Kyong Holdings Pty Limited v Anqueline Pty Ltd (No 2) [2010] NSWSC 727

Kyong Holdings Pty Limited v Anqueline Pty Ltd (No 2) [2010] NSWSC 727

The Deed of Rescission by which Kyong rescinded the Kyong Contract, surrendered its rights, released ACPP and facilitated the replacement Capricorn Contract constituted an "other disposition" of Kyong's interest in the Contract Documents to ACPP within cl 1.4 of the Kyong Heads of Agreement. Clause 1.4 therefore prevailed over cl 1.3(e) and made the whole Consulting Fee, including the $200,000 held in trust, immediately payable to Anqueline on 20 March 2009. Alternatively, if cl 1.4 were not activated, Kyong breached cl 11 and implied obligations by voluntarily instigating a consensual rescission for its commercial interests and instructing notice of rescission, thereby preventing...

Jurisdiction
Australia
Judgment Date
05 July 2010
Procedural Posture
Equity Division Contract Dispute Involving Claim and Cross Claim / Principal Judgment After Hearing
Outcome
Judgment for Anqueline for the amount of the Consulting Fee and interest from 20 March 2009 to the date of judgment; Mr and Mrs Pacanowski liable as guarantors; plaintiff/cross-defendants to pay defendants/cross-claimants' costs.
Legal Topics
['construction of Express Contractual Terms' 'implied Duties of Good Faith and Co Operation' 'best Endeavours' 'prevention of Contractual Benefit' 'consulting Fee' 'rescission of Contract' 'guarantee' 'damages for Breach of Contract']
['contract Law' 'equity' 'civil Procedure'] ['construction of Express Contractual Terms' 'implied Duties of Good Faith and Co Operation' 'best Endeavours' 'prevention of Contractual Benefit' 'consulting Fee' 'rescission of Contract' 'guarantee' 'damages for Breach of Contract']

Case Brief

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Procedural Posture

Equity Division Contract Dispute Involving Claim and Cross Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether cl 1.4 of the Kyong Heads of Agreement was activated by Kyong's rescission, surrender, release and agreement under the Deed of Rescission, making the whole Consulting Fee immediately payable to Anqueline." 'Whether the expression "third party" in cl 1.4 included Capricorn Developments Pty Limited.' 'Whether the words "unpaid and outstanding" in cl 1.4 included the $200,000 held by Anqueline\'s solicitor.' 'In the alternative, whether Kyong breached cl 11 and implied obligations of good faith, co-operation and non-prevention by instigating a consensual rescission of the Kyong Contract and instructing notice of rescission.' 'Whether Anqueline was entitled to the Consulting Fee or damages in the amount of the Consulting Fee.' 'Whether Mr Zavlasky proved loss arising from the alleged loss of opportunity to purchase an industrial unit under cl 1.5.']

Ratio Decidendi

The Deed of Rescission by which Kyong rescinded the Kyong Contract, surrendered its rights, released ACPP and facilitated the replacement Capricorn Contract constituted an "other disposition" of Kyong's interest in the Contract Documents to ACPP within cl 1.4 of the Kyong Heads of Agreement. Clause 1.4 therefore prevailed over cl 1.3(e) and made the whole Consulting Fee, including the $200,000 held in trust, immediately payable to Anqueline on 20 March 2009. Alternatively, if cl 1.4 were not activated, Kyong breached cl 11 and implied obligations by voluntarily instigating a consensual rescission for its commercial interests and instructing notice of rescission, thereby preventing...

Court Disposition

Judgment for Anqueline for the amount of the Consulting Fee and interest from 20 March 2009 to the date of judgment; Mr and Mrs Pacanowski liable as guarantors; plaintiff/cross-defendants to pay defendants/cross-claimants' costs.

Orders

  • ['Judgment for Anqueline for the amount of the Consulting Fee and interest from 20 March 2009 to the date of judgment.' 'Mr and Mrs Pacanowski are liable as guarantors under cl 4.1 of the Kyong Heads of Agreement.' 'The plaintiff/cross-defendant must pay the costs of the defendants/cross-claimants.' 'The parties...