Wong v Van Vlymen [2016] NSWSC 161

Wong v Van Vlymen [2016] NSWSC 161

The Contract did not contain an implied term making performance conditional on the Van Vlymen Entities obtaining finance: the proposed term was not what the Contract actually meant, the Contract was effective without it, and the seller's awareness that the purchaser might need finance did not make the transaction subject to finance. Damages were not an adequate remedy because the Contract was in substance for the sale of privately held OSTI shares and valuation of the underlying Joint Venture interests and assets would be extraordinarily difficult, particularly after Mr Van Vlymen's reorganisation of Joint Venture entities. The defendants did not establish impossibility or hardship...

Jurisdiction
Australia
Judgment Date
01 March 2016
Procedural Posture
Equity Expedition List; Contract and Specific Performance Proceedings / Principal Judgment After Hearing on Questions Concerning Implied Term, Specific Performance and Damages
Outcome
Contract does not have an implied term that performance is subject to finance; specific performance to be ordered.
Legal Topics
['implied Terms in Fact' 'condition Precedent' 'subject to Finance' 'specific Performance' 'adequacy of Damages' 'hardship or Impossibility' 'sale of Unlisted Shares']
['contracts' 'equity'] ['implied Terms in Fact' 'condition Precedent' 'subject to Finance' 'specific Performance' 'adequacy of Damages' 'hardship or Impossibility' 'sale of Unlisted Shares']

Case Brief

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Procedural Posture

Equity Expedition List; Contract and Specific Performance Proceedings / Principal Judgment After Hearing on Questions Concerning Implied Term, Specific Performance and Damages

Legal Issues

  1. 1 ['Whether the Contract is subject to an implied term that obtaining finance by the Van Vlymen Entities was a condition precedent to executing the Settlement Agreement, necessary to give the Contract business efficacy.' 'If not, whether the Court should decline to order specific performance as a matter of discretion because the Van Vlymen Entities are unable to pay the deposit and/or settlement sum.' 'If specific performance were declined, whether the Wong Entities have or should be allowed damages at common law for breach of contract or damages in lieu of specific performance under Supreme Court Act 1970 (NSW), section 68.']

Ratio Decidendi

The Contract did not contain an implied term making performance conditional on the Van Vlymen Entities obtaining finance: the proposed term was not what the Contract actually meant, the Contract was effective without it, and the seller's awareness that the purchaser might need finance did not make the transaction subject to finance. Damages were not an adequate remedy because the Contract was in substance for the sale of privately held OSTI shares and valuation of the underlying Joint Venture interests and assets would be extraordinarily difficult, particularly after Mr Van Vlymen's reorganisation of Joint Venture entities. The defendants did not establish impossibility or hardship...

Court Disposition

Contract does not have an implied term that performance is subject to finance; specific performance to be ordered.

Orders

  • ['The Court proposed to make declarations and orders to the effect sought by Mr Wong.' 'The parties were invited to confer and agree on the declarations and orders to give effect to the reasons.' 'The parties were invited to make submissions as to the manner in which the order for specific performance should be...