Plaintiff v First Defendant [2022] VSC 467 | Case summary

Plaintiff v First Defendant [2022] VSC 467 | Case summary | Zoe

[146]

ORDER

...

OTHER MATTERS: A. This order is signed by the Judge pursuant to rule 60.02(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules).

B. On 12 December 2019, on the return of the plaintiffs summons dated 11 December, INTERIM orders were made ordering the defendants to give possession of the premises until 11 am on 13 December 2019 pending payment to the first defendant of $87,913.35 as rent for the premises. That order was made on the basis that if that payment was made, the same orders for possession would be made on an INTERLOCUTORY basis pending the hearing and determination of the proceeding.

C. On 12 December 2019, the plaintiff paid $87,913.35 to the defendants, accordingly, the orders for possession are made on an INTERLOCUTORY basis as follows:

THE COURT ORDERS THAT:

The defendants give possession to the plaintiff of the properties referred to in the Deed of Settlement dated 6 September 2019 identified as:

The top floor of Unit 27, 89 Palmerston Road Ringwood;

That part of the plan attached to the Deed of Settlement dated 6 September 2019 marked yellow.

The defendants are restrained until further order, but subject to the terms of any lease that may subsequently be entered between the plaintiff and the first defendant, from interfering with the plaintiff's possession and quiet enjoyment of:

The top floor of Unit 27, 89 Palmerston Road Ringwood;

That part of the plan attached to the Deed of Settlement marked yellow.

AND THE COURT FURTHER DIRECTS THAT;

Notwithstanding non-compliance with r 5.04(3) of the Rules, the indorsement of claim on the writ shall stand as the plaintiff's statement of claim and compliance with r 14.02 (that the plaintiff serve a statement of claim within 30 days of the defendants' appearance) is dispensed with.

By 4:00 pm on 31 January 2019 the defendants file and serve their Defence.

The proceeding be listed for directions before a Judge in the Commercial Court for directions.

Costs of the plaintiff's summons are reserved.

[176]

NOW BY THE TERMS OF THIS DEED IT IS AGREED AS FOLLOWS:

PR agrees to:

(a) Resign forthwith as director and secretary of RR;

(b) Transfer forthwith to GR, or at his direction, his total shareholding in RR;

(c) Irrevocably and permanently resign his position as appointor and guardian of the RPT and appoint GR in his place.

Subject to clause 3, BV, and PR as its controller, agree that BV will enter into a commercial lease for the property shown in yellow on the attached plan, on the following terms:

(a) The initial term shall be for a period of 5 years, to commence with effect from the execution of the lease, with 4 consecutive options for 5 year extensions of that term thereafter, such renewals to be on the same terms subject to rental and renewal provision herein;

(b) The initial rent payable shall be that rental which is determined by an independent property valuer who is a certified property valuer with the Australian Property Institute to be appointed by the parties by agreement and if no agreement to be appointed by the Australian Property Institute as being a current market rental for the property and to whom each of PR and GR may make such representations as they see fit and both GR and PR agree to abide the outcome of the valuer's determination without complaint or appeal;

(c) The costs of the independent valuer shall be borne equally by the parties;

(d) During each term there shall be rent rises of 3% per annum, and at the commencement of each further term there shall be a market rental review;

(e) The lease terms shall be on a standard LIV commercial lease, subject to the Retail Leases Act and to terms reasonably permitted by that Act;

(f) The area of the leasehold shall be the land coloured yellow as set out in the attached map at Annexure A, to be recorded within the terms of the lease;

(g) The lessee shall be entitled to modify the premises as it thinks fit with the consent of the landlord, such consent not to be unreasonably withheld.

The existing lease over the property shall terminate immediately upon RR and BV entering into the lease referred to in paragraph 2.

For a period of 6 months from the date of this deed, RR shall be entitled to a licence to occupy and use the top floor of the property referred to within the area referenced by "27" on the attached map, at no cost, together with the right to use the toilets, safe and telephone system on the ground floor, which licence shall be irrevocable for that period.

For a period of 12 months from the date of these terms, RR shall have an option to purchase the property referenced by "27" on the attached map, at market value.

The parties agree that in relation to the loan recorded in the books of account of RR, that RR is indebted to PR in the amount of $353,281 as at 30 June 2018, and which together with any further loan amounts shall be wholly discharged upon the following payments by RR to PR:

(a) $114,427 payable by 1 July 2021;

(b) $114,427 payable by·1 July 2022.

And the parties further agree that the partial payment required by this clause shall discharge the said loan to the extent of such payment.

Subject to paragraph 10, the parties agree that the proceeds of sale from the property known as S5 at Palmerston Road Ringwood, may be distributed to PR as a beneficiary of the RT3 and HPT or otherwise dealt with as BV considers fit.

BV and RR agree that the amount of $579,757 is owed by RR to BV as at 30 June 2018 and BV hereby agrees to release RR from that debt together with any other indebtedness which has accrued since 30 June 2018.

GR acknowledges and agrees:

(a) That the distribution in paragraph 7 is an authorised and valid distribution;

(b) That BV (as trustee of the trusts) is indebted to PR (and/or his associated entities) in the amount of approximately $3.956 million, which indebtedness is payable at call;

(c) That, subject to these terms, BV as the trustee of the above trusts has an unfettered discretion to make distributions (corpus or income or otherwise) in accordance with the trust deeds of those trusts, including PR and associated entities, including a distribution of $10,000 per month to PR and/or his nominee, without prejudice to any other distributions to which the trustee; BV, may make to PR and/or his associated entities, or other benefits, at any time and from time to time.

GR hereby releases and discharges PR and/or his associated entities from any claims, actions, demands, or suits in respect of any action or decisions of BV and/or PR and/or his associated entities, or associated, in respect of, any of the matters referred to in the preceding paragraph (a)-(c).

PR shall indemnify RR against all outstanding legal costs and disbursements as at 5pm 30 August 2019, in relation to the Proceedings incurred but not yet paid by RR including any expert and legal costs.

PR shall be entitled to retain the following plant:

(a) The deck screen;

(b) Wood splitter;

(c) Bale spikes;

(d) Laser level;

(e) 10 bins, being 2 each of 27m, 18m, 10m, 8m and 6m.

The parties release and discharge each other from all claims and demands of whatever kind raised in, or arising out of the subject matter of, the Proceedings.

Upon the execution of these terms, the parties agree to the dismissal of the proceedings with no orders as to costs and shall sign consent orders to that effect.

The deed may be executed in counterparts.

The parties agree that this deed is confidential to the parties and cannot be disclosed to any third party other than in order to meet taxation or other legal requirements or otherwise by operation of law.

This deed comes into effect at 5pm on 13 September 2019

Executed as a Deed this [6th] day of September 2019.

................................................

Glen Rossignoli

................................................

Paul Rossignoli

................................................

Rossi Recycling Pty Ltd (as trustee for the Rossignoli Property Trust) by Paul Rossignoli as director.

................................................

Buckland Valley Pty Ltd (as trustee for the Rossignoli Trust No3 and Heatherdale Property Trust) by Paul Rossignoli as director.

[225]

(a) The established principles regarding severance.

(b) Except for the concluding words of clause 2(e), the clause is sufficiently clear regarding what was intended, which was essentially what existed under the 2016 Lease - that is, the standard LIV commercial lease document terms, subject to the RL Act.

(c) The 2016 Lease and the New Lease proposed by clause 2(e) were standard LIV commercial leases subject to the RL Act and there was no relevant inconsistency between clause 2(e) (with the concluding words excluded) and the 2016 Lease that would require the whole of clause 2 to be disregarded altogether.

(d) The concluding words of clause 2(e) fall within the character of words considered in Fitzgerald v Masters,[26] namely, 'simply a compendious provision inserted by way of more abundant caution to cover such incidental matters as did not obtrude themselves for the consideration of the parties'. It was said that if words fitting that description are sufficiently uncertain that they cannot be enforced, or be left in the contract even though they did not ultimately have any work to do, then those words alone can and should be severed in construing the whole clause.

(e) A central aspect of the Settlement Deed was making provision for a new lease at a new market rent for different premises so as to exclude the upstairs of Unit 27. Consequently, clause 2(e) cannot be severed as a whole in the manner suggested by the defendants so as to leave the 2016 Lease in existence. The creation of a new lease was said to be central to the Settlement Deed and that if clause 2(e) is found to be uncertain in its entirety it is such a material and important provision in the whole bargain that there must be inferred an intention not to make a contract which would operate without it, and the invalid promise should be treated as inseverable from the contract. It was submitted that the Settlement Deed does not permit an interpretation where the 2016 Lease would continue until its expiry pursuant to its terms. This was said to be contrary to the purpose and intent of the Settlement Deed generally and against at least clause 4 specifically.

[260]

(a) The context in which the Settlement Deed was entered into. This included it being the result of a further mediation between the parties ordered and held after the commencement in this court of the joint trial of the Trustee Removal Proceeding and the Receiver Proceeding, which were finally resolved and each dismissed pursuant to the terms of the Settlement Deed.

(b) The parties each being assisted by experienced solicitors and counsel in the negotiation and preparation of the Settlement Deed.

(c) The formal nature and language of the Settlement Deed and its terms, including the fact that it was a deed - as its terms and execution clauses reflected and was not in issue between the parties.

(d) The terms and language of the Settlement Deed including, for example: recital B, in which it was recorded that the 'parties wish to settle all issues between them in the proceedings on the terms set out herein; the formal opening language introducing the operative provisions above clause 1; the broad operative mutual releases referred to in clause 13; the agreement recorded in clause 14 that the Trustee Removal Proceeding and the Receiver Proceeding be dismissed 'upon the execution' of the Settlement Deed with no order as to costs and the obligation to sign consent orders to that effect; the execution clauses and execution of the Settlement Deed by Glen and by the solicitor for Paul, Buckland Valley and Rossi Recycling;[89] and the specification in clause 17 of 5pm on 13 September 2019 as being the date and time that the Settlement Deed 'comes into effect'.

(e) The absence of any language or terms to suggest that a further version of the Settlement Deed was contemplated or might be prepared.

(f) The absence of any language, terms or other evidence to suggest that the Settlement Deed was to be subject to contract or something analogous to the same. That the Settlement Deed recorded in clauses 2 and 3 Buckland Valley's and Paul's agreement regarding the entry into the New Lease does not provide any support that it was contemplated that the Settlement Deed would be recorded or embodied in a further document or provide any support for a contention that the parties did not objectively intend for the terms of the Settlement Deed to be immediately binding.[90]

(g) The detailed subject matter addressed by the terms of the Settlement Deed, its relationship with the allegations in the Trustee Removal Proceeding and the Receiver Proceeding, and the 'separation' of the Business and its operation from Paul and his involvement.

(h) The parties acting swiftly in accordance with the Settlement Deed by seeking and obtaining consent orders dismissing the Trustee Removal Proceeding and the Receiver Proceeding, which orders were made by this court on 9 September 2019.

(i) The absence of any negotiation of further terms of the Settlement Deed or any communications suggesting that such a thing was contemplated.

(j) The absence of any evidence or suggestion that there was a common or established practice of settlement agreements or deeds of settlement entered into in similar or analogous circumstances being taken not to be immediately binding pending the recording of terms in a different document.

(k) Putting the issue of the alleged repudiation to one side, the parties proceeding at all times on the basis that the Settlement Deed was immediately binding - which was also reflected in the pleadings and the manner in which the proceeding was conducted by both parties.

[271]

(a) Assuming their relevance to the exercise, when considered in the context of the above they do not lead to any different conclusion, even if they are considered only against the terms of the Settlement Deed and the context and circumstances of its entry as earlier referred to. They weigh less so if one or more of the other circumstances I have earlier referred to are also taken into account.

(b) I accept that in the search for the objective intention of the parties in a Masters v Cameron context the enquiry ought not to be approached with '... any predisposition in favour of upholding anything ...' and that the position is different once it has been established that the parties intended to make a binding agreement.[96] As the defendants observed, in that circumstance the courts have shown themselves to seek to strive to uphold bargains - although I would add that courts only do so within the permissible limits that the application of established principles permit. However, that this is so does not relevantly assist the defendants.

(c) I accept that, like other clauses, clauses 2 and 3 are to be construed carefully - but also in the context of the Settlement Deed as a whole. Again, this does not relevantly assist the defendants in this context.

(d) I do not accept that clause 2 of the Settlement Deed '... is in substance a "subject to contract" provision ...'. That is not what it says and it is not a construction that reasonable businesspeople would give it. Further, to seek to cast it in this way appears in part to be a consequence of what I consider to be the misapplication of the Masters v Cameron principles discussed above. In any event, even if it were to be assumed that clause 2 were to be so construed, it would be far from determinative and would fall to be another factor to be taken into account in evaluating the circumstances. In this regard I refer again to my comments in sub-paragraph (a) above and I refer to my conclusions recorded later below regarding the proper construction of clause 2(e).

(e) Even if it were to be assumed to be correct that the terms of the Settlement Deed regarding the New Lease were not sufficiently certain or complete in one or more of the ways referred to by the defendants so as to make it enforceable, these would be matters to be considered in the context of the other matters raised and evaluated, and in my view the result would remain the same as referred to in sub-paragraph (a) above.

(f) The nature and extent of the transaction does not in my view assist the defendants, particularly when regard is had to the existence of the 2016 Lease, the formal nature of the Settlement Deed, its terms, the involvement of lawyers, the various matters dealt with, the context of its entry, and its object to settle all issues in the Settled Proceedings between the parties. Even if the New Lease transaction is assumed to be a transaction of the kind, magnitude and complexity referred to by the defendants, given these matters and the other factors I have referred to no different result would follow when considered in the context of the other matters and circumstances to which I have referred. Further, given the existence of the 2016 Lease prior to the Settlement Deed, in my view the magnitude and scope of the New Lease transaction, and its importance to the analysis, was somewhat overstated by the defendants in the circumstances in any event.

(g) I do not accept the submission that the matters referred to in clause 2 of the Settlement Deed deal with only minor matters. It is sufficient to refer to the terms regarding: the identification of the premises; the term of the lease; the options; the method for determining the rental; the reference to the standard form LIV Commercial Lease (which was also used for the 2016 Lease); the rent rises; and the ability for the lessee to modify the premises. Plainly, these are significant matters. Insofar as this submission was maintained by the defendants, it is without force and does not assist them.

(h) The conclusions reached later in these reasons below regarding the proper construction, meaning and operation of clauses 2 and 3 of the Settlement Deed weigh against the defendants' position in the Masters v Cameron context.

(i) There is little or no persuasive force in the defendants' observation that Rossi Recycling's solicitors asked for a 'draft' lease by their letter of 21 November 2019. The defendants' lawyers had said that they would prepare the lease, and it was being sought by the plaintiff's solicitors. The language of 'draft' does not relevantly assist the defendants, but even if it were assumed to have the force contended for, when considered against the terms and context of the Settlement Deed, with or without the other considerations earlier referred to, no different result would follow. The same can be said of the evidence given by Glen in cross-examination regarding the prospect of negotiations. In the evaluation of the issue at hand it simply does not carry the defendants far at all in this context.[97] It should also be noted that Glen's evidence was given in a context where, at the commencement of this part of his cross-examination, senior counsel for Paul and Buckland Valley expressly asked Glen '... to assume that the terms of settlement required the parties to negotiate further terms from the standard lease terms. Just assume that for a moment', to which Glen responded 'Okay, yeah.' The questions that followed in cross-examination regarding negotiations were based on an assumed requirement of the need for negotiations and therefore the evidence Glen gave on the topic is of little assistance to the defendants even if the point had otherwise been persuasive, which it is not.[98]

(j) To the extent the defendants pressed a contention that the circumstances surrounding the making of orders appointing Mr Brindley as a court-appointed expert in this proceeding, or the terms of those orders[99] (Brindley Orders) provided support for the defendants' Masters v Cameron contention, I do not accept that submission - even assuming that such evidence would be admissible on the topic. The terms of the Brindley Orders were arrived at in a materially different context and for a different purpose. Whether considered alone or in combination with any of the other matters I (or the parties) have referred to, they do not relevantly assist the defendants' case in this context.

[292]

108. In this context, the express reference by Dixon J, and by Gleeson CJ, Gummow, Kirby and Hayne JJ, to hindering or preventing fulfilment of the 'purpose' of the express promises is important.

109. It has not always been clear whether these principles apply as a matter of construction or as implied terms. The current most authoritative exposition of the principles appears to us to be found in the plurality judgment of the High Court in Commonwealth Bank of Australia v Barker.[109]

110. Commonwealth Bank v Barker concerned a dispute between an employer (the bank) and an employee (Barker) over the circumstances of his redundancy. He contended that his employment contract contained an implied term requiring mutual trust and confidence, and he also contended for a breach of the Mackay v Dick duty to cooperate. The postulated obligation of mutual trust and confidence was a new implied term which the High Court was urged to adopt relying upon authorities in the United Kingdom.

111. In that context French CJ, Bell and Keane JJ addressed the issue of implied terms generally.[110] They referred to terms implied under the principles in BP Refinery v Hastings as terms implied 'in fact or ad hoc'. A separate category of implied terms was terms implied 'in law in all classes of contract'.

112. The plurality observed that it has been argued that some terms said to be implied by law are in fact rules of construction and that all such terms of universal application fall into that category.[111] They observed that the principle enunciated by Lord Blackburn in Mackay v Dick had been characterised in that way by Mason J in Secured Income, although he had also referred to the rule as an implied 'duty to cooperate'.[112]

113. The plurality endorsed an academic observation that in practice the two kinds of implied terms, in fact and by law, tend to 'merge imperceptibly' into each other.[113]

114. In the specific context of the term implied by law they emphasised the criterion of 'necessity', and, in that context, they quoted and adopted the analysis of McHugh and Gummow JJ in Byrne v Australian Airlines,[114] an earlier High Court appeal concerning an employment contract. The plurality said:

[294]

Later, the plurality returned to this issue saying that the relevant 'necessity' was not satisfied by demonstrating 'reasonableness', but may be demonstrated by the 'futility' of the transaction absent the implication.[116]

115. As to the other judges, Kiefel J also quoted and adopted what McHugh and Gummow JJ had said in Byrne v Australian Airlines about 'necessity' in this context.[117] Gageler J, in referring to the 'requisite inquiry' before a new term implied by law might be found, said that it had been described as the application of a 'test' of 'necessity' and cited the relevant passage from Byrne v Australian Airlines which the other judges had quoted and adopted.[118]

116. Thus, it seems that the relevant principles are best analysed as terms implied by law. 'Necessity' is the rationale for their existence and the circumstance which must be 'demonstrated' for them to be operative. The requisite necessity is so demonstrated where, absent the implication, the enjoyment of the rights conferred by the contract would or could be rendered nugatory, worthless, or, perhaps, seriously undermined; or the contract would be deprived of its substance, seriously undermined or drastically devalued.

117. On this basis, the law will imply, in appropriate circumstances, a positive obligation to take action (to co-operate and to do all such things as are necessary to enable the other party to have the benefit of the contract), and a negative covenant not to hinder or prevent the fulfilment of the purpose of the express promises made in the contract.

118. The relevant duty 'is a duty to afford the other party the benefit of what he has contracted for; not a duty to act generally in the other party's best interests'.[119] A term implied by law cannot be used as a basis for imposing on a party something commercially advantageous to the other party but for which the contract does not provide.[120] The implied term is necessarily informed by the express terms of the contract.[121] Thus, this Court has not accepted contentions that a term implied by law can, in effect, turn a contractual non-exclusive licence into an exclusive one;[122] or require a party to act as if an express contractual right did not exist.[123] As the Court of Appeal of the Supreme Court of Western Australia recently observed, the term implied by law, whether expressed positively or as a negative covenant, is not only limited by the criterion of necessity but must relate to bringing about something which the contract requires to happen.[124] Even more recently, the Court of Appeal of the Supreme Court of Queensland has held that the implied duty to co-operate is 'conditioned' by the concept of reasonableness.[125]

[318]

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.

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.

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.

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.

...

Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations.

Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption 'that the parties ... intended to produce a commercial result'. Put another way, a commercial contract should be construed so as to avoid it 'making commercial nonsense or working commercial inconvenience'.[152]

In Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd, Kiefel, Bell and Gordon JJ said:

It is well established that the terms of a commercial contract are to be understood objectively, by what a reasonable businessperson would have understood them to mean, rather than by reference to the subjectively stated intentions of the parties to the contract. In a practical sense, this requires that the reasonable businessperson be placed in the position of the parties. It is from that perspective that the court considers the circumstances surrounding the contract and the commercial purpose and objects to be achieved by it.

Clause 4 is to be construed by reference to the commercial purpose sought to be achieved by the terms of the lease. It follows, as was pointed out in the joint judgment in Electricity Generation Corporation v Woodside Energy Ltd, that the court is entitled to approach the task of construction of the clause on the basis that the parties intended to produce a commercial result, one which makes commercial sense. It goes without saying that this requires that the construction placed upon cl 4 be consistent with the commercial object of the agreement.[153]

In addition, the Court must have regard to all of the words used in the agreement 'so as to render them all harmonious one with another'[154] and to ensure the 'congruent operation [of] the various components [as] a whole'.[155] In Kosciusko Thredbo Pty Ltd v Commissioner of Taxation (Cth), the High Court observed that: 'permitted use provisions, like any other provision in a written document, must be construed according to their terms and as part of the entire document.'[156]

[331]

[98] Poor drafting may justify a court in being more ready to depart from the natural and ordinary meaning of the terms of a contract,[174] and no doubt, the poorer the drafting, the less willing a court should be to be "driven by semantic niceties to attribute to the parties an improbable and unbusinesslike intention".[175] But poor drafting provides "no reason to depart from the fundamental rule of construction of contractual documents that the intention of the parties must be ascertained from the language they have used interpreted in the light of the relevant factual situation in which the contract was made".[176] Where there is ambiguity which permits of two alternative and semantically not improbable interpretations, construction in accordance with what it may be supposed would be the approach of honest and reasonable businesspersons may assist in choosing one such alternative over the other. But where, as here, the language and surrounding circumstances of a commercial contract present a choice between, on the one hand, a plain, ordinary and commercially not irrational meaning of a clause and, on the other, a meaning which is significantly removed from the natural and ordinary meaning of the terms of the clause, which ill-accords with other provisions of the agreement, and which in the end produces an outcome that is more commercially acceptable from one of the parties' point of view only, the precept runs out of application. Unless the Anglo-Australian objective theory of contract is now to be cast aside, the commercial approach to construction[177] is not a licence to alter the meaning of a term that is "clear and fairly susceptible of one meaning only" to achieve a result that the court may think to be reasonable.[178] The court is not authorised under the guise of construction to make a new contract for the parties at odds with the contract to which they have agreed.[179] Where, as here, all things considered, the words of a clause are fairly susceptible of only one meaning, they must be given that effect.

[338]

(a) The rent for September 2019 having already been paid in advance on 1 September 2019 and the next rental payment being due on 1 October 2019, 24 days after the Settlement Deed was executed.

(b) The top floor Unit 27 being excised from premises for the New Lease and the subject of a licence entitlement 'at no cost', as provided for in clause 4 of the Settlement Deed, with the result that payment of the rental under the 2016 Lease after the entry into the Settlement Deed would necessarily include a component of rental for Unit 27 which was no longer the subject of the 2016 Lease. This, so it was said, would be unreasonable, uncommercial and unjust.

(c) If the 2016 Lease applied after 1 October 2019, Rossi Recycling would be subject to other financial obligations beyond rent including, for example, outgoings, utility charges, and the obligation to take out insurance, in respect of Unit 27 when those premises were not part of the lease. This was said to be inconsistent with clause 4 because it provided that the licence of Unit 27 would be at no cost.

(d) If the 2016 Lease operated beyond 1 October 2019, Buckland Valley would be in breach of it after the licence over Unit 27 expired because the lease required Buckland Valley to give quiet enjoyment over the premises leased and not to derogate from the grant - which it was said would follow if possession were to be taken of Unit 27 whilst the 2016 Lease was on foot.

(e) Part of the object of entry into the Settlement Deed was the settlement of the claims in the Trustee Removal Proceeding, including a central allegation that the rental was excessive. It was submitted that Buckland Valley insisting on excessive rent under the 2016 Lease for October, November and December 2019 was inconsistent with that object and defeats the primary purpose of the settlement agreement of entering into the New Lease.

(f) The role of clause 3 of the Settlement Deed was said to preserve the status quo during the month of September 2019 until the New Lease could be executed with effect from 1 October 2019 and with the rental mechanism included within its terms. That is, clause 3 was a practical short-term measure to maintain continuity of tenancy that was incidental to the primary purpose of entering the New Lease and the purpose of clause 3 was not to bind the parties beyond 1 October 2019. The requirement for the New Lease at the new rent to be entered into with effect from 1 October 2019 was submitted not to be inconsistent with clause 3 when read in that way. This, so it was said, was a construction that rendered all of the clauses of the Settlement Deed harmonious with one another.

(g) There was no impediment to the New Lease being executed with the words of the rent setting mechanism set out in clause 2(b) of the Settlement Deed included as a term of the lease. The actual process of calculation would then take place in due course and the New Lease could and should have been executed formalising the new tenancy with effect from 1 October 2019.

(h) The defendants' contention that the valuation process might reasonably take longer than the end of September 2019 was no more than the assertion of a possibility that was not supported by evidence. It was said further that construing the clause in that way does not address each of the clauses of the Settlement Agreement if the 2016 Lease was to continue beyond 1 October 2019. Reference was made to the Unit 27 licence entitlement in clause 4 and the fact that it would operate after the New Lease was operative from 1 October 2019.

[362]

[100] To the authorities cited by the primary judge may also be added the decision of this court in Ellmore (Maitland) Pty Ltd v Tull (1995) 7 BPR 14,305.

[101] One important observation that needs to be made with regard to the primary judge's exposition of principle relates to his statement that the limit of what is a reasonable time is to be determined by what is fair to both parties at the time of the exercise of the right. The passage cited from Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537; [1982] HCA 29 does not indicate when the content of what is a reasonable time is to be assessed. It does not stand for the proposition that it is to be assessed at the time of the actual exercise of the right, although that is of course the point of time by reference to which the court will assess whether a reasonable time (within the meaning of the contract on its proper construction) has passed. This is a subtle but important distinction. In my opinion, the relevant time for considering what is in fact a reasonable time is the time at which, under the contract, the right which is to be exercised is first capable of being exercised (just as the time for assessing whether a notice to complete affords a reasonable time for completion is the time of the giving of the notice: see Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438 at 444. As I point out at [109] below, the time for ascertaining the legal meaning of "reasonable time" must be the time of contracting.

[102] The implication of reasonable time drawn in Reid v Moreland Timber Company Pty Ltd (1946) 73 CLR 1; [1946] HCA 48 referred to by the primary judge in the passage extracted above was an implication in respect of the exercise of a right as opposed to the performance of an obligation (although the cases referred to by Dixon J in support of the implication were all cases concerning the latter). So too, this court's decision in K & M Prodanovski Pty Ltd v Callidan Insurance Ltd (2012) 60 MVR 456; [2012] NSWCA 117 to which the primary judge also referred concerned the exercise of a contractual right.

[103] In the course of argument, I raised with the parties the question whether or not there was any difference in principle between the concepts of "a reasonable time to perform an obligation" and "a reasonable time to exercise a right". Their respective researches did not point to any difference being drawn in the authorities, and it has been held that whether or not a reasonable time has passed either for the performance of an obligation or the exercise of a right is a question of fact or one of mixed fact and law: see, for example, Lyon v Creati [1892] VicLawRp 140; (1892) 18 VLR 629 at 630; The Picturesque Atlas Co Ltd v Searle [1892] VicLawRp 141; (1892) 18 VLR 633 at 639.

[104] What is a reasonable time in any given case may be affected by the nature of the obligation to be performed (for example, whether it is dependent on some third party performance or circumstances outside the control of the party under the obligation) or the right to be exercised (for example, whether the right is dependent upon the provision of some information that may need to be assessed before the right can be exercised or simply upon the happening of an event or the passing of a particular time).

[105] In Ellis v Thompson [1838] EngR 85; (1838) 3 M & W 445; 150 ER 1219, cited by Dixon J in Reid, Baron Alderson said (at 456-457; 1224-1225) that:

[366]

[155] On one approach, the 2012 agreement contained an implied term requiring that the power of termination be exercised within a reasonable period. However, that restructures the question so as to remove the focus from contractual interpretation, so that the contract is relegated to the context for determining reasonableness. It may be accepted that there is no bright line between interpretation and implication; nevertheless, one effect of treating the issue of reasonable time as other than a question of contractual interpretation is to remove the focus of attention from the intention of the parties at the time of entering into the agreement, albeit an intention to be objectively ascertained.

[156] There is another element at play. The objective approach to contractual interpretation focuses on the language used as it would have been understood by an independent observer. That tends to free the courts from the constraining influence of reflecting upon the actual intention of the parties. Nevertheless, at least where there is uncertainty, the approach acknowledges the need to understand the contractual context and the information available to the parties.[192] (It is not necessary for current purposes to decide whether that information extends to that which they could have ascertained at the time of contracting, but did not.[193] ) One important function of the approach is to preclude either party relying on uncommunicated intentions or expectations. However, there remains a fine line between construing the words used, having regard to the context in which the contract was formulated, and using precontractual negotiations to construe the language.

[157] A practical function of the objective approach is to control the factual disputes which could arise if contract cases required resolution of factual disputes as to precontractual negotiations, let alone post-contractual conduct.[194] However, such a pragmatic consideration of dispute resolution cannot give rise to an inflexible rule of interpretation.

[158] If the question of the validity of the termination does not turn upon contractual interpretation, it may be open to the court to have regard to post-contractual events and the conduct of the parties. This approach was adopted by the primary judge...

[368]

The explicit terms of cl. 26.7 state that the obligations of the vendor are conditional upon one of three conditions being satisfied. Upon proper analysis the condition is, in the language of Brennan J. in Perri v. Coolangatta at 565, "at once a condition precedent to the obligation of the parties to complete the contract and a condition subsequent to the whole contract so that the non-occurrence of the specified event[s] would entitle the vendor to avoid it": cf. the latter part of cl. 26.7. But the condition is not a promissory condition; rather, in the language of certain judges and commentators, it is a condition dependent upon the fulfilment of a contingency, or more precisely in this case upon the non-fulfilment of a series of contingencies; cf. Carter and Harland, Contract Law in Australia, 2nd ed., (1991), paras 733-5, 739-42. Again to adapt the language of Brennan J. in Perri v. Coolangatta at 565: "Though the stipulation specifies the event[s] upon the occurrence of which the obligations to complete cease to be contingent, the stipulation contains no promise that the event[s] will occur." ["Event" has been altered to the plural.] The absence of any promise may indicate, as I have said, some difficulty in implying any time for satisfaction of the condition if it is not explicitly prescribed by the contract. It is one thing to impose upon a party an obligation to perform a promise within a reasonable time, for the court will then have to measure the reasonableness of that party's behaviour, a task commonly undertaken. It is another matter, however, in dealing with a contingent condition, to assess a reasonable time by which the contingency must be satisfied, a task which may not be so easy.

On the other hand, and this demonstrates the significance of Perri v. Coolangatta, courts have been required to determine by what time contingent conditions must be satisfied in cases where the contract is silent. The argument of uncertainty is constantly raised but nevertheless, in order to give commercial efficacy to the transaction, courts have endeavoured to construe conditions in a way which will enable the contract to be carried out.

[400]

(a) The object and purpose of the Settlement Deed as earlier referred to.

(b) The live issue between the parties as to whether or not the rent was excessive, including the existence of the views expressed in the Brindley Report, although the position does not change if these are ignored.

(c) The objective intention of the parties to settle all issues between them and go their separate ways.

(d) The objective commercial desirability of the commercial parties acting with reasonable expedition to get their respective commercial affairs in order and certain.[205]

(e) What I infer to be the relatively straightforward nature of the valuation task, which in part is informed by the nature of the tasks as reflected in the valuation reports in evidence - although I have no regard to the values in this context given the position of the parties and the basis upon which the proceeding was conducted.

(f) The shorter periods of time taken by the valuers to produce the Brindley Report and the Charter Keck report that were in evidence. The Brindley Report was produced in a little longer than two months (including the Christmas period) and the Charter Keck report was produced in a little less than two months. However, the Charter Keck process did not involve obtaining submissions from different parties.

(g) The relatively straightforward nature of the New Lease given the terms of the Settlement Deed, the LIV standard form lease and the 2016 Lease.

(h) Allowing for a reasonable period to nominate and engage a valuer and make submissions in accordance with the procedure provided for in clause 2(b).

(i) Allowing for a reasonable period for the nominated valuer to carry out their assessment and provide a report.

(j) Allowing a reasonable period of time for the parties to see if any additional terms could be agreed pursuant to clause 2(e).

(k) The fact that not all of the steps referred to above would need to occur in a linear fashion. For example: lease preparation could be commenced, with room left for any insertion regarding the New Rent; the parties could communicate regarding the prospect of including any additional agreed terms; and steps could be taken to agree a valuer, or nominate the same in the absence of agreement.

(l) The indication given by clauses 3 and 4 that a licence for the top floor of Unit 27 was likely to have been necessary for part of the six-month period after the date of the Settlement Deed, which is an indicator of an objective intention that it was contemplated that the New Lease would have been entered into prior to the end of the six-month period. That said, my conclusion regarding three months being a reasonable time would not change even if this is put to one side.

[436]

(a) The plaintiff's construction was consistent with and well served the object and purpose of the Settlement Deed.

(b) The defendants were not submitting that the Settlement Deed would be uncertain if the concluding words of clause 2(e) did not have effect. Rather, it was said that the defendants were submitting that clause 2 of the Settlement Deed can effectively be disregarded or ignored and that the 2016 Lease would continue. In this context, it was contended that clause 2 makes clear that the objective intention of the parties, was essentially that the terms which existed under the 2016 Lease would continue in the New Lease, subject to the matters referred to in the Settlement Deed. The plaintiff submitted that there is no basis for disregarding the words of clause 2 altogether.

(c) The concluding words are of the character referred to in Fitzgerald v Masters, being 'simply a compendious provision inserted by way of more abundant caution to cover such incidental matters as did not obtrude themselves for the consideration of the parties'.[214]

(d) With reference to Brew v Whitlock (No 2),[215] it was contended that, if the closing words of clause 2(e) are sufficiently uncertain that they cannot be enforced, or remain in the contract even though they ultimately did not have work to do, then those words can and should be severed.

(e) A central aspect of the Settlement Deed was making provision for the New Lease (at market rent excluding the top floor of Unit 27) and that the entirety of clause 2 or all of clause 2(e) cannot be severed as a whole to leave the 2016 Lease in existence. It was submitted that, consistent with Brew v Whitlock (No 2), because the promise of a New Lease in clause 2 was so material and important a part of the bargain there must be inferred an intention not to make a contract without it and therefore the promise of a New Lease in clause 2 should be treated as inseverable. It was said that the Settlement Deed does not permit an interpretation where the 2016 Lease would continue until its expiry pursuant to its terms. Such a result was said to be contrary to the purpose, object and intent of the Settlement Deed, including the express terms of clause 2 and clause 4.

[452]

... It is convenient to distinguish between two varieties of uncertainty in this wide sense and to call the first uncertainty and the second incompleteness. A contract is uncertain if some essential term is so vague that no definite meaning can be assigned to it. A contract is incomplete if the parties have deliberately (and whether expressly or by implication) left some essential term to be settled by their future agreement: May and Butcher Ltd. v. R. [1934] 2 K.B. 17n, at p. 20, per Lord Buckmaster; Thorby v. Goldberg [1964] HCA 41; (1964) 112 C.L.R. 597, at p. 607, per Menzies J.; Australian and New Zealand Banking Group Ltd. v. Frost Holdings Pty. Ltd. [1989] V.R. 695, at p. 700.

A contract is not bad for uncertainty merely because of ambiguity: the ambiguity must be incapable of resolution before that result will follow. Courts are reluctant to strike down an agreement on the ground of uncertainty or incompleteness.

Even if it is impossible to assign a definite meaning to a provision it may be possible for the provision to be severed, leaving the rest of the contract good.

If the court comes to the conclusion that parties intended to make a contract it will if possible give effect to their intention by overcoming difficulties said to result from uncertainty or incompleteness.

While the distinction between uncertainty and incompleteness is a useful one, the vagueness of a provision may lead to its being held that there is no contract either on the ground of uncertainty or on the ground of incompleteness, the fatal dilemma being that the provision either is incapable of being given a definite meaning or, properly construed, shows that the parties intend to reach agreement hereafter by way of settling some point presently left outstanding: G. Scammel and Nephew Ltd. v. H. C. and J. G. Duston [1941] A.C. 251, per Lord Russell of Killowen, at p. 261, and per Lord Wright, at pp. 268-73.

Vagueness or incompleteness will bring a supposed contract down because there has been a failure to agree upon such terms as are in the circumstances legally necessary to constitute a contract: although the parties intended to make a contract, the law says that they have failed to do so...

[454]

[60] Two considerations must be taken into account before concluding that no agreement capable of being enforced has been reached notwithstanding an apparent offer and acceptance. Firstly, the agreement may be uncertain because the language used by the parties is not sufficiently precise and clear in its meaning to identify the scope of the rights and obligations agreed to. Secondly, the agreement may be incomplete because, even though the language used is perfectly clear in its meaning, part of the transaction may still remain to be agreed upon so that there is no completed agreement. In any given case there may in fact be elements both of uncertainty and incompleteness: G Scammell & Nephew Ltd v H C & J C Ouston [1941] AC 251; [1941] 1 All ER 14 (G Scammell & Nephew Ltd); Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709; Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd [1994] VicRp 55; [1994] 2 VR 106.

[61] When there has been a choice between enforcing an uncertain or incomplete agreement that, when enforced, is something that the parties did not in fact agree to, and on the other hand upholding the reasonable expectations of parties who believed they had a contract, the alleged contract has usually been enforced, especially when it is executed and commercial: Prints for Pleasure Ltd v Oswald-Sealy (Overseas) Ltd [1968] 3 NSWR 761; Amalgamated Television Services Pty Ltd v Television Corp Ltd [1970] 3 NSWR 85; Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520; (1974) 4 ALR 438; Rowella Pty Ltd v Hoult [1987] 1 Qd R 386; Hawthorn Football Club Ltd v Harding [1988] VicRp 6; [1988] VR 49; Anangel Atlas Compania Naviera SA v Ishikawajima-Harima Heavy Industries Co Ltd (No 2) [1990] 2 Lloyd's Rep 526; Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd [1994] VicRp 55; [1994] 2 VR 106; Re Roberts, Repington v Roberts Gawen [1881] UKLawRpCh 241; (1881) 19 Ch D 520; Nea Agrax SA v Baltic Shipping Co Ltd [1976] QB 933; [1976] 2] All ER 842. However, the nature of the agreement contemplated must always be considered so that where for example the transaction is a large one and terms usually found in an agreement are missing, elements of uncertainty and incompleteness should not be ignored: Toyota Motor Corp.

[62] Where a contract is said to be uncertain, but the parties have shown by their conduct that they understand and can apply its terms without difficulty, such conduct should not be ignored by holding that the terms of the contract are unintelligible by reason of uncertainty: York Air Conditioning & Refrigeration (A'asia) Pty Ltd v Commonwealth [1949] HCA 23; (1949) 80 CLR 11; Hempel v Robinson [1924] SAStRp 45; [1924] SASR 288; Sinclair v Schildt [1914] WALawRp 23; (1914) 16 WALR 100. In such situations the agreement may be upheld as a contract on the basis that by their actions in performance the parties have made certain the elements which were previously uncertain: Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2; [1932] All ER Rep 494; Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110.

[63] The same result may also be reached on the basis of an implied contract having come into existence and incorporating as many as possible of the terms of the original agreement: Way v Latilla [1937] 3 All ER 759; British Bank for Foreign Trade Ltd v Novinex Ltd [1949] 1 KB 623; [1949] 1 All ER 155.

...

[67] A clause which has more than one possible meaning or which may produce more than one result when interpreted is not void for uncertainty: Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429; Head v Kelk [1962] NSWR 1363; McDermott v Black [1940] HCA 4; (1940) 63 CLR 161; Waldron v Tsimiklis (1975) 12 SASR 481; Meehan v Jones; Australian Energy Ltd v Lennard Oil NL [1986] 2 Qd R 216; Yaroomba Beach Development Co Pty Ltd v Coeur de Lion Investments Pty Ltd (1989) 18 NSWLR 398; Youell v Bland Welch & Co Ltd (No 2) [1990] 2 Lloyd's Rep 431 (the Superhulls Cover Case); Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (t/as Uncle Bens of Australia) (1992) 27 NSWLR 326; Star Shipping AS v China National Foreign Trade Transportation Corp (The Star Texas) [1993] 2 Lloyd's Rep 445.

[68] As long as the clause is capable of a meaning, it should be given the meaning consistent with the intention of the parties: Upper Hunter County District Council; Fitzgerald v Masters; Gregory & Bradshaw; Anangel Atlas Compania Naviera SA (No 2); S & E Promotions Pty Ltd v Tobin Bros Pty Ltd (1994) 122 ALR 637; Head v Kelk; Waldron v Tsimiklis; Biotechnology Australia Pty Ltd; BHP Petroleum (Timor Sea) Pty Ltd v Minister for Resources [1994] FCA 1002; (1994) 49 FCR 155; 121 ALR 280.

[69] The question is one of construction: Meehan v Jones, and the language used should be interpreted broadly and fairly: Hillas v Arcos; Cohen v Mason; The Star Texas; Woodside Offshore Petroleum Pty Ltd v Atwood Oceanics Inc [1986]WAR 253; Terrex Resources NL; and not narrowly or pedantically: Upper Hunter County District Council; Head v Kelk; Waldron v Tsimiklis; Biotechnology Australia Pty Ltd. So long as it is not utterly impossible to place a reasonable meaning on the language used and to discern the parties' intention, the agreement will be enforced: Brown v Gould [1972] Ch 53; Hammond v Vam Ltd [1972] 2 NSWLR 16; Head v Kelk; Meehan v Jones; Gregory & Bradshaw; The Star Texas.

[70] Agreements which are apparently vague or uncertain may be made certain by considering a standard of reasonableness by which the content of the agreement can be more precisely defined: Hillas v Arcos; King v Ivanhoe Gold Corp Ltd [1908] HCA 75; (1908) 7 CLR 617. Alternatively, certainty may be achieved by an appeal to the understanding or practices of business people: R W Cameron & Co v L Slutzkin Pty Ltd [1923] HCA 20; (1923) 32 CLR 81; Bowes (carrying on business as British Tie Co) v Chaleyer (carrying on business as J Chaleyer & Co) [1923] HCA 15; (1923) 32 CLR 159.

[71] Where a phrase is uncertain only in the sense that the precise implications of the phrase are still to be ascertained, there is no contractual uncertainty provided that when the facts arise for application of the phrase, it is capable of being applied with reasonable certainty: Bowes v Chaleyer; Upper Hunter County District Council; Tonelli v Komirra Pty Ltd [1972] VicRp 87; [1972] VR 737. However, if the words used, although clear in their meaning, are incapable of being applied to the facts, the agreement will fail for uncertainty: Mercantile Credits Ltd v Harry [1969] 2 NSWR 248; Re Nudgee Bakery Pty Ltd's Agreement [1971] Qd R 24; Custom Credit Corp Ltd v Gray [1992] VicRp 36; [1992] 1 VR 540.

[72] A binding contract will not exist if the parties are still in the process of refining essential aspects of the bargain: Australian Broadcasting Corp v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540; Lubo Medich Holdings Pty Ltd v D and A Lu Pty Ltd (unreported, CA(NSW), Gleeson CJ, Mahoney P and Beazley JA, 8 May 1996). An intention to contract, whether expressed in terms of intention to make or accept an offer or in terms of an intention to create legal relations, is therefore essential. Accordingly, if the parties' intention to be bound is conditional on agreement being reached in relation to essential terms, there is no contract unless those terms are agreed: Toyota Motor Corp; Metal Scrap Trade Corp v Kate Shipping Co Ltd (The Gladys) (No 2) [1994] 2 Lloyd's Rep 402.

[73] In other words, for an implication to be made, the parties must have finally agreed on a bargain and the law does not permit a court to imply terms for the purpose of making incomplete negotiations an enforceable contract: Australian and New Zealand Banking Group Ltd v Frost Holdings Pty Ltd [1989] VR 695; May and Butcher Ltd v R [1934] 2 KB 17n; Toyota Motor Corp; Vroon BV v Foster's Brewing Group Ltd [1994] VicRp 53; [1994] 2 VR 32; Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69; Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422; Ashmore v Corporation of Lloyd's (No 2) [1992] 2 Lloyd's Rep 620.

[74] On the other hand, an incomplete agreement may be enforced if terms relating to essential matters, which the parties themselves have not expressly dealt with, can be implied into the contract. For example, terms relating to a reasonable time for performance and a reasonable price for the subject matter of the contract can be implied: Parker v Manessis [1974] WAR 54; W & J Investments Ltd v FCT (1987) 16 FCR 314; 76 ALR 293; Foley v Classique Coaches Ltd [1934] 2 KB 1; Whitehouse Properties Pty Ltd v Bond Brewing (NSW) Ltd (1992) 28 NSWLR 17; Couronne Investments Pty Ltd v Bardot Pty Ltd (unreported, SC(Qld), White J, 10 April 1996); Hall v Busst [1960] HCA 84; (1960) 104 CLR 206; Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582. In other words, where a contract which is prima facie incomplete has been largely performed by one or both parties, the agreement may be upheld by the implication of terms in order to avoid the injustice to a party who had performed but was unable to enforce the contract: Yea Corporation v Roberts [1879] VicLawRp 183; (1879) 5 VLR (E) 222; Hall v Busst.

[75] An arrangement whereby the parties agree to negotiate in the future on some essential matter will not be enforced on the basis that the agreement is incomplete, uncertain or is supported by consideration which is illusory: Carr v Brisbane City Council [1956] St R Qd 402; Courtney and Fairbairn Ltd v Tolaini Brothers (Hotels) Ltd [1975] 1 WLR 297; [1975] 1 All ER 716; Mallozzi v Carapelli SpA [1976] 1 Lloyd's Rep 407; Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd [1982] HCA 53; (1982) 149 CLR 600; 43 ALR 68; Itex Shipping Pte Ltd v China Ocean Shipping Co (The Jing Hong Hai) [1989] 2 Lloyd's Rep 522; Coal Cliff Collieries v Sijehama Pty Ltd (1991) 24 NSWLR 1; Walford v Miles [1992] 2 AC 128; [1992] 1 All ER 453. Accordingly, the law does not recognise as an enforceable contract an agreement to agree or negotiate a contract: Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353; Von Hatzfeldt-Wildenburg v Alexander [1911] UKLawRpCh 90; [1912] 1 Ch 284; ; ; ; ; ; ; ; ; ; ; ; ; .

[76] An incomplete agreement, being no more than an agreement of the parties to agree at some time in the future which is not effective as a contract, will not be enforced: Booker Industries; Coal Cliff Collieries. Accordingly, a contract will fail for incompleteness where, even though the language used may be quite clear in its meaning, some essential, material or important part of the bargain is yet to be agreed: see, for example, Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd's Rep 601; Vroon BV; Hempel v Robinson; May and Butcher Ltd v R; Foley v Classique Coaches Ltd; Willesden v Webb [1937] QWN 8; G Scammell & Nephew Ltd. However, the agreement may be upheld where there is a machinery provision that can be applied to supply the omitted term, where a term can be implied to deal with the omission, or where severance is possible.

[77] Where the parties have reached agreement on certain terms, but have indicated that further terms are to be negotiated, the agreement is not necessarily void for uncertainty or incompleteness, since the terms in question may not be essential terms of the agreement: Ravinder Rohini Pty Ltd v Krizaic [1991] FCA 318; (1991) 30 FCR 300; 105 ALR 593; Granit SA v Benship International Inc [1994] 1 Lloyd's Rep 526. Moreover, although an agreement to negotiate further terms which are essential to the completion of the contract is no different from an agreement to agree, it would appear that an express agreement to negotiate further essential terms in good faith may be binding if the parties have also agreed on the criteria against which the negotiations may be judged, objectively, in the event of a dispute: Coal Cliff Collieries; Hillas v Arcos, Trawl Industries of Australia.

[460]

[64] Whether uncertain conditions can be severed without destroying the entire agreement must also be considered. When a contract contains a number of conditions one of which is void for uncertainty, the question whether the whole contract is void depends on the intention of the parties to be gathered from the agreement as a whole: Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18; (1925) 36 CLR 60; Whitlock v Brew [1968] HCA 71; (1968) 118 CLR 445; Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251. Where a provision relating to some inessential or incidental matter is vague, uncertain or meaningless, it may simply be ignored: Life Insurance Co of Australia Ltd; Whitlock v Brew; Update Constructions Pty Ltd, and the rest of the contract enforced: Nicolene Ltd v Simmonds [1953] 1 QB 543; Bosaid v Andry [1963] VicRp 67; [1963] VR 465; Caltex Oil (Aust) Pty Ltd v Alderton [1964-65] NSWR 456; Tern Minerals NL v Kalbara Mining NL (1990) 3 WAR 486; Cohen v Mason [1961] Qd R 518.

[65] It is a question of construction whether the parties intended that if the clause in question could not for any reason take effect the whole contract must fail. Even a clause relating to an important matter may be severable: Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420; David Jones Ltd v Lunn (1969) 91 WN (NSW) 468; South Coast Oils (Qld and NSW) Pty Ltd v Look Enterprises Pty Ltd [1988] 1 Qd R 680; Spectra Pty Ltd v Pindari Pty Ltd [1974] 2 NSWLR 617.

[66] The test to be applied is whether the parties must be taken to have intended that an offending provision is severable or intended that, if the clause in question could not for any reason take effect, the whole contract must fail: Fitzgerald v Masters; Whitlock v Brew; David Jones Ltd v Lunn; Terrex Resources NL v Magnet Petroleum Pty Ltd [1988] 1 WAR 144. In determining an intention in respect of a written contract, extrinsic evidence may not be resorted to except where such evidence may be called in aid of interpretation: Whitlock v Brew. Where severance is not possible, because it would radically alter the agreement intended by the parties, the whole agreement will fail: Duggan v Barnes [1922] ArgusLawRp 88; [1923] VLR 27; Whitlock v Brew; G Scammell & Nephew Ltd.

[529]

(a) It was the parties' objective intention to be immediately bound by the terms of the Settlement Deed, including clauses 2, 3 and 4 of it.

(b) No relevant issue arises as to the date the Settlement Deed came into effect.

(c) The commercial purpose and object of the Settlement Deed was to the effect described in Part E.3 above.

(d) There were implied terms of the Settlement Deed imposing obligations upon the parties to co-operate to the effect of the terms referred to in Part E.4 above.

(e) Although what was to be determined pursuant to clause 2(b) of the Settlement Deed was the current market rental for the New Lease Premises at the time the Settlement Deed became operative on 13 September 2019, upon the proper construction of the Settlement Deed, it did not provide for the New Lease to come into effect from 1 October 2019.

(f) Clause 2 of the Settlement Deed imposes an obligation upon Buckland Valley to enter into the New Lease with Rossi Recycling within a reasonable time.

(g) A reasonable time for entering into the New Lease was by no later than three months after the 13 September 2019 operative date of the Settlement Deed, or the next business day if that time ended on a non-business day.

(h) Pursuant to clause 3 of the Settlement Deed, the 2016 Lease terminates immediately upon entering into the New Lease.

(i) Until the 2016 Lease terminates it remains on foot without variation to the rent or 2016 Lease Premises.

(j) Clause 4 of the Settlement Deed does not alter the terms of the 2016 Lease or require Rossi Recycling to pay any additional amount to Buckland Valley for the Unit 27 licence entitlement the subject of that clause.

(k) The terms or words of clause 2(b) of the Settlement Deed were not objectively intended to be transported into the New Lease as an express term of the New Lease. The objective intention of the parties was to have the current market rental determination carried out prior to the entry into the New Lease and then to insert the independently determined current market rental amount as the rent under the New Lease.

(l) The premises the subject of the New Lease are as described in the Settlement Deed and are the same as the 2016 Lease Premises except for the first floor of Unit 27, which is excluded.

(m) The New Lease commences when it is entered into, which is also when the 2016 Lease terminates.

(n) Rossi Recycling was obliged to pay rent under the 2016 Lease in October, November and December 2019.

(o) Upon their proper construction, the closing words of clause 2(e) of the Settlement Deed mean such other terms, if any, as are agreed between the parties and are permitted by the RL Act.

(p) Neither clause 2, clause 2(e), or the closing words of clause 2(e) are void or unenforceable for uncertainty. Even if the closing words of clause 2(e) had been uncertain, they would be severed.

(q) If clause 2, or the whole or first part of clause 2(e), had been uncertain they would not be severable and the Settlement Deed would have been void or unenforceable for uncertainty.

(r) Upon the proper construction of the Settlement Deed, the New Lease referred to in clause 2 was to be on the same terms as the 2016 Lease except for the changes reflected in the Settlement Deed, and particularly clause 2.

(s) The New Lease is not to contain a term to the effect of the term in Item 22 of the schedule to the 2016 Lease.

[635]

(a) The Settlement Deed was executed on 6 September 2019.

(b) Clause 1 of the Settlement Deed provided that Paul agreed to: (a) resign forthwith as a director and secretary of Rossi Recycling; (b) transfer forthwith to Glen, or at his direction, Paul's total shareholding in Rossi Recycling; and (c) irrevocably and permanently resign his position as appointor and guardian of the RP Trust and appoint Glen in his place.

(c) By email dated 11 September 2019, the plaintiff's solicitors sent to the defendants' lawyers a transfer form for Paul to sign to transfer the shares in Rossi Recycling to Glen.

(d) By letter dated 13 September 2019, Slaters informed Dunemanns, among other things, that their client was content for the plaintiff to arrange for the drafting of the relevant documentation regarding the matters set out in clause 1 of the deed and that their client as landlord would attend to the drafting of the lease of the property.

(e) Glen[280] filed the Form 484s with ASIC advising of the resignation of Paul as a director and secretary of Rossi Recycling, the appointment of Glen as a director and secretary of Rossi Recycling, and the transfer of Paul's shareholding in Rossi Recycling to Glen. At that time Paul had not signed resignation and share transfer documents. The agreed chronology recorded that this lodgement occurred on 13 September 2019[281] in one part of the chronology and on 19 September 2019 in another part. This also sat in tension with the Form 484s exhibited to the affidavit of Paul affirmed 12 December 2019 opposing the relief from forfeiture application. Those documents recorded that two separate forms were filed dealing with the cessation of Paul being a director and the appointment of Glen as a director, with the latter recording that it was received by ASIC on 25 September 2019 at 09:49:46 AM and the former recording that it was received on the same day at 10:09:49AM. The Form 484s recording the change of shareholding in Rossi Recycling from Paul to Glen were recorded as having been lodged with ASIC on 30 September 2019 at 12:22:51 PM. If there is an error with the date referred to by the parties in the agreed chronology it appears likely that it was connected with the relevant forms recording the director's cessation date as 13 September 2019, which may be observed is consistent with clause 17 of the Settlement Deed. Glen's direct evidence, which I accept, also confirmed that the documents were lodged in late September 2019 and not on 13 September 2019. That said, even if the other dates I have referred to are assumed to be correct it would make no difference to the result.

(f) By letter dated 18 September 2019, Dunemanns sent to Slaters documents for Paul to sign recording his resignation as a director and secretary of Rossi Recycling and his resignation as appointor and guardian of the RP Trust and the nomination of Glen as appointor and guardian of the RP Trust.

(g) By letter dated 19 September 2019, Slaters wrote to Dunemanns informing them, among other things, that Paul wished to attend the Business premises on 21 September 2019 to collect assets which it was said he controls and those assets which he is entitled to retain as set out in the Settlement Deed.

(h) By email of 19 September 2019, Dunemanns informed Slaters that they had been instructed to advise that upon return of the documents recently forwarded to Slaters for execution by Paul, their clients would be provided with every assistance required to facilitate Paul's wishes.

(i) By email of the same day from Slaters to Dunemanns, Slaters informed Dunemanns that they had received the documents for signature by Paul and that once they had been reviewed they would have them executed. The email stated that in the meantime their client had organised a tradesman to attend the premises on Saturday and requested a key to be made available to him to access the office. A follow-up email was sent on 20 September 2019.

(j) Dunemanns responded by letter of 20 September 2019 stating, among other things, that their client preferred that the executed documents transferring control of the Business be delivered before there was further distribution and allocation of assets, but that they were also instructed that at all relevant times Paul held a master key to the complete complex. Reference was also made to the documents to be signed by Paul being very straightforward and simple. It was also stated that if the executed documents were forwarded to Dunemanns that afternoon then Glen suggested that the parties meet at the transfer station at 3pm on Saturday, when most of the day's business at the premises would have been completed.

(k) On 20 September 2019, Paul attended the premises, and I accept Glen's evidence regarding what he said Paul did and did not do at that time, which I refer to further below in the context of the waste bins issue. For present purposes, it is sufficient to note that, on the evidence before me, the director resignation documents and share transfer documents were not provided to Glen in advance of that visit or subsequently.

(l) By letter of 20 September 2019, Dunemanns wrote again to Slaters stating that their client's suspicions had been confirmed and that they were instructed that 20 minutes earlier that day Paul had attended the Business premises and demanded that he be given everything that he wanted and that he stated that he was the boss until he signed the documents and that he was not signing anything until he got everything that was his. Dunemanns requested that Slaters counsel their client concerning his actions, stating that they appeared to fly in the face of the Settlement Deed that was 'painstakingly negotiated between the parties'.

(m) Glen said, and I accept, that he discussed the topic at length with his solicitor and that he was advised that the signed Settlement Deed could itself be used as the basis for lodging the forms with ASIC regarding transfer and appointment as a director. This then occurred in late September 2019 as referred to above.

(n) Further correspondence followed, aspects of which I have referred to in the Background section above and was addressed in the agreed chronology.[282] This included the correspondence of 25 November 2019 enclosing the appointment and resignation documents signed by Paul in respect of the RP Trust, of which Rossi Recycling was the trustee and owner of the Business.

[702]

(a) On 21 November 2019, Dunemanns responded to Slaters' letter of 18 November 2019 and disputed the validity of the notice of breach of lease and stated that 'our client has instructed us to repeat a correct market rental for the premises is in the region of $200,000 per annum and accordingly has instructed us that it is prepared to pay rental to your client at the rate of $16,666.66 per month whilst an appropriate rental is determined by a valuer. Please advise if your client is prepared to accept this arrangement and whereupon payment of the past two months can be made.' The letter also requested the draft lease documentation provided for in the Settlement Deed at Slaters' earliest convenience, with reference being made to Slaters' previous letter in which it was said that Slaters would prepare the lease.

(b) On 22 November 2019, Slaters sent another letter enclosing two further notices of breach of lease in respect of the rental payments for October and November and correcting the typographical error regarding the date of the lease so that it recorded the date of 1 October 2016, rather than 1 October 2019. The letter also stated that if it is found that a lease commencing 1 October 2016 is in existence the first of the two fresh notices was relied upon, but in the event that it was found not to be in existence, they were of the view that Rossi Recycling was subject to a monthly tenancy and relied on the second of the fresh notices included with the letter.

(c) On 25 November 2019, Slaters sent to Dunemanns a signed form recording Paul's resignation as appointor and guardian of the RP Trust and a signed form where Paul appointed Glen as appointor and guardian of the RP Trust.

(d) On 4 December 2019, Dunemanns wrote to Slaters refuting that a monthly tenancy had arisen. They also stated in that letter that 'equally our client denies the purported legitimacy of a lease dated 1 October 2016 as the same was not executed as that that date'. The letter was in the following terms:

[778]

(a) The steps taken in relation to the transfer of the Business and asset notices were consistent with, and seeking to put into effect, that which was agreed in clause 1 of the Settlement Deed.

(b) Given the sequence of events, and the only remaining issue relating to the Last Bin, there was no sound basis for contending that the non-delivery of the Last Bin to date was repudiatory.

(c) Neither Glen nor Rossi Recycling caused the 2016 Lease to fail, and it was not repudiatory anyway.

(d) There was no obligation under the Settlement Deed to pay rent under the 2016 Lease as this was dealt with by the 2016 Lease. Further and in any event, non-payment of rent under the 2016 Lease was not sufficiently central to the Settlement Deed and was not capable of, and does not, objectively convey to a reasonable person in the situation of the other parties renunciation of the Settlement Deed as a whole or a fundamental obligation under it. In this context, it was submitted that the evidence showed that Rossi Recycling never denied the obligation to pay rent for the relevant months, and that there was a dispute about what the appropriate rent was to be. It was also submitted that even if there had been an obligation to pay rent under the Settlement Deed, damages would be sufficient and it cannot be said to have been an essential term of the Settlement Deed.

(e) The defendants' characterisation of the failure to pay rent as repudiatory and their attempt to terminate the 2016 Lease as a result should be seen for what they were, which was said to be an opportunistic attempt to manufacture repudiation and scuttle the Settlement Deed so as to gain control of the entire property and sell it as soon as possible for their own benefit. This was said to be compounded by Paul and Buckland Valley's failure to give any notice that they intended to terminate the Settlement Deed if payment of rent was not made.

(f) Proposing to pay rent of $16,666.66 per calendar month pending the independent determination could not amount to a repudiation of the Settlement Deed. Reliance was also placed upon Glen and Rossi Recycling's construction contentions.

(g) Glen and Rossi Recycling's position in the correspondence in November and December 2019 regarding the 2016 Lease could not be seen to be repudiatory when seen in context of all of the circumstances. It was submitted that it demonstrated the opposite position.

(h) Glen and Rossi Recycling's attempt to regain possession of the premises on 9 December 2019 cannot be seen to be repudiatory. It was said to reflect a forcible attempt to continue what was clearly contemplated in the Settlement Deed and any trespass in this context was submitted also not to be repudiatory.

(i) Glen and Rossi Recycling were entitled not to agree to the valuer being put forward by Paul and Buckland Valley, and so to act was not repudiatory.

[827]

(a) The resignation of Paul as guardian and appointer of the RP Trust and nomination of Glen being sent by Slaters to Dunemanns on 25 November 2019.

(b) The conduct of the defendants in relation to Unit 27 being consistent with only the enforcement of the Settlement Deed. In this context, emphasis was placed upon clause 4 of the Settlement Deed, the defendants' lawyers' letter of 14 February 2020 confirming that Unit 27 had been taken off the market, and their letter of 19 March 2020 notifying Rossi Recycling of Buckland Valley's intention to repossess the top floor Unit 27 on 23 March 2020 because of the expiry of the licence under clause 4 of the Settlement Deed. On that date Buckland Valley took possession of Unit 27, which Rossi Recycling surrendered at that time.

(c) The demanding and taking possession of Unit 27 by Buckland Valley from Rossi Recycling being consistent only with the enforcement of the Settlement Deed and inconsistent with the contention that the Settlement Deed had been terminated - and therefore amounted to an affirmation of the Settlement Deed.

(d) Buckland Valley's letter of 17 August 2021 in which it was asserted that from 30 September 2021 Rossi Recycling would remain in possession of the premises at Unit 27 on a monthly over holding basis pursuant to clause 10 of the 2016 Lease.

(e) The correspondence that was exchanged on 17 and 22 June 2021 between the parties' solicitors regarding the payment due under clause 6 of the Settlement Deed on 1 July 2021. In particular, reference was made to the defendants' lawyers' statements that, although it was a matter for Glen and Rossi Recycling as to whether it paid the amount of $114,427 to Paul on 1 July 2021, 'if he does not, we will be submitting a trial of the conduct is consistent with the repudiation of the deed of settlement by your client.'

(f) Paul's acceptance of the payment of $114,427 by Glen on 1 July 2021.

(g) Paul's alleged collection of some waste bins from the Red Lot in early 2021.

[833]

(a) The execution of the documents by Paul, resigning as guardian and appointor of the RP Trust, and nominating Glen in his place, and the provision of these documents to Dunemanns on 25 November 2019 were objectively unequivocal acts done by Paul that were consistent only with the performance of the Settlement Deed. They amounted to an election at that time to continue performance of the Settlement Deed. It will be recalled that these steps were expressly agreed and provided for in clause 1 of the Settlement Deed.

(b) The affirmation on 25 November 2019 was effective because, as I have earlier determined, there was no effective election by Paul or Buckland Valley to terminate the Settlement Deed prior to that time.[364]

(c) Because the 25 November 2019 affirmation of the Settlement Deed occurred after the non-payment of rent for October and November 2019, the consequence would have been that any purported later acceptance of repudiation of Settlement Deed relying on non-payment of rent for those months would have been ineffective. This is because by Paul's conduct he and Buckland Valley had elected to continue with performance of the Settlement Deed, notwithstanding the claimed repudiatory breaches of it based on non-payment of rent under the 2016 Lease for October and November 2019.

(d) However, because rental was not paid on 1 December 2019 under the 2016 Lease, if I had found this non-payment to be repudiatory of the Settlement Deed, Paul's statement in his 12 December 2019 affidavit would have been an effective acceptance of that repudiation and an effective election to terminate the Settlement Deed. This is because the breach for non-payment of rent on 1 December 2019 would have been a fresh repudiatory breach that occurred after the affirmation on 25 November 2019, that was open for Paul and Buckland Valley to accept even if their purported acceptance for the earlier claimed repudiatory breaches was ineffective by reason of the affirmation on 25 November 2019. Even if the statements in the affidavit had not been enough (which they were), when combined with senior counsel for the defendants' statements to the same effect in court on 12 December 2019, the election was clear and unequivocal.

[896]

[246] I turn finally to the question of clean hands. Apart from cases of fraud or misrepresentation or illegality or a breach of contract leading to a lack of readiness or willingness on the part of the plaintiff to perform his obligations, there are broadly speaking two main categories of cases in which plaintiffs are denied specific performance on the basis of a lack of clean hands[386]: first, where the plaintiff is shown materially to have misled the court or to have abused its process, or to have attempted to do so; and, secondly, where the grant of relief would enable the plaintiff to achieve a dishonest purpose and where in all the circumstances it appears to the court to be inequitable to grant the particular relief in question. It is the second of those categories which is said to be of relevance here.

[247] The gist of that second category of case is that equity will not assist the unconscionable conduct on the part of the plaintiff, either by enforcing a right already improperly obtained or by otherwise furthering unconscionable purposes. But the undesirable behaviour in question must involve more than mere "general depravity". It must have an immediate and necessary relation to the equity sued for; it must be a depravity in a legal as well as in a moral sense; and, in order to have an immediate and necessary relation to the equity sued for, the plaintiff must seek to derive advantage from his dishonest conducti n so direct a manner that it is considered to be unjust to grant him relief.

[248] In my view, that is not the present case. IGA is not engaging in unconscionable conduct. Its rights under the agreement for lease were not improperly obtained and it does not pursue those rights in furtherance of any unconscionable purpose. What is put against IGA is that, in submitting the new forms of agreement under cover of the letter of 21 June 2001, IGA had in mind the evasion of duty properly payable on the original agreement for lease. But even assuming that were so, it would rise no higher than the category of "mere general depravity", lacking an immediate and necessary relation to the specific performance of the original agreement.

Parties

Applicant/Plaintiff:

Rossi Recycling Pty Ltd

Respondent/Defendant:

Buckland Valley Pty Ltd & Anor [2022] VSC 467

Legislation Cited (2)

Court (General Civil Procedure) Rules 2015

Leases Act 2003

Cases Cited (105)

(1905) 3 CLR 419

(1946) 73 CLR 1

(1952) 85 CLR 20

(1982) 149 CLR 537

(1988) 14 NSWLR 438

(2012) 60 MVR 456

(2008) 238 CLR 570

(1968) 118 CLR 429

(1995) 36 NSWLR 709

(1974) 4 ALR 438

(1949) 80 CLR 11

(1940) 63 CLR 161

(1975) 12 SASR 481

(1989) 18 NSWLR 398

(1992) 27 NSWLR 326

(1994) 122 ALR 637

(1994) 49 FCR 155

(1908) 7 CLR 617

(1923) 32 CLR 81

(1923) 32 CLR 159

(1988) 18 NSWLR 540

(1988) 164 CLR 539

(1995) 185 CLR 410

(1987) 16 FCR 314

(1992) 28 NSWLR 17

(1960) 104 CLR 206

(1989) 16 NSWLR 582

(1982) 149 CLR 600

(1991) 24 NSWLR 1

(1954) 91 CLR 353

(1973) 129 CLR 629

(1991) 30 FCR 300

(1925) 36 CLR 60

(1968) 118 CLR 445

(1990) 20 NSWLR 251

(1990) 3 WAR 486

(1956) 95 CLR 420

(1969) 121 CLR 432

(1975) 133 CLR 331

(1929) 43 CLR 310

(1986) 40 NSWLR 631

(2011) 111 SASR 134

(1982) 149 CLR 571

(2015) 90 NSWLR 605

(2001) 53 NSWLR 153

(1921) 29 CLR 177

(1986) 40 NSWLR 622

(2000) 22 WAR 101

(1985) 2 NSWLR 309

(2008) 75 NSWLR 1

(2013) 46 VR 447

(2016) 329 ALR 1

(2002) 209 CLR 95

(1979) 144 CLR 596

(2001) 205 CLR 126

(1931) 45 CLR 359

(2014) 253 CLR 169

(2012) 39 VR 1

(2009) 25 VR 251

(1977) 180 CLR 266

(1954) 90 CLR 235

(1989) 168 CLR 385

(1984) 3 NSWLR 613

(2012) 38 VR 241

(2003) 128 FCR 1

(1985) 157 CLR 17

(2015) 256 CLR 104

(2017) 261 CLR 544

(1973) 129 CLR 99

(2005) 221 CLR 522

(1987) 168 CLR 147

(2014) 251 CLR 640

(1982) 149 CLR 337

(2016) 343 ALR 112

(2012) 45 WAR 29

(1917) 24 CLR 288

(1998) 192 CLR 266

(2019) 58 VR 393

(2019) 101 NSWLR 679

(2014) 89 NSWLR 633

(1964) 112 CLR 597

(1988) 15 NSWLR 130

(2001) 187 ALR 302

(2002) 54 NSWLR 503

(2009) 74 NSWLR 618

(2011) 38 VR 24

(1990) 21 NSWLR 689

(1991) 25 NSWLR 286

(2000) 170 ALR 579

(2014) 45 VR 245

(1982) 149 CLR 620

(1989) 166 CLR 623

(2007) 233 CLR 115

(1938) 61 CLR 286

(1951) 83 CLR 322

(1978) 138 CLR 423

(1974) 131 CLR 634

(1993) 182 CLR 26

(1953) 89 CLR 327

(1976) 136 CLR 444

(1965) 113 CLR 295

(1923) 31 CLR 524

(1949) 80 CLR 219

(1912) 15 CLR 695

(1998) 195 CLR 1

Cited By (1)

Sibley Investments Pty Ltd v Oldfields Advance Scaffold Pty Ltd

Plaintiff v First Defendant

At a glance

Court

Decision date

Before

Source

Judgment (1339 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (105)

Cited By (1)