Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 (5 August 2009)

APPEAL AND NEW TRIAL – new trial – whether the trial judge failed to resolve evidence concerning the pleaded agreement – CONTRACTS – partly written and partly oral – principles for determining whether a contract is wholly written, partly written and partly oral, or wholly oral – role of surrounding circumstances – admissibility of evidence of subsequent conduct – scope of operation of the parol evidence rule to partly written and partly oral contracts – CONTRACTS – general contractual principles – construction and interpretation of contracts – whether surrounding circumstances can be looked to without needing to find ambiguity – present state of High Court authority on whether ambiguity is a precondition to using surrounding circumstances – INTERPRETATION – construction of undertakings and court orders – admissibility of evidence of surrounding circumstances – EVIDENCE – whether evidence not cross-examined upon must be accepted by the judge or jury – circumstances when a judge can reject evidence not cross-examined – EQUITY – equitable remedies – specific performance – part performance – part performance to be pleaded in reply