Johnnie Kenneth Hederics v Spare Weel Pty Ltd

2025/00421086

CONTRACT – the appellants and Mr Kees Weel (the director of the respondent) carried on a citrus fruit farming business and a fruit packing business in partnership – the appellants and Mr Weel, and companies associated with them, entered into a Heads of Agreement on 9 September 2020 for the dissolution of the partnership, and further agreements to give effect to the various transactions provided for in the Heads of Agreement – on 2 October 2020, the appellants entered into a Sale and Settlement Agreement with the respondent, Mr Weel and two of the companies associated with the business, Mallibel Pty Limited and Belah Heights Property Pty Limited (BH Property) “to give effect to the transactions contemplated by the Heads of Agreement” – under the Sale and Settlement Agreement, the parties agreed that BH Property was entitled to the sum of $1,242,769 by way of an account of profits – the sum would be applied, first, against any money payable by BH Property to the appellants under the Sale and Settlement Agreement, and, second, against money payable by the respondent to the appellant under a contract between the appellants (as vendors) and the respondent (as purchaser) for the sale of certain land in Wentworth, NSW (the Nursery Block) – annexed to the Sale and Settlement Agreement was an option agreement (Call Option Deed) between the respondent (as grantor) and the appellants (as grantee) in respect of a “proposed lot” to be created from the subdivision of Nursery Block (the Nursery Riverside Block) – the Call Option Deed provided that the call option could be exercised up until the earlier of 5:00pm on the “Sunset Date”, being 15 months from the date of the Call Option Deed, or 30 days after the satisfaction of cl 3.1(a) – satisfaction of cl 3.1(a) required “registration of a survey plan at the NSW Land Registry substantially in accordance with the Plan to create an indefeasible title for the Proposed Lot” – the registration of the plan of subdivision and creation of a new title for the Nursery Riverside Block did not occur until some 10 months after the passing of the Sunset Date – the appellants commenced proceedings seeking specific performance or, in the alternative, damages for breach of contract, alleging that that the respondent had breached implied obligations included in the Call Option Deed that the respondent would take all reasonable steps to enable the registration of the appellants’ application for relevant development approvals and permits so as to enable the exercise of the option granted by the Call Option Deed, and that the respondent would not prevent the prompt determination of that application following its lodgement – the primary judge found that the Call Option Deed included the alleged implied obligations and that the respondent had breached those terms by failing to do all things reasonably necessary on its part to secure development consent for the boundary realignment and registration of a plan of subdivision creating a separate title for the Nursery Riverside Block prior to the Sunset Date – the primary judge held, however, that the appellants did not discharge their onus of proving that one or more of those breaches caused the failure to achieve registration of the plan and the creation of a separate title for the Nursery Riverside Block by the Sunset Date – had the appellants succeeded on causation, her Honour would have declined to make an order for specific performance and would have required the respondent to pay the appellants $142,000 plus pre-judgment interest – whether the primary judge erred in dismissing the appellants’ claims arising from the alleged breach of the Call Option Deed and in making several findings in support of that conclusion – whether the primary judge erred in her Honour’s finding as to causation – whether the primary judge erred in determining that it was appropriate to decline to make an order for specific performance – as to the respondent’s notice of contention, whether there are additional factual grounds on which to affirm the primary judge’s decision.  

Hederics v Spare Weel Pty Ltd [2025] NSWSC 1171