The owner of the contentious Birchalls car park says that the failure of a potential purchaser to pay a $1.2 million deposit for the car park in 2020 meant that a purported sale contract had failed.
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Car Parks Super responded this week to an appeal lodged in the Federal Court of Australia by Creative Property Holdings, the proponent of a $90 million Creative Precinct.
Car Parks Super Pty Ltd owns the car park at 43 Paterson Street that developer CPH has proposed as the site for the Precinct.
In 2020, despite long-running negotiations, Car Parks Super and Creative Property Holdings were not able to conclude a $12 million sale.
Creative Property Holdings launched legal action in the Federal Court in May, 2021, but lost in a decision by Justice David O'Callaghan who found that no enforceable contract existed because there was no exchange of counterpart contracts in what was a "well-known, common and customary method of dealing".
CPH launched an appeal in January saying Justice O' Callaghan erred in law and in fact by finding that there was not an enforceable contract between CPH and the car park owner.
The second ground alleged: "That the learned primary judge erred in law by refusing to admit into evidence the entirety of the affidavit [Creative Property Holdings director] Christopher Billing sworn on 28 September 2021".
In its responding notice of contention obtained by The Examiner, Car Parks Super it said that if the appellant and first respondent entered into a contract between November 20 and 24, 2020 for the sale of the property (which is denied) the contracts failed for want of payment of the [$1.2 million] deposit.
It said the contract required the deposit to be paid within three business day and that CPH failed to pay the deposit within three business days.
The notice also says that it was an essential term of the contract that the second respondent (City of Launceston council) guarantee CPH obligations.
"On or about December 10 2020 the second respondent withdrew its agreement to be the guarantor," the notice said.
Car Parks Super said it did not wish to cross appeal any part of the judgment.
The appeal is expected to be heard by a full bench of the Federal Court in May.
The Federal Court decision has thrown doubt over a $10 million drought grant to the council under the Buildings Better Regions Fund. The grant is believed to be tied exclusively to the Creative Precinct project and cannot be transferred.
In Justice O'Callaghan's decision it was revealed that an amount of $1.2 million was paid on July 4 2020 in relation to a different proposed contract.
The round robin movement of the deposit after that was such that Justice O'Callaghan remarked in his judgment- "because it is not altogether clear (to me) where and by whom monies representing the deposit are currently held"-any party could make a submission within seven days.
Car Parks Super has lodged a development application for a $60 million development on the site.
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Nick Clark
I am the Supreme and Magistrates Court reporter for the Examiner for the past 18 months. My journalism career has clicked over 30 years and encompasses four different spells at Tasmanian newspapers.
I am the Supreme and Magistrates Court reporter for the Examiner for the past 18 months. My journalism career has clicked over 30 years and encompasses four different spells at Tasmanian newspapers.
