Bluepoint Properties Pty Ltd & Anor v Zuri Properties Pty Ltd & Anor [2022] QSC 26

SUPREME COURT OF QUEENSLAND CITATION: Bluepoint Properties Pty Ltd & Anor v Zuri Properties Pty Ltd & Anor [2022] QSC 26 PARTIES: BLUEPOINT PROPERTY PTY LTD ACN 160 455 578 (First plaintiff) AND BLUEPOINT HENDRA PTY LTD ACN 622 756 389 AS TRUSTEE FOR THE WHITCOMBE HENDRA TRUST, DORE HENDRA TRUST AND LINDSAY HENDRA TRUST (Second plaintiff) v ZURI PROPERTIES PTY LTD ACN 615 214 910 AS TRUSTEE FOR THE HENDRA ARTERIAL UNIT TRUST (First defendant) AND BOARDWALK MARINE INVESTMENTS PTY LTD ACN 151 110 995 (Second defendant) FILE NO/S: 12390 of 2017 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court DELIVERED ON: 8 March 2022 DELIVERED AT: Brisbane HEARING DATES: 14-16, 19-22, and 26 July 2021 JUDGE: Bradley J ORDER: The Order of the Court is that: 1. Judgment be entered for the defendants on the plaintiffs’ claims. CATCHWORDS: CONTRACTS – GENERAL CONTRACTURAL -- 1 of 32 -- 2 PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – CONDITIONS – CONDITIONS PRECEDENT AND SUBSEQUENT – where the plaintiffs and defendants are the only parties to the deed – where the due diligence clause of the deed required the plaintiff to give notice – where the plaintiff gave no notice to the defendant – where the plaintiffs argue that the failure to give notice rendered the deed voidable at the option of either party to the deed – where the defendants argue that the plaintiffs’ failure to give notice was that the deed terminated – whether the failure on the part of the plaintiff to give notice by the agreed time resulted in a failure to satisfy the express condition precedent and thereby termination of the deed DAMAGES – ASSESSMENT OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT – PARTICULAR HEADS OF LOSS – LOSS OF CHANCE OR OPPORTUNITY – where the plaintiffs claim damages for breach of the deed – where the damages are said to be the loss of valuable commercial opportunity – where the defendants argue that the deed was terminated and that the plaintiffs have no entitlement to such damages – whether the defendants caused the plaintiffs to lose a valuable opportunity INTELLECTUAL PROPERTY – CONFIDENTIAL INFORMATION – USE OF THE INFORMATION – where the plaintiffs seek damages from the defendants for breach of a duty of confidentiality under the deed and in equity – whether the defendants have breached their duty of confidentiality under the deed and in equity ESTOPPEL – ESTOPPEL BY CONDUCT – ACT, OMISSION OR ASSUMPTION – WAIVER – where the plaintiffs argue that the prevention principle means the defendants are estopped from asserting that the deed terminated – whether it was unconscionable for the defendants to treat the deed as at an end by reason of the non-delivery of a Due Diligence Notice Transport Infrastructure Act 1994 (Qld), s 33, 62(1) Sustainable Planning Act 2009 (Qld) Badenach v Calvert (2016) 257 CLR 440, cited Donaldson v Bexton (2007) 1 Qd R 525, cited Gange v Sullivan [1966] 116 CLR 418, not followed Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, 116 [47], followed New Zealand Shipping Co Ltd v Societe des Ateliers et Chantiers de France (1919) AC 1, cited Perovich v Whitton (No 2) (2016) 250 FCR 272, applied -- 2 of 32 -- 3 Principal Properties Pty Ltd v Brisbane Broncos Leagues Club Limited (2014) 2 Qd R 132, applied Quinn Village Pty Ltd v Mulherin [2006] QCA 433, not followed Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, cited Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, considered COUNSEL: G Handran QC with W LeMass for the plaintiffs D Clothier QC with A Psaltis for the defendants SOLICITORS: McBride Legal for the plaintiffs Bartley Cohen for the defendants [1] The plaintiffs’ claims against the defendants relate to real property at 132A East- West Arterial Road, Hendra1 (the Property). They say they suffered loss, including of a valuable opportunity to develop part of the Property, because the first defendant (Zuri) breached an agreement. The plaintiffs also say Zuri and the second defendant (Boardwalk) misused confidential information about the plaintiffs’ planned development to “springboard” Zuri’s own development on the Property. Overview [2] As the address indicates, the East West Arterial Road is the only roadway adjacent to the Property. It forms the Southern boundary of the Property. It is a State- controlled road. On 2 March 2015, the chief executive of the Department of Transport and Main Roads (DTMR) had decided the location at which access between the Property and the road was permitted and associated conditions and restrictions, pursuant to s 62(1) of the Transport Infrastructure Act 1994 (Qld) (the TIA). Any works on the road corridor or on the Property that would interfere with the road or its operation required approval of the chief executive of DTMR under section 33 of the TIA. The deed [3] On 16 December 2016, Zuri completed a contract to purchase the Property from Stockland Development Pty Ltd, paying $8.69 million. [4] On 5 January 2017, Zuri and the first plaintiff (Bluepoint) executed a deed (deed). By it, they provided for Zuri to grant Bluepoint a call option for Bluepoint (or its nominee) to purchase part of the Property (the Land), and for Bluepoint to grant Zuri a put option for Zuri to sell the Land to Bluepoint. Zuri and Bluepoint agreed that, if either option was validly exercised, then Zuri and Bluepoint (or its nominee) would be deemed to have entered into a contract for the sale of the Land in the form attached to the deed. 1 It was lot 20 on survey plan 236557. -- 3 of 32 -- 4 [5] The Land was to be generally in accordance with a proposed Lot 1 in a plan attached to the deed. The proposed Lot 1 was about 5,000 m 2 in area and occupied the Western portion of the Property.2 [6] On 6 January 2017, Bluepoint paid the Initial Security Deposit of $10,000 to the solicitors for Zuri, who were the Stakeholder under the deed. Due Diligence Investigations [7] The deed was “subject to and conditional on” Bluepoint (or its nominee) being “satisfied in its absolute discretion with its Due Diligence Investigations on or before the Due Diligence Date.” Zuri and Bluepoint agreed that, on or before the Due Diligence Date, Bluepoint “must by notice in writing” advise Zuri whether it is satisfied or not satisfied with its Due Diligence Investigations, or “waives the benefit” of the due diligence clause. If Bluepoint did not give one of these notices to Zuri, then the due diligence clause “will be deemed to be not satisfied and this deed will be deemed to be terminated” from 5pm on the Due Diligence Date. [8] In the deed, Zuri and Bluepoint agreed that: (a) “Due Diligence Investigations” means: “the physical inspection, survey and testing of the Property and such other investigations or inquiries in relation to the Property or the Seller’s interest in the Property including (but not limited to) any amendments of all or any town planning approvals, enquiries of the Seller and discussions with Consultants as the Buyer in its absolute discretion determines is necessary.” And (b) “Due Diligence Date” means “120 days from 22 December 2016”. [9] On 1 February 2017, Bluepoint representatives had a pre-lodgement meeting with the Brisbane City Council (BCC). They secured the BCC’s “in principle” support for Bluepoint’s plans to build a service station, a food and drink premises and other small business premises on the Land. The BCC recommended Bluepoint engage with DTMR about their plans, as securing DTMR approval under s 33 of the TIA would likely be required. [10] Zuri had its own plans for the balance of the Property, after the subdivision to create the Land. Those plans would also likely require approval from DTMR. Zuri asked Bluepoint not to approach DTMR about plans for the Land until Zuri had formulated and progressed its own plans and engagement with DTMR about subdivision of the Property. Bluepoint agreed not to approach DTMR, at least for some time. Instead, Bluepoint progressed its dealings with potential lessees of the service station and food and drink premises on the Land. [11] On 3 April 2017, Bluepoint told Zuri that, unless an extension of the Due Diligence Date was agreed, Bluepoint would contact DTMR about its plans for the Land. On 4 April 2017, the first extension was agreed. The new date was 22 May 2017. 2 The whole of the Property, including the Land, was more than 20,000 m2 in area. -- 4 of 32 -- 5 [12] On 22 May 2017, a similar thing occurred, resulting in the second agreed extension of the Due Diligence Date – to 21 June 2017. [13] On 21 June 2017, a third extension was agreed, to 21 July 2017. [14] By 7 July 2017, Zuri had concluded its discussions with DTMR and obtained a development permit for the balance of the Property. [15] On 10 July 2017, Bluepoint representatives had a pre-lodgement meeting with DTMR. The DTMR representatives did not indicate support for Bluepoint’s plans for a service station development on the Land. [16] On 21 July 2017, Zuri and Bluepoint agreed to extend the Due Diligence Date a fourth time, to 4 August 2017. [17] On 27 July 2017, Zuri and Bluepoint representatives met. They shared a common view that Bluepoint should arrange a second pre-lodgement meeting with DTMR. Bluepoint requested a further extension of the Due Diligence Date. [18] On 28 July 2017, Zuri agreed to a fifth extension, to 18 August 2017. [19] On 16 August 2017, the parties agreed to extend the date a sixth time, to 31 August 2017. [20] On 28 August 2017, Bluepoint arranged a second pre-lodgement meeting with DTMR. It was to be held on 11 or 12 September 2017. Zuri offered to extend the Due Diligence Date to 12 September 2017, but Bluepoint did not agree. Instead, it requested an extension to 30 September 2017. [21] On 1 September 2017, Zuri agreed to an extension to 30 September 2017. [22] On 11 September 2017, the second pre-lodgement meeting between Bluepoint and DTMR was held. Zuri’s director Balfour Irvine, and its traffic consultant Mr Johnston, also attended. At the meeting, the indication from the DTMR representatives was supportive of the Bluepoint plans. A replacement contract of sale [23] Between about May and September 2017, Zuri and Bluepoint had also been negotiating the terms of a contract of sale for the Land. If agreed, it would replace the contract attached to the deed. On 9 August 2017, Zuri indicated the replacement contract would replace the deed (not just the attached contract), but Bluepoint asserted (correctly) that the deed would continue to bind the parties at least until the Due Diligence Date. [24] From 13 September 2017, after the second pre-lodgement meeting with DTMR, the negotiations over the replacement contract intensified. However, no agreement was reached. The sticking point was the date for completion (or settlement) under the contract, i.e. the date Bluepoint (or its nominee) would pay the balance of the purchase price in exchange for title to the Land. -- 5 of 32 -- 6 The easement [25] In this same period, Zuri and Bluepoint negotiated and, it appears, reached consensus about an Instrument of Easement, to be registered on the title for the Land, permitting access from the balance of the Property to the East-West Arterial Road. [26] On 15 September 2017, Zuri had provided a draft easement. On 19 September 2017, Bluepoint sought some amendments. On 21 September 2017, Zuri submitted a further draft, which accommodated some Bluepoint amendments. Bluepoint sought no further changes. It appears Zuri’s further draft was acceptable to it. Due Diligence Date and “termination” [27] The Due Diligence Date of 30 September 2017 was a Saturday, followed by a Sunday, and then by the Queen’s Birthday public holiday. None of these was a Business Day within the meaning of the deed. By the deed, Zuri and Bluepoint had agreed that where “the day on which any thing is to be done is not a Business Day” the thing “must be done on or by the next Business Day.” Tuesday 3 October 2017 was the next Business Day after Saturday 30 September 2017. If the deed required a notice to be given on or before 30 September 2017 or by 5:00 pm on that day, it appears the notice was to be given on or before 3 October 2017 or by 5:00 pm on that day. This was the common position of the parties at the trial. [28] Bluepoint gave no notice to Zuri, in the relevant terms, on or before 3 October 2017 or by 5:00 pm on 3 October 2017. [29] On Friday 6 October 2017, by 12:21 pm, Zuri had communicated to Bluepoint that it was not prepared to grant any further extension of Due Diligence Date and that it regarded the deed as terminated. At 4:20 pm that day, Bluepoint gave notice to Zuri that it was satisfied with its Due Diligence Investigations. [30] On Monday 9 October 2017, Zuri confirmed the position it had communicated on 6 October 2017, namely: no extension of the Due Diligence Date had been agreed; no notice had been provided by the time fixed in the deed; the due diligence clause had operated to terminate the deed; and Zuri no longer considered it was bound by the deed. [31] On 10 November 2017, Bluepoint gave notice that it was nominating the second plaintiff (BPH) as the Buyer under the deed; and BPH gave notice that it was exercising the call option in the deed as the nominee of Bluepoint. [32] On 20 November 2017, Zuri returned BPH’s documents and the accompanying cheques to BPH, on the basis that the deed had been terminated. [33] On 23 November 2017, the plaintiffs commenced this proceeding. -- 6 of 32 -- 7 The parties’ primary contentions [34] The plaintiffs contend that the failure of Bluepoint to give any notice by 5 pm on 3 October 2017 rendered the deed voidable at the option of Bluepoint or Zuri.3 They say the deed was not terminated “automatically” or without any further step. The defendants contend that, as between the parties to the deed, the consequence of Bluepoint failing to give any notice by the stipulated time was that the deed terminated at 5 pm on the Due Diligence Date. The defendants also contend that, if Zuri had to act to terminate the deed, after Bluepoint failed to give a notice, then it did so. [35] As well, the plaintiffs contend that Zuri is estopped from asserting that the deed terminated. Zuri joins issue with this contention. [36] The parties agree that their primary competing contentions are to be resolved by the proper interpretation of the relevant provisions of the deed. This is the first matter to be decided. [37] The other matters in issue, save for the confidentiality claim, may have varying importance depending upon the proper interpretation of the deed. The proper interpretation of clause 2.1(d) of the deed [38] All parties submit that, as a commercial contract, the terms of the deed are to be construed in accord with what a reasonable businessperson would have taken them to mean. This requires consideration of the language used by the parties to the deed, the surrounding circumstances known to them both and the purposes or objects to be secured by the deed.4 Outline of the deed [39] Zuri and Bluepoint are the only parties to the deed. Zuri is designated as “Seller” and Bluepoint as “Buyer”.5 [40] The meanings of defined terms used in the deed are set out in clause 1.1. The deed- specific rules for interpretation are in clause 1.2. In clause 1.3, Zuri and Bluepoint agreed that where a thing must be done on or by a day that is not a Business Day, then it must be done on or by the next Business Day. In clause 1.4, capitalised 3 In the pleadings, the plaintiffs claimed, in the alternative, that if Zuri prevented or interfered with Bluepoint giving a notice, then the deed was voidable at the option of Bluepoint only. The plaintiffs did not press this alternative claim at the trial. 4 Electricity Generation Corporation v Woodside Energy (2014) 251 CLR 640, 656-657 [35] (French CJ, Hayne, Crennan and Kiefel JJ); Australian Special Opportunity Fund LP v Equity Trustees Wealth Services Ltd (2015) 323 ALR 570, 585 [69]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, 116 [47]. 5 By clause 1.1, the deed gave “Buyer” the meaning “the Buyer or the Nominee, as the context requires.” The “Nominee” means “the party, if any, nominated by the Buyer as purchaser of the Property [sic] under clause 8.1.” As Bluepoint did not nominate another purchaser before 10 November 2017, at all earlier times, the “Buyer” was Bluepoint. From 10 November 2017, it is possible the Buyer may mean BPH, if the context requires. “Seller” includes Zuri’s successors and permitted assigns, of which there were neither. -- 7 of 32 -- 8 words in the deed are given the same meaning as in the Sustainable Planning Act 2009 (Qld) (SPA), where the context permits. [41] The provisions at the centre of the interpretation issues are in clause 2. There, Zuri and Bluepoint recorded their agreement about Bluepoint’s due diligence, the giving of notices and their effect, the termination of the deed, and an easement permitting ingress and egress access over the Land from and to the East West Arterial Road. Clause 2 is considered in some detail below. [42] By clause 3, Zuri and Bluepoint agreed that the Buyer may make a development application. They also agreed the exercise of either option was not subject to the outcome of the Buyer’s development application. [43] By clause 4, they agreed that Zuri must prepare and lodge a subdivision to create a separate certificate of title for the Land; and Zuri must use reasonable endeavours to have it processed and approved. The Buyer could terminate the deed by notice, if by nine months after the Due Diligence Date (the Development Approval Date), a development approval had not issued for the subdivision on terms and conditions satisfactory to Zuri and taken effect pursuant to the SPA. Alternatively, the Buyer could extend the Development Approval Date by another three months. If the development approval was not issued and in effect by the extended date, the Buyer could terminate the deed. [44] In clause 5, Zuri and Bluepoint dealt with the grant and exercise of the Call Option. In clause 6, they dealt with the grant and exercise of the Put Option and with the consequences of exercise or non-exercise of the options.6 [45] In clause 7, Zuri and Bluepoint dealt with the security deposit, including its various instalments. [46] By clause 8, they provided that Bluepoint could nominate a party as purchaser by delivering a Nominee Notice to Zuri “at the time of exercising the Call Option”.7 [47] In clause 9, Zuri and Bluepoint provided for the Buyer and its consultants to have access to the Property until the Due Diligence Date, for the purpose of carrying out Due Diligence Investigations. [48] In clause 10, they dealt with default and its consequences. In clause 11 they set out the respective warranties of the Seller and the Buyer. In clause 12, they dealt with public announcements relating to the deed, and confidentiality of information. It will be necessary to return to the second topic. Clause 13 is concerned with GST. 6 Bluepoint or Nominee could exercise the Call Option “at any time during the Call Option Period”. The Call Option Period would begin to run from “9:00 am on the day immediately after the Conditions Precedent Date”. The Conditions Precedent Date is two business days after “the later of the Due Diligence Date and or the Development Approval Date”. The Due Diligence Date was 30 September 2017. The Development Approval Date was nine months from the Due Diligence Date. On 10 November 2017, when BPH purported to exercise the call option, it appears the Call Option Period had not commenced to run. 7 This was the only way Bluepoint could nominate a Nominee: clause 8.2. -- 8 of 32 -- 9 [49] In clause 14, Zuri and Bluepoint dealt with various matters, including agreeing that the deed and the attached contract for sale were the entire agreement between them in respect of their subject matter. [50] By clause 15, they agreed the Buyer must not lodge a caveat, but may lodge a settlement notice not earlier than three business days before the proposed settlement date in the contract. [51] There are four attachments to the deed: the Call Option Notice, the Put Option Notice, the Nominee Notice, and the contract. The contract included some special conditions. Special condition 1.2 provided that the contract was conditional on Zuri procuring registration of the subdivision plan and the issue of a separate certificate of title for the Land. [52] As the parties’ counsel observed in submissions, the deed contains several obvious typographic errors, such as references to the Property which should be read as references to the Land. None of these was in issue and none was significant for the determination of the plaintiffs’ claims. The due diligence clause [53] The relevant agreement of Zuri and Bluepoint that “the deed will be deemed to be terminated” is in clause 2.1(d) of the deed. Its immediate context is clause 2 of the deed, which is in these terms: “2. Conditions Precedent 2.1 Due Diligence (a) This deed is subject to and conditional on the Buyer being satisfied in its absolute discretion with its Due Diligence Investigations on or before the Due Diligence Date. (b) On or before 5pm on the Due Diligence Date, the Buyer must by notice in writing to the Seller advise the Seller whether the Buyer: (1) is satisfied with its Due Diligence Investigations; (2) is not satisfied with its Due Diligence Investigations; or (3) waives the benefit of this clause 2.1. (c) If the Buyer gives a notice to the Seller pursuant to clauses 2.1(b)(1) or (3), then this clause 2.1 will be deemed to be satisfied. (d) If the Buyer: (1) gives a notice to the Seller pursuant to clause 2.1(b)(2); or (2) does not give a notice pursuant to clause 2.1(b), -- 9 of 32 -- 10 by 5pm on the Due Diligence Date, then this clause 2.1 will be deemed to be not satisfied and this deed will be deemed to be terminated from 5pm on the earlier of: A. the date the Buyer gives a notice to the Seller pursuant to clause 2.1(b)(2); and B. the Due Diligence Date. (3) In which event the provisions of clause 2.2 will apply. (e) This clause 2.1 is for the benefit of the Buyer and only the Buyer may waive it. (f) For the purpose of clarity, if the Buyer gives the Seller notice that it is satisfied with its Due Diligence Investigations then both the Initial Security Deposit8 and the Second Security Deposit9 will be released to the Seller. 2.2 Termination of this deed If this deed is terminated under clause 2.1(d) then: (a) no party shall have any other Claim10 against another party arising under or in respect of this deed; and (b) each party retains the rights it has against the other in respect of any: (1) breach of this deed occurring before termination; or (2) obligations otherwise agreed under this deed to remain in full force and effect after termination of this deed. (c) the Seller will immediately consent to the Stakeholder refunding the Initial Security Deposit and Second Security Deposit to the Buyer without deduction. 2.3 Instrument of Easement (a) The Seller will prepare the Instrument of Easement and submit a draft to the Buyer within forty five (45) days from the date of this deed. (b) The Buyer, acting reasonably, will have fourteen (14) days to make any requests for amendments to that instrument. 8 “Initial Security Deposit” means $10,000 payable to the Stakeholder on the date of the deed. 9 “Second Security Deposit” means $40,000 payable to the Stakeholder within two business days of Zuri advising the Buyer that the Development Approval had taken effect pursuant to the SPA. 10 “Claim” is very broadly defined in the deed, including claims based in contract, tort, common law and under statute. -- 10 of 32 -- 11 (c) For the avoidance of doubt the agreed terms of the Instrument of Easement will form part of the Due Diligence Investigations.” [54] By clause 2.1(a), the parties agreed the deed was subject to this condition. In this, it was unlike the approval of the plan of subdivision, which triggered the start of the Call Option Period and so was, in effect, a condition precedent to the exercise of the Call Option. It was also unlike the issue of a separate certificate of title for the Land, which was a condition precedent to completion of the contract of sale attached to the deed. [55] Although broadly expressed, in the context of the specific provisions in the deed, clause 2.1(a) is not a true condition precedent to the deed. It does not affect the respective rights and obligations of Zuri and Bluepoint under the deed that accrue or are to be performed before 5pm on the Due Diligence Date. These are not deferred until the condition in clause 2.1(a) is fulfilled. These include: Zuri’s obligation to prepare the Instrument of Easement and submit a draft of it to the Buyer (clause 2.3(a)); the Buyer’s right to make any requests for amendments to the draft within 14 days (clause 2.3(b)); Bluepoint’s obligation to provide the Initial Security Deposit (clause 7.1(a)); the Buyer’s right to access the Property (clause 9.1(a)); Bluepoint’s obligation to act reasonably, not cause damage and not interfere with the quiet enjoyment of the Property when accessing it (clause 9.1(b)); and the mutual confidentiality obligations (clause 12). Nor are accrued rights lost if the condition is not fulfilled, as clause 2.2(b)(1) expressly preserves them. [56] By clause 2.1(b) the parties agreed that, by 5 pm on the Due Diligence Date, the Buyer was required to give written notice to Zuri advising whether it was satisfied or not satisfied with its due diligence investigations or that it waived the benefit of clause 2.1. This was a positive obligation of the Buyer. [57] For the plaintiffs it was submitted that: “The evident object of the Due Diligence provision was to enable [Bluepoint] to determine to its own satisfaction the feasibility of the “Project” before it (or its nominee) committed to the call option, or it subjected itself to the put option, under the Deed. The Due Diligence condition was satisfied by [Bluepoint] delivering a written notice of satisfaction or waiver.” [58] The plaintiffs also accepted that the Buyer “could expressly waive the benefit of the due diligence provision” and that “the provision conferred an unfettered discretion” on the Buyer. By including the waiver provision, the parties to the deed expressly contemplated that Bluepoint “might not, based on its own unfettered enquiries, reach the necessary degree of satisfaction, but nonetheless want to keep the Deed on foot.” [59] It was for the Buyer to decide whether to retain the right to exercise the call option at the cost of exposing itself to the risk that Zuri might exercise the put option.11 The Buyer was to make this decision by 5:00 pm on the Due Diligence Date, on the 11 In each instance the exercise of the option would be subject to its own conditions precedent. -- 11 of 32 -- 12 basis of the information it had found and assessments it had made by that time. Zuri and Bluepoint could agree to defer the Due Diligence Date from time to time, giving the Buyer further time to make this decision. It was for the Buyer alone to decide whether it was satisfied or would waive the benefit of the provision. [60] By clause 2.1(c), the parties agreed that if the Buyer gave notice that it was satisfied or that it waived the benefit of the clause, then the condition precedent to the deed “will be deemed to be satisfied.” A party who waives a contractual condition entirely for its benefit may sue or be sued on the contract as if the condition was no longer operative or had been fulfilled. To the extent there might have been any doubt about this, by clause 2.1(c), Zuri and Bluepoint removed it. [61] There is no provision in the deed that sets out any other means by which the condition in clause 2.1(a) could be satisfied. [62] In the examination of other agreements, it has been noted that the phrase “will be deemed” could either “create a fictitious situation”,12 or “state an indisputable conclusion.”13 The later sense, of introducing “a conclusive state of affairs” has been said to be “the natural meaning” of the word “deem.”14 [63] Neither in clause 2.1 nor elsewhere in the deed did Zuri and Bluepoint agree that this deemed state of affairs was provisional, in the sense that it was a presumption that might be disproved. In the deed, they gave no indication that a deemed state of affairs was not to survive in any particular situation. Nor was there anything in the surrounding circumstances that would ground such meanings. [64] Zuri and Bluepoint used the same expression in clause 6.3(a) to agree on the first consequence of the valid exercise of either option, namely: “the Seller and the Buyer (or a Nominee) are deemed to have entered into the Contract(s) as Seller and Buyer respectively.” [65] In the final sentence of clause 6.3(c), Zuri and Bluepoint offer further clarification of the deemed effect of the valid exercise of the option: “To avoid doubt, the Contract is formed and remains on foot irrespective of whether the parties execute and return an original of the Contract as required by this clause.” [66] Zuri and Bluepoint had agreed a different set of rights in clause 4(c). If Zuri did not obtain approval of the subdivision by the Development Approval Date, then “the Buyer may elect to extend” the time “or terminate this Deed by giving written notice to the Seller”. Similarly, in clause 4(d), following an election to extend, if the approval had not taken effect by the extended Development Approval Date, then, Zuri and Bluepoint had agreed, “the Buyer may terminate the Deed”. [67] The deeming provisions in clause 2.1(c) and (d) have an evident purpose. Each provides a fixed date and time by which the parties are to have certainty as to an 12 Muller v. Dalgety & Co Ltd (1909) 9 CLR 693, 696 (Griffiths CJ). 13 See: Abigroup Contractors Pty Ltd v ABB Services Pty Ltd [2004] NSWCA 181, [56] (Giles JA). 14 Starmark Enterprises Ltd v CPL Distribution Ltd [2002] Ch 306, 324 [77] (Arden LJ). -- 12 of 32 -- 13 important but entirely subjective matter, namely the satisfaction of the Buyer with its own investigations. The certainty arises by deeming the giving of a notice of satisfaction or a notice of waiver to satisfy the condition precedent and deeming the giving of a notice of non-satisfaction or the failure to give any notice by the specified time to be a failure to satisfy the condition precedent. By specifying the effect of each of the four possibilities, Zuri and Bluepoint sought to put beyond dispute whether the condition precedent is satisfied or not satisfied. In the former circumstance, they put beyond dispute that the deed has ceased to be conditional on the Buyer being so satisfied. In the later circumstance, they put beyond dispute that the deed is terminated. They did not leave a gap where the Buyer could do nothing and the deed continue, its fate uncertain. [68] This purpose – of providing certainty to the commercial parties – would be defeated if the deeming provisions were construed as not specifying indisputable conclusions. If Zuri might avoid being bound by proving that, in fact, the Buyer was not satisfied with its investigations when it gave a notice to that effect, the commercial certainty would be lost. Without the certainty found in the deeming provisions, Zuri might hold the Buyer to the deed, by proving it was satisfied with the same, notwithstanding that the Buyer gave a notice it was not satisfied. [69] As the plaintiffs submitted, it was for the Buyer to decide whether or not to retain its period of exclusivity beyond the Due Diligence Date. [70] Although clause 2.1(e) explains that clause 2.1 is for the benefit of the Buyer, which could waive it unilaterally, Zuri had an interest in knowing for how long its liability was to remain unresolved.15 The prospect of the call option effectively restricted Zuri from dealing with the whole of the Property.16 By clause 2.1, they agreed that, from the Due Diligence Date, Zuri would be relieved of any further restriction if, by then, the Buyer had not bound itself by giving a notice it was satisfied or by waiving the condition. [71] If the deeming provision in clause 2.1(d) did not operate in the same way when the Buyer fails to give a notice as when the Buyer does so, another consequence would be that the Buyer who fails to give a notice would be in breach of clause 2.1(b) of the deed. Such an outcome (and its consequences) is avoided by the expedient of deeming the Buyer to be not satisfied and the deed to be terminated. Even without deeming the deed to be terminated, the deemed “not satisfied” might be sufficient for the condition precedent in clause 2.1(a) to operate. [72] The intention of Zuri and Bluepoint, viewed objectively, based on the language they used in clause 2.1, the context in which those words were used, including the deed as a whole, and the purpose and object of the transaction to be effected by the deed, the deeming provisions in clause 2.1(d), would be understood by a reasonable businessperson in the position of Zuri and Bluepoint to render the deed relevantly 15 Gange v Sullivan (1966) 116 CLR 418, 443 (Windeyer J): Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537, 565 (Brennan J). 16 By the deed, Zuri and Bluepoint had agreed the development approval for the subdivision was to be obtained within nine months after the Due Diligence Date, so that Zuri did not have to obtain such approval unless Bluepoint was satisfied with its Due Diligence Investigations or had waived the due diligence condition. -- 13 of 32 -- 14 unconditional or terminated by the fixed time and date, depending on whether the Buyer gave a notice of a particular kind or failed to do so by the stipulated time. [73] Zuri and Bluepoint assigned the consequence of a failure to give a notice on or before the Due Diligence Date. The consequence is that “clause 2.1 will be deemed to be not satisfied and the deed will be deemed to be terminated from 5pm on … the Due Diligence Date.” There is no ambiguity. The expression carries its natural meaning, that of a conclusive state of affairs. It plainly provides that a failure on the part of the Buyer to give a notice required by clause 2.1(b) results in a failure to satisfy the condition precedent in clause 2.1(a) and the termination of the deed. [74] Clause 2.1(d) is not consistent with an intention that each of the Buyer and the Seller (or one of them) was to have an election as to whether or not the deemed result would occur. Zuri and Bluepoint ascribed great importance to the consequence of giving or not giving a notice by the stipulated time. The clear intention was to require strict adherence to the time stipulation. The election lay in the hands of the Buyer. No further step was required. The agreed timing of the termination “from 5pm” is also inconsistent with each of the parties having some time (after the stipulated time) in which to elect the result. The Suttor principle? [75] The plaintiffs sought to avoid the consequence of clause 2.1(d) applying in accordance with the settled approach to contractual interpretation. They did so on the basis of a “principle” attributed to the decision of the High Court in Suttor v Gundowda Pty Ltd.17 [76] In Suttor, the provision was relevantly, in these terms: “in the event of the consent of the Treasurer not being obtained within two months from the date hereof or within such further period as may be mutually agreed upon by the parties hereto, this contract shall be deemed to be cancelled …”18 [77] The contracting parties had agreed on an extension of time for the fulfilment of the condition, which would otherwise have been 20 December 1947. The High Court accepted there was evidence: “quite sufficient to prove an oral agreement prior to 20th December that the time for the Treasurer's consent should be extended for a reasonable period after that date.”19 [78] The Court also found that, after 20 December 1947, the parties: “treated the contract as still being on foot, and that the defendant had been informed that the consent would be obtainable within a very short time, and that he led them to believe that the contract would be completed by him”20 17 (1950) 81 CLR 418 (Latham CJ, Williams and Fullagar JJ). 18 421. 19 440. 20 425. -- 14 of 32 -- 15 and “the defendant was treating the contract as still on foot”.21 [79] The consent of the Treasurer was obtained on 5 January 1948.22 [80] The High Court found the agreement to extend the time for the Treasurer’s consent was the “first” answer to the contention of the appellant that the contract should be deemed to have cancelled on 20 December 1947.23 [81] In the present case, the plaintiffs rely on the High Court’s second answer to the appellant’s case in Suttor. In this part of the reasons, the High Court approved the analysis in New Zealand Shipping Co Ltd v Societe des Ateliers et Chantiers de France,24 quoting the following passage from Lord Atkinson’s speech: “It is undoubtedly competent for the two parties to a contract to stipulate by a clause in it that the contract shall be void upon the happening of an event over which neither of the parties shall have any control, cannot bring about, prevent or retard. For instance, they may stipulate that if rain should fall on the thirtieth day after the date of the contract, the contract should be void. Then if rain did fall on that day the contract would be put an end to by this event, whether the parties so desire or not. … But if the stipulation be that the contract shall be void on the happening of an event which one or either of them can by his own act or omission bring about, then the party, who by his own act or omission brings that event about, cannot be permitted either to insist upon the stipulation himself or to compel the other party, who is blameless, to insist upon it, because to permit the blameable party to do either would be to permit him to take advantage of his own wrong, in the one case directly, and in the other case indirectly in a roundabout way, but in either way putting an end to the contract.” 25 [82] The High Court then expressed the following as the “second” answer to the appellant’s contention: “Where the event in question is one which cannot occur without default on the part of one party to the contract, the position is clear. The provision is then construed as making the contract not void but voidable: only the party who is not in default can avoid it, and he may please himself whether he does so or not. In the present case the happening of the event (not obtaining the Treasurer’s consent) may be brought about by failure on the part of either party to take certain necessary steps (…) or it may be brought about without any default on the part of either party. In fact, although there was some argument to the contrary, it was, we think, brought about without any default on the part of either party. Such a case is perhaps not quite so clear as the simpler case where the event cannot occur without 21 442. 22 442. 23 440. 24 (1919) AC 1. 25 9. -- 15 of 32 -- 16 default on one side or the other. But we are of the opinion that the New Zealand Shipping Case requires the same construction to be given to the contract in both classes of case. The provision in question is to be construed as making the contract not void but voidable. The question of who may avoid it depends upon what happens. If one party has by his default brought about the happening of the event, the other party alone has the option of avoiding the contract. If the event has happened without default on either side, then either side may avoid the contract. But neither need do so, and, if one party having a right to avoid it does not clearly exercise that right the other party may enforce the contract against him.”26 [83] As the High Court noted, Lord Atkinson “may perhaps be regarded as expressing a different view” in the New Zealand Shipping Case. There, the two parties were “equally blameless.” As Lord Atkinson explained: “By the act or omission of neither has the event been brought about on the happening of which the contract was to become void. The principle that a man shall not take advantage of his own wrong does not apply, and the contract becomes null and void absolutely, as its words in their natural meaning provide that it should.”27 [84] Both Suttor and, as Lord Atkinson noted, New Zealand Shipping are specific instances of the broader principle that a party to a contract shall not be permitted to take advantage of its own wrong.28 There was no need to impinge upon the rules of contractual interpretation to apply the prevention principle. [85] The second answer in Suttor was followed in Gange v Sullivan [1966] 116 CLR 418. There, a contract for the sale of land was subject to the purchaser obtaining development approval for certain purposes. The relevant clause stated: “in the event of the said Council not granting such approval for the purpose aforesaid by the 31st day of May, 1965, then this Contract shall be deemed to be at an end and all moneys paid by the Purchaser to the Vendor shall be refunded but in the event of Council granting the approval aforesaid then the Purchaser will complete the Contract within twenty days of the granting of such consent.” [86] In Quinn Village Pty Ltd v Mulherin [2006] QCA 433, Cullinane J found a clause identical to that in Gange v Sullivan justified the trial judge construing the clause in accordance with that decision and Suttor.29 [87] In the present case, Zuri and Bluepoint agreed that the deed was conditional on the Buyer “being satisfied in its absolute discretion with its Due Diligence Investigations on or before the Due Diligence Date.” Such a condition is quite unlike “an event over which neither of the parties shall have any control, cannot bring about, prevent or retard”, to which Lord Atkinson referred. 26 (1950) 81 CLR 418, 441. 27 (1919) AC 1, 10, 11. 28 See: Donaldson v Bexton [2007] 1 Qd R 525, 536 [28] (Keane JA). 29 [2006] QCA 433, [51] (Cullinane J; McMurdo P at [1] and Holmes JA at [2] agreeing). -- 16 of 32 -- 17 [88] If the approach in the second answer in Suttor were applied here, it would be for Zuri to terminate or affirm the deed. However, Zuri and Bluepoint agreed that the Buyer could bring the deed to an end at its own discretion. So, the second answer in Suttor would produce a result contrary to the clear intention of the parties and the settled principles of contractual interpretation. [89] As Jackson J observed in Principal Properties Pty Ltd v Brisbane Broncos Leagues Club Limited:30 “[78] The application of the principle in the context of the failure of contingent conditions has been closely analysed in a number of recent cases at intermediate appellate court level in Australia. In particular, the question has been considered in Rudi’s Enterprises Pty Ltd v Jay,31 MK & JA Roche Pty Ltd v Metro Edgely Pty Ltd32 and Ruthol Pty Ltd v Tricon (Australia) Pty Ltd.33 [79] In my view, the principle to be adopted in this context was succinctly expressed by Hodgson JA in MK & JA Roche as follows: ‘Thus, as asserted in Rudi’s Enterprises, where the parties have clearly stipulated for automatic termination upon the occurrence of an event which could occur either without the default of either party or with the default of one or other party, and if the event occurs through the default of one party, then, although in general terms this would mean automatic termination, the party whose default caused the event can be prevented from taking advantage of this by direct application of the principle that a party cannot take advantage of its own wrong, rather than through construing the contract contrary to its clear meaning.’” [90] The same approach was followed by the Full Court of the Federal Court in Perovich v Whitton (No 2) (2016) 250 FCR 272.34 As Siopis, Gleeson and Edelman JJ explained: “[62] In other words, the authorities relied upon by the debtors do not establish an incontrovertible rule of law which applies despite the words of the contract and despite the context in which those words appear. The underlying principle is naturally subject to clear and unambiguous words and context to the contrary. In Rudi’s Enterprises Pty Ltd v Jay (1987) 10 NSWLR 568 at 579, Samuels JA (Priestley and McHugh JJA agreeing) said: 30 (2014) 2 Qd R 132, 146. These observations were not the subject of challenge on appeal in (2018) 2 Qd R 584. 31 (1987) 10 NSWLR 568, 576–580 (Samuels JA; Priestly and McHugh JJA agreeing). 32 [2005] NSWCA 39, [44]-[47] (Hodgson JA; Beazley P and Ipp JA agreeing). 33 [2006] NSW ConvR 56-145, [19]-[25] (Giles JA; Santow JA and Hunt AJA agreeing). 34 282-285 [58] – [67] (Siopis, Gleeson and Edelman JJ). -- 17 of 32 -- 18 I cannot think that the Court in Suttor intended to lay down the proposition that parties could not stipulate for automatic termination of a contract save upon the occurrence of an event which, objectively, lay beyond their control. Effect must be conceded to the parties’ intention. [63] Again, in MK & JA Roche Pty Ltd v Metro Edgley Pty Ltd [2005] NSWCA 39 at [44] Hodgson JA (Beazley and Ipp JJA agreeing) said that the passage in Suttor could be read as setting out a principle of law rather than a mere guide to construction, but to so read it would in my opinion be against very well-established principles concerning the construction of contracts, including the principle that, if words used in a contract are unambiguous, the Court must give effect to them: Australian Broadcasting Commission v. Australasian Performing Rights Association (1973) 129 CLR 99 at 109.” [91] I respectfully adopt the analysis of Jackson J in Principal Properties and of the Full Court in Perovich v Whitton (No 2). [92] It follows that Suttor should not be considered as an exception to the settled approach to contractual interpretation. If an issue arises as to a party taking advantage of its own wrong, it is to be dealt with according to principle. It is neither necessary nor appropriate to vary the proper construction of the contract for that purpose. In short, the decision in Suttor establishes no principle that governs the proper interpretation of commercial agreements, such as that in clause 2.1(d) of the deed. To the extent is may have been applied as such in the past, that approach has not survived the High Court’s articulation of now settled interpretation principles summarised at [38] above. [93] At the trial, the plaintiffs advanced their claims in reliance on the alleged Suttor principle as a rule of contractual interpretation. On their case it was not necessary to prove that Zuri had or was taking advantage of its own wrong. They did not do so. [94] For the reasons set out above, on its proper construction clause 2.1(d) of the deed brought about the termination of the deed with prospective effect if the Buyer failed to give a notice required by clause 2.1(b) by the stipulated time. The plaintiffs’ alternative construction is rejected. The prevention principle [95] As noted above, the prevention principle holds that a party to a contract is not permitted to take advantage of its own breach of duty owed to the other party under the contract.35 In their pleadings, the plaintiffs alleged that Bluepoint was prevented from giving a clause 2.1(b) notice by Zuri’s conduct in failing to give Bluepoint a draft Instrument of Easement in accordance with clause 2.3 of the deed. 35 Cheall v Association of Professional Executive Clerical and Computer Staff [1983] 2 AC 180, 189 (Lord Diplock). -- 18 of 32 -- 19 [96] By clause 2.3(c), Zuri and Bluepoint had agreed that the terms of the easement were part of Bluepoint’s Due Diligence Investigations. If Zuri had prevented Bluepoint from giving a notice under clause 2.1(b), then it would be an instance where the prevention principle might operate in the way explained by the authorities at [89] and [90] above. This would be consistent with Lord Atkinson formulation: “The application to contracts such as these of the principle that a man shall not be permitted to take advantage of his own wrong thus necessarily leaves to the blameless party an option whether he will or will not insist on the stipulation that the contract shall be void on the happening of the named event. To deprive him of that option would be but to effectuate the purpose of the blameable party. When this option is left to the blameless party, it is said that the contract is voidable, but that is only another way of saying that the blameable party cannot himself have the contract made void, cannot force the other party to do so, and cannot deprive the latter of his right to do so.”36 [97] Zuri accepted that it failed to give Bluepoint the draft Instrument of Easement within the 45 days agreed in clause 2.3(a), which expired on about 19 February 2017. Each of the extensions to the Due Diligence Date was agreed after this breach occurred and while it continued. [98] On 15 September 2017, Zuri’s solicitors provided the draft Instrument of Easement to Bluepoint’s solicitors. This was 15 days before the Due Diligence Date, and 18 days before Bluepoint was required to give a notice under clause 2.1(b) of the deed. Bluepoint raised no objection to its late provision. [99] On 19 September 2017, by its solicitors, Bluepoint responded to the draft. On 21 September 2017, the easement was discussed between the solicitors, and Zuri’s solicitors provided a further draft to Bluepoint’s solicitors. Bluepoint sought no further changes to this draft. The two Bluepoint directors who gave evidence at the trial said they were satisfied with the terms of the instrument of easement sent on 21 September 2017. This was consistent with the evidence of Mr Bates, the real estate agent, who said Mr Dore told him on 21 September 2017 that Bluepoint was satisfied with the size and location of the easement and prepared to take the risk that DTMR would approve it and “go unconditional” on the transaction. This was nine days before the Due Diligence Date and 12 days before Bluepoint was required to give a notice. [100] On 6 October 2017, when Bluepoint’s solicitors gave notice it was satisfied with its Due Diligence Investigations, they explained Bluepoint had been unable to complete those investigations “until your client had finalised the plan” lodged with the BCC on 22 September 2017. This was the plan of subdivision. Zuri had produced several draft plans before this date. These varied in the area of the Land and the location of the easement (or easements). None was contrary to the deed. Zuri was not in breach due to the date of this “finalised” plan. As noted above, the deed did not require development approval for the subdivision until nine months after the Due Diligence Date. 36 (1919) AC 1, 9. -- 19 of 32 -- 20 [101] Appropriately in the circumstances, at the conclusion of the trial, the plaintiffs did not press their prevention case against Zuri. Election by Zuri to terminate the deed [102] If the proper construction of clause 2.1(d) advanced by plaintiffs were correct, then Bluepoint’s failure to give a notice by 5:00 pm on 3 October 2017 rendered the deed voidable at the election of either party.37 Where such a construction has been found, the election to avoid the contract can be effected without notice by any party not in breach.38 [103] On 6 October 2017, at about 12:21 pm, the real estate agent, Mr Bates, told Mr Dore that Zuri “would not proceed with the Deed.” He was passing on a message from Mr Irvine of Zuri. As well, Mr Bates forwarded to Mr Dore an email he had received from Mr Irvine: “In regards to the offer from Bluepoint Properties, a decision has been made not to grant any extension on the terms that were offered and agreed on in early September” … We will not be moving forward with the start of Bluepoint at this stage. In order to remove uncertainty, we may choose to lodge our own DA. Any further negotiations are now at an end. However, as circumstances change, we will be happy to advise you accordingly.” [104] Mr Dore, in turn, sent Mr Irvine’s email on to his fellow Bluepoint director, Mr Whitcombe that day. [105] The same day, Mr Dore wrote directly to Mr Irvine, “Earlier today Aaron [Bates] from JLL informed me you want to terminate our agreement.” [106] This sentiment that made its way into the solicitors’ letter sent at about 4:20pm the same day: “We are instructed by our client that your client has indicated to the agent a desire to terminate the option. We would submit of course that there is no ability on your client’s behalf to do so because of what transpired with your client’s development application and the extensions of time agreed to along the way. Notably, our client has to date been unable to complete its diligence until your client had finalised the plan that your client intended for the land, which we are advised was only lodged with the Brisbane City Council on 22 September 2017, with notification of receipt on 37 Noting that the plaintiffs did not press a case that Zuri had prevented or interfered with Bluepoint giving a notice under clause 2.1(b). 38 See: Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39, [13] (McLure P), citing Gange v Sullivan (1966) 116 CLR 418; Sandra Investments Pty Ltd v Booth (1983) 153 CLR 153; and Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537. -- 20 of 32 -- 21 27 September 2017. Your client failed to give us notice of that lodgement, but a copy of the plan (attached) has been obtained from the Council website. Having obtained that plan, we now give notice pursuant to clause 2.1(b) of the Option Deed that our client is satisfied with its Due Diligence Investigations. We await your notice that the Development Approval has taken effect as is set out in clause 4(b) of the Option Deed.” [107] As Mr Irvine stated in his email, Zuri had merely decided not to grant any further extension to the Due Diligence Date. It is possible Zuri’s desire to communicate this decision was a response to Mr Dore’s email to Mr Bates of 8:35 am on 3 October 2017, to the effect that if the settlement date was not agreed and the replacement contract was not signed that day, Bluepoint would “need more time”. See [128] below. [108] I reject the plaintiffs’ submission, based on Mr Dore’s evidence, that these communications passing between him and Mr Irvine (through the agency of Mr Bates) on 3 and 6 October 2017 concerned only the replacement contract. The communications from Zuri were plainly about the deed. At the time, Mr Dore understood them to be so. His own contemporaneous communications and his instructions to Bluepoint’s solicitors confirm this. [109] In cross-examination, Mr Dore accepted that he understood from Mr Irvine’s forwarded email that Zuri was not proceeding with the sale to Bluepoint. As he put it, “we had been told we were terminated.” He also said, “We could not believe that we had been terminated” and he understood, “We had already been terminated.” These admissions were made frankly. I accept them as truthful. [110] The evidence establishes that on 6 October 2017, Zuri clearly and unequivocally indicated to Bluepoint that it was treating the deed as being at an end, because Bluepoint had not given a notice pursuant to clause 2.1(b) by the stipulated time, and no extension of the Due Diligence Date had been agreed. [111] If Zuri had to elect to avoid or terminate the deed, then its conduct at about 12:21 pm on 6 October 2017, objectively considered, was such an election. It was consistent with the deed having been terminated. It was justifiable only on that basis. It made manifest Zuri’s position that it intended no longer to be bound by the deed. [112] There were additional later acts by Zuri to the same effect. (a) On Monday 9 October 2017, at about 5:15pm, the solicitors for Zuri responded to the email of 6 October 2017 from the solicitors for Bluepoint. The response included the following: “Your correspondence below purports to provide notice pursuant to clause 2.1(b) of the Put and Call Option Deed, dated 5 January 2017 (’the Deed’). To the extent that our correspondence of 13 September 2017 reflects an extension of the Due Diligence Date, then the latest -- 21 of 32 -- 22 possible date for notice to have been given under clause 2.1(b) would have been 28 September 2017. Your client has not requested, nor has our client agreed to, an extension of the Due Diligence Date beyond that date set out in our correspondence of 13 September 2017. We also note that there has been no intention on our client’s behalf to terminate the contract. Rather, clause 2.1(d) contains a clear, self-executing mechanism which has operated to cause the Deed to come to an end. We note further that the operation of the Due Diligence clause is in no way linked to the operation of clause 4 of the Deed. Accordingly, we note that your client did not give notice pursuant to clause 2.1(b) by 5:00pm on the Due Diligence Date, and pursuant to clause 2.1(d), the Deed is deemed to be terminated. In order that the Initial Security Deposit can be returned to your client, please advise your client’s preferred bank account details and we will arrange for that to be deposited into that account. Alternatively, we will arrange for a cheque payable to your client, to be delivered to your office.” (b) From about 9 October 2017, Zuri commenced negotiations with potential lessees of service station and fast-food premises to be developed on the Land. (c) On 20 November 2017, Zuri returned to Bluepoint the signed nominee notice, call option notice, and contract, and the accompanying cheques, which had been served on 10 November 2017, in purported exercise of the rights to nominate BPH and exercise the call option. (d) On 23 November 2017, the plaintiffs commenced this proceeding. On 21 December 2017, Zuri filed a defence asserting that the deed had terminated, in accordance with its terms, on 3 October 2017. (e) On 17 July 2020, Zuri sold the Land to APM Investments Pty Ltd. [113] On this alternative construction of clause 2.1(d), Zuri’s right to terminate the deed would not have been lost by any act of Zuri affirming the deed, as the vendor had done in Suttor. Bluepoint’s notice of 6 October 2017 would not have affected Zuri’s right to terminate.39 Estoppel [114] The plaintiffs also advanced a case that Zuri was estopped from treating the deed as having come to an end on the failure of Bluepoint to give a notice by 5 pm on the Due Diligence Date. They alleged Zuri had impliedly represented to Bluepoint that the deed would not terminate if Bluepoint did not give a notice by the stipulated 39 See: Donaldson v Bexton (2007) 1 Qd R 525, 532 [20]-533 [22] (Keane JA) and his Honour’s more detailed consideration of the authorities at 533 [24]–547 [54]. -- 22 of 32 -- 23 time.40 The plaintiffs alleged Bluepoint had relied on this implied representation in not giving a notice within time. They alleged it would be unconscionable for Zuri to assert that the deed had terminated, in all the circumstances. [115] The start of this part of the plaintiffs’ case is described in this way in their Counsels’ closing submissions: “Beginning in early August 2017, Zuri had extended the Due Diligence Date on the express basis that the extension would enable a meeting with DTMR to occur, [Bluepoint] would then ‘advise that it wants to pursue the purchase’ and then enter into a contract which did not have a Due Diligence clause.” [116] The “contract” had been the subject of exchanges between Zuri and Bluepoint since about 4 May 2017. It was proposed as a replacement for the contract of sale attached to the deed. As Bluepoint noted on 9 August 2017, the deed continued to bind the parties until at least the Due Diligence Date. If the parties executed and exchanged a replacement contract, then Bluepoint would have a direct path to purchase the Land, without the need for the Call Option. However, without the option in the deed, Bluepoint would be bound to complete the purchase, subject to the terms of the replacement contract and the events that might come to pass. [117] On 13 September 2017, after Bluepoint’s second pre-lodgement meeting with DTMR, Zuri’s solicitors wrote to Bluepoint’s solicitors: “First we understand the meeting with DTMR has been held and that your client wants to proceed. We understand your client is going on leave and we have received instructions to submit to you the following: 1. Contract of Sale. 2. Special Conditions. Please seek your client’s instructions and advise any amendments. We make the usual reservation in relation to any further changes our client may wish to make to these documents. Our instructions are that the Due Diligence Date is fixed at 29 September 2017. Subject to what transpires and when your client wants to exchange you can insert a short due diligence clause provided the date is fixed. In respect of our client’s minor approval application for the plan, that application is being lodged by Friday 15 September 2017. In respect of the DTMR section 33 approval we understand that is to be expected within the week. We look forward to hearing from you.” 40 This was also put in other ways, including that Zuri had represented that it was not necessary for Bluepoint to give a notice to keep the option to purchase “alive”. -- 23 of 32 -- 24 [118] The enclosed contract was a standard REIQ/QLS Contract for the Sale of Commercial Land and Buildings. The special conditions were the main subject of interest. [119] The parties exchanged communications about the special conditions and the date for completion (or “settlement”) of the contract. The latter seems to have been a particular point of contention, with Zuri seeking completion in 2017, and Bluepoint wanting to “push it back” to 29 June 2018, in version of the new contract sent on 19 September 2017. [120] On 21 September 2017, there were several email exchanges between Bluepoint’s solicitor Mr Boston and Mr Baynes of Zuri’s solicitors. (a) At 12:48 pm, Mr Boston informed Mr Baynes: “I’ve spoken to Marcus Dore following our conversation this morning. The big issue is because of the delay in the approvals and plan, my client’s path to getting an approval now is much more difficult since the legislation changed. That’s why they need time. Marcus said JLL41 spoke to Balfour42 this morning regarding the settlement date and he is going to get back to them. We’ll wait for that. In the meantime, can you confirm your client is in agreement with the other matters we raised?” (b) At 2:13 pm, Mr Baynes advised Mr Boston that: “The latest date I have been given is not before 31 December 2017 … If that is okay I am about to return the documents. I think we are close.” (c) At 3:00 pm that same day, Mr Boston sent an email to Mr Baynes attaching three documents. His covering email stated: “Special Conditions The final tracked changes are attached for the Special Conditions. I have left some balloon comments from my client as I believe they explain matters in more detail. … The DTMR Approval Section 33 of the [TIA] has been obtained. I have also attached the letter from the Department of 15 September 2017 which confirms the approval. … 41 This is a reference to the real estate agent Mr Bates. 42 This is a reference to Balfour Irvine, a director Zuri. -- 24 of 32 -- 25 In relation to the Minor Change Approval this application was lodged with BCC on 18 September 2017. We will keep you advised of updates. Easement This document is attached with our client’s comments. … We look forward to hearing from you so we can issue the Contract for execution. We will exchange on the basis that your client confirms that it is satisfied with its due diligence.” [121] This last communication conveyed Zuri’s “final” position on the special conditions for the replacement contract, including a varied settlement date of 31 January 2018. Zuri did not alter its position after that time. [122] On Monday 25 September 2017, the parent company of Bluepoint (BMI) held a management meeting and discussed the sale by Zuri to Bluepoint. The minutes noted that Bluepoint’s due diligence was due on Thursday 28 September 2017.43 [123] On Wednesday 27 September 2017: (a) Zuri’s solicitor Mr Baynes wrote again to Mr Boston: “Just thought I would see if there is any progress on your end. I am going on leave this evening.” (b) Mr Boston replied: “I’m told they have been further discussing via the agent and Balfour is mulling over it.” [124] On Friday 29 September 2017, Mr Dore of Bluepoint told the real estate agent Mr Bates that Bluepoint “can probably live with an April [2018] settlement” for the proposed new contract. In submissions, Bluepoint described this as putting “a compromise position to Zuri”. It was a gesture in the on-going negotiation. It was not a statement of a firm position. It was merely an indication of a probable basis of compromise. [125] For the plaintiffs, it was submitted that the communications passing between the parties between 13 and 29 September 2018 conveyed to Bluepoint “that the only outstanding issue between the parties on the replacement contract was the settlement date.” Whether this is an accurate analysis of the communications is not determinative. The parties knew they had not reached any binding agreement – other than the deed. [126] With considerable experience in such transactions, and with experienced solicitors acting on each side, the parties were aware that the various things that had been 43 During September 2017, both parties referred to 28 September 2017 or to 29 September 2017 as the extended Due Diligence Date. It was not until closer to the trial that, on careful examination of the contemporaneous documents, all parties concluded that the agreed extended date was 30 September 2017. -- 25 of 32 -- 26 “agreed” in September correspondence were merely steps in a negotiation. No such partial “agreement” was legally enforceable. There would be no binding agreement until a written contract was signed and exchanged between them. [127] Zuri and Bluepoint had agreed to extend the Due Diligence Date to 30 September 2017. They could have agreed to extend the date once again. They did not. [128] Tuesday 3 October 2017 was the day Bluepoint was obliged to give a notice pursuant to clause 2.1(b) of the deed. At about 8:35 am that day, Mr Dore sent an email to Mr Bates, the real estate agent: “We’re in a holding pattern again and need this one wrapped up today, otherwise we’ll need more time.” [129] Mr Dore does not seem to have raised the topic of “more time” until the morning of 3 October 2017. In the context of their relationship, this is not surprising. Earlier extensions had been sought and agreed on the Due Diligence Date, e.g. on 22 May, 21 June, 21 July and on 1 September 2017. [130] This part of the 3 October email, the BMI management committee minutes and Bluepoint’s earlier care to see that the Due Diligence Date was extended, lead me to accept the plaintiffs’ submission that it is unlikely Bluepoint “merely forgot about the Due Diligence Date.” Bluepoint had not forgotten. [131] In the absence of an agreed extension, Bluepoint had until 5:00 pm on 3 October 2017 to act. To retain its future rights under the deed Bluepoint had to give a notice of satisfaction or waiver. Alternatively, it could end the deed by giving a notice it was not satisfied or by failing to give any notice, with the result it would lose those rights. [132] Bluepoint’s rights included, relevantly, a right to require Zuri to use reasonable endeavours to have a plan of subdivision processed and approved, creating the Land as a separate lot with its own title, and, if a separate title issued, a right to exercise the Call Option and so require Zuri to sell the Land to it (or its nominee) on the terms set out in the contract attached to the deed. [133] As noted above, on 21 September 2017, Zuri’s solicitors had advised Bluepoint’s solicitors that “We will exchange on the basis that your client confirms that it is satisfied with its due diligence.” As the plaintiffs put their estoppel case, this communication “effectively did away with the need to give a Due Diligence Notice by the Due Diligence Date”. [134] Having considered the communications between the parties put into evidence and the evidence of the witnesses called at the trial, I am not persuaded that Zuri represented to Bluepoint that it was unnecessary for Bluepoint to provide a notice in accordance with clause 2.1(b) of the deed. The communications of 21 September 2017 do not convey such a representation. On the contrary, Zuri raised the topic of Bluepoint being satisfied with its due diligence. It required notice that Bluepoint was satisfied as a condition of the exchange of a replacement contract. The effect alleged by the plaintiffs is contrary to the natural meaning conveyed by the words. Even if, with the application of wishful thinking, the communications could be moved from that meaning, they would be ambiguous. In the context in which they -- 26 of 32 -- 27 occurred, the emails passing between the respective solicitors would not convey to a person in the position of the directors of Bluepoint a clear, unambiguous representation to the effect the plaintiffs allege. [135] The plaintiffs’ estoppel case is not aided by the evidence of the two Bluepoint directors. Mr Whitcombe did not rely on the September 2017 emails (or the parts of them important for the estoppel case). He was interested only in the attached documents. In particular, he was interested in the special conditions and the settlement date for the proposed replacement contract. Somewhat incredibly, Mr Dore said the Due Diligence Date was not on his mind, nor was the deed, at this time. He said he thought: “I was required to resolve the outstanding matters on the [replacement] contract, execute and be given executable versions of both the easement and the contract by signing and returning them was my acknowledgment that I was satisfied with my due diligence.” [136] If that is what he thought, he did not do it. He did not resolve the outstanding issue of the settlement date. He did not execute the easement or the replacement contract. He did nothing at all to notify Zuri that Bluepoint was satisfied with its Due Diligence Investigations. [137] In prepared evidence, the Bluepoint directors said they would have given a notice to Zuri within time, if they thought they needed to do so. That was not the position Bluepoint put, by their solicitors, on 6 October 2017, much closer to the material time. [138] Having seen each director give evidence, I am satisfied that each expected Zuri to agree to altered terms with Bluepoint for the replacement contract, including a later settlement date. Their experience, in the negotiations for other like projects and their experience with Zuri over the life of this negotiation, led them to assess as low the risk that Zuri would walk away from the deal. They were astonished when Zuri did not return to the negotiation and instead insisted that the deed had been terminated. Their recollections were affected by this profound surprise. [139] When the plaintiffs’ claim was first formally advanced, there was no estoppel case and no reference to the communications on which that case was advanced at the trial. It was first made in the fourth amended statement of claim, filed on 17 June 2019, in reliance on the 13 September 2017 letter alone. The 21 September 2017 communication, which has such a prominent role in the estoppel case pressed at trial, did not find its way into the pleaded case until the 11 May 2020. By the trial, nearly four years had passed since the events in question. Over time, the estoppel claim has increased in importance to the plaintiffs. It had plainly affected the recollections of the two directors who gave evidence. [140] Considering the evidence as a whole, giving due weight to the contemporaneous and near contemporaneous records, I find the plaintiffs have failed to prove it to be more likely than not that Bluepoint relied on the alleged implied representation and was induced by it not to give a notice on or before the Due Diligence Date or by 5:00pm on 3 October 2017. -- 27 of 32 -- 28 [141] There is no evidence from which I could conclude that Zuri, though any of its human agents, knew or intended Bluepoint to act or refrain from acting in reliance on the September communications as a representation that the deed would not terminate if Bluepoint failed to give a notice required by clause 2.1(b) on or by the Due Diligence Date. [142] The plaintiffs’ estoppel case fails. Zuri is entitled to rely on the failure of Bluepoint to give a notice by the stipulated time and to assert that the deed terminated in accordance with its terms or, in the alternative, that Zuri elected to terminate it, following Bluepoint’s failure to give a notice. Damages claimed by the plaintiffs [143] The plaintiffs claimed damages for breach of the deed. The primary damages were said to be the loss of a valuable commercial opportunity to develop the Land at a profit. The parties agree that such claims are based on the principles laid down by the High Court in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 and Badenach v Calvert (2016) 257 CLR 440. [144] I have concluded that Zuri’s insistence that the deed was terminated was not a breach or repudiation of the deed. The plaintiffs have no entitlement to such damages. [145] The plaintiffs’ case is that they would have developed it as a service station, food and drink premises with some other retail uses. [146] Evidence was led by the plaintiffs and the defendants about the value of the opportunity the plaintiffs’ claimed to have lost. Principally, this was expert valuation evidence. It is convenient to deal with this evidence briefly. [147] The evidence adduced on both sides was to the effect that the Land could have been developed at a profit. The contest was about the quantum of the likely profit. [148] The plaintiffs relied on the opinion of Mr Crawford. He valued the Land, if developed in accordance with three of the plans contemplated by the plaintiffs from time to time at between $12.2 million and $12.6 million. He assessed the profit the plaintiffs would have made at between $5.2 million and $5.5 million. [149] The defendants relied on Mr Schultz. He valued the Land on the same development scenarios as Mr Crawford. However, he concluded the developed value would be between $11.1 million and $11.7 million. He assessed the profit the plaintiffs would have made at between $3.9 million and $4.3 million. [150] The valuers agreed that the appropriate method for valuing the Land (as developed) was by using a capitalisation rate of 5.75 %. [151] The differences between the parties may be summarised and resolved in this way. (a) Mr Crawford assumed that if the plaintiffs had developed the Land, they would have secured a tenant for the food and drink tenancy on terms like those the plaintiffs had been negotiating with Starbucks, before the termination of the deed. The evidence for the Queensland Property Manager of Starbucks, Mr Smith, was that Starbucks had decided it would not be -- 28 of 32 -- 29 proceeding with the site. Mr Shultz had adopted the terms Zuri had secured for a smaller area. In cross-examination, Mr Schultz expressed the opinion that the annual market rent for the food and drink tenancy was about $115,000. This was a little above the rent Zuri had agreed with its tenant, Zarraffa’s Coffee. In their closing submissions, the plaintiffs accepted that the court should accept Mr Schultz’s opinion of the market rental as the likely rental return on the tenancy, if developed by the plaintiffs. I accept that submission. (b) Mr Crawford adopted a more conservative market rental for the small shop tenancies the plaintiffs intended to develop on the Land, than Mr Schultz. The plaintiffs led no evidence that they had identified any retail tenants. I accept Mr Crawford’s assessment of the market rental as the likely rental return on the tenancy, had it been developed by the plaintiffs. (c) Mr Crawford assumed the plaintiffs would have sought approval and developed the Land in accordance with revision I of their plan. Mr Shultz assumed the plaintiffs’ development would have been in accordance with revision D(2). Had the plaintiffs been able to proceed with the development of the Land, it is likely they would have considered the comments made by DTMR at the second pre-lodgement meeting and more closely considered their plan and adapted it to achieve the highest likely return on their investment. I accept the plaintiffs’ submission that they would likely have developed the Land in accordance with revision I or J of their plan. (d) Mr Crawford assumed the vendor’s works (to be completed by Zuri) would have been completed three weeks earlier than Mr Schultz assumed. Mr Crawford’s assumption was based upon the time Zuri took to develop the Land. The plaintiffs submitted that the evidence of Mr Stokes, under cross- examination, did not support Zuri’s submission that an extra three weeks should be allowed for vendor’s works. I accept that submission. The time Zuri took to complete the relevant works is an appropriate measure of the likely time in which those works would have been completed, had the plaintiffs proceeded with the development of the Land. (e) Mr Crawford assumed Zuri would have granted the plaintiffs an additional easement to allow the plaintiffs to develop the Land in accordance with revision I of their plan. Mr Schultz did not. Zuri, as the owner of the Property, granted the additional easement to facilitate its own development of the Land and the balance of the Property. The defendants called no evidence of the attitude of the director of Zuri on this point. Little appears to turn on this point. Both Mr Crawford and Mr Schultz express the opinion that the value of the Land as if developed in accordance with revision I is very similar as if developed in accordance with revision J; and that the profit the plaintiffs would likely have made in developing the Land under each revision would be about the same. On balance, I accept the plaintiffs’ submission that Zuri would likely have agreed to grant the same additional easement as it did, if the plaintiffs had proceeded with their proposed development t of the Land. This would have facilitated a development in accordance with revision I, but it makes no difference to the value of the opportunity the plaintiffs contend they lost. -- 29 of 32 -- 30 (f) The defendants also submitted that the plaintiffs’ timeline for completion of their proposed development was unrealistic, because they would not likely have identified and secured a tenant for the food and drink premises by October 2017. I accept this submission. It is likely the plaintiffs would have taken as long as Zuri did to identify such a tenant, namely 15 months. (g) The defendants submit that the plaintiffs would not have been able to finance their proposed development of the Land in the manner they allege. As both valuers conclude the development would have been profitable, I find it was likely the development would have been financed from the BMI group’s usual funding sources, being Mr Lindsay and the ANZ Bank. [152] Taking these matters in account, the opportunity the plaintiffs allege they lost was the chance of making a profit of about $5 million, allowing for the contingencies associated with the commercial development of vacant land. Duty of confidentiality [153] The plaintiffs have another damages claim for breach of a duty of confidentiality under the deed and in equity. The claim is expressed to be against both Zuri and Boardwalk. BPH and Boardwalk were not parties to the deed. Neither could have a claim for breach of it. [154] By clause 12.2 of the deed, Zuri and Bluepoint agreed that: “Each party (recipient) shall keep secret and confidential, and shall not divulge or disclose any information relating to another party or its business (which is disclosed to the recipient by the other party, its representatives or advisers) or this deed” [155] The clause exempted the disclosure in five circumstances. The first was “to the extent that:” “the information is in the public domain as at the date of this deed (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on the recipient);” [156] The second was where disclosure is required by law or by a stock exchange. [157] The third was to the extent that: “the disclosure is made by the recipient to its financiers or lawyers, accountants, investment bankers, consultants or other professional advisers (including directors, partners, officers and employees of its advisers) to the extent necessary to enable the recipient to properly perform its obligations under this deed or to conduct their business generally, in which case the recipient shall take reasonable steps to ensure that such persons keep the information secret and confidential and do not divulge or disclose the information to any other person;” [158] The fourth was disclosure required for use in legal proceedings about the deed or the sale of the Property. The fifth was with the prior written consent of the non- disclosing party. -- 30 of 32 -- 31 [159] The plaintiffs seek an equitable remedy granted where a party has used confidential information as “a springboard” to place itself in a better position that it could have achieved from its own skill and ingenuity. The use must be in breach of either a contractual or an equitable duty of confidentiality. This is commonly referred to as the springboard doctrine. They submit the appropriate measure of damages is the amount necessary to make the wrongdoer: “accountable to the person who was the original source of the information – but only to the extent by which he has gained an advantage by virtue of having had information in advance of the general public...the advantage is unfairly gained can be measured in terms of time saved and, thence, in terms of money.” [160] The plaintiffs’ case is an inferential one. It begins with evidence that the following information was provided to Zuri: (a) Mr Dore’s statement to Mr Irvine on 8 December 2016 that proposed Lot 1 was suitable for a service station and fast-food development; (b) Bluepoint’s draft subdivision plan sent to Zuri on 16 December 2016; (c) Bluepoint’s architectural plans provided to Zuri on 20 February 2017; (d) A sketch by Bluepoint’s traffic engineer shown to Zuri’s traffic engineer on 27 July 2017; (e) The second pre-lodgement between Bluepoint and DTMR on 11 September 2017; (f) The identity of Bluepoint’s prospective tenants for the premises to be developed on the Land; and (g) Bluepoint’s prospective consultants for the development. [161] The plaintiffs did not show the information at paragraphs (a), (f) and (g) above to be secret or confidential or to have the necessary quality of confidence to make good a claim of breach of duty of confidentiality. [162] The plans at (b) and (c) above and in the sketch at (d) above each contain much information, as such documents commonly do. As the defendants submitted, the plaintiffs did not identify the information in each that they contend was secret or confidential or had the necessary quality of confidentiality. The documents identified in each of these items comprise information about the Property and the Land that was known to Zuri and could be obtained from public domain sources, including the dimensions of the Property and the Land, their location, the DTMR approved access, and the surrounding land and road corridors. The internal roadways proposed by Zuri were, of course, known to Zuri. I reject the submission that each document was itself confidential information within clause 12.2 or the equitable duty. [163] As well, the plaintiffs did not prove that the disclosure of any of these documents by Zuri to its consultants and professional advisers was beyond the extent necessary to enable Zuri to conduct its business generally or that Zuri’s consultants and advisers failed to keep any confidential information secret and confidential or that they divulged or disclosed it to any other person. -- 31 of 32 -- 32 [164] The information at (e) above, to the extent it may be identified, was not shown to be secret or confidential. Nor was it identified sufficiently to conclude that it was information disclosed to Zuri by Bluepoint. [165] The plaintiffs contend that Zuri obtained a “gain” in the form of: (a) a headstart by skipping the ‘preliminary design’ phase of the development process; and (b) starting from a position where DTMR was already persuaded to approve a service station development on the Land that ‘provided a pathway to approval, which required only a few relatively minor technical issues to be addressed.’ [166] In substance the plaintiffs’ complaint is that Zuri benefited from work Bluepoint had done to advance its proposed development, when Zuri proceeded to develop the Land (and the balance of the Property) after the termination of the deed. Neither the deed nor the equitable duty prevented Zuri from so benefitting. Each could provide a remedy only were there was a relevant breach. [167] The plaintiffs failed to prove any relevant breach of either clause 12.2 of the deed or the equitable duty of confidence. Their claim for damages for breach of confidence fails. Final disposition [168] For the reasons set out above, the order of the court should be judgement for the defendants on the plaintiffs’ claims. [169] Subject to any further submissions that might be made, costs should follow the event. -- 32 of 32 --