Natuna Pty Ltd v Cook

Introduction 32 On 20 March 2003, while the parties' development application and the related Land and Environment Court proceedings were pending, there was a meeting between the parties. The meeting was attended by Mr Cook and his advisor Mr Beesley, and Natuna was represented by Mr Hart and Mr Short.

33 Natuna claims that at this meeting they agreed that Mr Cook would pay two-thirds of the costs incurred by Natuna for the rezoning and the development application. That is, that they in effect agreed to vary the 50/50 cost sharing provided for under the 1995 deed and the July 2001 oral agreement.

34 Mr Cook claims that at the meeting they agreed that: (a) Natuna would be responsible for paying one-third and Mr Cook would be responsible for paying two-thirds of any joint costs and expenses incurred thereafter in relation to the development of the Riveroaks Land as would benefit both parties (the earlier costs relating to the rezoning and subdivision applications, as had previously been agreed, would be shared equally); (b) in accordance with a proposed condition of council consent, Mr Cook would provide the use of the mangrove relocation land to Natuna. That land was to be valued and Natuna was to pay Mr Cook compensation for its use. The costs of relocating the mangroves to the mangrove relocation land were to be borne by Natuna; (c) in accordance with a proposed condition of council consent, Mr Cook would provide land to be used as playing fields. This land was to be valued and its value was to be deemed part of Mr Cook's contribution to the joint development costs; (d) all joint costs and expenses incurred by Natuna, whether they were incurred before or after March 2003, were not to be payable by Mr Cook until they were off-set against the value of Mr Cook's contributions of the playing fields land and the mangrove relocation land; and (e) Natuna confirmed an oral agreement entered into in early 2001 that Natuna would grant Mr Cook road access to the Pacific Highway over land owned by Natuna. 35 Mr Cook gave evidence that he would not have allowed the parties' pending subdivision development application to proceed (as a landowner his consent was required), unless there was agreement with Natuna on these matters. One of the proposed conditions of consent involved Mr Cook agreeing to the transplantation of mangroves onto his land. Mr Cook submitted that before agreeing to such a blight on his land, he wanted to be assured that Natuna, which was the beneficiary of the mangrove transplantation, would compensate him for the loss of his land. Mr Cook submitted that, having been satisfied of those matters as a result of the parties' agreement on 20 March 2003, in early June 2003 he decided to allow the development application to proceed.