Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234

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

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