Parland Pty Ltd, Andrew Hamilton and Andrew McGregor v Mariposa Pty Ltd [1995] TASSC 91;

Parland Pty Ltd, Andrew Hamilton and Andrew McGregor v Mariposa Pty Ltd [1995] TASSC 91; - TASSC 1995 case summary — Zoe

[32]

"The initial problem is to determine the legal effect of the

words "and or nominee" in the description of purchaser(s).

The ordinary notion of nominee is a person who is nominated

by another for a purpose: Lord v Trippe (1977) 14 ALR 129,

per Mason J at p 141. But for what purpose was the

respondent authorized to make the nomination? There can be

no doubt that the respondent was bound by the contract

initially. Otherwise the contract would be inoperative;

Vickery v Woods [1952] HCA 7; (1952) 85 CLR 336, per Dixon J at p 343. Is

the effect of the words simply to empower the respondent to

nominate another to take the transfer? If so, it is a usual

and well understood transaction. Indeed without any such

provision a purchaser may nominate another to take the

transfer and the vendor is required to transfer to that

nominee for 'an ordinary contract of sale is not only to

convey to the purchaser, but to convey as the purchaser

shall direct': Egmont v Smith (1877) 6 Ch D 469, per Jessell

MR at p 474; Lord v Trippe (1977) 14 ALR 129, per Aickin J

at p 144. Do the words 'and or nominee' in the description

of purchaser(s) mean any more than that?

Construing the words literally and without reference to the

rest of the contract or to the general law of contract, it

would be possible to attribute to them the meaning that the

respondent is empowered to nominate a purchaser in the sense

of substituting the nominee for the respondent as the

contracting party and of thereby procuring his release from

his obligations under the contract. I suppose that the

location of the words 'and or nominee' in the place provided

for the description of purchaser(s) is some pointer towards

that meaning. The document was prepared, however, in a real

estate and not a legal office and the pointer is therefore

not strong. The notion of a vendor binding himself to

accept an unknown nominee in place of the named purchaser as

the party to whom he must look exclusively for performance

of the contact is unusual. It is not a transaction into

which one would expect a sensible vendor to enter. Indeed

it is by no means clear that such a provision could be made

legally effective. The substitution could only occur if the

nominee subsequently agreed, for fresh consideration or

under seal, to perform the respondent's obligations under

the contract. For the respondent to be released not by

reason of a subsequent novation agreement but by the effect

of the words 'and or nominee' in the original agreement, a

great deal would have to be implied into those words. I

would be most unwilling to construe a contract as containing

a provision of such unusual character and dubious validity

unless the language of the contract was quite clear."

[64]

"In summary, I consider that the proposal for rezoning and

subdivision had little to no chance of success because the

proposed subdivision could not meet the development criteria

and scheme objectives for the zone requested and the

submission for a rezoning was inadequate. This

consideration is made, based on the following rationale.

The submission;

- did not address relevant broader planning issues relating

to landuse and the provision of infrastructure within the

municipality

- did not address the specific objectives of the Fingal

Planning Scheme 1987 or the requirements of the relevant

zones

- did not provide the essential level of services within the

proposed subdivision appropriate to the zone requested and

had development proceeded, the subsequent economic provision

of services normally required with a 'Closed Residential'

Zone would have been difficult to achieve given the proposed

lot density

- was not sufficiently comprehensive in that it did not

include an identification and analysis of all relevant

issues associated with a rezoning, prepared by a qualified

Town Planner and contained no evidence of effective public

consultation and liaison with Council and accordingly was

the subject of considerable local opposition.

...

Advice has also been requested with regard to what the

potential for success might have been should a more

sensitive application have been submitted. It is however,

somewhat difficult to assess in hindsight what Council may

have approved at the time. Certainly, with the introduction

of more stringent assessment requirements inherent in the

Land Use Planning and Approvals Act 1994 and the subsequent

release of serviced and unserviced lots in other areas in

the municipality and along the east coast in general, it

would now be difficult to argue for any rezoning of the

subject land to allow for its residential development. At

the time however, a properly prepared submission for

rezoning to 'Low Density Residential' which addressed the

preceding points and had general public support gained

through consultation may well have succeeded."

[67]

1 I have no reason to doubt that Messrs Hamilton and

McGregor on behalf of the first plaintiff used what from

their point of view were their best endeavours. They put a

great deal of time and effort into the submission and on the

evidence there would be no basis for concluding that they

presented what they knew was a defective objection. Insofar

as the test of whether best endeavours have been used is

subjective the condition was amply satisfied.

2 I am not persuaded that the failure to instruct a

solicitor to act for the first plaintiff prejudiced the

objection. The evidence does not show that the objection

was unsuccessful because of any lack of objectivity in its

presentation or any lack of understanding of any matter of

law.

3 Messrs Hamilton and McGregor were most appropriate persons

to represent the first plaintiff. They had extensive local

knowledge and local contacts, they had experience in town

planning and a substantial part of their training as

surveyors involved town planning.

4 In considering Mr Douglas' evidence I take into account:

4.1 that the defects in the submission which he identified

were largely not relevant to the reasons advanced by the

special commissioner for refusing the application;

4.2 that Mr Douglas' opinion was formed without any

knowledge of the steps which had been taken by the first

plaintiff in addition to the written materials it had

prepared;

4.3 that in the end Mr Douglas' opinion amounted to no more

than that a differently prepared submission "which ... had

general public support ... may well have succeeded".

5 The Commissioner's decision was largely based upon

considerations which could not have been overcome no matter

what endeavours the plaintiff used. The plaintiff did take

steps to consult and discuss its objection with local

residents and in any event there was no guarantee that the

"local opposition" could have been overcome no matter how

persuasive the plaintiff was. Nothing the first plaintiff

could have done could have overcome the considerations that

the growth rate in the area was slow and that enough land

was already available for residential development.

6 I have no reason not to conclude that Messrs Hamilton and

McGregor used their best endeavours to effectively present

the first plaintiff's objection at the hearing. I am more

ready to make that finding by virtue of the fact that the

defendant called no evidence to suggest the contrary

notwithstanding that Mr Hogarth was present at the hearing

and would have been able to give evidence as to how

effective was their presentation.

7 The first plaintiff sought and acted upon the advice of Mr

Brownlie who was on evidence which was not challenged "the

foremost expert" in the field available to the plaintiff.

That consideration together with the evidence of the steps

which the plaintiff took to advance the objection are in my

view arguably sufficient by themselves to show that the

first plaintiff used its best endeavours.

At a glance

Court

Decision date

Before

Source

Judgment (70 paragraphs)

Parland Pty Ltd, Andrew Hamilton and Andrew McGregor v Mariposa Pty Ltd [1995] TASSC 91; (1995) 5 Tas R 121 (11 August 1995)

Parties

Legislation Cited (2)

Cases Cited (7)