Leonards Pharmacy Pty Ltd v Double Up 888 Pty Ltd [2018] NSWSC 974

Leonards Pharmacy Pty Ltd v Double Up 888 Pty Ltd [2018] NSWSC 974

The Purchaser did not comply with its obligations under the Sale Contract to use best endeavours and do all things necessary for approval under s 90 of the National Health Act by the completion date. The purported rescission was not valid. Vendor was entitled to treat this as repudiation, retain the deposit, and recover damages. Cross-claim for misleading or deceptive conduct failed as representations were not made and there was no reliance or inducement.

Parties
Plaintiff and First Cross Defendant: Leonards Pharmacy Pty Ltd; First Defendant and First Cross Claimant: Double Up 888 Pty Ltd; Second Defendant and Second Cross Claimant: Ngoc-Hien Duong
Jurisdiction
Australia
Judgment Date
03 July 2018
Procedural Posture
Principal Judgment / Final Decision
Outcome
Plaintiff succeeds; cross-claim dismissed
Legal Topics
Contract for Sale of Pharmacy, Repudiation, Rescission, Misleading and Deceptive Conduct, Forfeiture of Deposit
Equity Trade and Commerce Contract for Sale of Pharmacy Repudiation Rescission Misleading and Deceptive Conduct Forfeiture of Deposit

Case Brief

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Parties

Leonards Pharmacy Pty Ltd

Plaintiff and First Cross Defendant

Double Up 888 Pty Ltd

First Defendant and First Cross Claimant

Ngoc-Hien Duong

Second Defendant and Second Cross Claimant

Procedural Posture

Principal Judgment / Final Decision

Legal Issues

  1. 1 Whether purchaser entitled to rescind contract
  2. 2 Whether purchaser discharged obligation to do all things necessary to obtain approval under s 90 National Health Act 1953 (Cth)
  3. 3 Whether purchaser used best endeavours for expeditious determination of application

Ratio Decidendi

The Purchaser did not comply with its obligations under the Sale Contract to use best endeavours and do all things necessary for approval under s 90 of the National Health Act by the completion date. The purported rescission was not valid. Vendor was entitled to treat this as repudiation, retain the deposit, and recover damages. Cross-claim for misleading or deceptive conduct failed as representations were not made and there was no reliance or inducement.

Court Disposition

Plaintiff succeeds; cross-claim dismissed

Orders

  • Direct the plaintiff to file short minutes of orders to reflect the conclusions reached in the reasons of 3 July 2018
  • Vendor entitled to retain forfeited deposit