Eleven 17 Ocean Street Pty Ltd v Evangelista Pty Ltd; Eleven 17 Ocean Street Pty Ltd v TWM (QLD) Pty Ltd [2023] QCA 170 (2023) 16 QR 110

SUPREME COURT OF QUEENSLAND CITATION: Eleven 17 Ocean Street Pty Ltd v Evangelista Pty Ltd; Eleven 17 Ocean Street Pty Ltd v TWM (QLD) Pty Ltd [2023] QCA 170 PARTIES: In Appeal No 3598 of 2023: ELEVEN 17 OCEAN STREET PTY LTD ACN 646 297 216 (appellant) v EVANGELISTA PTY LTD ACN 008 516 292 (respondent) In Appeal No 3599 of 2023: ELEVEN 17 OCEAN STREET PTY LTD ACN 646 297 216 (appellant) v TWM (QLD) PTY LTD ACN 605 969 024 (respondent) FILE NO/S: Appeal No 3598 of 2023 Appeal No 3599 of 2023 SC No 12166 of 2022 SC No 12167 of 2022 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane – [2023] QSC 30 (Freeburn J) DELIVERED ON: 25 August 2023 DELIVERED AT: Brisbane HEARING DATE: 9 August 2023 JUDGES: Mullins P and Bond and Boddice JJA ORDERS: 1. In Appeal No 3598 of 2023 the appeal is dismissed, with costs. 2. In Appeal No 3599 of 2023 the appeal is dismissed, with costs. CATCHWORDS: REAL PROPERTY – CONTRACT – SALE OF COMMERCIAL PROPERTY – TERMINATION – where a buyer had contracted to purchase land from a seller – where the Council owned neighbouring land – where the seller’s predecessor in title had entered into a Licence deed with the -- 1 of 21 -- 2 Council in which each gave the other access rights over each other’s land and where each covenanted with the other that they would obtain from any successor in title a covenant in favour of the other by which (1) the successor in title would accept the burden of the covenants given by the original covenantor; and (2) the successor in title would, in the event that it transferred to another successor in title, obtain from that person a covenant agreeing to be bound by the provisions of the Licence deed – where the seller had entered into a deed of covenant with the Council which contained such covenants in favour of the Council – where the contract between the buyer and seller annexed both the original Licence deed and the seller’s subsequent deed with the Council – where the contract also contained a special condition in which the buyer agreed to enter into a deed with the Council containing such covenants on or before settlement – where the special condition also provided that the deed would be prepared by the seller’s solicitors – where the seller’s solicitors did not provide a draft deed until the day of settlement – where the buyer executed the deed and returned it to the seller but contended that it was too late to have the Council execute the deed – where the seller’s solicitors asserted that the buyer had sufficiently complied with the special condition and required the buyer to settle – where the buyer purported to terminate the contract for the seller’s failure to comply with the special condition – where the seller rejected the buyer’s termination – where the seller advised the buyer that the buyer had defaulted under the contract and forfeited the deposit – whether the buyer had validly terminated the contract REAL PROPERTY – CONTRACT – SALE OF COMMERCIAL PROPERTY – TERMINATION – BREACH – PROVISIONS AS TO TIME – where a buyer had contracted to purchase land from a seller – where the contract contained a special condition which required the buyer to enter into a deed with the Council on or before settlement – where the special condition also provided that the deed would be prepared by the seller’s solicitors but did not specify a time by which that would occur – where the seller’s solicitors did not provide a draft deed until the day of settlement – whether the standard form provision that time would be of the essence applied to the seller’s obligation concerning preparation of the deed so that breach of the obligation would entitle the buyer to terminate – alternatively, whether the seller’s breach of the obligation concerning preparation of the deed could be regarded as sufficiently serious a breach of a non-essential term as would entitle the buyer to terminate REAL PROPERTY – RESTRICTIVE COVENANTS – ANNEXATION OF BENEFIT OF COVENANT TO LAND where a buyer had contracted to purchase land from a seller – where the Council owned neighbouring land – where the -- 2 of 21 -- 3 seller’s predecessor in title had entered into a Licence deed with the Council in which each gave the other access rights over each other’s land – where the benefit of the Council’s covenant conferring access rights will run with the land and may be enforced against the Council by successor in title to the estate of the seller’s predecessor in title – whether the Council’s covenant conferring access rights could have been enforced against the Council by the buyer if it had settled DEEDS – FORM AND EXECUTION – DELIVERY – where a buyer had contracted to purchase land from a seller – where the contract contained a special condition which required the buyer to enter into a deed with the Council – where a party to an inter partes deed will become bound by their deed when it is executed and delivered – whether execution and delivery of the deed by the buyer but not the Council was sufficient compliance with the special condition Property Law Act 1974 (Qld), s 53(1) 400 George Street (Qld) Pty Ltd v BG International Ltd [2012] 2 Qd R 302; [2010] QCA 245, cited Blaauw v Watkins (1914) 33 NZLR 1375, cited Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80; [1929] HCA 13, applied Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) 193 CLR 154; [1998] HCA 15, cited Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61, cited Mirzikinian v Tom & Bill Waterhouse Pty Ltd [2009] NSWCA 296, cited Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37, cited Netglory Pty Ltd v Caratti [2013] WASC 364, cited Rhone v Stephens [1994] 2 AC 310; [1994] UKHL 3, cited Rural View Developments Pty Ltd v Fastfort Pty Ltd [2011] 1 Qd R 35; [2009] QSC 244, cited Smith & Snipes Hall Farm Ltd v River Douglas Catchment Board [1949] 2 KB 500, cited Southport Memorial Club Inc v Returned and Services League of Australia (Queensland) Southport Sub-Branch Inc [2023] QCA 146, cited Thomas v Monaghan (1975) 1 NZLR 1, cited Victoria v Tatts Group Ltd (2016) 90 ALJR 392; [2016] HCA 5, cited COUNSEL: D P de Jersey KC for the appellant J W Peden KC, with G J Barr, for the respondents SOLICITORS: Clayton Utz for the appellant FC Lawyers (Brisbane) as town agents for AVA Lawyers (Gold Coast) for the first respondent FC Lawyers (Brisbane) for the second respondent -- 3 of 21 -- 4 [1] MULLINS P: I agree with Bond JA. [2] BOND JA: On the day of settlement the appellant (the buyer) failed to settle two separate but interdependent contracts by which it had contracted to purchase blocks of land in Maroochydore. Indeed, late on the afternoon of the day of settlement, the buyer purported to terminate the contracts. [3] Neither seller accepted the validity of the buyer’s termination and each subsequently purported to terminate their respective contracts on the basis of the buyer’s failure to complete the purchase on the settlement date. Each seller sought the buyer’s agreement that the contractual deposit should be forfeited to the vendor. [4] The buyer disputed the sellers’ entitlement to forfeit the deposits to themselves. [5] Each seller then commenced a proceeding by originating application in the trial division seeking declarations that: (a) the buyer’s termination of the contract was invalid and of no force or effect; (b) the seller had validly terminated the contract; and (c) the deposit was properly forfeited to the seller and should be paid out of the solicitor’s trust account to the seller. [6] The two proceedings were heard together. In each proceeding the primary judge made orders consistent with those which the sellers had sought. [7] The buyer appealed the orders made by the primary judge in each proceeding. On each appeal the buyer sought to set aside those orders and to obtain an order that each seller pay to the buyer the amount of the forfeited deposit together with interest. The respondent sellers sought to maintain the orders they obtained below. The appeals were heard together. [8] For the following reasons, each of the appeals should be dismissed, with costs. The relationship between the two appeals [9] The first contract (the Evangelista contract) was a contract between the buyer and Evangelista Pty Ltd (Evangelista) as seller and concerned land on Ocean Street, Maroochydore (the Ocean Street property).1 Appeal 3598 of 2023 is the appeal from the orders made by the primary judge in relation to the Evangelista contract. [10] The second contract (the TWM contract) was a contract between the buyer and TWM (QLD) Pty Ltd as seller and concerned neighbouring land on Ocean Street. Appeal 3599 of 2023 is the appeal from the orders made by the primary judge in relation to the TWM contract. [11] Each contract contained a special condition which made the contract interdependent with the other contract. The effect of the condition was that valid termination of one contract would be deemed to be valid termination of the other. The parties to both appeals are agreed that it is necessary to focus only upon the facts arising in relation to the Evangelista contract and the appeal from the orders made in respect of that 1 Lots 6 and 7 on RP 27740 with Title References 18056078 and 18056079. -- 4 of 21 -- 5 contract. The orders that should be made in the appeal from the orders made in respect of the TWM contract should be the same. The background facts [12] The Evangelista contract was dated 21 June 2022. It was a standard REIQ form of contract for the sale of commercial land and buildings, with three annexures. Annexure A comprised special conditions of contract. Annexure B was a letter from the Sunshine Coast Regional Council (the Council) dated 14 September 2020 addressed to the two sellers which attached a development approval in respect of the land the subject of the Evangelista contract and the TWM contract. Annexure C comprised a letter from the Council dated 19 May 2014 addressed to Evangelista’s solicitors and to which were attached two deeds. [13] It will soon appear that the resolution of the appeals turns on the proper construction of a special condition to the Evangelista contract. [14] In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson standing in the shoes of the parties at the time of contract 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.2 [15] It was common ground that in order to determine the proper construction of the relevant special condition regard could be had to certain facts known to both parties at the time they entered the Evangelista contract concerning existing limitations to physical access to the Ocean Street property; and, to the fact and terms of the documents comprised in Annexure C. The significance of those considerations may best be understood if they are identified in chronological order. [16] On 28 November 1991, John Lunn and Jeanette Smith were the registered proprietors of the Ocean Street property. The Ocean Street property had a carpark constructed at the rear of the building but there was no means of accessing that carpark from Ocean Street. Access to the carpark could be gained by the use of a different carpark on adjoining land on Duporth Avenue, which, in turn, could be accessed via Duporth Avenue. The Council – then known as the Council of the Shire of Maroochy – was the registered proprietor of that adjoining land (the Duporth Avenue property). [17] The first of the two deeds annexed to the Evangelista contract was made on 28 November 1991 (the Licence) between Mr Lunn and Ms Smith, on the one hand, and the Council, on the other. It recited that both sides were “desirous of granting certain rights of reciprocal access in respect of the Ocean Street property and the Duporth Avenue property respectively”. Mr Lunn and Ms Smith were “with their and each of their respective heirs, personal representatives and assigns” referred to in the Licence as “the Ocean Street proprietors”. The Council was “with its successors in title and assigns” referred to in the Licence as “the Duporth Avenue proprietor”. The coversheet revealed that the Licence had been drafted by solicitors. 2 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46] to [51] per French CJ, Nettle and Gordon JJ; Victoria v Tatts Group Ltd (2016) 328 ALR 564 at [51]. -- 5 of 21 -- 6 [18] Clause 1 of the Licence relevantly provided that the Ocean Street proprietors granted to the Duporth Avenue proprietor “together with the owners and occupiers for the time being of the Duporth Avenue property or any part thereof and/or their respective tenants servants workmen licensees and all persons authorised by it at all times hereafter” a right to pass expressed as a “full right and liberty to pass and repass over such area as shall be notified” for the purpose of obtaining pedestrian access to Ocean Street via the Ocean Street property. [19] Clause 2 of the Licence relevantly provided that the Duporth Avenue proprietor granted to the Ocean Street proprietors “together with the owners and occupiers for the time being of the Ocean Street property or any part therefore and/or their respective tenants servants workmen licensees and all persons authorised by it at all times hereafter” a right to pass expressed as a “full right and liberty to pass and repass over such area as shall be notified” for the purpose of obtaining access to the Ocean Street property via the Duporth Avenue carpark by vehicle or on foot. [20] Clause 3 of the Licence was in the following terms: “The Ocean Street proprietors and the Duporth Avenue proprietor covenant and agree with each other that in the event of either party selling or otherwise disposing of its or their interest in the Ocean Street property or the Duporth Avenue property respectively or any part thereof to any person persons or corporation during the term hereby created then such party will obtain from such purchaser or transferee a covenant in favour of the other party that such purchaser or transferee will recognise and be bound by the terms of this licence and the other covenants herein contained on the part of such party to the same extent as if the purchaser or transferee had originally been named herein as the Ocean Street proprietor or the Duporth Avenue proprietor respectively and that in the event of such purchaser or transferee selling or otherwise disposing of its interest in the respective property to any person persons or corporation then such purchaser or transferee shall obtain from such subsequent purchaser or transferee a covenant agreeing to be bound by the provisions of this deed.” [21] The second of the two deeds annexed to the Evangelista contract was a deed made on 24 December 1991 between Evangelista and the Council (the Evangelista deed) and executed by both. In the Evangelista deed, Evangelista was referred to as “the Ocean Street Proprietor” and the Council was again referred to as “the Duporth Avenue Proprietor”. The Evangelista deed recited that Evangelista was the purchaser of the Ocean Street property from Mr Lunn and Ms Smith; the Duporth Avenue Proprietor was the registered proprietor of the Duporth Avenue property; and it recited the existence of the Licence. The only covenants expressed in the Evangelista deed were the following: “1. The Ocean Street Proprietor covenants and agrees with the Duporth Avenue Proprietor to be bound by the covenants and conditions contained in the Licence and all other terms of the Licence as if the Ocean Street Proprietor had been named as the original Ocean Street Proprietor in the Licence. 2. The Ocean Street Proprietor covenants and agrees that in the event of sale or other disposition of its interest in the Ocean Street -- 6 of 21 -- 7 Property then it will obtain from such purchaser or transferee a covenant in favour of the Duporth Avenue Proprietor that such other party will recognise and be bound by the terms of the Licence and the other covenants therein contained to the same extent as if the purchaser or transferee had originally been named therein as the Ocean Street Proprietor and that in the event of such purchaser or transferee selling or otherwise disposing of its interest in the Ocean Street Property to any person, persons or corporation then such purchaser or transferee shall obtain from such subsequent purchaser or transferee a covenant agreeing to be bound by the provisions of the Licence.” [22] The letter from the Council dated 16 May 2014 which was part of Annexure C to the Evangelista contract and which attached the two deeds was a letter to Evangelista’s solicitors responding to a query regarding easements in relation to the Ocean Street property. It provided: “Further to previous correspondence in this matter, Council advises that on 28 November 1991 John Bryant Lunn and Jeanette Mary Smith, the registered owners of [the Ocean Street property] entered into a Licence with Council (copy attached) granting certain reciprocal access rights in the relation to [the Ocean Street property] and Council's Duporth Avenue property. On 24 December 1991 your client, as the new owner of the Ocean Street property executed a Deed of Covenant in relation to the Licence above (copy attached). Council therefore relies on the terms of the Licence between the parties in relation to the properties.” [23] Against that background, it is now appropriate to identify the relevant terms of the Evangelista contract. [24] First, it should be noted that the standard form commercial terms contained relevant details expressed by cross-reference to a Reference Schedule. As to those terms: (a) Clause 3 of the standard form regulated the payment of the deposit and what was to happen to the deposit in relevant circumstances. (b) Clause 4 governed what was to occur on the Settlement Date specified in the contract. Clause 4.1 relevantly provided: “4. SETTLEMENT AND POSESSION 4.1 The balance of the Purchase Price shall be paid on the Settlement Date as the Seller or the Seller’s Solicitor directs in exchange for: (a) possession of the Property (such possession to be vacant except for any Lease); (b) a properly executed transfer for the Land in favour of the Buyer capable of immediate registration (after stamping); … -- 7 of 21 -- 8 (k) all documents in the possession or control of the Seller which the Buyer would reasonably require to enable the Buyer to manage the Property and to prepare returns under the ITAA.” (c) Clause 10 governed execution and production of documents at settlement. Clause 10.1 relevantly provided: “Subject to compliance by the Buyer with the Buyer’s obligations under or by virtue of this Contract and subject to clause 10.2, the Seller shall as required do all acts and execute all documents necessary for the purpose of completing the sale and ensuring that the Buyer obtains a good and valid title to the Property.” (d) Clause 25 governed the time and place for settlement. Clause 25.1 relevantly provided: “Settlement shall be effected at such time and place as may be agreed upon by the parties. The time for settlement shall be between the hours of 9:00am and 4:00pm AEST on the Settlement Date.” (e) Clause 26 provided that time was of the essence of the contract. Clause 26.1 relevantly provided: “Time is of the essence of this contract, except regarding any agreement between the parties on a time of day for settlement and except as otherwise provided in this Contract.” [25] Second, as to the special conditions: (a) Special condition 1 identified certain amendments to the standard terms. (b) Special condition 2 expressed certain acknowledgements as to the quality of the property to be sold. (c) Special condition 3 expressed certain acknowledgments in relation to the Development Approval in Annexure B. (d) Special condition 4 set out the details of the interdependence between the Evangelista contract and the TWM contract. (e) Special Condition 5 (SC 5) provided: “5. Deed of Covenant with Sunshine Coast Regional Council – Licence On or before Settlement the Buyer must enter into a Deed of Covenant with Sunshine Coast Regional Council in the terms of the Licence Deed dated 28 November 1991 that the Buyer will recognise and be bound by the terms of the Licence and other covenants therein to the same extent as if the Buyer had originally been named therein as the ‘Ocean Street Proprietor’, and that in the event that the Buyer sells or otherwise disposes of its interest in the Property, then such Buyer shall obtain from such subsequent buyer or transferee a covenant agreeing to be -- 8 of 21 -- 9 bound by the provisions of the Licence. The Deed of Covenant will be prepared by the Seller’s Solicitors and each party shall bear their own costs in respect of such Deed of Covenant.” Consideration of the circumstances which led to the buyer failing to settle and purporting to terminate [26] Although the Settlement Date specified in the reference schedule to the Evangelista contract was 15 July 2022, by agreement that date had been extended to 29 July 2022. [27] At 6.06 pm on 28 July 2022 (the day before the extended settlement date) the buyer’s solicitor emailed the Evangelista’s solicitor in the following terms: “I am preparing my checklist for settlement. What is happening with the deed of covenant as per [SC 5] of the contract? The deed of covenant is of fundamental importance and is the only way to secure my client's access to the property through and over the council's land. What measures are being taken to comply with the contract?” [28] The second last paragraph of the email seems to reflect a misunderstanding of the operation of the law in relation to the ability of a successor in title to enforce cl 2 of the Licence, of the effect of the Evangelista deed and, accordingly, of the evident purpose of SC 5. I make the following observations: (a) The access through and over “the Council’s land” to which the buyer’s solicitor referred was evidently the access which was the subject of the Council’s covenant in cl 2 of the Licence referred to at [19] above and which had formed part of annexure C to the Evangelista contract. (b) The terms of cl 2 of the Licence reveal that the clause was intended to benefit the owners for the time being of the Ocean Street property and not just Mr Lunn and Ms Smith personally. That intention is reinforced by the operation of s 53(1) of the Property Law Act 1974 (Qld), which provides: “A covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and the covenantee’s successors in title and the persons deriving title under the covenantee or the covenantee’s successors in title, and shall have effect as if such successors and other persons were expressed.” (c) The covenant in cl 2 of the Licence would be regarded as touching and concerning the land of the Ocean Street proprietors as covenantee because it was intended to benefit the owners for the time being of the Ocean Street property; it affected the nature, quality, mode of user or value of that property; and it was not expressed to be personal to Mr Lunn and Ms Smith.3 3 See the tests as to whether a covenant touches and concerns land discussed in Southport Memorial Club Inc v Returned and Services League of Australia (Queensland) Southport Sub-Branch Inc [2023] QCA 146 at [25]. -- 9 of 21 -- 10 (d) The common law recognizes that the benefit of such covenants runs with the land and may be enforced against the original covenantor by a successor in title to the estate of the original covenantee.4 Accordingly, if the buyer had settled its purchase of the Ocean Street property, as the successor in title to the same estate as the original covenantee, it could have enforced the covenant against the Council and enforced the promised access to the Ocean Street property through and over the Duporth Avenue property. The deed the subject of SC 5 was neither relevant to nor necessary for that outcome. (e) Although the benefit of such positive covenants can run with the land in the circumstances just mentioned, the same cannot be said of the burden of positive covenants. It is well established that the burden of a positive covenant cannot run with the land when there is no privity of estate.5 The evident purpose of cl 3 of the Licence was to address that problem and to ensure that the burden of the positive covenants expressed in the Licence would effectively be passed to the successors in title of the covenantor, because the covenantor was required to obtain from the successor in title a covenant in favour of the covenantee by which – (i) the successor in title would accept the burden of the covenants given by the original covenantor; and (ii) the successor in title would, in the event that it transferred to another successor in title, obtain from that person a covenant agreeing to be bound by the provisions of the Licence. (f) This point may be demonstrated by slightly reformatting the wording of cl 3 of the Licence. Viewed from the Council’s point of view, the benefit of cl 3 of the Licence was that it provided that: “The Ocean Street proprietors … covenant and agree … that in the event of [their] selling or otherwise disposing of … their interest in the Ocean Street property … or any part thereof to any person persons or corporation during the term hereby created then [the Ocean Street proprietors] will obtain from such purchaser or transferee a covenant in favour of [the Council] – (a) that such purchaser or transferee will recognise and be bound by the terms of this licence and the other covenants herein contained on the part of [the Ocean Street proprietors] to the same extent as if the purchaser or transferee had originally been named herein as the Ocean Street proprietor … ; and (b) that in the event of such purchaser or transferee selling or otherwise disposing of its interest in the [the Ocean Street property] to any person persons or corporation then such purchaser or transferee shall obtain from such subsequent purchaser or transferee a covenant agreeing to be bound by the provisions of this deed.” 4 See Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) 193 CLR 154 at [25]; Smith & Snipes Hall Farm Ltd v River Douglas Catchment Board [1949] 2 KB 500 at 516. 5 Rhone v Stephens [1994] 2 AC 310 at 318; Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) 193 CLR 154 at [20]; Rural View Developments Pty Ltd v Fastfort Pty Ltd [2011] 1 Qd R 35 at [15]. -- 10 of 21 -- 11 (g) The evident purpose of the Evangelista deed was that it discharged the obligations of the original Ocean Street proprietors pursuant to cl 3 of the Licence. The Ocean Street proprietors had sold the Ocean Street property to Evangelista, thereby creating the “event” referred to in the opening words of the clause. The Evangelista deed then expressed covenants in favour of the Council which met the requirements of the clause. Clause 1 of the Evangelista deed satisfied the first requirement, namely the promise by Evangelista that it would be bound in the same way as the Ocean Street proprietors had been bound. Clause 2 of the Evangelista deed satisfied the second requirement, namely the promise by Evangelista that it would obtain from subsequent purchasers a covenant agreeing to be bound by the provisions of the Licence. (h) It may also be noted from the letter forming part of Annexure C to the Evangelista contract that the Council regarded the terms of the Evangelista deed as sufficient to enable it to assert the existence of rights under the Licence as against Evangelista. (i) Viewed against that background, it is obvious that the evident purpose of SC 5 was that it was the mechanism by which Evangelista sought to ensure that it could discharge the obligations the burden of which it had assumed by cl 2 of the Evangelista deed. The promise by the buyer that it would enter into such a deed of covenant was a promise for the benefit of Evangelista, and not for the benefit of the buyer. Fulfilment of the obligation would confer no benefit on the buyer. To the contrary, it would only subject the buyer to the burden of the covenants which the original Ocean Street proprietors had made in the Licence. [29] The response from Evangelista’s solicitors came at 11.14 am on 29 July 2022 (the settlement date) as follows: “Thank you for your email. It appears that we all overlooked this provision and I [apologise] for the fact that I had missed it. Attached is the Deed of Covenant. Can you please have it executed by [the buyer] and return the original executed Deed of Covenant in duplicate to me, and we undertake to promptly send the same to [the Council] to obtain their execution of the Deed of Covenant. You will note that under the terms of the Licence, no consent of Council is required, and it is a procedural matter that an incoming owner must enter into the Deed of Covenant with Council covenanting to be bound by the terms of the Licence as the new owner. I am preparing a letter ready to send to Council with the Deed of Covenant as soon as we receive it from you duly executed by your client. Again my apologies, however I submit that this is a procedural matter only and there is no reason to delay settlement. I look forward to hearing from you shortly.” [30] The attached Deed of Covenant was an unexecuted form of a deed of covenant between the buyer and the Council. In the draft deed, the buyer was referred to as “the Ocean Street Proprietor” and the Council was again referred to as “the Duporth Avenue Proprietor”. The draft deed recited that the buyer was the purchaser of the -- 11 of 21 -- 12 Ocean Street property from Evangelista; that the Duporth Avenue Proprietor was the registered proprietor of the Duporth Avenue property; and the existence of the Licence. The only covenants expressed in the draft deed were identical to the covenants expressed in the Evangelista deed, quoted at [21] above. [31] The buyer’s solicitors responded by email at 2.09 pm on 29 July 2022, which attached a two-page letter. The letter asserted the following: (a) In a telephone call (which must have occurred prior to the email referred to at [29]), Evangelista’s solicitor had conceded that the need for the deed had been overlooked and that would be remedied as soon as possible. (b) Evangelista’s solicitor had sent “a deed of covenant of the kind contemplated by [SC 5] of the contract” attached to the email referred to at [29], but the execution page was flawed because it did not contemplate, as it should have, that the document had to be executed by two directors or by one director and the company secretary. (c) The buyer had encountered practical difficulties in getting the document executed. The letter suggested that the buyer could not execute the deed and return it to Evangelista without obtaining consent from someone who lived overseas. (I observe that by the time the letter was sent that consent must have been obtained because a copy of the duly executed deed of covenant was attached to the email.6) (d) The buyer suggested that it was Evangelista’s responsibility to procure the execution of the deed by the Council. (e) However, it was evident that the buyer’s solicitor still laboured under the misconception discussed at [28] above that unless the Council executed the deed, the buyer would not be able to enforce against the Council the covenants given by the Council in the Licence. The letter concluded in these terms: “It is our client's very real concern that the Sunshine Coast Regional Council may never execute it and will not recognise our client as a legitimate party to the licence agreement with an entitlement to continuing benefits under it. For the record, the licence agreement accords the "original proprietor'' (being the Seller) valuable rights of access to "the Ocean Street Property" (being the Land, the subject matter of the contract between our respective clients) and any termination of or interference with those rights would place our client (as Buyer) in breach of all of the covenants of quiet enjoyment contained in leases with tenants of the property. Accordingly, our client requires the security of having a finalised arrangement with the Sunshine Coast Regional Council in place prior to settlement. This is fundamental to security of our client's continued access to the property (as well as a clear contractual obligation on your client). 6 In any event there was no evidence placed before the primary judge or this Court of the need for the relevant consent. Moreover, it was never suggested in argument that consent had not been obtained or that its absence meant that the buyer’s execution of the deed was to be regarded as invalid. -- 12 of 21 -- 13 The duly executed deed of covenant is attached. We await delivery of it duly executed by the Sunshine Coast Regional Council as a matter of urgency.” [32] Evangelista’s solicitors responded by email a little over an hour later at 3.14 pm on 29 July 2022, asserting the following points: (a) They contended that both sides had overlooked SC 5. But if the buyer wished to insist on the deed being executed by the Council prior to settlement the buyer should have raised the issue earlier. (b) Evangelista maintained the position that SC 5 required only the buyer to execute the deed. The buyer had done so and, accordingly, the buyer had entered into a deed of covenant in accordance with the provisions of SC 5. (c) SC 5 was not a fundamental term of the Evangelista contract. SC 5 imposed an obligation on the buyer to enter into the deed of covenant, and the buyer had now done so. (d) Evangelista’s solicitor’s view was that there was no prospect that the Council had any right not to execute the deed. In any event, the execution of the deed of covenant by Council was not an essential matter under the terms of the Evangelista contract. The buyer had no right to refuse to settle or to delay settlement on the grounds that the Council had not executed the deed of covenant. (e) Evangelista’s position was that if the buyer failed to settle that day, which was the due date for settlement, then the buyer would be in default under the contract and Evangelista would reserve its rights to take all action available to it as a consequence of such default. (f) Evangelista’s solicitors undertook to do all things necessary to procure the prompt execution by the Council of the deed at the earliest possible opportunity, and then to provide the buyer with a copy of the fully executed document. They requested the buyer’s solicitors to deliver the original executed copies of the deed to their office so that they could be sent to Council for execution. (g) In the meantime, the email reiterated that settlement was required to take place that day. [33] By this email, Evangelista’s solicitor developed and maintained a proposition first flagged by the second and third paragraphs of the email discussed at [29] above, namely that the buyer would have complied with the SC 5 obligation once the buyer executed the deed of covenant which had been supplied by Evangelista’s solicitor and notwithstanding that the Council had not. As to this: (a) Parties generally become bound by their deed when they execute and deliver the deed, delivery being capable of being inferred from any fact or circumstance, including words or conduct, which reveals their intention to be legally bound either immediately or subject to fulfilment of a condition.7 7 Property Law Act 1974 (Qld) Part 6, Division 1, Subdivision 2. See also 400 George Street (Qld) Pty Ltd v BG International Ltd [2012] 2 Qd R 302 at [12] to [16] per Muir JA, Fraser JA and Mullins J agreeing. So long as there is evidence demonstrating the party recognizes the deed as presently binding, delivery can be inferred even if the executed deed itself is not physically delivered to the other party. -- 13 of 21 -- 14 (b) The grantee of a deed, who is intended to be a party to the deed, may sue the grantor although the grantee has not executed the deed and even if the deed contains cross-covenants on the part of the grantee.8 (c) On that basis, once the buyer had executed and delivered the deed of covenant in the form provided by Evangelista, the buyer would have been immediately bound by the covenants contained in it. (d) The buyer’s obligation in SC 5 was to “enter into a Deed of Covenant with [the Council]” on or before settlement. Given that the evident purpose of SC 5 was to enable Evangelista to discharge the obligations which it had assumed to the Council by the Evangelista deed, from Evangelista’s point of view all that was necessary was for the buyer to execute and deliver the deed, thereby bringing about the position that the Council could enforce the deed as against the buyer. The better construction of the obligation in SC 5 is probably that the buyer would be regarded as having discharged its obligation to “enter into a Deed of Covenant with [the Council]” when the buyer had done that which was necessary to become immediately bound by the covenants contained in the deed. (e) A complication concerns whether the buyer should be regarded as having executed and unconditionally delivered the deed of covenant, given the communications made by the buyer’s solicitors to Evangelista’s solicitors. In Federal Commissioner of Taxation v Taylor Rich, Starke and Dixon JJ said:9 “When a deed between parties is executed by one of them it is a question of fact whether [they] delivered it absolutely in the first instance, or conditionally with the intent that it should not take effect as [their] deed until the other parties had also executed it. … If it is delivered absolutely in the first instance, it is at once operative, as the deed of the person who so executed it, in spite of the fact that [they] delivered it upon the faith of the other parties executing it. Of course, if in such a case the other parties fail in the event to execute it, relief in equity is available to the party who executed it upon the faith of the others doing so. … If on the other hand the person who first seals the deed delivers it as an escrow intending it to become [their] deed when and not before the other parties execute it, then, upon the condition being fulfilled, the deed becomes effectual to give title as from its first delivery.” (f) Although the buyer expressed clear concern regarding the Council’s execution of the deed, there is no suggestion that the buyer intended not to be immediately bound by its own execution of the deed, or that it should not be regarded as being bound by the deed unless and until the Council had also executed the deed. The better view is probably that the buyer’s conduct should be regarded as amounting to execution and unconditional delivery of the deed. (g) For two reasons, however, it is not necessary either to express a conclusion on whether execution and delivery by the buyer alone met the requirements of 8 Morgan v Pike (1854) 14 CB 473 at 484 cited with approval in Mirzikinian v Waterhouse Pty Ltd [2009] NSWCA 296 at [50] per Ipp JA with whom Tobias and McColl JJA agreed; and see also Netglory Pty Ltd v Caratti [2013] WASC 364 at [745] to [752] per Edelman J. 9 Federal Commissioner of Taxation v Taylor (1929) 42 CLR 80 at 87. -- 14 of 21 -- 15 SC 5 or, even if it could have, whether the buyer’s words and conduct amounted to execution and delivery by the buyer. First, the law referred to in subparagraphs (a) to (e) above was not referred to by the parties and was not the subject of argument before this Court. Second, by the email at 3.14 pm on 29 July 2022 Evangelista’s solicitors communicated to the buyer’s solicitors that Evangelista accepted that execution by the buyer would suffice, and in fact had made it clear that Evangelista’s position was that the buyer had done that which was necessary to comply with SC 5. Given that the buyer’s promise in SC 5 to enter into the deed was for Evangelista’s benefit, Evangelista could waive its right to insist on strict compliance with the obligation on or before settlement. In my view Evangelista did waive its right to insist upon execution by the Council before settlement even if, which I think is probably not the better view, execution by Council was required. The proposition that Evangelista had waived its right to insist on any further compliance with SC 5 was accepted in argument by senior counsel for Evangelista and not challenged by senior counsel for the buyer. [34] Under the Evangelista contract the time for settlement was between 9.00 am and 4.00 pm on the day of settlement. The buyer did not settle as requested by Evangelista’s solicitors. Instead, the buyer’s solicitors emailed the following to Evangelista’s solicitors at 4.37 pm: “We are instructed to give notice that our client terminates the contract of sale as a consequence of the seller's failure to comply with [SC 5] of the contract.” [35] Evangelista’s solicitors responded a few minutes later in these terms: “We note that your firm failed to sign off in the PEXA workspace today. All other parties including ourselves, FC Lawyers and your client's bank were ready to settle. As a consequence of your failure to sign off in the PEXA workspace settlement did not occur today. Today was the agreed Settlement Date with time being of the essence. We note the following:- 1. There was no communication from you in relation to [SC 5] of the Contract and the Deed of Covenant referred to therein until your email sent at 6:06pm yesterday which was not perused until this morning. 2. I telephoned you as soon as I arrived this morning and discussed the matter. 3. At 11:14am this morning I emailed you with the Deed of Covenant that I had prepared. 4. Nothing was heard from you until 2:08pm today when, for the first time, you advised that your client regarded the Licence Agreement as being an essential matter and that it was required to be fully executed by Sunshine Coast Regional Council as well as by the Buyer prior to settlement. 5. I responded to you at 3:14pm giving the grounds upon which the Seller regards your contention as incorrect and giving notice that settlement was required to take place today. -- 15 of 21 -- 16 6. Nothing was heard from you until 3:56pm when you telephoned our office in response to the telephone call from Jade of our office to you. 7. By that time it was too late for settlement to be able to take place today. As notified in my email to you at 3:14pm today the Seller's position is that the Buyer has no right to refuse to settle or to delay settlement on the ground that the Sunshine Coast Regional Council has not executed the Deed of Covenant. The Seller repeats and relies upon each of the points made in our email to you at 3:14pm today. The Seller's position is that the Buyer is in default on the ground that the Buyer failed or refused to settle the matter today. The Seller expressly reserves all its rights to take such action as it shall be advised as a consequence of the Buyer's default. On a without prejudice basis, if you wish to request an extension of time for settlement to Monday, 1 August 2022, please advise as a matter of urgency this afternoon and we will obtain instructions. Since dictating the above we have received your email and letter, received at 4:37pm today. The Seller rejects your claim that the Buyer has any right to terminate the Contract. The Seller has not breached an obligation in [SC 5] or otherwise. The Seller reserves all rights.” [36] On 30 July 2022 and on 1 August 2022, Evangelista’s solicitors sent contentious correspondence to the buyer’s solicitors. Save to say that the correspondence was consistent with the previous assertion that the buyer was not entitled to terminate, it is unnecessary to record the details of that correspondence. [37] On 5 August 2022, the Council advised Evangelista’s solicitors that Council had signed the deed of covenant which had been signed by the buyer. [38] On 8 August 2022, Evangelista’s solicitors emailed the buyer’s solicitors advising that – (a) the buyer’s purported termination was invalid; (b) the buyer was required to settle on the extended settlement date but failed to do so; (c) all other parties were ready willing and able to do so; (d) therefore, the buyer was in default under the contract and Evangelista elected to terminate the contract and to declare the deposit forfeited to itself. Consideration of the arguments on appeal [39] In order to vindicate the orders which the buyer sought on appeal, the buyer sought to persuade this Court that – (a) Evangelista had breached a term of the Evangelista contract in such a way that it justified the buyer’s termination of the contract; -- 16 of 21 -- 17 (b) Evangelista had breached a term of the Evangelista contract in such a way that it operated to prevent the buyer’s ability to settle on the day of settlement; and (c) Evangelista was not entitled to terminate for the buyer’s failure to complete on the date of settlement because Evangelista’s breach of contract meant that Evangelista was not ready, willing and able to settle. [40] The buyer presented arguments which had been advanced to and rejected by the primary judge; see Evangelista Pty Limited v Eleven 17 Ocean Street Pty Ltd [2023] QSC 30. For reasons explained below, the primary judge was right to reject them. Evangelista breached the SC 5 obligation by not preparing a deed which met the requirements of SC 5, thereby entitling the buyer to terminate [41] The buyer contended that, bearing in mind the reference in the Licence to reciprocity, SC 5 required that the deed of covenant prepared by Evangelista also contain positive covenants by the Council in the same terms as the positive covenants by the Council as expressed in the Licence. The draft deed provided by Evangelista’s solicitors did not contain such covenants. Accordingly, the buyer contended that Evangelista was in breach of its obligation as expressed in the final sentence of SC 5 and breach of that obligation entitled the buyer to terminate. [42] The critical question is whether the description in the first sentence of SC 5 required a form of deed of covenant which imposed obligations on the Council. [43] The description in the first sentence required that a compliant deed would: (a) “in the terms of the Licence” provide that the buyer “will recognise and be bound by the terms of the Licence” to the same extent as if it had been originally named in the Licence as the “Ocean Street Proprietor”; (b) “in the terms of the Licence” provide that, in the event that the buyer sells or disposes its interest, the buyer must obtain from the subsequent buyer a covenant to be bound by the Licence. [44] The language of both aspects of the description is suggestive of a deed by which the buyer subjects itself to obligation, or burden, by reference to the terms of the Licence. There is no indication in the text of SC 5 that the deed must subject the Council to any obligation or burden by reference to those terms. [45] Moreover, the intention and meaning of the obligations in SC 5 must be informed by the context in which SC 5 appears, namely in a contract in which Annexure C appears. The evident purpose of attaching a copy of the Licence was to enable meaning to be given to SC 5, which specifically refers to that document. But what, one might ask rhetorically, was the point of also annexing the covering letter and the Evangelista deed? To my mind, the reasonable businessperson standing in the shoes of the parties would have thought that the purpose of so doing was to identify what would be a satisfactory form of a deed of covenant. And when one has regard to the Evangelista deed, one sees, consistently with the language of SC 5, that although Council is a party, the deed does not contain promises by the Council. [46] Further, as explained at [28] above, the benefit of the obligations which the Council had assumed under the Licence would have passed to the buyer by operation of law -- 17 of 21 -- 18 had the buyer completed the Evangelista contract. There was no need for them to be expressed in the deed of covenant produced in compliance with SC 5. [47] The result is that in my view SC 5 did not require the deed of covenant to express any obligation or burden on the Council by reference to the terms of the Licence. As the primary judge correctly found,10 the deed of covenant prepared by Evangelista’s solicitors and provided to the buyer’s solicitors was a deed in a form which complied with SC 5. The argument that Evangelista breached the contract by failing to prepare a deed in a particular form must fail. Evangelista breached the SC 5 obligation by not preparing a deed within a reasonable time, thereby entitling the buyer to terminate [48] The buyer’s next argument focussed not on the content of what Evangelista’s solicitors provided, but on the time within which it was provided. The buyer contended that time was of the essence for the performance by Evangelista of its obligation pursuant to SC 5. Evangelista should have ensured that its solicitors provided the deed within a reasonable time (or at least much earlier than it had), it had failed to do so, and accordingly the buyer had the right to terminate. [49] As a matter of theory,11 to make this argument good, the buyer would have to persuade this Court either – (a) that the parties must be taken to have agreed that the performance by Evangelista of its obligation pursuant to SC 5 at some stage earlier than it was actually performed was an essential term of the contract; or (b) that Evangelista’s failure to perform its obligation earlier than it actually did was a sufficiently serious breach of a non-essential term as to warrant the conclusion that termination was justified. [50] The buyer advanced both arguments. Neither had merit. [51] As to the former, the effect of the buyer’s argument was that the final sentence of SC 5 that the deed of covenant “will be prepared by the Seller’s Solicitors” should be regarded as imposing a time performance obligation on the seller which was made essential by operation of cl 26.1. [52] Relevant general principle has been sufficiently expressed in Thomas v Monaghan in these terms (emphasis added):12 “It is well settled that a contract for the sale of land may be so worded as to make it clear that strict compliance with requirements as to time are of the essence. In such a case the Court will give effect to the intention of the parties. Normally this result is achieved by using in the contract some such expression as ‘time being of the essence’. … However, any form of language will achieve a similar result if it meets the test laid down by the Privy Council in Jamshed Khodaram Irani v Burjorji Dhunjibhai (1915) 32 TLR 156. Lord Haldane, in delivering their Lordships' judgment, said: 10 Evangelista Pty Limited v Eleven 17 Ocean Street Pty Ltd [2023] QSC 30 at [42] to [49]. 11 As to which see Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 per Gleeson CJ, Gummow, Heydon and Crennan JJ at [47] to [55]. 12 Thomas v Monaghan (1975) 1 NZLR 1 at 7 per Wild CJ, Richmond and Woodhouse JJ. -- 18 of 21 -- 19 ‘The special jurisdiction of equity to disregard the letter of the contract in ascertaining what the parties to the contract were to be taken as having really and in substance intended as regards the time of its performance might be excluded by any plainly expressed stipulation. But to have that effect the language of the stipulation must show that the intention was to make the rights of the parties depend on the observance of the prescribed time limits in a fashion which was unmistakable. The language would have that effect if it plainly excluded the notion that those time limits were of merely secondary importance in the bargain, and that to disregard them would be to disregard nothing that lay at its foundation’ (ibid, 157).” [53] SC 5 did not specify any time within which or by which Evangelista’s solicitors were required to have prepared the deed referred to in SC 5. That may be contrasted with the obligation which SC 5 imposed on the buyer where a specific time was specified. Notably, SC 5 did not make the seller’s performance of its obligation to prepare the deed a condition precedent to the buyer’s obligation to perform its obligation under the clause. Nor, bearing in mind the nature of what was required, did the buyer’s ability to perform its obligation depend in any way on the seller’s performance of its obligation. The buyer could easily have drafted and entered into an appropriate deed of covenant itself, if it was concerned by any delay by the seller in the performance of its obligation to prepare the deed. No support for the alleged essentiality of the seller’s promise to prepare the deed of covenant can be discerned in SC 5 or from the nature of the contract or the surrounding circumstances. [54] Whilst one can accept that a clause making time “of the essence” makes unmistakable the parties’ intention to make their rights depend on the observance of prescribed time limits, it does not do so where the parties have not prescribed any time limits. As the primary judge noted,13 in Blaauw v Watkins (1914) 33 NZLR 1375 at 1379, Cooper J concluded that a clause making time of the essence had no application to contractual clauses which did not specify a date for performance. In my view, one cannot read SC 5 and cl 26.1 together and reach the conclusion that the parties’ intention was to make their rights depend on Evangelista’s solicitors preparing the deed of covenant within any particular time. That part of SC 5 was of merely secondary importance to the bargain. It was the first part of SC 5 which was of primary importance and performance of that obligation by the buyer did not depend on the seller having prepared the deed. The primary judge took a similar view.14 [55] The first of the two arguments referred to in [49] fails. [56] For the second of the two arguments referred to in [49] to succeed, the buyer would have to demonstrate that Evangelista’s breach undermined the “root” or basis of the contractual undertaking, having regard to the nature of the contract and the relationship it creates, the nature of the term, the kind and degree of the breach, the consequences of the breach for the other party and the adequacy of damages as a remedy.15 Any attempt to suggest that delay by the seller’s solicitors should be regarded in this way must fail. In the first place, for reasons earlier expressed, the 13 Evangelista Pty Limited v Eleven 17 Ocean Street Pty Ltd [2023] QSC 30 at [36]. 14 Evangelista Pty Limited v Eleven 17 Ocean Street Pty Ltd [2023] QSC 30 at [56] to [64]. 15 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 per Gleeson CJ, Gummow, Heydon and Crennan JJ at [54] to [55]. -- 19 of 21 -- 20 buyer did not need the deed in order for the benefit of the Council’s covenants in the Licence to pass to it because the benefit of those covenants ran with the land. Any delay by the seller’s solicitors did not adversely affect the buyer’s ability to obtain the access it needed. Second, for reasons expressed in the previous two paragraphs, the production of the deed by Evangelista’s solicitors was of secondary importance. Their delay did not go to the root of the contract. The buyer could have prepared and executed its own compliant deed of covenant. If it incurred more costs to do so than it would have incurred if Evangelista’s solicitors had prepared the deed, it may have had a right to recover damages, but that right would have been an adequate remedy. Third, performance by the buyer of its obligations under SC 5 was for the benefit of the seller and capable of being waived by it, and, for reasons earlier expressed, the seller had accepted that the buyer had adequately performed its obligations for the purpose of settlement. [57] The second of the two arguments referred to in [49] also fails. [58] The argument that Evangelista breached the SC 5 obligation by not preparing a deed at a time earlier than it did, thereby entitling the buyer to terminate, must fail. Evangelista was not entitled to terminate because its breaches of the SC 5 obligation meant that it could not meet its obligations under cl 4.1(k) [59] The buyer sought to avoid qualitative assessments of the significance of the seller’s obligation to prepare the deed by arguing in reliance on cl 4.1(k) that “Evangelista's obligation to produce the Deed of Covenant was a concurrent and interdependent obligation with [the buyer’s] obligation to pay the purchase price at settlement.” [60] The primary judge was correct to reject this argument.16 Evangelista had no obligation “to produce” at all. Its obligation was “to prepare” a form of deed and then the buyer’s obligation was to enter into the deed. Nothing at all was said as to what was to happen to the physical copy of the deed after it had been entered into. Certainly, there was no reason to think that the executed document would necessarily have been in the possession or control of the seller. And even if there was, the document could not be regarded as a document which met the description set out in cl 4.1(k). The buyer did not need the document to manage the Ocean Street property and it had nothing to do with income tax. [61] There was no anticipatory breach by Evangelista of its obligations under cl 4.1(k). And even if its delay in the production of the compliant form of document until the day of settlement could be regarded as a breach by it, the breach did not have the result that it was not ready, willing and able to settle. Ultimately Evangelista’s solicitors did prepare the deed, the buyer executed the deed, and, for reasons earlier explained, Evangelista waived any obligation on the buyer to do anything more to comply with SC 5 than it had already done. Evangelista’s conduct had prevented the buyer from complying with its obligation under SC 5 [62] This argument missed the point. Even if it had been true that Evangelista’s conduct had prevented the buyer from complying with its obligation under SC 5, for reasons 16 Evangelista Pty Limited v Eleven 17 Ocean Street Pty Ltd [2023] QSC 30 at [39] to [40]. -- 20 of 21 -- 21 earlier expressed that conduct did not operate either to justify the buyer’s conduct in not complying with its obligation to settle or to give rise to the conclusion that Evangelista was disentitled from terminating the contract on the basis of the buyer’s failure to settle on time. [63] But even as expressed, the argument must fail. The primary judge dealt with the argument on the assumption that in order for the buyer to comply with its SC 5 obligation to “enter into a Deed of Covenant with [the Council]” both parties had to execute and deliver the deed.17 I have explained at [33] why I strongly doubt the correctness of that assumption. But even if it was correct, the primary judge found as a fact that the buyer had not proved that Evangelista’s conduct prevented the relevant outcome.18 There is no reason to doubt the correctness of that finding. I would reject the buyer’s invitation to take judicial notice of the proposition that it would have been impossible to get the Council to execute the deed by the time for completion given the timing of its preparation by Evangelista’s solicitors. Conclusion [64] For the foregoing reasons, the appeals must be dismissed. There is no reason why costs should not follow the event. [65] Accordingly, in each appeal I would order that the appeal is dismissed, with costs. [66] BODDICE JA: I agree with Bond JA. 17 Evangelista Pty Limited v Eleven 17 Ocean Street Pty Ltd [2023] QSC 30 at [72]. 18 Evangelista Pty Limited v Eleven 17 Ocean Street Pty Ltd [2023] QSC 30 at [72] to [79]. -- 21 of 21 --