Angelis as trustee for the Angelis Family Trust v Pemba Capital Partners Fund I Partnership, LP (No 7) [2020] NSWSC 1060

Angelis as trustee for the Angelis Family Trust v Pemba Capital Partners Fund I Partnership, LP (No 7) [2020] NSWSC 1060

Because cl 5.6 of the Share Purchase Deed contemplated the wider Resilium Transaction, including the Coverforce Loans, the reversal of the transaction required coordinated treatment of the Loans and the Account. The Loans were to be repaid by 31 May 2021, with interest at Court rates from 11 December 2019 and secured by a charge over the shares in Resilium BidCo. Coverforce was to pay the Account on 24 May 2021, supported by a bank guarantee and interest. Final orders should not include liberty to apply because the reasonable repayment time had to be fixed prospectively.

Jurisdiction
Australia
Judgment Date
13 August 2020
Procedural Posture
Equity Commercial List; Consequential Orders Other Than Costs / Determination of Consequential Orders Necessary to Give Effect to Principal Judgment
Outcome
Parties to bring in short minutes reflecting the decisions summarised in the reasons.
Legal Topics
['construction of Share Purchase Deed' 'reversal of Resilium Transaction' 'account of Profits' 'loan Repayment' 'interest at Court Rates' 'security for Repayment' 'liberty to Apply' 'costs of Reference']
['contract Law' 'judgments and Orders' 'equity Commercial List'] ['construction of Share Purchase Deed' 'reversal of Resilium Transaction' 'account of Profits' 'loan Repayment' 'interest at Court Rates' 'security for Repayment' 'liberty to Apply' 'costs of Reference']

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Procedural Posture

Equity Commercial List; Consequential Orders Other Than Costs / Determination of Consequential Orders Necessary to Give Effect to Principal Judgment

Legal Issues

  1. 1 ['The date by which the Kitchin Parties should repay the Loans' 'Whether the Kitchin Parties should pay Coverforce interest at Court rates until the Loans are repaid' 'The security which the Kitchin Parties should give Coverforce in the meantime' 'When the amount of the Account should be paid' 'Whether the Kitchin Parties should have liberty to apply in relation to any orders made' 'What order should be made for costs']

Ratio Decidendi

Because cl 5.6 of the Share Purchase Deed contemplated the wider Resilium Transaction, including the Coverforce Loans, the reversal of the transaction required coordinated treatment of the Loans and the Account. The Loans were to be repaid by 31 May 2021, with interest at Court rates from 11 December 2019 and secured by a charge over the shares in Resilium BidCo. Coverforce was to pay the Account on 24 May 2021, supported by a bank guarantee and interest. Final orders should not include liberty to apply because the reasonable repayment time had to be fixed prospectively.

Court Disposition

Parties to bring in short minutes reflecting the decisions summarised in the reasons.

Orders

  • ['The Loans should be repaid by 31 May 2021.' 'Interest on the Loans should be paid at Court rates from 11 December 2019.' 'Repayment of the Loans should be secured by a charge over the shares in Resilium BidCo.' 'The Account is to be paid on 24 May 2021.' 'The Kitchin Parties do not have liberty to apply.'...