Lendlease Communities (Figtree Hill) Pty Ltd v Mount Gilead Pty Ltd (No 4)

I gave judgment in this matter on 8 April 2025. [1] I shall use the same abbreviations here.

Lendlease sought to enforce the rights it asserted it had under the Deed in relation to the Balance Land and sought declarations as to those rights. It also sought consequential orders, including damages.

Lendlease’s case was run on the unstated, but obvious, assumption that the Deed was an enforceable contract.

I have found that, on the proper construction of the Deed, and in the events that have happened, Lendlease does not have the rights for which it contended and is not entitled to the relief it sought.

Understandably, Lendlease did not seek determination of the consequences, so far as concerns the status of the Deed were it to fail to establish the entitlements for which it contended.

The only consequence that Lendlease sought to agitate was damages.

As I recorded in the judgment at [25], that question was agreed to be deferred, but that was on the basis that Mr Giles SC, who appeared with Mr Hughes and Ms Carr for Lendlease, said, “If I lose, it resolves it”.

At [23] of the judgment I set out the issues that were posed for my determination. Neither party sought any order as to what the status of the Deed would be, following my determination of those issues.

During argument, I made inquiries of the parties, particularly the Landowners, as to what findings I might make so far as concerns the status of the Deed.

On that topic, at the conclusion of my judgment, I said: [2]

I also said: [3]

Lendlease submitted that “the effect of the Court’s findings is that the performance of the Deed has been frustrated. The effect of the frustration is that the Deed has automatically been discharged.”

On 5 May 2025, Lendlease filed a Notice of Motion seeking leave to file a Further Amended Summons and Further Commercial List Statement seeking declarations to that effect.

I am now hearing that motion.

The proposed pleading alleges that the Deed was frustrated “on and from 1 June 2024” and seeks relief under the Frustrated Contracts Act 1978 (NSW). Lendlease contends that it has spent some $11 million in payments made to the Landowners over the course the last decade, and that the steps it has taken in relation to the Balance Land have increased its value by $230 million. The relief that Lendlease seeks under the Frustrated Contracts Act is one or both of those figures.

Were the matter to proceed, an issue will arise as to whether the circumstances said to have frustrated the performance of the Deed have arisen through no fault of either party. It is obvious that this will involve a wide-ranging factual inquiry into the very matters that have been the subject of detailed consideration in the judgment. Indeed, that inquiry will potentially be much wider. It will also likely involve the recalling of many of the witnesses who gave evidence before me.

The particulars of frustration are given in the proposed amendment to Lendlease’s List Statement, and make reference to two passages in my judgment, being: [4]

And: [5]

This is not the occasion for me to engage with the Landowner’s submissions that it could not follow from those matters that the Deed has been frustrated. All I will say is that it is by no means obvious to me how it could follow from my reasons that the Deed has been frustrated.

It is also hard to see how a case that the Deed was frustrated and discharged in about July 2024 could be reconciled with the case that Lendlease ran before me: that the Deed was enforceable and gave rise to the rights that Lendlease sought to articulate.

It is not appropriate, in my opinion, for Lendlease, at this very late stage, and after the case has been fought and lost, to seek to agitate these matters in these proceedings.

If Lendlease wishes to make a claim under the Frustrated Contracts Act, it will have to bring separate proceedings.

The conclusion to which I have come is that to give effect to my reasons all that remains for me to do is to dismiss the proceedings with costs.

I order that the proceedings be dismissed with costs.