The case of Key Infrastructure Australia Pty Ltd v Bensons Property Group Pty Ltd concerned a development project in Port Melbourne. In April 2016, Key Infrastructure Australia Pty Ltd (KIA) and Bensons Property Group (Bensons) executed a development management agreement (DMA), which provided for Bensons to provide payment of $2 million to KIA in four instalments, if KIA was successful in obtaining a planning permit.
KIA applied to the council for the planning permit as per the agreement, however by May of 2016, it was apparent that the issue might need to be escalated to VCAT to obtain a decision.
On 18 May 2016, KIA applied to VCAT seeking a decision regarding the planning permit. By chance on the same date Bensons wrote a letter (Breach Letter) to KIA stating that any application to VCAT would be a breach of the DMA. Kia withdrew the application, reinstating it on 5 July 2016, and VCAT made orders directing the council to issue the permit, which was done on 6 February 2017, being after the Sunset date.
The Court considered the application of the prevention principle and where or not there was an act of prevention capable of triggering the principle.