Ligon Sixty-Three Pty Ltd v Ronson Investments Pty Ltd
[2012] QSC 141
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- Unreported Judgment
- Ligon Sixty-Three Pty Ltd v Ronson Investments Pty Ltd[2012] QSC 141
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Ligon Sixty-Three Pty Ltd v Ronson Investments Pty Ltd[2012] QSC 141
Ligon Sixty-Three Pty Ltd v Ronson Investments Pty Ltd[2012] QSC 141
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 29 May 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 February 2012 |
JUDGE: | Martin J |
ORDER: | Answer the questions as follows: (a) Was the first defendant entitled to terminate the Sale Contract by reason of the plaintiff’s failure, on the Settlement Date, to deliver to the first defendant written evidence of HIE’s approval to the assignment of the sublease? – Yes.(b) Was the first defendant entitled to terminate the Sale Contract by reason of the plaintiff’s failure, on the Settlement Date, to deliver to the first defendant written evidence of the minister’s approval to the assignment of the sublease? – No. |
CATCHWORDS: | CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – CONDITIONS – CONDITIONS AND WARRANTIES - where first defendant contracted to purchase proposed unit from plaintiff – where contract required parties to sign all documents and do all things necessary to give full effect to the contract to the extent that such documents and things were reasonably required – where plaintiff was to obtain approvals – where first defendant refused to sign documents to obtain approvals – where plaintiff could not obtain approvals – whether first defendant entitled to terminate the contract on the grounds that plaintiff failed to deliver approvals LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – CONSENT OF THIRD PARTIES – EXTENT OF DUTY OF PARTIES TO OBTAIN CONSENT – where first defendant contracted to purchase proposed unit from plaintiff – where contract required parties to sign all documents and do all things necessary to give full effect to the contract to the extent that such documents and things were reasonably required – where plaintiff was to obtain approvals – where first defendant refused to sign documents to obtain approvals – where plaintiff could not obtain approvals – whether first defendant entitled to terminate the contract on the grounds that plaintiff failed to deliver approvals Boss & Ors v Hamilton Island Enterprises Ltd [2010] 2 Qd R 115, applied Butt v M’Donald (1896) 7 QLJ 68, cited Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596, cited |
COUNSEL: | M R Pesman for the plaintiff R G Bain QC for the defendants |
SOLICITORS: | Beazley Singleton for the plaintiff McKays for the defendants |
[1] On 8 July 2011 Boddice J ordered, among other things, that the following questions be heard separately before the trial of this proceeding:
(a) Was the first defendant entitled to terminate the Sale Contract by reason of the plaintiff’s failure, on the Settlement Date, to deliver to the first defendant written evidence of HIE’s approval to the assignment of the sublease?
(b) Was the first defendant entitled to terminate the Sale Contract by reason of the plaintiff’s failure, on the Settlement Date, to deliver to the first defendant written evidence of the Minister’s approval to the assignment of the sublease?
Background
[2] On 6 September 2007 the first defendant (“Ronson”) entered into a contract with the plaintiff (“Ligon”) to purchase a unit proposed to be built in a residential development on Hamilton Island. The purchase price was $2,710,000.
[3] The unit was to be part of a development to be built on land which was the subject of a Crown lease to Hamilton Island Enterprises Limited (“HIE”). HIE leased that land to Ligon and it was intended that, on completion of the development in 2009, the land would be subdivided into a common property lot and eight residential unit lots with each being the subject of a sublease between HIE and Ligon. The contract contemplated the assignment of one of those subleases from Ligon to Ronson.
[4] The unit had not been completed at the date of the contract, so the contract provided for settlement to be fixed at a future date.
[5] Notice requiring settlement was given by Ligon to Ronson in August 2009 with settlement fixed for 19 August. Settlement did not occur on that date and Ronson purported to terminate the contract.
[6] Eight days after the failed settlement date Ligon commenced this action against the defendants seeking, amongst other things, specific performance of the contract. The defendants raise a number of matters in their defence and counterclaim, but only those relating to the separate questions are to be considered on this application.
The contract
[7] Recital E of the contract provides:
“Once the Building has been constructed the Purchaser wishes to complete the purchase of the Share and take an assignment of the sublease from the Vendor subject to the consent of …, the Minister, HIE and the terms of this Contract.”
[8] Clause 6 of the contract contains the following provisions:
6. Settlement
6.1Settlement Date
Subject to clause 1, Settlement will take place on the Settlement Date which shall be the date which is 14 days after the date upon which the Vendor gives notice to the Purchaser that:
(a)both the Minister and HIE have approved the assignment of the Sublease from the Vendor to the Purchaser;
(b)if required by the Minister and/or HIE the Minister has approved the assignment of the Share from the Vendor to the Purchaser;
(c)mortgagee consent has been obtained; and
(d)Waves or the Directors of Waves have consented to the transfer of the Share and the Sublease to the Purchaser.
6.2 No Approval
If the Minister or HIE do not approve the assignment of the Sublease and (if the Minister or HIE requires) the Share, or Waves does not consent to the transfer of the Share and the Sublease by the Sunset Date (as extended pursuant to clause 1.3) then either the Vendor or the Purchaser may terminate this Contract by notice to the other whereupon the Deposit shall be refunded to the Purchaser and thereafter neither party shall have any Claim against the other.
6.3Transfer of Property
On the Settlement Date the Vendor, in exchange for the payment of the Balance Purchase Price and any other moneys owing by the Purchaser shall deliver to the Purchaser:
(a)possession of the Lot and the Chattels;
(b) a notice from Waves addressed to the Purchaser confirming that the consent of the Directors of Waves has been granted to the transfer of the Share and the Sublease.
(c) written evidence of the Minister’s and HIE’s approval to the assignment of the Sublease;
(d) if required by the Minister and HIE, written evidence of the Minister’s and HIE’s approval of the assignment of the Share;
...”
(emphasis added)
[9] Clause 7 provides:
7.Applications for Consent to the Assignment of Sublease and Power of Attorney
7.1 Application for Approval
The Vendor shall before or at about the time the certificate of occupancy referred to in clause 1.1 is about to issue or has issued apply to:
(a)the Minister for his approval to assign the Sublease and (if the Minister requires) the Share to the Purchaser;
(b)HIE for its approval to assign the Sublease and (if HIE requires) the Share to the Purchaser; and
(c)Waves for its approval to transfer the Share and the Sublease to the Purchaser.
7.2Refusal of Consent
If the consent of the Minister and HIE to assign the Sublease is refused for any reason, other than the default of one of the parties, a party not in default may by notice in writing terminate this Contract whereupon the Deposit shall be refunded to the Purchaser and thereafter neither party shall have any Claim against the other.
(emphasis added)
7.3Power of Attorney
A power of attorney in the form contained in Schedule 6 shall be prepared by the Vendor's solicitors at the expense of the Vendor and given to the Purchaser a reasonable time before the Settlement Date, and signed by the Purchaser and delivered by the Purchaser to Waves (or to the Vendor to pass on to Waves) at Settlement.
[10] Clause 18 provides:
18.Assignment or Transfer
18.1The Purchaser shall not assign or transfer its rights or interests or any of the benefits under this Contract prior to settlement without the prior written consent of the Vendor.
18.2The Vendor may assign its interest in the Sublease and this Contract to an assignee who signs a written covenant in favour of the Purchaser to be bound by the Contract in place of the Vendor. The covenant shall be prepared at the Vendor's cost. If required by the Vendor, the Purchaser agrees to promptly sign the covenant with any assignee of the Vendor. The Vendor shall be released from any further obligations under the Contract once the covenant has been signed.
[11] Clause 20 provides:
“If requested by the other party, each party must, at its own expense, do everything reasonably necessary to give effect to this Contract including giving effect to any matter or thing which is capable of taking effect after Settlement or the registration of the transfer of the Share or the Sublease.”
[12] Clause 28.16 provides:
“Each party must sign all documents and do all things necessary to give full effect to this Contract.”
Approval of the Assignment of the Sublease
[13] It is common ground that Ligon did not present written evidence of either the Minister’s or HIE’s approval of the assignment of the sublease. That, Ronson says, was sufficient to allow it to act as it did, namely to terminate the contract under cl 7.2 of the sale Contract.
[14] Ligon’s response is in two parts. First, that the inability to present evidence of approval by HIE was due to Ronson’s failure to execute a deed of consent (“the deed”) required by HIE. Secondly, that the inability to present evidence of approval by the Minister was due to Ronson’s failure to sign a statutory declaration (“the statutory declaration”) as required by the Minister.
[15] With respect to both alleged failures, Ligon argues that Ronson’s failure to execute the documents was in breach of its obligation under cl 28.16 of the Sale Contract to “sign all documents and do all things necessary to give full effect to this Contract” and therefore, as Ronson was in breach it could not take advantage of cl 7.2.
[16] Ronson argues that it was not required by either cl 20 or cl 28.16 of the Sale Contract to execute the deed of consent because the deed, if it had come into force, would have worked to widen the obligations imposed on it under the sublease at the same time as it diminished its estate and rights under the sublease.
[17] So far as the statutory declaration is concerned, Ronson argues that it could not execute it because Ligon had failed to provide it with information necessary to allow it to satisfy itself of what it was required to declare.
Notice of Change of Ownership and Address
[18] Ligon’s solicitors had, on many occasions, sent correspondence to Ronson’s solicitors requesting the execution and return of the deed and the statutory declaration. On most, if not all, of those occasions Ligon’s solicitors also sought the completion and return of the Notice of Change of Ownership and Address. That document simply required that Ronson provide, among other things, an address for service.
[19] There was some debate during submissions about whether that document had been available for provision by Ronson at settlement.
[20] Whether it was or was not available is not a matter for consideration in this part of the proceedings. The questions to be answered are confined to the plaintiff’s failure to provide the deed and the statutory declaration.
Reasonableness
[21] The defendants have pleaded that the expression “default” in cl 7.2 means not doing what is reasonable under the circumstances.[1] It was also pleaded that cl 28.16 of the contract, on its proper construction, required the parties to sign all documents and do all things necessary to give full effect to the contract only to the extent that such documents and things were reasonably required.[2]
[22] The latter contention was pursued by the defendants at this hearing. No argument was mounted in support of the former construction.
[23] This construction of cl 28.16 was not seriously contested by Ligon, rather, it was argued that it did not help Ronson for reasons to which I shall return.
[24] Ronson submitted that each of cll 20 and 28.16 is an express contractual rendering of the standard implied term referred to in Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596. The term referred to was one which had been recognised in Butt v M’Donald (1896) 7 QLJ 68 where Griffith CJ (at 70-71) said:
“It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract.”
[25] It is a clear requirement of cl 20 that the party asked to do something need only comply if to do so is “reasonably necessary to give effect to this Contract”. A question which arises is whether cl 28.16 should be interpreted to interpose a requirement of reasonableness. This was said by Ronson to be implicit. The submission was developed in a different direction. The thrust of the defendants’ argument was as follows:
(a) Both cl 20 and cl 28.16 are ancillary provisions. Neither changes the subject matter of the contract or the substantive obligations under the contract.
(b) Each of the clauses should be construed so as to make commercial sense.
(c) It was Ligon’s obligation to obtain the consent of HIE and the Minister.
(d) Ligon’s inability to obtain those consents is not something which it can require Ronson to relieve by resort to ancillary provisions.
(e) Neither the deed nor the statutory declaration was necessary to give full effect to the contract.
Deed of Consent
[26] Ronson refused to execute the deed because, it argues, to have done so would have seriously interfered with its rights and obligations under the sub-lease. Ronson contracted for the assignment of the sublease which was to be “substantially in accordance with” the sublease in schedule 1 of the contract (“the proposed sublease”). For the purposes of this part of the proceedings only, the defendants accept that the sublease is “substantially in accordance with” the proposed sublease in schedule 1 of the sale contract.
[27] As is noted above, the contention of Ronson is that the deed, if executed, would have widened the obligations imposed on Ronson and eroded its estate and rights under the sublease.
[28] In order to demonstrate that proposition I was referred to a number of clauses in the deed. The relevant parts of those clauses are set out below:
4.Covenant by assignee
The Assignee covenants with the Sub Landlord that the Assignee will, on and from the Assignment Date, observe and comply with the Sub Landlord's rules and regulations that may be amended from time to time at the Sub Landlords [sic] discretion and, perform and observe all the terms, covenants and conditions contained in or implied by the Sublease as if the Assignee had been named in the Sublease as the sub-tenant.
…
12.Power of attorney
The Assignee irrevocably and for valuable consideration nominates constitutes and appoints the directors of the Sub Landlord and the person from time to time holding the office of Secretary of the Sub Landlord and the person from time to time performing (in the absence of the Secretary) the duties of the Secretary of the Sub Landlord severally to be true and lawful attorney of the Assignee to execute on behalf of and in the name of and as the act and deed of the Assignee any deed or document required or desirable in the Sub Landlord's opinion to effect:
(a)a surrender of the Sublease in favour of the Sub Landlord; or
(b)a transfer of the Sublease in favour of any person, firm or company
and if necessary a withdrawal of any caveat registered by the Assignee against the Land and to do all things and sign all documents as may be necessary to obtain registration of those dealings PROVIDED ALWAYS that the power granted to the Sub Landlord in this clause will not be exercised until the Sublease has been terminated and the written declaration of the attorney or attorneys exercising the power to terminate will be sufficient proof that the Sublease has been terminated.
…
14.Miscellaneous
14.1Certificate
A certificate signed by the Sub Landlord or its solicitors about a matter or about a sum payable to the Sub Landlord in connection with this Transaction or the Sublease is sufficient evidence of the matter or sum stated in the certificate unless the matter or sum is proved to be false.
14.2Supervening Legislation
Any present or future legislation which operates to vary the obligations of any party in connection with this Deed or the assignment of the Assignor's estate, interests, rights or powers as Assignor under the Sublease with the result that the Sub Landlord's rights, powers or remedies are adversely affected (including, without limitation, by way of delay or postponement) is excluded except to the extent that its exclusion is prohibited or rendered ineffective by law.
…
16.Sub landlord’s formal consent and production of documents
…
16.2 The Assignee covenants with the Sub Landlord to:
(a) obtain the consent of the relevant Minister to the Transaction …
[29] Ronson concentrated most attention on cl 4 of the deed. It provides that the assignee would, from the assignment date, “observe and comply with the Sub Landlord’s rules and regulations that may be amended from time to time at the Sub Landlords [sic] discretion …”. It is correct to say that the discretion referred to is unfettered. The document which attracted most attention on this point was the document entitled “Hamilton Island Rules and Regulations” (“the HIE rules”). The HIE rules is an extensive document numbering some 20 pages and covering matters which are for the purposes of regulating the activities of people on the island. The HIE rules do not disclose any exclusion of their application to a sublessee (such as Ronson) or any natural person associated with a corporate sublessee.
[30] Clause 1.3 provides, under the heading “Effect of rules and regulations”, that:
“Without limiting HIE’s rights, these Regulations outline the basis upon which persons may visit and remain on the Island. HIE may remove any persons who breach these Rules and Regulations, and not allow them to return to the Island…”
[31] Clause 10.1 provides, under the heading “Direction to leave”, that:
“If a person breaches these Regulations, HIE may direct that the person leave the Island, and in the case of refusal to leave, may remove the person using such force as is reasonably necessary.”
[32] A “person” is defined in clause 1.2 to mean “any person who visits Hamilton Island, for any period of time, either temporarily or permanently”. The word “Island” is defined to mean “Hamilton Island and Dent Island”.
[33] Some rules are expressed in such a way that they can apply only to a restricted class of persons. For example, r 5 relates to accommodation for Island employees and r 6 relates to the use of facilities by Island employees or contractors or temporary contractors. Other than rules of that nature, clause 1.3 works to apply the balance of all rules to all persons without restriction.
[34] Other parts of the rules demonstrate the power which is reserved to HIE.
[35] Clause 1.1 states that HIE “exercises absolute control over the Island”. Further, it provides that:
“The Island is private property and as such HIE reserves the right to refuse admission to any persons or to require any person on the Island, at any time and for any reason, to leave the Island.”
[36] Clause 10.2 says:
“The right to reside on Hamilton Island is a privilege granted by HIE as it sees fit and can be rescinded for whatsoever reason it sees fit.”
[37] The restrictions contained within the HIE Rules and their inconsistency with the proposed sublease were considered by the Court of Appeal in Boss & Ors v Hamilton Island Enterprises Ltd [2010] 2 Qd R 115. The Rules considered in that case are the same as those in this case and the sublease was not relevantly different from the sublease under consideration here. In that matter, the court was concerned with the sub-lessor withholding its consent to the transfer of a sublease. It was held that the sub-lessor could not refuse consent on the basis that the proposed sub-lessor would not enter into a deed binding it to the HIE rules. This arose because the HIE Rules:
(a) afforded the sub-lessor a commercial benefit by effectively replacing important parts of the sublease with alternative contractual arrangements, and
(b) imposed obligations upon a sublessee which substantially eroded the sub-lessee’s rights under the lease.
[38] Although Boss & Ors v Hamilton Island Enterprises Ltd was concerned with reasonableness of the withholding of consent, the reasoning applies equally to the question of whether the deed was something which was necessary to give effect to the contract. The HIE Rules deal, in part, with matters which are unrelated to the contract and, in those cases where they do deal with areas also the subject of the contract, they would work to render nugatory some of a sub-lessee’s rights. To do that is inconsistent with giving effect to the contract.
[39] These restrictions on the use of the Island contrast heavily with the provisions of the sublease. For example:
(a) Clause 3.1.2 of the sublease contains an express covenant for quiet enjoyment unqualified by the restrictions which the HIE rules would impose.
(b) Clause 2.3 of the sublease provides that a sublessee must not use or allow any motor vehicle to be used on the Island without the previous written consent of the sublessor and that the sublessee must comply with any reasonable conditions attaching to that consent.
(c) Clause 3 of the HIE rules would allow HIE to impose conditions which are not restrained by the requirement that they be “reasonable” conditions.
[40] Ligon’s response to these and other similar issues raised by the Ronson was twofold. First, it said that the various clauses in the deed which Ronson found objectionable also existed in the sublease. It was pleaded that the defendants were “estopped” from arguing that their execution of the deed was not within the compass of clause 20 or clause 28.16. Secondly, it was argued that the defendants were similarly “estopped” because the second and third defendants “… have since executed or caused to be executed [a] Deed in similar form for the purchase of another leasehold property on Hamilton Island.”
[41] In the defendant’s second amended defence and counterclaim the specific clauses of the contract and sublease which are said to be in conflict are set out. Ligon replies to them in its Reply and Answer by the following type of pleading which is applied to each clause.
“The Defendants are estopped from claiming clause (X) was not a reasonable requirement and it was not reasonably necessary as the sublease contains the same requirements included in clause (Y).”
[42] It would appear that the contention of Ligon is that there is some form of estoppel by conduct, Ronson having executed a contract which would lead to the creation of a sublease containing certain identified clauses cannot then refuse to execute a deed containing similar clauses. That, of course, raises the question: Why is there a need for a deed of consent which contains such matters if Ronson was already going to be bound by the Sublease. Putting that to one side, the particular matters raised as supporting the assertion by Ronson concern the following provisions of the deed: clauses 4, 12, 14.1, 14.2 and 16.2; and the relevant provision of the sublease are clauses 2.3.2, 7.1, 9.1.2, 9.1.3, 9.1.4 and 9.1.5.
[43] Clause 4 of the deed would require Ronson to observe and comply with the sub landlord’s rules and regulations as amended from time to time at the discretion of the sub landlord. That is a reference to the HIE rules. Those rules conflict so far as the use of motor vehicles on the Island is concerned with clause 2.3.2 of the sublease.
[44] It is accepted by Ronson that clause 7.1 of the sublease does evidence an agreement that services will be available for use by Ronson among other things, in accordance with the HIE rules. It is important to note, though, that the application of the HIE rules relates only to the provision and enjoyment of services by HIE. It does not extend to other matters because, as submitted by Ronson, it could lead to a circumstance where HIE might prevent Ronson from even entering the Island to receive or enjoy the services and that would be in conflict with the rights otherwise afforded to Ronson under the sublease.
[45] Clause 9 of the sublease relates to the use of resort facilities. Again, it makes the use of those facilities subject to HIE rules. But as is observed above, the HIE rules would only apply when a person was using those facilities. It could not be used to prevent a sublessee from entering the Island whereas the deed of consent would be so capable.
[46] Clause 12 of the deed creates a power of attorney in the sub landlord and it is different from and broader than that which is provided for in the sublease.
[47] Clause 14.1 of the deed creates an evidentiary presumption in relation to certificates signed by the sub landlord or its solicitors about a sum payable to the sub landlord in connection with this transaction or the sublease. It provides that such a certificate is sufficient evidence of the matter or sum stated in the certificate unless the matter or sum is proved to be false. Such a provision is not contemplated by the sublease and creates an advantage in the hands of the sublessor which could not be regarded as being necessary to give full effect to the contract.
[48] Clause 14.2 of the deed attempts to prevent the operation of any legislation (in existence or in the future) which would operate to vary the obligations of any party in connection with this deed, except where such an exclusion is prohibited or rendered ineffective by law. That is also an extension of the powers of the sublessor not contemplated by the sublease.
[49] Clause 16.2 of the deed would operate to reverse the obligation contained in the contract by removing the onus on Ligon to obtain the Minister’s consent and placing it on Ronson. In other words, it is an attempt to remake the contract in an important respect.
[50] The matters referred to above are not things which are necessary to give effect to the contract. As is clear from the reasoning in Boss & Ors v Hamilton Island Enterprises Ltd, if the deed had been executed, it would have served to decrease many of the rights of Ronson while providing a concomitant increase in the powers of Ligon. The last point concerning the reversal of the obligation to obtain the Minister’s consent demonstrates starkly that the deed is not concerned with things which are necessary to give full effect to the contract but is a thing which is designed to vary the contract itself.
[51] The contents of the deed which would impose the HIE Rules on Ronson are such that they do not come within the embrace of either clause 20 or 28.16 and Ronson was not obliged by either of those clauses to sign or execute the deed.
Statutory declaration
[52] The relevant Minister required that a statutory declaration be made prior to the Minister approving the assignment of the sublease to a company. The statutory declaration is very simple. It requires the declarant to say that he or she is authorised to make the statutory declaration on behalf of the company, that the declarant is an adult and is aware of the requirements of s 322(4) of the Land Act 1994, and that the company is eligible to be the sublessee. It was argued by Ronson that the requirement to declare that the declarant is aware of the requirements of s 322 meant that the declarant had to be satisfied that there had been compliance with the requirements of s 322(4)(b)(i) – (v) of the Land Act. The form of the statutory declaration was one created by, and a requirement of, the relevant government department. It does not, on its face, require the level of knowledge said to be required by Ronson before a declarant can complete it.
[53] It was argued by Ronson that the declaration lacks utility if it does not go so far as to require the declarant to be aware of whether or not the relevant conditions have been complied with. To that end, Ronson required from Ligon various plans and confirmation that certain things had been done with respect to the construction of the relevant units.
[54] It may well be correct that the declaration is of little utility but it does not require the level of investigation that Ronson argues for. To say that someone is aware of the requirements of a particular section may seem curious but the declaration does more than that; it also includes a declaration that the proposed sublessee is eligible to be a sublessee. Without reference to plans or anything of greater detail the declaration does not carry the requirements advanced by Ronson and it was a document which could properly be described as one necessary to give full effect to the contract. Its completion would not have exposed Ronson to any obligations above those in the contract nor would it have operated to diminish its rights under the contract. It follows then that Ronson was not entitled to terminate on the basis that Ligon did not have the written evidence of the Minister’s approval.
Estoppel
[55] I turn now to the argument faintly advanced by Ligon that the fact that the second and third defendants had, following the termination of the contract the subject of this application, entered into another contract in which they signed a deed of consent, meant that an estoppel was raised. The controversy between the parties was fully formed when the settlement of the contract did not go ahead. It was argued that the deed of consent which was entered into at a later time by the second and third defendants was in a similar form and therefore, it could not be contended by the first defendant that it should not have been required to sign the deed. That is a misunderstanding of the principles relating to estoppel, not least because different parties were concerned. The second and third defendants in this case are guarantors and were not required to sign the deed of consent. Ronson was the proposed party for the deed of consent and its behaviour at the relevant time may have been conditioned by many matters, not least those which I have referred to above. The fact that parties associated with Ronson have, at a later time, entered into a similar deed, does not work to prevent Ronson raising the matters that it has in its pleadings and which it has argued on this application.
Answers
[56] Consistently with the above reasons, I answer the questions as follows:
(a) Was the first defendant entitled to terminate the Sale Contract by reason of the plaintiff’s failure, on the Settlement Date, to deliver to the first defendant written evidence of HIE’s approval to the assignment of the sublease? – Yes.
(b) Was the first defendant entitled to terminate the Sale Contract by reason of the plaintiff’s failure, on the Settlement Date, to deliver to the first defendant written evidence of the minister’s approval to the assignment of the sublease? – No.
[57] I will hear the parties on costs.