Caird Seven Pty Ltd v Attia Pty Ltd [2016] NSWSC 1088

Caird Seven Pty Ltd v Attia Pty Ltd [2016] NSWSC 1088

The material relied upon by the defendants to support breach of cl 9.1.1 and vacation of the consent orders was available before the making of those orders. No sufficient evidence was adduced to establish a prima facie case that Caird failed to maintain the goodwill or properly operate the business after 21 April 2016. Therefore, the requirements for vacating the consent orders for specific performance were not satisfied; consent orders stand unless there is good cause to set them aside, which was not shown here.

Jurisdiction
Australia
Judgment Date
09 August 2016
Procedural Posture
Civil / Ruling on Interlocutory Applications Regarding Specific Performance and Vacation of Consent Orders
Outcome
Notice of motion to vacate consent orders (prayers 1 and 2) dismissed; costs orders made; leave granted for cross-claim; proceedings stood over for directions.
Legal Topics
['specific Performance' 'consent Orders' 'contract Rescission' 'breach of Contract' 'equitable Relief' 'costs Orders']
['equity' 'commercial Law'] ['specific Performance' 'consent Orders' 'contract Rescission' 'breach of Contract' 'equitable Relief' 'costs Orders']

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Procedural Posture

Civil / Ruling on Interlocutory Applications Regarding Specific Performance and Vacation of Consent Orders

Legal Issues

  1. 1 ['Whether consent orders for specific performance should be vacated' 'Whether there was a breach of an essential term (cl 9.1.1) of the Retransfer Contract after consent orders were made' 'Whether a prima facie case of breach was established' 'Whether justice would be better served by vacating the consent order' 'Other equitable factors in granting or refusing to vacate final orders made by consent']

Ratio Decidendi

The material relied upon by the defendants to support breach of cl 9.1.1 and vacation of the consent orders was available before the making of those orders. No sufficient evidence was adduced to establish a prima facie case that Caird failed to maintain the goodwill or properly operate the business after 21 April 2016. Therefore, the requirements for vacating the consent orders for specific performance were not satisfied; consent orders stand unless there is good cause to set them aside, which was not shown here.

Court Disposition

Notice of motion to vacate consent orders (prayers 1 and 2) dismissed; costs orders made; leave granted for cross-claim; proceedings stood over for directions.

Orders

  • ['The Notice of Motion filed on 25 July 2016 be dismissed so far as concerns prayers 1 and 2 and be otherwise stood over for further directions on 9 September 2016.' "The defendants pay the plaintiff's costs of that motion to date." 'The plaintiff file and serve no later than 12 August 2016 any written submissions...