You are not permitted to download, save or email this image. Visit image gallery to purchase the image.
Long Capital Holdings forfeited deposits totalling $2.61 million after abandoning plans to develop a 5ha chunk of the upmarket Jacks Point subdivision.
In their decision, released on Thursday, Justices Glazebrook, O’Regan and France dismissed the company’s application to appeal a Court of Appeal decision in April that went against the company.
In June 2017, Long Capital paid 10% deposits on a $26.1million deal to develop two parcels of land in the subdivision, a key condition being that it submit a development plan satisfactory to landowner Jacks Point Village Holdings No2.
It never submitted the plan after deciding the proposal would not stack up financially, and asked for its deposits back.
In the High Court in June last year, Judge Johnston accepted Jacks Point Holdings’ application to keep the deposits.
Long Capital appealed that decision to the Court of Appeal in April, but the court found the company was unable to cancel the agreement because the non-fulfilment of the condition to provide the development plan was "a result of its own default".
In its application to the Supreme Court, the company argued that both lower courts had misinterpreted the contracts, and their decisions relied on a "mistaken assumption of fact".
It said the Court of Appeal was wrong to conclude the obligation to take all reasonable and necessary steps to submit a development plan extended to steps having unreasonably onerous financial consequences on the company.
The lower courts’ decisions were also based on a mistaken assumption the company had a development plan ready, but had decided not to submit it, it argued.
In their decision, Justices Glazebrook, O’Regan and France rejected the first point, saying the matter came down to an interpretation of the bespoke provisions of the agreement, and did not raise any issue of general or public importance, or of commercial significance.
On the second point, the judges concluded that whether or not the development plan was completed at the time Long Capital decided not to submit it was irrelevant to the outcome.
Long Capital was ordered to pay Jacks Point Holdings’ costs.