[200]).
Several other provisions were said to point to “the fact that performance of these clauses was conditional upon completion of Contract 6”, and to bespeak a “common understanding as to the centrality of the completion of Contract 6 to their ongoing performance of the Deed” (PJ[221]). The primary judge referred to the following clauses:
(a) Clause 11, which provides that “Upon the completion of Contract 6, the Landowners must do all things reasonably necessary to transfer the Utility Land to the Authority.” (b) Clause 18.1(d)(iii), which contemplates that the Landowners may be compelled to transfer Biodiversity Credits to Lendlease “on and from the date of completion of Contract 6”. (c) Clause 20.2, which provides for the grant by the Landowners, and acceptance by Lendlease, of an occupation licence to commence, other than for testing and biobanking activities, “on the date of completion of Contract 6”. (d) Clause 27.1, which requires Lendlease to deliver bank guarantees in respect of each of the contracts for Properties 7, 8, 9 and 10 to the Landowners “on or before the date of completion of Contract 6”.
[239] The Deed set out a carefully prescribed framework for the sequential and interdependent acquisition by Lendlease, through call and put options, of each of Properties 6, 7, 8, 9 and 10, in that order. As a matter of construction, Lendlease’s entitlement was to make a Sale Offer for each, that is each and every one, of the Properties, and not for any one or more of the Properties. It follows that also, as a matter of construction, temporal and sequential compliance with the means for exercising the options set out in the Key Items Schedule was essential for effective exercise of the options.
[240] Now that Lendlease cannot acquire Property 6, it can no longer acquire “each”, that is each and every one, of the Properties; and it is no longer possible for it effectively to exercise the options in adherence to the prescripts of the Key Items Schedule.
[241] That is because, according to the terms of the Deed, Lendlease’s ability to exercise its option to call for Property 6, and thus the remaining properties, was subject to the conditions precedent in cl 3.1, particularly registration of the Plan of Subdivision (Balance Land), being satisfied within the time available to Lendlease to exercise the option: the Sale Offer Period.
[242] That did not occur. The option was not exercised. The contractual consequences were as I have set out. The matter cannot proceed further.
Lendlease’s central contention in relation to Ground 1 is that the primary judge erred in reading the words “based upon” in the definition of “Plan of Subdivision (Balance Land)” in cl 1.2 as imposing a limitation on Lendlease’s power of variation under cl 7.3. A number of points are made in support of this contention.
First, Lendlease emphasises that cl 7.1 includes the words “may vary the form of the Plan of Subdivision (Balance Land) from the version in Annexure 2”, and that cl 7.3 is addressed to “variations to the Plan of Subdivision (Balance Land)”. From this, it is said to be clear that the parties contemplated that the Plan of Subdivision (Balance Land) could depart from the Annexure 2 Plan. Lendlease submits in its written submissions that the only constraints on its ability to vary the Annexure 2 Plan were those expressly provided for in cl 7.3 (see at [17] above). It also emphasises that the parties did not provide in cl 7.3 for a lower limit on the size of the subdivided lots that Lendlease could create, whereas cl 7.2 did impose such a constraint.
Secondly, Lendlease accepts that the definition of “Plan of Subdivision (Balance Land)” must be read into each clause in which the expression appears, but submits that those clauses must then be construed “harmoniously” and not according to “a slavish rule that the defined term inevitably bear every aspect of the defined meaning” (citing Perpetual Custodians Ltd v IOOF Investment Management Ltd [2013] NSWCA 231; 304 ALR 436 at [86]). It emphasises that the definition appears several times throughout cll 5 and 7 and submits that the words “based upon” are therefore best understood descriptively, as referring to the Annexure 2 Plan or any variation thereto, and not as imposing a further constraint on the variation power in cl 7.3.
In oral submissions, Mr Giles SC (who appeared with Mr Hughes and Ms Carr for Lendlease) submitted, apparently in the alternative, that the words “based upon” may in fact have some work to do at a later stage of performance, “after the application for the subdivision approval had been lodged, and if the council or any other authority placed conditions on it”. He referred to cl 7.2(a) of the Deed (see at [13] above), commenting:
GILES SC: … That's an amendment at the stage of the authority - that is, after lodging the subdivision application - but in response to what an authority may require. So the local council may require the size of the lots to be changed, place conditions. That explains, at least chronologically beyond then, what "based upon" in the definition may do. Because a plan which was varied pursuant to an authorities requirement and pursuant to cl 7.2 will be based at that point of time, that point in the chronology.
GILES: … ultimately what his Honour's construction required was an evaluation of whether the plan of subdivision put forward could be described by visual comparison as being based upon that in annexure 2. Again, not a silver bullet by itself, but improbable that commercial parties would govern their rights by reference to such an evaluative criteria.
PAYNE JA: Why not?
GILES: Because it's uncertain in its application. One doesn't know, when one is putting forward the plan of subdivision, whether it meets the criteria. Of course, that happens, but in our submission, with the degree of vagueness to "based upon", improbable.
Fourthly, Lendlease rejects the proposition that the provenance of the Annexure 2 Plan in the Proposal supports the primary judge’s construction. It submits that the significant feature of the Proposal is that it does not specify the size of the proposed lots, but simply sets out the price for each and the timing of the sales. This is said to reflect the fact that, at the time the Proposal was agreed in 2014, there was considerable uncertainty as to how the site would ultimately be developed, particularly regarding the stages to be sold in later years.
Fifthly, Lendlease emphasises that the Deed did not expressly require the lots to be contiguous and adds that they were not in fact contiguous, even in the Annexure 2 Plan where Lots 8 and 10 are bisected by a Sydney Water canal.
Finally, Lendlease takes issue with the primary judge’s finding, at PJ[167], that the 12 July Plan “in substance provided for a subdivision of the Balance Land only into four ‘Lots’”. It notes that the 12 July Plan in fact contained five Lots and submits that the primary judge’s use of the words “in substance” is simply reflective of the fact that, by 12 July, Lendlease had lost the right to acquire Property 6. However, Lendlease emphasises that “there was always a possibility that not all of the lots would be acquired by Lendlease”.
The Landowners’ central submission is that the 12 July Plan cannot have been a Plan of Subdivision (Balance Land), since it was not referable to the whole of the “Balance Land”. That phrase is defined in cl 1.2 of the Deed:
Balance Land means the land described as Lot 2 in the Plan of Subdivision (Master Lot) being part of Lot 2 in DP 807555 and Lot 2 in DP 249393,.
COLES: … [W]e simply make the observation, your Honour, that was not the form of plan of subdivision Balance Land which, firstly, the parties intended would form the basis of their ongoing future relations. Secondly it was certainly, of course, not a plan of subdivision of the whole of the Balance Land which was based on annexure 2, which plainly has five clearly identified properties, and was not, for various reasons, a plan which included a property in relation to which the parties had already in the deed made very special reference to - and those matters have been referred to, and were recited by the primary judge - indicating the property 6 had features, attributes and significance which gave it an element of centrality in the entire scheme of the Balance Land deed.
In support of its contention that Property 6 was central to the overall scheme of the Deed, the Landowners refer to cl 7.3(a)(i)(A) (see at [13] above), which provides that there must be a “lot corresponding to Contract 6” in any Plan of Subdivision (Balance Land), a requirement, they say, which was not provided for in the 12 July Plan. The importance of Property 6 is also said to be demonstrated by the purchase price of $7.4 million for that Lot, this being a “significant component” of the total consideration agreed to for the Balance Land. In the Landowners’ submission, a deduction of this amount from the Landowners’ payment rights cannot have been the intention of the parties, as manifested in the provisions of the Deed, which were “plainly the result of very careful and methodical working out”.
In oral submissions, Mr Coles KC also contended that unreasonable commercial consequences would follow if the Deed were construed so that a valid Plan of Subdivision (Balance Land) could include only Properties 7, 8, 9 and 10. Referring to the Landowners’ obligation to lodge a valid Plan of Subdivision (Balance Land) for approval with the Council, Mr Coles KC submitted that:
COLES: … it would be very unlikely, in our respectful submission, that it would be regarded as something the parties had in mind or expected, namely, that one of them would lodge a plan which included land necessarily that was never going to be acquired by the other, and suffer the risk and submit to the conditions that Campbelltown Council might impose when there could be no advantage at all and no outcome of the kind the parties obviously expected or anticipated should have happened. So this would be lodging a plan of land that would never become Lendlease's land. It would always remain the owners land, and the owners would have to put up with whatever the council did to it, or did for it by way of imposing conditions and restrictions. They might be financial. They might be occupational. They might say what you can and what you can't do, and so forth. That is the most unreasonable outcome …
Finally, the Landowners defend the primary judge’s findings regarding the central importance of the Annexure 2 Plan to the construction of the Deed. Noting that commercial agreements are to be construed from the perspective of a reasonable businessperson, the Landowners emphasise that there was, in this case, evidence demonstrating how reasonable commercial people approached the Deed. In the Landowners’ submission, this evidence demonstrated that the Annexure 2 Plan was regarded as essential. Thus, Mr Coles KC highlighted that “the first thing most of [the witnesses] ever did when any topic came up is produce annexure 2 plan and give it to their advisers and so forth”.
In its written submissions in reply, Lendlease rejects the Landowners’ submission that the 12 July Plan “no longer included one of the five parcels of land”. It submits that, as the primary judge recognised at PJ[168], the 12 July Plan plainly shows five lots. In these circumstances, the real issue is said by Lendlease to be whether Property 6, as depicted in the 12 July Plan, was impermissibly small, not whether it was excluded entirely. Lendlease also rejects the Landowners’ submission that the 12 July Plan was “not referable to the whole of the Balance Land”. It submits that this point was not argued before the primary judge and is not supported by any findings of the primary judge nor the evidence.
(a) Clause 8.1 of the Deed provides “that each landowner irrevocably offers to sell to each offeree each relevant property” and there is nothing conditioning that clause that the Landowners will only offer to sell Properties 7 to 10 once Property 6 has been sold. (b) Clauses 8.1 and 8.4 provide that each sale offer is “irrevocable” unless the Deed is validly terminated and since the Balance Land was not terminated, the effect of the primary judge’s construction was that each offer in relation to Properties 7 to 10 was revoked. (c) Clause 8.5 provides that the acceptance of any other offer by an offeree does not affect any Sale Offers, with the implication that the corollary is also true. (d) Other conditions for acceptance of each Sale Offer are not predicated upon the initial purchase of Property 6 (e.g., the documents referred to in cl 8.3(a)–(d)). (e) Clause 8.9(b) and the Key Items Schedule provide that the Sale Offer Periods will commence five days after the date on which the conditions are satisfied or waived in accordance with cl 3 and are not contingent upon the completion of Property 6. Rather, the simultaneous commencement of all the Sale Offer Periods speaks of the “intention that it was open to Lendlease, immediately, to pick or choose from Properties 6 to 10 in any order or subset that it wished”. (f) An initial draft of the Key Items Schedule was changed in March 2015 to delete the words “commencing on the completion date of Contract 6” in relation to the Sale Offer Period of Properties 7 to 10 and demonstrates that the parties were united in rejecting wording that would have made the completion of Contracts 7 to 10 conditional upon entry into Contract 6. (g) The Completion Dates for each of Properties 7 to 10 are expressed to be capable of determination without the completion of Contract 6.
Lendlease concedes that parts of the Key Items Schedule do evince an expectation by the parties that Property 6 would complete. This is demonstrated by the fact that the “Sale Offer Periods” for Properties 7 to 10 are to end on fixed dates after “the completion of Contract 6”. Read literally, if Contract 6 did not complete (as here) then the Sale Offer Periods for Properties 7 to 10 would never end, with the improbable result that Lendlease would have a never-ending call option, and the Landowners’ put option would never arise. Lendlease submits that, to avoid this impracticality, the words “after the completion of Contract 6” should be read as “after the last date on which Contract 6 could complete” (emphasis added). The primary judge rejected this construction because it would amount to “rewriting the clause” and be “inconsistent with the intention of the parties as manifested by the language they have used” (see PJ[208]).
The Landowners are generally content to support the reasoning of the primary judge in relation to Ground 2.
46. The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.
47. In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.
48. Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.
49. However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.
For the following reasons, I do not accept that the primary judge erred in his construction of the Deed or in his finding that the 12 July Plan was not a plan that was “based upon” the Annexure 2 Plan. I consider that the primary judge’s construction of the relevant provisions of the Deed and ultimate finding was correct, substantially for the reasons given by his Honour.
Lendlease ultimately contended that the primary judge erred in not construing cll 7.1 and 7.3 so as to enable Lendlease to “vary” the form of the Annexure 2 Plan and effectively to replace that plan with a new plan, subject only to the following conditions:
(a) the new plan must relate to the entirety of the Balance Land in the sense that the boundary cannot change; (b) the maximum sizes for each proposed lot as specified in cl 7.3(a)(i) cannot be exceeded; and (c) the variations “do not materially adversely affect the ability of the parties to obtain the approval of any Authority in relation to the Plan of Subdivision (Balance Land)” (i.e., the proviso imposed at the end of cl 7.3(a)).
Lendlease went so far as to say that, on its preferred construction, it could elect to acquire, say, only one of the five proposed lots in relation to the Balance Land and that, in that event, the Landowners could exercise their right to put the remaining lots to Lendlease within the specified periods.
For the following reasons, I reject Lendlease’s preferred construction.
First, I agree with the primary judge that, properly construed, the Deed contemplates that Lendlease will acquire, sequentially, all the land depicted in the Annexure 2 Plan (save of course for the Sydney Water Canal). This accords with the provenance of the Annexure 2 Plan in the Proposal, which contemplated that the parties would enter into put and call option agreements which, subject to the satisfaction of conditions precedent described in cll 13 and 14, would see Lendlease purchase “the Property” under several “Interdependent Contracts for Sale”. Significantly, the “Property” was defined in the Proposal so as to include all the “Balance Land”, being approximately 487 ha and comprising Lot 2 DP 249393 and Lot 1 DP 603675. The conditions precedent relating to the Balance Land related to the exercise of the put and call option for Contract 6 and its completion. It is also expressly acknowledged in cl 7.1 of the Deed that Lendlease’s power to vary the form of the Annexure 2 Plan in the manner provided in cl 7.3(a) is “in order to facilitate Lendlease’s development and staging of the Balance Land”. That is a reference to the development and staging of the Balance Land in its entirety, not merely some part of it.
Secondly, acceptance of Lendlease’s construction would create several uncommercial outcomes which could scarcely have been intended by reasonable businesspeople. Under the Deed, the Landowners have obligations of a substantial and onerous nature, which presumably reflects the bargain which the parties struck in entering into the Deed. For example, the Landowners are obliged by cl 11 to do all things reasonably necessary to transfer what is described as the “Utility Land” to the Authority nominated by Lendlease for consideration of $1.00. “Utility Land” is defined in cl 1.2 to mean one lot with an area not greater than 2.5 ha identified as such in the Plan of Subdivision (Balance Land). As Mr Giles SC acknowledged, no Utility Land is actually identified in the Annexure 2 Plan. But that does not derogate from the fact that the definition of “Utility Land” operates by reference to the Plan of Subdivision (Balance Land), which is defined in cl 1.2 to mean, relevantly, a plan of subdivision of the Balance Land which is based upon the Annexure 2 Plan etc.
The simple point is that the Landowners are burdened by the requirement imposed by cl 11 to transfer a parcel of land up to 2.5 ha in size for the consideration of only $1.00. It would be a remarkable construction of the Deed for the Landowners to be burdened with this obligation even in circumstances where Lendlease elected simply to acquire one small lot somewhere within the Balance Land (noting that while the Deed imposes maximum size limits, there is no limitation on the minimum size of any lot).
(1) a Sale Offer was to be made by Lendlease for Property 6 within the relevant Sale Offer Period, failing which a Purchase Offer could be made within the Purchase Offer Period;
(2) Contract 6 was then to be completed within 30 days of Contract 6; and, thereafter,
(3) corresponding Sale Offer Periods for Properties 6, 7, 8, 9 and 10 were to commence on the same date as the Property 6 Sale Offer Period, being, in the events that happened, 21 May 2024, but ending:
(a) for Property 7, 11 months after the completion of Contract 6;
(b) for Property 8, 35 months after the completion of Contract 6;
(c) for Property 9, 59 months after the completion of Contract 6; and
(d) for Property 10, 83 months after the completion of Contract 6.
I respectfully agree with the primary judge’s conclusion at PJ[200] that such precise sequencing of the completion dates evinces the parties’ intention that each and all of Properties 6 to 10 would not only be acquired by Lendlease but also in that sequential order.
In circumstances where completion of Contract 6 could not now occur, as is common ground, I respectfully agree with the primary judge that Lendlease lost the right to acquire Properties 7 to 10 because Property 6 did not sell.
The difficulty is not overcome by Lendlease’s suggestion that it was open to the Landowners to exercise their put option in relation to those Properties. That is because the “Purchase Offer Period” for each of those Properties, as specified in the Key Items Schedule, cannot commence because Contract 6 has not been completed.
Nor is this difficulty overcome by reading the “Sale Offer Period” in the second column of the Key Items Schedule as though it is a reference to the periods ending 11, 35, 59 and 83 months after the dates on which completion of Contract 6 could have occurred. I am not persuaded that there was any error in the primary judge’s rejection of this construction which, as his Honour pointed out at PJ[208], involves rewriting the Deed by adding new words, but also because that rewriting is inconsistent with the parties’ intention that there would be an orderly sequencing of completion dates, involving the sale of each and all of Properties 6 to 10.
Sixthly, I also accept the Landowners’ submission that Lendlease’s construction exposes the Landowners to other substantial detriments which could hardly have been intended by reasonable businesspeople. As Mr Coles KC pointed out, in approving a plan of subdivision, the Council could impose a range of potentially onerous conditions on the Landowners. Where the Deed provides a framework for the orderly and sequential acquisition by Lendlease of all the Balance Land upon payment of significant sums to the Landowners, it may be appreciated that a reasonable business person in the position of the Landowners might regard that risk as commercially acceptable. But the position is very different if the Deed is construed, as urged by Lendlease, so as to permit it to acquire only a small part of the Balance Land and leave the remainder of it in the Landowners’ ownership and subject to conditions imposed by the Council as part of the subdivision approval and registration process. The point is captured in the oral submissions made by Mr Coles KC which are set out at [78] above.
Seventhly, I respectfully agree with the primary judge’s conclusion and reasons for holding that the expression “based upon” is not merely descriptive but imposes a constraint. This not only accords with the text of the definition of “Plan of Subdivision (Balance Land)” in cl 1.2, but also with the terms of the Proposal which provides the provenance for the Annexure 2 Plan. Merely because the Proposal does not specify the size of the proposed five lots comprising the Balance Land and nominates the price and timing of each transaction does not displace the primary judge’s finding that the Annexure 2 Plan has its provenance in the Proposal.
It is strictly unnecessary to determine Ground 2 in circumstances where Mr Giles SC properly conceded that the appellants needed to win on both Grounds 1 and 2 for the appeal to succeed.
I respectfully agree, however, with the primary judge’s reasons for concluding that Lendlease’s failure to be able to exercise its option to call for the sale of Property 6 means that it can no longer acquire Properties 7 to 10. I shall highlight the primary matters.
First, as is reflected in the Annexure 2 Plan and in the Key Items Schedule, Property 6 played a pivotal role in the sequential disposal by the Landowners (or sequential acquisition by Lendlease) of Properties 6 to 10. Subclauses 8.1 and 8.6 refer respectively to the Landowners irrevocably offering to sell to Lendlease “each relevant Property” for the Price and on the other terms set out in the Sale Contract in the Deed and the first appellant irrevocably offering to buy “each Property” for the Price and on the other terms set out in both the Sale Contract and the Deed. “Price” is defined in cl 1.2 to mean “in relation to each Property, the purchase price to be paid under the Sale Contract, which is the amount specified for that Property in the Key Items Schedule”. Thus, the Key Items Schedule forms an essential part of the bargain. As noted at [96]–[100] above, it defines the Sale Offer Period, the Purchase Offer Period, the Price, the Sale Offer Fee and the Completion Date for each of Properties 6 to 10. The completion of the contract relating to Property 6 is an essential prerequisite to the exercise of any put or call in respect of the remaining Properties making up the Balance Land.
Secondly, I have explained above why Lendlease has failed to establish any error in the primary judge’s rejection of Lendlease’s construction that the references in the Key Items Schedule to “after the date of completion of Contract 6” should be read as meaning the date on which completion of Contract 6 could have occurred.
Thirdly, the actual date of completion of Contract 6 is critical to the operation of several provisions in the Deed. As noted above, cll 11 and 18 are two such provisions, but the primary judge was correct also to refer to cll 20.2 and 27. The former provision states that the “Balance Licence” which the Landowners are obliged to give to Lendlease commences on the date of the Deed in respect of certain activities, but in relation to all other activities commencement is from “the date of completion of Contract 6”. Clause 27 relates to bank guarantees. It is provided in cl 27.1 that Lendlease must deliver to the Landowners various bank guarantees in respect of Contracts 7 to 10 “[o]n or before the date of completion of Contract 6”. All these provisions highlight the practical significance of identifying the actual date on which Contract 6 was completed.
Fourthly, Lendlease’s complaint that the primary judge’s approach converts the Deed into a straight sale agreement is not persuasive. The Deed retains its essential character as conferring put and call options but the exercise of those options has been stymied because of Lendlease’s actions, which have resulted in Contract 6 not being completed in accordance with the Deed. There is no dispute that, in the events that have occurred, Contract 6 can never be completed.
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Lendlease Communities (Figtree Hill) Pty Limited
Mount Gilead Pty Limited [2025] NSWCA 258
(2015) 256 CLR 104
Appeal dismissed with costs: [113].
In the Court below, Lendlease claimed that the Landowners breached the Deed by their refusal to register the 12 July Plan and by their interference with Lendlease doing so.
Thirdly, under cl 18.1(d), Lendlease has the power to require the Landowners to transfer Biodiversity Credits to Lendlease on and from the date of completion of Contract 6. It seems most improbable from a commercial perspective that the Deed should be construed in the way advanced by Lendlease as imposing that burden on the Landowners even in circumstances where Lendlease chooses to acquire only one possibly small lot within the Balance Land.
Fourthly, these matters are not avoided by the fact that the burdens imposed on the Landowners under both cll 11 and 18 operate from the date of completion of Contract 6 where, in the events that have occurred, there was no such completion. Lendlease contends that the reference in both those provisions to either “upon” or “on and from” the date of completion of Contract 6 should be read as referring to the last possible date for completion of Contract 6 to cover the contingency that in fact there has been no actual completion, as occurred here. Even if that construction were adopted (and I will explain later why I do not accept that construction), the burdens referred to above would still obtain.
Fifthly, I reject Lendlease’s contention that, if it elected to acquire only one of the five Lots, the Landowners’ remedy is to exercise put options under cl 8.6. Mr Giles SC contended that while Lendlease had “a considerable degree of flexibility, our flexibility is hedged around by, if we don't exercise our call, the landowners can exercise their put”. He then added that this meant that Lendlease could not “act in a manner which leaves the landowners vulnerable to our choices, perhaps other than the oddity of timing that I'm about to come to”. The “oddity of timing” relates to the fact that, in the events that occurred, Lendlease did not acquire Lot 6 as contemplated by the Deed. This inevitably presented a major difficulty having regard to the way in which so many of the items relating to Properties 7 to 10 in the Key Items Schedule operated by reference to the date constituting the date of completion of Contract 6.
As stated at PJ[199], the Key Items Schedule set out the order for various events to occur (footnote omitted):
True it is that in late December 2014, when the Proposal was accepted, doubt and uncertainty existed as to how the development would proceed (as is reflected in Sch 2 to the Proposal). It is provided, however, in cl 7 of the Proposal that the Balance Land would be subdivided and purchased in five tranches under five interdependent Contracts for Sale and that a draft plan of subdivision would be agreed in respect of each parcel prior to any particular parcel being acquired. Furthermore, although the Proposal did not specify the size of any of the parcels the subject of Contracts 6 to 10, the parties plainly contemplated that those parcels would not be de minimis, as is reflected in the fact that the lowest nominated price for any parcel was $10 million (in respect of both Contracts 6 and 7).
Eighthly, I also respectfully agree with his Honour’s reasoning for rejecting Lendlease’s contention that cl 7.3 should be read as permitting Lendlease to vary a plan already “based upon” a permissible variation to the Annexure 2 Plan, as summarised at [54]–[56] above.
Ninthly, I do not accept Lendlease’s contention that the primary judge’s approach necessarily requires a difficult and uncertain evaluative judgment to be made in comparing the Annexure 2 Plan and the 12 July Plan. While the contention may have some force at a theoretical level, the evaluative judgment involved in this particular case admits of only one answer having regard to the striking differences between the Annexure 2 Plan and the 12 July Plan (see at [59] above).
Finally, I reject Lendlease’s claim that the only constraints on its power to vary the form of the Plan of Subdivision (Balance Land) from the version contained in the Annexure 2 Plan are those imposed by cl 7.3. Without doubt, cl 7.3 imposes several constraints on Lendlease’s power of variation, but I do not regard them as being exhaustive. The definition in cl 1.2 of the phrase “Plan of Subdivision (Balance Land)” necessarily requires the plan to be based upon the Annexure 2 Plan, while contemplating that the plan may be varied under cl 7.3. This constitutes an additional constraint.