Lakomy v Accounting TEK Property Investment Pty Limited [2021] NSWSC 1152

Lakomy v Accounting TEK Property Investment Pty Limited [2021] NSWSC 1152

The subscription agreement was never binding on ATPI due to failure of valid execution under s 127(1) Corporations Act 2001, and conditions imposed at signing were not met. Even if binding, EnergyLink is estopped from enforcement as enforcement would unconscionably depart from a common assumption that funds from an offshore investor were a precondition, which never occurred. EnergyLink engaged in misleading or deceptive conduct via its representative McCue, contravening s 18 ACL, warranting a declaration but not damages. The claim against ATPI for breach and damages fails as EnergyLink never tendered performance, was not ready, willing, or able to perform, and there was no breach. The...

Parties
First and Second Plaintiffs/second Cross Defendant: Andre Lakomy and Alan Walker as Liquidators for EnergyLink Holdings Pty Limited (In Liquidation); Third Plaintiff/first Cross Defendant: EnergyLink Holdings Pty Limited (In Liquidation); Defendant/cross Claimant: Accounting TEK Property Investment Pty Limited
Jurisdiction
Australia
Judgment Date
10 September 2021
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Summons dismissed
Legal Topics
Misleading or Deceptive Conduct, Implied Terms, Execution of Company Documents, Estoppel, Discharge/abandonment of Contract, Contract Damages
Contract Law Consumer Law Equity Misleading or Deceptive Conduct Implied Terms Execution of Company Documents Estoppel Discharge/abandonment of Contract +1 more

Case Brief

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Parties

Andre Lakomy and Alan Walker as Liquidators for EnergyLink Holdings Pty Limited (In Liquidation)

First and Second Plaintiffs/second Cross Defendant

EnergyLink Holdings Pty Limited (In Liquidation)

Third Plaintiff/first Cross Defendant

Accounting TEK Property Investment Pty Limited

Defendant/cross Claimant

Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 Was the subscription agreement binding between EnergyLink Holdings Pty Limited and ATPI?
  2. 2 Did EnergyLink engage in misleading or deceptive conduct contrary to s 18 of the Competition and Consumer Act 2010 (Cth)?
  3. 3 Is EnergyLink estopped from enforcing the Agreement due to a common assumption about contingent funding?

Ratio Decidendi

The subscription agreement was never binding on ATPI due to failure of valid execution under s 127(1) Corporations Act 2001, and conditions imposed at signing were not met. Even if binding, EnergyLink is estopped from enforcement as enforcement would unconscionably depart from a common assumption that funds from an offshore investor were a precondition, which never occurred. EnergyLink engaged in misleading or deceptive conduct via its representative McCue, contravening s 18 ACL, warranting a declaration but not damages. The claim against ATPI for breach and damages fails as EnergyLink never tendered performance, was not ready, willing, or able to perform, and there was no breach. The...

Court Disposition

Summons dismissed

Orders

  • The Summons is dismissed.
  • Declaration that by its conduct on 28 February 2019 in representing to the defendant/cross-claimant that the Subscription Agreement was not a proper document, that nothing would happen if she signed it and that Christopher McCue would not do anything with it until he had heard from her, the third plaintiff/first...