Kastro Pty Ltd v ABD Holdings Pty Ltd [2008] NSWSC 1291

Kastro Pty Ltd v ABD Holdings Pty Ltd [2008] NSWSC 1291

Kastro failed to establish a sufficiently arguable case for final relief because the evidence showed only that the proposed tenant decided not to proceed with the lease, not that ABD surrendered or terminated an existing lease or exercised any right under Special Condition 11.2. The heads of agreement did not give rise to an arguable lease, agreement for lease, or equitable lease of the kind contemplated by Special Condition 11.2, and therefore ABD was not shown to have been obliged to give notice under Special Condition 11.3. Without a sufficiently arguable contractual breach, continuation of interlocutory injunctive relief was refused.

Jurisdiction
Australia
Judgment Date
14 November 2008
Procedural Posture
Application by Purchaser for Continuation of Interlocutory Injunction Restraining Vendor From Claiming Payment Pursuant to Bank Guarantee / Interlocutory Application in the Equity Division Duty List
Outcome
Application for interlocutory relief refused with costs; indemnity costs declined; proceedings to continue on pleadings.
Legal Topics
['construction and Interpretation of Contract for Sale' 'interlocutory Injunction' 'bank Guarantee' 'lease Heads of Agreement' 'agreement for Lease or Equitable Lease' 'going Concern Sale' 'breach and Termination']
['contracts' 'equity' 'property' 'civil Procedure'] ['construction and Interpretation of Contract for Sale' 'interlocutory Injunction' 'bank Guarantee' 'lease Heads of Agreement' 'agreement for Lease or Equitable Lease' 'going Concern Sale' 'breach and Termination']

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Procedural Posture

Application by Purchaser for Continuation of Interlocutory Injunction Restraining Vendor From Claiming Payment Pursuant to Bank Guarantee / Interlocutory Application in the Equity Division Duty List

Legal Issues

  1. 1 ['Whether Kastro had a sufficiently seriously arguable case for final relief to justify continuation of an interlocutory injunction restraining ABD from making demand under the bank guarantee.' 'Whether the heads of agreement with the prospective tenant amounted to an agreement for lease or equitable lease within Special Condition 11.2 of the contract.' 'Whether ABD breached Special Condition 11.3 by failing to give written notice of an intention to exercise rights under Special Condition 11.2.' 'Whether Kastro was entitled to terminate the contract for breach by ABD.']

Ratio Decidendi

Kastro failed to establish a sufficiently arguable case for final relief because the evidence showed only that the proposed tenant decided not to proceed with the lease, not that ABD surrendered or terminated an existing lease or exercised any right under Special Condition 11.2. The heads of agreement did not give rise to an arguable lease, agreement for lease, or equitable lease of the kind contemplated by Special Condition 11.2, and therefore ABD was not shown to have been obliged to give notice under Special Condition 11.3. Without a sufficiently arguable contractual breach, continuation of interlocutory injunctive relief was refused.

Court Disposition

Application for interlocutory relief refused with costs; indemnity costs declined; proceedings to continue on pleadings.

Orders

  • ['The application for interlocutory relief is refused with costs.' 'An indemnity costs order is declined.' 'The proceedings continue on pleadings.' 'The plaintiff is to serve its Statement of Claim by 28 November 2008 and pleading thereafter is to continue in accordance with the rules.' 'The proceedings are...