Sovereign Hills Project Pty Ltd & Ors v MMTR Pty Ltd & Ors

The issues 25The principal issue is whether upon the proper construction of the project accounts deed, the money received by the first defendant as compensation for the compulsory acquisition of its land by the RTA is payable to the first plaintiff. Should that issue be determined in the plaintiffs' favour, the next issue is whether the first plaintiff is estopped from requiring payment of the amount into the proceeds account.

The agreements 26For the purpose of these proceedings the relevant, interrelated, agreements or project documents are the development agreement, the development and consultancy agreement, the project accounts deed, the land pre-commitment agreement between the first defendant and the fourth defendant, the security trust deed, and a mortgage from the first defendant to the second defendant (the mortgage). A short summary follows. 27Under the development agreement, the third defendant (Tullamo) agreed with the fourth defendant (Nerla) to pursue the rezoning of the land the subject of the project, and to pursue necessary planning approvals and subdivisions, and to procure the disposal of the land. 28Under the development and consultancy agreement, the first plaintiff (therein referred to as "LLG") agreed with the third defendant to undertake the development of the land the subject of the project, and to assist it to perform its undertakings under the development agreement. 29The project accounts deed was entered into by all parties. Under this instrument, the first plaintiff (therein referred to "LLG") was appointed to establish, manage, and operate the project accounts on the terms and conditions set out therein. The agreement incorporated a number of terms as defined in the development and consultancy agreement. One of the accounts to be opened and maintained at the direction of the projects committee was the proceeds account into which the relevant parties were required to deposit all revenue or sale proceeds derived from the land the subject of the project. 30Under the security trust deed a trust fund was established to be held by the second defendant (Bitonto) as the security trustee upon the terms and conditions set out in the document. 31The project accounts deed, relevantly, includes the following provisions: "2.1 Establishment of Project Accounts: Promptly upon the direction of the Project Committee, LLG will open and maintain with an Account Bank: (a) an account named 'Proceeds Account - Port Macquarie'; ... 4.1 Deposit to Proceeds Account (a) Each of the Landowners, UT1, UT2, and LLG undertake to promptly deposit any Revenue received by them into the Proceeds Account. (b) Without limiting paragraph (a), each landowner irrevocably undertakes to promptly pay, (upon the basis set out in clause 4.5), to LLG for deposit into the Proceeds Account the gross sale proceeds received (net of any Transaction Costs) by it (or on its behalf) from any Disposal of its interest in any Land." By clause 1.1 the meanings of "Revenue" and "Disposal" are the meanings given in the development and consultancy agreement. 32The development and consultancy agreement, relevantly, includes the following provisions: "1.1 Definitions ... 'Disposal' means a sale, transfer, grant or other dealing in land (whether or not for valuable consideration) which results in a Landowner ceasing to be the legal and beneficial owner of that land. ... 'Revenue' means: (a) the gross sale proceeds received (net of any Transaction Costs) from the sale of the Land or any part of it; (b) the rent ...payable under any Commercial Leases and any Retail Leases ...; (c) any payments of a periodic nature payable under any Commercial Leases or Retail Leases; (d) any other income derived by any Project Party from the Land or any part of it following the later of the Rezoning of that Land and the date of a resolution by the Project Committee to include that part of the Land in a Stage to be commenced." 33The security trust deed, relevantly, includes the following provisions: "1.1 Definitions 'Mortgage' means each real property mortgage dated on or about the date of this Deed granted by each Landowner to the Security Trustee and each real property mortgage to be granted by any person becoming a new Landowner in accordance with clause 13.1. 'Obligations' means all liabilities and obligations of each Landowner to the Security Trustee and/or any Secured Creditor under or by reason of any Project Document ... 'Secured Money' means all money the payment of which from time to time forms part of the Obligations. ... 2.3 Performance of Obligations and Repayment of Secured Money Each Landowner covenants with the Security Trustee for the benefit of the Secured Creditors that as and when any Obligation becomes due to be performed or any Secured Money becomes due to be paid, repaid or redeemed in accordance with the terms upon which they are outstanding or under any provision of this Deed, the Landowner will perform such Obligation and pay or cause to be paid to or to the order of the Security Trustee (as the case requires) the Secured Moneys as they fall due. Until the Secured Trustee commences enforcement of any Security, the Secured Money may be paid to the Secured Creditors in accordance with and as contemplated by the Project Document under which it is outstanding." 34The mortgage, relevantly, includes the following provisions: "1.1 Definitions 'Compensation Event' means: (a) any confiscation, resumption, appropriation, forfeiture, repurchase, redemption or compulsory acquisition of any Secured Property (or any Licence) by any person under a statute or otherwise; ... but does not include any such event in respect of or relating to the realignment (or proposed realignment) of the Oxley Highway. ... 3.1 Mortgage The Mortgagor as beneficial owner mortgages the Secured Property (and to the extent permitted by law, any Licences granted to the Mortgagor in respect of the Secured Property or any business conducted on the Secured Property) to the Mortgagee to secure the performance of its Obligations and the payment by it of the Secured Money. ... 6.6 Compensation Event ... (d) Any money paid by a person in respect of any Compensation Event must be applied as follows: (i) at the Mortgagee's option: (A) in payment of any part of the Secured Money which is then actually owing whether or not it is due for payment; and (B) as to an amount equal to the Secured Money which is then contingently owing and any money or damages which in the reasonable opinion of the Mortgagee there is a prospect may become owing by the Mortgagor to the Mortgagee, in the manner described in clause 10; and (ii) the balance (if any) must be paid to any person entitled to it or authorised to give receipts for it."

The acquisition process 35The acquisition process under the Act has been referred to. The consequence of the refusal of the first defendant to accept the offers to purchase its land from the RTA in letters of 18 October 2007 and 10 September 2008 was the issue of a proposed compulsory acquisition notice on 17 December 2008 under s 11 of the Act. On 27 March 2009 an acquisition notice was published in the Government gazette. Under s 20, the effect of the acquisition notice was to extinguish the first defendant's interest in the land, and to vest such interest in the RTA. 36The first defendant's right to compensation for the land so acquired arose under s 37. According to the compensation notice issued on 1 May 2009, the Valuer-General had determined the amount of compensation to be offered in the amount of $1,122,500. Negotiations did not result in an agreed amount of compensation, and on 21 July 2009 the first defendant commenced proceedings for a claim for compensation in the Land and Environment Court. In these circumstances, on 24 July 2009 the RTA advised the first defendant it was prepared to pay $1,010,250, being 90 per cent of the amount of compensation offered, plus statutory interest as an advance payment in accordance with s 68 of the Act. In due course, the amount of $1,021,409.80, including interest, the subject of these proceedings, was paid to the first defendant.

The construction issue 37The plaintiffs' first submission was that the amount paid to the first defendant was "Revenue" within the description of sub-paragraph (a) of that expression as defined in clause 1.1, development and consultancy agreement, namely: "The gross sale proceeds received (net of any Transaction Costs) from the sale of the Land or any part of it;" Accordingly, the payment attracted the application of clause 4.1(a), project accounts deed, which required the first defendant to deposit any "Revenue" received into the proceeds account. It was put that the expression "from the sale of the Land", taken in context, should be given its natural and ordinary meaning. It was put that on its proper construction the term "sale" is of wide import, and should be given a businesslike and commercially realistic interpretation. Accordingly, it was put "sale" should be properly understood to include a transaction which resulted from a statutory, compulsory, acquisition. Such an interpretation would give effect to the underlying contractual intention of the parties that the landowners would continue to jointly develop their land, and apply the proceeds derived from the land to fund the development and, ultimately, to pay a profit. 38It was put that it was evidently contrary to the parties' intention that the first defendant should not be required to account for the proceeds from the acquisition merely because it was the product of a compulsory process rather than of a sale of the usual kind. 39Alternatively, the plaintiffs submitted that the acquisition was a "Disposal" within the definition of that term in clause 1.1, development and consultancy agreement, namely: "'Disposal' means a sale, transfer, grant or other dealing in land (whether or not for valuable consideration) which results in a landowner ceasing to be the legal and beneficial owner of that land." 40It followed, so it was put, that the payment attracted the application of clause 4.1(b), project accounts deed, which required the first defendant to deposit into the proceeds account the gross sale proceeds (net of any transaction costs) received from any "disposal" of its interest in any land. Thus it was submitted that, giving the definition a commercially sensible interpretation, the expression "other dealing" should be understood to include the acquisition whereby the first defendant's interest in the land was extinguished and for which it was paid compensation. 41In short, the plaintiffs submitted that either under clause 4.1(a) or (b) project accounts deed, the first defendant was obliged to deposit the amount received into the proceeds account. 42In opposition, the first defendant submitted that the compensation payment is outside the definition of "Revenue", so that the requirement to deposit it into the proceeds account under clause 4.1(a) projects accounts deed did not apply. It was put that the amount received was not derived from "sale" of the land as that term is ordinarily understood. It was also put that the transaction was not a "dealing in land" and, therefore, was outside the definition of "Disposal" so that the requirement under clause 4.1(b) did not apply. It was submitted that an essential characteristic of a "dealing" in the context of the related agreements is that it involved negotiation between the parties to the dealing to reach a bargain under which the landowner disposed of its interest i.e. some positive activity on the landowner's part was called for. It was put that as this involvement was absent in the process of compulsory acquisition, the transaction should not be described as either a "sale" or some other "dealing" under the agreements. 43It was put that a distinguishing factor was that the determination of the amount of compensation payable for the land involved consideration under s 55 of the Act of a number of matters in addition to the market value, such as its special value, and solatium, and was an exercise which is not usually undertaken in negotiating a sale price in the open market. Thus it was put that compensation is to be regarded as a payment to a landowner for being compulsorily dispossessed rather than as a payment under a sale or other dealing. 44Reliance was also placed on the land pre-commitment agreement between the first defendant and the fourth defendant under which the fourth defendant agreed to procure the disposal of the first defendant's land for a specified price (according to schedule 2, development and consultancy agreement), and the first defendant agreed to sell or otherwise deal with its land as required by the fourth defendant for the specified price. As I understood it, the submission was to the effect that the acquisition was a transaction outside the project documents which resulted in the payment of compensation instead of the relevant specified price and, accordingly, the amount received was outside the definition of "Revenue" and the transaction was outside the definition of "Disposal" for the purposes of the agreements, so that the provisions of clauses 4.1(a) and (b) did not apply. 45The first defendant put an additional argument based on provisions of the security trust deed and the mortgage in support of a proposition that the first defendant was under no obligation to deposit the amount into the project account. It proceeded as follows. 46By clause 2.3, security trust deed, the landowners undertook the performance of "Obligations" and the repayment of "Secured Money". The term "Obligation" was defined to mean "All liabilities and obligations owed to the Security Trustee and/or any Secured Creditor under any project document". The term "Secured Money" was defined to mean "... all money the payment of which from time to time forms part of the Obligations", and the term "Secured Creditor" was defined to include "LLG", the first plaintiff. The obligations of the first defendant as defined in the security trust deed were secured by clause 3.1 of the mortgage, a project document. Under clause 6.6(d) the first defendant was required to apply any money paid to it in respect of a compensation event under sub-clause (i) as directed by the mortgagee, with the balance if any, to be paid to any person entitled to it under sub-clause (ii). The term "Compensation Event" as defined expressly did not include any compulsory acquisition of any secured property "... in respect of or relating to the realignment (or proposed realignment) of the Oxley Highway". It followed, so it was put, that irrespective of the scope of the terms "Disposal" and "Revenue" in the development and consultancy agreement, the first defendant was under no obligation under the mortgage to pay the amount received from the RTA to the first plaintiff. 47Important to the argument was the interrelationship of the project documents which was said to have the effect of incorporating the terms of the security trust deed and of the mortgage into the project accounts deed. In the result, it was put that the exclusion of the acquisition from the definition "Compensation Event" not only rendered inapplicable the provisions of clause 6.6 of the mortgage, but also had an overreaching effect of excusing the first defendant from its obligations under the project documents to deposit the amount of compensation it received into the project account (T p 76). 48The proper approach to the construction of commercial contracts was stated in Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 by Allsop P: "19 The essential character of the task of construction of commercial contracts can be seen in a number of authoritative decisions of the High Court, and of other courts authoritatively endorsed by the High Court. A commercial contract should be given a businesslike interpretation: McCann at 589. Thus, the nature and extent of the commercial aims and purposes of the agreement or parts thereof are part of the essential background circumstances: "the genesis of the transaction, the background, the context, the market in which the parties are operating": Codelfa at 350 quoting Reardon Smith at 995-996 cited by the Court in Zhu at 559 and see Lake v Simmons at 509 cited by Gleeson CJ in McCann at 589 and IATA at 160. The need for a businesslike construction not only informs the nature and extent of the extrinsic material legitimately of assistance, but it also directs the approach to be taken to the ascription of meaning to the words used by the parties. The words should be given a construction so as "to avoid ... [making] commercial nonsense or is shown to be commercially inconvenient": Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 at 313-314 (Kirby P) cited by the Court in Zhu at 559. This is not only a reflection of the place of the informing surrounding circumstances, it is also a requirement not to approach words in a business contract pedantically or in a manner prone to defeat the evident commercial purpose. They should be read "fairly and broadly, without [the court] being too astute or subtle in finding defects": Hillas & Co Limited v Arcos Limited (1932) 147 LT 503 at 514 per Lord Wright cited in Australian Broadcasting Commission v Australasian Performing Right Association Limited [1973] HCA 36; 129 CLR 99 at 109-110. Similar expressions of the correct approach eschewing detailed semantic and syntactical analysis to lead to a construction contrary to business commonsense can be seen in what Lord Diplock said in Miramar Maritime Corporation v Holborn Oil Trading Ltd [1984] AC 676 at 682 and Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 at 201. As Gleeson CJ, Gummow J and Hayne J said in Maggbury at 198 in the context of citing the relevant passage from Lord Diplock's speech in Antaios, what is "business commonsense" is an objectively ascertained matter and thus referable to the evidence, and a matter about which there may be dispute. (It is not to be forgotten that shipping cases such as Miramar and Antaois were dealt with by judges of great stature and experience in the context of markets and practices with which they were intimately familiar.)" 49I turn first to the definition of "Revenue", development and consultancy agreement, namely: "(a) The gross sale proceeds received (net of any Transaction Costs) from the sale of the Land or any part of it;" 50There are many cases which discuss the meaning of "sale", but all are with regard to the legislation or agreement in the particular case (e.g. Commissioner of Taxation v Salenger (1988) 19 FCR 378; Coburg Investment Co Pty Ltd v Commissioner of Taxation [1960] HCA 90; (1960) 104 CLR 650). Sometimes they afford helpful, but not determinative guidance for the approach to be taken. In the end, the question is one of interpretation to ascertain the meaning with regard to the context. 51Contrary to the first defendant's submissions, I see no justification for confining the meaning of "Revenue", as defined, to proceeds received from consensual transactions for the sale of land, and excluding those proceeds received from transactions in which there is an absence of mutual assent. The language of the definition does not suggest that the ordinary meaning of the term "sale" requires that it be restricted to a voluntary sale. Furthermore, in my opinion, it would be contrary to the contractual intention behind the project accounts deed that a party would not be required to account for proceeds received from the acquisition of land merely because the transaction was the product of a compulsory process. It would have been an easy matter for the draftsman to make clear that "Revenue" did not include proceeds from the compulsory acquisition of land. That this did not happen reinforces the conclusion that it was the parties' intention that "sale" is to be given a wide meaning. In this case, the RTA acquired from the first defendant part of its land for the payment of compensation the amount of which was negotiable. In my opinion, adopting a commercially sensible approach, the transaction meets the description of a sale of a part of the first defendant's land within the definition of "Revenue" and, accordingly, pursuant to clause 4.1(a) project accounts deed, the first defendant is required to deposit the amount received into the proceeds account. 52"Disposal" is defined to mean: "A sale, transfer, grant or other dealing in land (whether or not for valuable consideration) which results in a Landowner ceasing to be the legal and beneficial owner of that land." 53The term "Disposal" is given a wide meaning. It includes transactions of different kinds which result in a landowner ceasing to be the legal and beneficial owner of its land. The definition, as a whole, indicates the intention to cover all cases of alienation under a transaction which results in the cessation of a landowner's ownership in any land. The inclusion of the expression "or other dealing in land" extends the scope of transactions beyond those which are ordinarily described as a sale, transfer or grant. The term "dealing" itself is of wide import. It is apt to include a transaction by way of compulsory acquisition. No reason suggests itself for distinguishing between a voluntary alienation and a compulsory acquisition. If such a distinction was intended it is reasonable to expect that it would have been expressed in terms similar to the provision in the definition of "Compensation Event" in the mortgage by which a compulsory acquisition in respect of the realignment of the Oxley Highway was not included. That this is not the case reinforces the conclusion that the parties did not intend to exclude compulsory acquisition from the definition of "Disposal". 54Relevant also, in my opinion, is that clause 4.1(b), project accounts deed, reflects the contractual intention that the proceeds realised by a party from a transaction which results in the cessation of its ownership in any land should be paid into the proceeds account. In my opinion, an acquisition which has such a result is a dealing in land within the definition and it matters not whether it was the product of compulsion or pressure, or was pursuant to a voluntary arrangement. It follows, that under clause 4.1(b) the first defendant must pay the amount into the proceeds account. 55It follows from these conclusions that the defendants' submissions referable to the compensation event under the mortgage should not be accepted. The obligations under clause 4.1, project accounts deed, are, in terms, unqualified. The happening of a compensation event as defined under the mortgage relates to the first defendant's obligations under clause 6.6 thereof. It is only in that context that the exclusion of a compulsory acquisition in respect of the realignment of the Oxley Highway is relevant. In my opinion, this exclusion provided for the purpose of the mortgage is incapable of limiting and, has no application to, the definition of "Disposal" or "Revenue" and/or the operation of clause 4.1. 56I have not overlooked the first defendant's submissions based on the provisions of the land pre-commitment agreement to the effect that the compensation received pursuant to the compulsory acquisition was not a specified price under the project documents and thus outside the definition of "Revenue", and the transaction was outside the definition of "Disposal", so that clauses 4.1(a) and (b) did not apply. In my opinion the submission should not be accepted. The provisions relied upon establish no qualification or exception to the requirements for payment by the first defendant under clauses 4.1(a) and (b) which I have found to be sufficiently wide to cover the amount it received.

The estoppel issue 57The circumstances which the first defendant claimed to establish an estoppel were as follows. By letter of 24 July 2009 the RTA advised the first defendant that it would pay compensation for the acquired land subject to completion of a direction as to payment by each of the first defendant, the second defendant, PPM2 and ING. By letter of 30 July 2009 the first defendant requested these entities to endorse the direction to enable settlement of the matter by payment of the amount direct to the first defendant. By about 4 August 2009 the direction had been endorsed as requested, and on 13 August 2009 the amount was paid into the first defendant's bank account. In about May 2011 the proceeds account was opened by the first plaintiff as required under the project accounts deed. The demand that the first defendant deposit the amount into the proceeds account was made by the plaintiffs' solicitors on 17 May 2011. In the interim the first defendant had spent the amount, or a substantial part of it, on furthering the development project during 2009 and 2010 because no demand had been made for it (T p 68). 58For the first defendant it was submitted that the signing of the direction demonstrated the acquiescence of the first plaintiff that the payment be made to the first defendant. The submission, in effect, repeated the allegations pleaded in the commercial list response to second amended commercial list statement of 18 May 2012 as follows: "22 The first plaintiff and the second defendant are Secured Creditors (as defined in the Security Trust Deed) pursuant to the Security Trust Deed. By the provisions of the Security Trust Deed, the second defendant is charged with the obligation of protecting the interests of each of the landowners to the Port Macquarie Project, including both the second plaintiff and the third plaintiff. 23 At the time the Acquisition Proceeds were paid to the first defendant all mortgagees of the land, including the second defendant, Project Port Macquarie (Two) Pty Limited (an entity related to the first plaintiff) & ING Bank (Australia) Limited acquiesced in the payment of the Acquisition Proceeds to the first defendant. 24 In the circumstances the plaintiffs are estopped from asserting that the first defendant is required to pay the Acquisition Proceeds in the Proceeds Account." 59In essence, it was put that the correspondence relating to the direction for the payment to the first defendant demonstrated compliance with the first defendant's request that the proceeds from the acquisition be paid into its bank account, and that no demand for payment of it into the proceeds account was made until 17 May 2011. In these circumstances it was submitted that the first plaintiff was estopped from demanding payment be made under clauses 4.1(a) or (b) project accounts deed. 60In oral submissions, the plaintiffs proceeded, without demur, on the assumption that, although no category of estoppel was formulated, the defence was based on an equitable estoppel founded on some promise or representation that the first plaintiff would not enforce the requirement under clause 4.1 for payment into the proceeds account. 61The relevant principles were considered in DHJPM Pty Ltd v Blackthorn Resources Ltd [2011] NSWCA 348; (2011) 285 ALR 311 by Meagher JA: "44 Because there are separate doctrines which apply to common law and equitable estoppel and because of the different characteristics which give rise to the different species of equitable estoppel, it is necessary, as the judgments in Waltons Stores v Maher, Silovi v Barbaro and Austotel v Franklins demonstrate, to attend carefully to the identification of the assumption or expectation which the object of the estoppel is said to be estopped from denying or asserting. This also directs attention to the relevant doctrine which must then be applied in a disciplined and principled way: Cobbe v Yeoman's Row Management Ltd [2008] 1 WLR 1752; 4 All ER 713 at [16], [28], [46]. ... 51 In Silovi v Barbero, Priestley JA (Hope and McHugh JJA agreeing) offered a more succinct formulation of what could be distilled from the different judgments in Waltons Stores v Maher (at 472): '(5) For equitable estoppel to operate in circumstances such as those of the present case there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable.' 52 In Austotel v Franklins, Priestley JA explained an aspect of this proposition and expanded it to take account of the different circumstances of that case. In speaking of "the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed" he made clear that proposition (5) was speaking "of a contract or a promise the content of which was known": at 604. Austotel v Franklins was not such a case. In Plimmer v Mayor of Wellington (1884) 9 App Cas 699, an equitable proprietary estoppel was upheld where there was no agreement which, although unenforceable, contained precise terms describing what was expected. To take account of cases like Plimmer, in Silovi v Barbaro Priestley JA expanded proposition (5) (at 604, 610, 612). See at 610: '(5) For equitable estoppel to operate there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed or an interest granted to the plaintiff by the defendant, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable.' That formulation was cited with approval by a Full Court of the Federal Court in S&E Promotions Pty Ltd v Tobin Bros Pty Ltd at 653.. ... 56 Whether a representation or promise has created or encouraged an expectation which if relied upon will be sufficient to give rise to an equity obviously depends upon the circumstances including the nature of the relationship between the parties and whether they contemplate that any interest to be granted or promise to be performed is to be created by a binding contract. This is illustrated by the decisions of the House of Lords in Cobbe v Yeoman's Row Management Ltd and Thorner v Major [2009] 1 WLR 776. In the former, an equitable estoppel was relied upon in a commercial context. In the latter, the claimant sought to enforce an expectation of inheritance against the estate of his father's cousin. 57 In Cobbe v Yeoman's Row Management Ltd the critical question was whether the conduct was such as to induce an expectation affecting legal relations which was binding and irrevocable. Having noted that it is "not enough to hope or, even to have a confident expectation, that the person who has given assurances will eventually do the proper thing", Lord Walker continued: '[66] The point that hopes by themselves are not enough is made most clearly in cases with a commercial context, of which Attorney-General of Hong Kong ... is the most striking example ...' ... [68] ... In the commercial context, the claimant is typically a business person with access to legal advice and what he or she is expecting to get is a contract ..." 62The application of these principles to the paucity of evidence relied upon by the first defendant leads to the inevitable result that the defence must fail. The parties were in a commercial relationship governed by the project documents which, relevantly, required payment of the amount into the proceeds account. There was no evidence of any representation, express or implied, by the first defendant capable of creating the expectation that the first defendant was relieved of this obligation. Unsurprisingly, in the circumstances, there was no evidence of reliance upon any representation, or of consequential detriment. Accordingly, the claim for an estoppel is dismissed.

Conclusion 63I make the following declarations and order: (1)Declaration that, on the proper construction of the project accounts deed, the first defendant is required to pay the sum of $1,021,409.80, being the amount received by it from the RTA as compensation for the acquisition by the RTA of the acquired land, to the first plaintiff to be paid into the proceeds account. (2)Declaration that on the proper construction of the project accounts deed, any other compensation paid by the RTA to the first defendant (or at its direction) in relation to the acquisition of the acquired land, less "transaction costs" as defined in the development and consultancy agreement, is payable by the first defendant to the first plaintiff to be paid into the proceeds account. (3)Order that the first defendant pay to the first plaintiff the sum of $1,021,409.80, with interest pursuant to s 100 and s 101 Civil Procedure Act 2005 from 13 August 2009. 64The question of costs remains outstanding. My prima facie view is that the appropriate order is that the first defendant should pay the plaintiffs' costs of the proceedings. However, absent agreement, the parties should have the opportunity to make submissions on the issue. Accordingly the parties are directed to arrange with my associate by 4pm 17 July 2012 for the matter to be relisted for the purpose of directions as to any argument as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2012