Bydand Holdings Pty Ltd v Pineland Property Holdings Pty Ltd [2009] NSWSC 1159 (10 November 2009)

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NEW SOUTH WALES SUPREME COURT

CITATION:
Bydand Holdings Pty Ltd v Pineland Property Holdings Pty Ltd [2009] NSWSC 1159

JURISDICTION:

FILE NUMBER(S):
50058/2008

HEARING DATE(S):
26 October 2009

JUDGMENT DATE:
10 November 2009

PARTIES:
Bydand Holdings Pty Ltd ACN 097 171 456 - Plaintiff
Pineland Property Holdings Pty Ltd ACN 099 857 735 - First Defendant
Knight Frank Australia Pty Ltd ABN 17 004 973 684 - Second Defendant
Vincent Pang - Third Defendant

JUDGMENT OF:
Hammerschlag J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
B.A.J. Coles QC with P.T. Russell [Plaintiff]
C.J. Birch SC with A.S.G. Cassells [First & Third Defendants]

SOLICITORS:
Barringer Leather Lawyers [Plaintiff]
Maxim Legal Pty Limited [First & Third Defendants]

CATCHWORDS:
CONTRACT – vendor and purchaser suit – plaintiff resells property after contract terminated for purchaser’s breach – claims loss on resale – purchaser contends that vendor failed to take reasonable steps in reselling the property – GUARANTEE – director of purchaser provides guarantee for purchaser’s obligations – name of purchaser under the contract left blank in guarantee – whether guarantee void for uncertainty

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:
J Boag & Son Brewing Ltd v Bridon Investments Pty Ltd & Ors (2001) 10 Tas R 26
Hansmar Investments Pty Ltd v Perpetual Trustee Co Ltd [2007] NSWSC 103
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Makita Australia Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Permanent Trustee Australia Ltd v Boulton (1994) 33 NSWLR 735
Hawkins v Clayton (1988) 164 CLR 539
Re Queensland Land and Coal Company; Davis v Martin [1894] 3 Ch 181
The Société Generale de Paris & Colladon v Walker (1886) 11 App Cas 20, HL
Northstate Carpet Mills Pty Limited v BR Industries Pty Limited [2006] NSWSC 1057

TEXTS CITED:
Halsbury’s Laws of England, 4th ed, vol 13
Carter, Peden and Tolhurst Contract Law in Australia, 5th ed (2007) LexisNexis Butterworths

DECISION:
Judgment for the plaintiff against the first defendant and the third defendant jointly and severally for $3,629,793.21.
First defendant and third defendant to pay the plaintiff’s costs of the proceedings.

JUDGMENT:

- 1 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

HAMMERSCHLAG J

10 NOVEMBER 2009

1 HIS HONOUR: On 20 June 2007 the plaintiff (or “the Vendor”) and the first defendant (or “the Purchaser”) entered into a written contract (“the Contract”) for the sale of an office building at 122 Walker Street, North Sydney (“the Property”) for a purchase price of $11,700,000, with a deposit of $500,000.

2 The Contract required the Purchaser to give the Vendor a guarantee and indemnity in a form annexed to it. The form annexed was a document described on its face as “Deed of Guarantee and Indemnity” (“the Guarantee”) by the third defendant (or “the Guarantor” or “Mr Pang” as the case may be), and signed by him.
3 The date appointed for completion under the Contract was 28 February 2008.
4 The first defendant failed to complete and on 26 March 2008 the plaintiff terminated the Contract.

9.3.1 where the vendor has resold the property under a contract made within 12 months after the termination, to recover -
· the deficiency on resale (with credit for any of the deposit kept or recovered and after allowance for any capital gains tax or goods and services tax payable on anything recovered under this clause); and
· the reasonable costs and expenses arising out of the purchaser’s non-compliance with this contract or the notice and of resale and any attempted resale; or

6 Clause 1 of the Guarantee is entitled “DEFINITIONS AND INTERPRETATION”. Clause 1.1 is in the following terms:

8 The execution page of the Guarantee provided for execution by the plaintiff and the Guarantor, but the plaintiff did not sign. Only Mr Pang signed. His signature was witnessed.

9 On 10 July 2008, this Court declared that the Contract was validly terminated on 26 March 2008.

10 The plaintiff engaged Knight Frank Australia Pty Ltd (“Knight Frank”) as agent to market and resell the Property. Mr Michael Ajaka was the main contact at Knight Frank.

11 Between April and November 2008 Knight Frank received enquiries and conducted negotiations with a number of potential purchasers including Talish Pty Ltd (“Talish”) which was represented by a Mr Peter Read.

12 On 23 October 2008 Mr Ajaka received an email contact, ostensibly from a Mr Bill Yassine, a director of Construct Corp, requesting a visit to “both properties”, meaning, it seems, the Property and another property at St Leonards being marketed by Knight Frank.

13 Mr Ajaka responded to Mr Yassine on the same day by providing a copy of information memoranda on both properties and saying the following: “The better option for your company would be St Leonards @ $8.2 million asking price. North Sydney has a buyer running on it and the price is about $8.6 - $8.7 mil. Please contact me should you have any questions.”

14 On 7 November 2008, Mr Yassine sent an email to Mr Ajaka requesting that he forward a contract for “Walker Street” (meaning the Property).

15 On 14 November 2008, Mr Yassine sent an email to Mr Ajaka in the following terms:

16 On 14 November 2008, the Talish contract was signed by Mr Read (on behalf of Talish) and he advised that a cheque for the deposit would be at his solicitor’s office that morning.

17 On 17 November 2008, the plaintiff sold the Property to Talish for $7,800,000.

18 On 15 December 2008, the plaintiff and Talish completed the sale.

19 By its Further Amended Summons and Further Amended Commercial List Statement, the plaintiff sues the first defendant for the deficiency on resale plus the reasonable costs and expenses arising out of the first defendant’s non-compliance with the Contract and of resale as contemplated by clause 9.3.1 of the Contract. The plaintiff sues the third defendant for the same amount under the Guarantee. I will refer to the first and third defendants collectively as “the defendants”.

20 It is not disputed that the plaintiff duly made demand on the third defendant.

21 The plaintiff puts that it has resold the Property under a contract made within 12 months of the termination and is accordingly entitled to recover the amounts described in clause 9.3 of the Contract.

Contract price		11,700,000.00
Less:	Deposit recovered	500,000.00
Add:	Interest pursuant to clause 31.4	66,098.36
Gross figure		11,266,098.36
Less price on resale		7,800,000.00
	Gross deficiency on resale	3,466,098.36

	Valuation fee	9,212.50
	Legal fees on non-compliance	1,554.00
	Legal fees incurred on resale	25,263.60
	Marketing/Agency fees incurred	127,664.75
Subtotal		163,694.85
Total		$3,629,793.21

a it is an implied term of the Contract that the plaintiff must act reasonably in reselling the Property, alternatively the plaintiff had a duty to take all reasonable steps to mitigate its loss on resale; and
b the plaintiff breached the implied term or the duty to mitigate by:
i. entering into an agreement to sell the Property at an undervalue;
ii. entering into an agreement to sell the Property for $7.8 million;
iii. failing to market the Property for a sufficient period of time;
iv. failing to conduct an adequate marketing campaign; and
v. failing to adequately consider the offer made by Bill Yassine on 14 November 2008.

25 The defendants put that but for the plaintiff’s breaches the Property would have sold for not less than $9,775,000 which would have left a shortfall of $1,654,793.21.

26 The defendants accept that the alleged breaches do not discharge them from liability entirely but do so only to the extent that the resale price was adversely affected by the breaches.

27 The first defendant therefore accepts liability for the shortfall amount referred to. The third defendant also accepts that, if he is liable as Guarantor his liability extends to the same amount.

Implied term or duty to mitigate?

28 In support of the implied term contended for, the defendants relied on what was said by Slicer J in the Supreme Court of Tasmania in J Boag & Son Brewing Ltd v Bridon Investments Pty Ltd & Ors (2001) 10 Tas R 26. His Honour was dealing with a contract which contained a provision not materially different from clause 9.3.1 of the Contract. At [41] His Honour held as follows:

29 The defendants referred to the decision of White J in Hansmar Investments Pty Ltd v Perpetual Trustee Co Ltd [2007] NSWSC 103 in which at [45] His Honour said:

30 The defendants also referred to the decision of Blow J in Falcone & Anor v Mentyn [2003] TASSC 79 in which His Honour said at [56]:

31 The plaintiff did not accept that the term contended for was to be implied. Rather, it was put that such a term should not be implied because it does not meet at least one of the tests laid down in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 437 for the implication of terms, namely that it must be necessary to give business efficacy to the contract. It was put that the Contract operates without it.

32 It was put that the clause is intended to make the Vendor’s position easier and that so long as what was entered into by the Vendor was a “resale” within the meaning of the clause, the clause would operate on its face. A “resale” under the clause was one, it was put, which was genuine and at arms’ length and did not involve the Vendor sacrificing the Purchaser’s interests.

33 As to mitigation, the plaintiff put that if a doctrine akin to mitigation of damages applies there would be no positive duty on the plaintiff to take steps to minimise loss, but rather a duty not to act unreasonably.

34 The implied term contended for by the defendants would hold the plaintiff to a standard higher (or at least no lower) than that to which it would be held under either of the plaintiff’s suggested approaches.

35 The plaintiff’s submission that the clause requires the Vendor to do no more than to resell in a genuine arms’ length transaction without sacrificing the Purchaser’s interests has significant force. In order to uphold it, however, I would need to be persuaded that the approach taken in J Boag & Son v Bridon, Hansmar Investments v Perpetual Trustee and Falcone v Mentyn is clearly wrong. The plaintiff’s submissions on the point were brief and not sufficiently developed as to so persuade me.

36 Moreover, it is not necessary for me to resolve the issue because, for the reasons which follow, the defendants have in any event not discharged the onus on them to establish that:

a the plaintiff failed to act reasonably in the resale of the Property;
b the property was sold at an undervalue; or
c had the plaintiff taken the steps which the defendants contend it should have, the outcome would have been any different.

37 The plaintiff engaged Knight Frank as its agents to market and resell the Property. Knight Frank placed advertisements in the Australian Financial Review on Thursday 10 and Thursday 17 April 2008. It posted advertisements on websites known as rpdata.com and realCommercial and it emailed a 25 page information memorandum to parties who contacted it and expressed interest in the Property.

38 The defendants called Mr Malcolm Gunning, a real estate agent with experience in commercial real estate. Mr Gunning was asked to give an expert report addressing the following questions:

a what steps a reasonably competent and careful commercial real estate agent would have taken to effect the resale of the Property; and
b whether what Knight Frank did was in accordance with the standard of a reasonably competent and careful commercial real estate agent.

39 In a report dated 10 September 2009, Mr Gunning expressed the opinion that a reasonably competent and careful commercial real estate agent would have implemented a comprehensive, open marketing campaign culminating either in formal expressions of interest or public auction by at least publishing four display colour advertisements in the Saturday Commercial Property section of the Sydney Morning Herald, publishing two colour display advertisements in the Thursday Property section of the Australian Financial Review and by posting elite listings on two named commercial property web portals for a period of at least two weeks. He also opined that the marketing campaign would be focused towards high net worth individuals, property investment companies and property trusts. He concluded that what Knight Frank did was not in accordance with what a reasonably competent and careful real estate agent would have done.

40 Mr Gunning also opined that what was done by Knight Frank was not in accordance with the standard of a reasonably competent and careful real estate agent because Knight Frank failed promptly to follow up Mr Yassine’s “offer” until nearly five hours after it was received, and failed to give serious consideration to Mr Yassine’s “$9.7 million offer”. He opined that Knight Frank’s email of 23 October 2008 seemed to be a deflection of Mr Yassine’s interest away from the Property and that a reasonably competent and careful real estate agent would at least have informed Mr Yassine of the standing offer and if he was interested, advised that he would need to better the price on more favourable conditions.

41 Objection was taken to the admission of Mr Gunning’s evidence on the grounds that it was not in a field of specialised knowledge and did not disclose a basis for the conclusions he reached; see Makita Australia Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at 743 and following.

42 Under cross examination, Mr Gunning accepted that the substance of what he was saying was that he would have done the marketing differently to the way Knight Frank did it.

43 The plaintiff submitted that evidence of this type was inadmissible, presumably because it was being tendered to have the Court infer that all reasonably competent and careful commercial real estate agents would have done the same; see eg Permanent Trustee Australia Ltd v Boulton (1994) 33 NSWLR 735; Hawkins v Clayton (1988) 164 CLR 539.

44 I admitted Mr Gunning’s evidence provisionally, without any objection to this course from the parties, on the basis that I would further consider it in the course of preparing this judgment.

45 It seems to me that the objection to Mr Gunning’s evidence is well founded. But even if it were admissible it fails to establish that Knight Frank’s marketing campaign was not reasonable in the circumstances.

46 So far as the advertising campaign is concerned, Mr Gunning gave no evidence of what the factors or yardsticks are which might or might not have made an advertising campaign for the Property reasonable or unreasonable and against which such a campaign might be measured. His evidence did not disclose any process of reasoning which might justify a conclusion that the Knight Frank campaign was inadequate or not reasonable. Conversely, it did not disclose any process of reasoning which might justify the conclusion that his suggested campaign would have been adequate or reasonable.

47 Similar considerations apply with respect to his evidence that Knight Frank fell short with respect to Mr Yassine.

48 There are a number of further difficulties with the defendants’ complaint about how Knight Frank dealt with Mr Yassine.

49 Mr Yassine was not called. There was no evidence of who he is, who his company is or of who his partners were. There was no evidence of his, his company’s or his partner’s financial capability. There was no evidence that he was or represented a genuine potential purchaser.

50 The difficulty standing in the way of the defendants’ complaint that Mr Ajaka’s email of 23 October 2008 to Mr Yassine was a deflection, is that it did not have that effect on Mr Yassine.

51 Moreover, Mr Yassine’s email of 14 November 2008 was hardly an offer given the heavy conditions to which it was subject, including the terms generally and a due diligence period of 4 weeks and settlement 60 days thereafter. On the other hand, that day Talish had signed a contract and the requisite money was in hand. The Property had already been on the market for over six months. The Talish contract was completed on 15 December 2008 which was at or about the expiry of the proposed four week due diligence period which Mr Yassine wanted.

52 There was no suggestion that the Talish contract was other than genuine and at arms’ length.

53 Far from being unreasonable, in my view the plaintiff’s conduct in going with Talish was in the circumstances eminently reasonable.

54 As part of the submission that the plaintiff had not acted reasonably, the defendants put that the Talish contract was a sale at an undervalue.

55 In support of this contention the defendants called Mr Stamoulis, a valuer who opined that the market value of the Property in November 2008 was either $9,775,000 using the comparable sales method or $9,700,000 using the capitalisation method on the basis that the appropriate yield from the Property was 7.25% on an estimated annual net rental income of $714,655.49.

56 In response, the plaintiffs called Mr Davis, a valuer, who opined that the value of the Property was $8,000,000 using the comparable sales method or $8,200,000 using the capitalisation method on the basis that the appropriate yield from the Property was 8.5% on an estimated annual net rental income of $711,278. Mr Davis’ opinion was that the market value was $8,100,000 being the median of his two values.

57 The difference in the figures for annual net rental income taken by the two valuers is immaterial.

58 The comparable sales relied on by both Mr Stamoulis and Mr Davis were sale of a property in St Leonards in October 2007 and sale of a property in North Sydney in November 2007. Both he and Mr Davis were unable to identify any relevant comparable sales in 2008.

59 The essential difference between the two valuers was the negative effect, if any, on the value of the Property to be attributed to the economic instability that was prevalent in the Australian economy in 2008 in light of what has become known as the Global Financial Crisis (or “GFC”) which involved an erosion of confidence in credit and other markets.

60 Mr Davis made allowance for the negative effect of the GFC and the changes in markets which were occurring in the end of 2008 especially after Lehman Brothers in the United States went down. According to him, things “looked pretty bad” in 2008.

61 Mr Stamoulis on the other hand took the position that it was appropriate to adopt a capitalisation rate derived from the 2007 sales on the basis that, as he put it “we deal with facts”. For this reason his opinion was that it was not possible to make any allowance for the effect of the GFC or the negative outlook in Australian markets in November 2008.

63 I consider Mr Stamoulis’ position to be unrealistic. In effect he was not prepared to consider what was occurring in November 2008 to be a fact.

64 Either way I do not consider Mr Stamoulis’ evidence to be a reliable basis upon which to conclude that the market value of the Property in November 2008 was as he opines.

65 There was no suggestion that the Talish contract was other than at arms’ length and between reasonably informed and unanxious parties. The price that was achieved in the sale to Talish (although slightly lower than Mr Davis’ median values) is an additional reason for preferring Mr Davis’ view to that of Mr Stamoulis.

66 I do not consider that the difference between Mr Davis’ value and the Talish contract price evidences sale at an undervalue. Valuation is not an exact science and the difference is, in the present context, minor.

67 Finally, the defendants failed to establish on the probabilities that had the plaintiff taken the steps which the defendants say it should have, a better outcome than the Talish contract would have been achieved. They have failed to establish that any loss arose from the breaches they allege.

68 The plaintiff is accordingly entitled to succeed against the first defendant in the amount claimed.

70 The third defendant denies that the Guarantee gave rise to any liability on his part. He puts that:

a the Guarantee is ineffective as a deed because it was delivered with a material part (namely the identity of the Purchaser) left blank and is therefore void for uncertainty; and
b if not a deed, the Guarantee nevertheless does not take effect as a simple contract because:
i. it is void for uncertainty for the same reason; and
ii. its execution by the Guarantor was no more than an offer which was not accepted by the plaintiff, given that it was not signed by it.

71 In support of the proposition that the Guarantee is uncertain, the third defendant points to the fact that the definitions of “Contract” and “Obligations” refer to the Purchaser, as does clause 2 of the Guarantee. He puts that without identification of the Purchaser, the deed does not work.

72 In Halsbury’s Laws of England, 4th ed, vol 13 at [28], the learned authors say:

73 It may be accepted that an instrument which lacks meaning in an essential respect because spaces for essential matters are left blank is void for uncertainty; see eg Re Queensland Land and Coal Company; Davis v Martin [1894] 3 Ch 181; The Société Generale de Paris & Colladon v Walker (1886) 11 App Cas 20, HL. These are cases where no meaning can be given to essential parts because they are missing.

74 However, whether in the context of deeds or contracts under hand, difficulty of interpretation must be distinguished from absence of meaning. As long as the instrument is capable of meaning, the question is one of construction. The Court ascertains the intention of the parties and applies it; see Carter, Peden and Tolhurst Contract Law in Australia, 5th ed (2007) LexisNexis Butterworths at [4-03] and following.

75 I have no difficulty in concluding that the word “Purchaser” where it appears in the Guarantee means, and was intended by the parties to mean, the first defendant.

76 Clause 1.1 of the Guarantee defines “Contract” to mean the contract for the sale of Land between the Vendor (as Vendor) and Purchaser (as Purchaser) for the sale of the Property at the Price. Property is defined to mean the Property described in the Contract.

77 There is no difficulty in identifying that contract as the Contract to which the Guarantee is annexed. The Contract itself identifies the Purchaser.

78 Clearly the intention of the parties was that “Purchaser” in the Guarantee means the Purchaser under the Contract. No other rational possibility is open. In my view the Guarantee is effective as a deed.

79 The question whether the third defendant’s execution was an offer which needed to be accepted does not arise.

80 If it did, and execution of the Guarantee by the third defendant was to be construed as an offer which needed to be accepted by the plaintiff before the third defendant was bound, I would have no difficulty in finding that the offer was accepted by the plaintiff by conduct.

81 The plaintiff completed the Contract in circumstances where clauses 46.2 and 46.3 required a Guarantee to be executed by the directors of the Purchaser. The third defendant was such a director and he executed both the Contract on behalf of the Purchaser and the Guarantee in his own capacity.

82 Thereafter the plaintiff completed the sale, having clearly accepted the execution and delivery of the Guarantee as performance under clause 46.2. In my view this was sufficient acceptance of the Guarantor’s offer.

83 I mention that in support of the proposition that the Guarantee should be viewed as an offer by the Guarantor which the plaintiff had to accept to create a binding contract, the third defendant relied on the decision of Young CJ in Eq in Northstate Carpet Mills Pty Limited v BR Industries Pty Limited [2006] NSWSC 1057. Because I am satisfied that any requirement for acceptance was met it is not necessary to consider the plaintiff’s submission that I should not follow that decision.

84 In the alternative to its claim to enforce the Guarantee as it stands, the plaintiff’s Summons claimed an order that the Guarantee be rectified by substituting the name of the first defendant in clause 1.1 for “[INSERT]”. If the Guarantee was void for uncertainty, rectification would not assist. If the Guarantee is (as I have found), not void for uncertainty, given there was no contest as to the operation of the instrument on its terms, there is no room for rectification.

85 There will be judgment for the plaintiff against the first defendant and the third defendant jointly and severally for $3,629,793.21.

86 The first defendant and the third defendant are to pay the plaintiff’s costs of the proceedings.

87 Short Minutes of Order should be brought in reflecting this outcome and any adjustment required to the judgment sum to bring it up to date.

Supreme Court of New South Wales

Bydand Holdings Pty Ltd v Pineland Property Holdings Pty Ltd [2009] NSWSC 1159 (10 November 2009)