Primewest (Mandurah) Pty Ltd v Ryom Pty Ltd

[2014] WASCA 28

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Construction
3. › Commercial contracts
4. › Property sale agreement
5. › Obligation to provide documentation at settlement
6. › Construction in accordance with commercial context
7. › Whether clause requiring provision of documentation 'as the Buyer may reasonably require' extended to documents evidencing registration of lease transfer
1. Real Property
2. › Torrens system
3. › Leases
4. › Unregistered lease exceeding five years
5. › Effect of transfer of land on unregistered leasehold interests
6. › Transfer of Land Act 1893 (WA), s 68
1. Appeal
2. › New argument on appeal
3. › Whether new argument may be raised where facts not beyond dispute
4. › Whether question of reasonableness of purchaser's request was question of fact requiring evidence

Quick Take

A contractual clause requiring a seller to provide 'any deed of affirmation or other documentation relating to the Leases and their continuation after Settlement as the Buyer may reasonably require' extends to documents not in existence at the time of contracting, including documents evidencing registration of lease transfers, where such documents are necessary to achieve the commercial objective of effectively assigning the benefit and burden of leases. The reasonableness of a purchaser's documentary request under such a clause is a question of fact assessed by reference to all the circumstances, and an argument that an alternative conveyancing technique could have protected the purchaser's interests cannot be raised for the first time on appeal where the facts are not beyond dispute.