Zoobury Pty Ltd v Cariste Pty Ltd [2022] NSWSC 18

Zoobury Pty Ltd v Cariste Pty Ltd [2022] NSWSC 18

The PSC was to determine Zoobury's ownership share by capitalising Property Income as at the valuation date, not by using later actual net profit after deducting Running Costs. Cariste's construction would double-count Running Costs under cl 3.5 and was inconsistent with the ownership-based purpose and the structure of cl 3.2. Clause 3.2(c), or a tacit agreement arising from the parties' conduct, finalised the Property Share at 16.51% after the relevant 12-month period rather than postponing finality until all Shops were let. The validation order should be unconditional because Cariste's failure to bring its misleading and deceptive conduct claim earlier was not caused by Zoobury's...

Jurisdiction
Australia
Judgment Date
17 January 2022
Procedural Posture
Equity Commercial List; Contractual Construction, Validation Order and Cross Claim Proceedings Concerning a Deed of Option to Acquire Property Share / Principal Judgment Determining Validation Orders and Separate Preliminary Construction Questions; Proceedings Adjourned for Further Directions on Remaining Misleading and Deceptive Conduct Issues
Outcome
Validation orders made without the limitation condition sought by Cariste. Separate preliminary construction questions answered in Zoobury's favour: the final Property Share is 16.51%, not 5.37%, and did not have to await the letting of all Shops. Cariste's restitution cross-claim fails on construction, but...
Legal Topics
['contractual Construction' 'property Redevelopment Agreement' 'property Share and Net Income Distributions' 'matrix of Fact Evidence' 'reinstatement and Validation of Acts of Deregistered Company' 'misleading and Deceptive Conduct' 'limitation Defence' 'restitution Cross Claim']
['contracts' 'corporations' 'trade Practices'] ['contractual Construction' 'property Redevelopment Agreement' 'property Share and Net Income Distributions' 'matrix of Fact Evidence' 'reinstatement and Validation of Acts of Deregistered Company' 'misleading and Deceptive Conduct' 'limitation Defence' 'restitution Cross Claim']

Case Brief

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Procedural Posture

Equity Commercial List; Contractual Construction, Validation Order and Cross Claim Proceedings Concerning a Deed of Option to Acquire Property Share / Principal Judgment Determining Validation Orders and Separate Preliminary Construction Questions; Proceedings Adjourned for Further Directions on Remaining Misleading and Deceptive Conduct Issues

Legal Issues

  1. 1 ["Whether the Court should validate Zoobury's purported execution of the Deed of Option to acquire Property Share and acts done pursuant to it during its deregistration." "Whether any validation order under Corporations Act 2001 (Cth), s 601AH(3) should be conditional on Zoobury not relying on a limitation defence to Cariste's misleading and deceptive conduct claim." 'Whether pre-contractual and post-dispute documents relied on by Cariste were admissible or useful as part of the matrix of fact for construing the PSC.' "Whether, on the true construction of the PSC and in the events which happened, Zoobury's final Property Share was 16.51%, 5.37%, or could only be determined once all Shops had been let."]

Ratio Decidendi

The PSC was to determine Zoobury's ownership share by capitalising Property Income as at the valuation date, not by using later actual net profit after deducting Running Costs. Cariste's construction would double-count Running Costs under cl 3.5 and was inconsistent with the ownership-based purpose and the structure of cl 3.2. Clause 3.2(c), or a tacit agreement arising from the parties' conduct, finalised the Property Share at 16.51% after the relevant 12-month period rather than postponing finality until all Shops were let. The validation order should be unconditional because Cariste's failure to bring its misleading and deceptive conduct claim earlier was not caused by Zoobury's...

Court Disposition

Validation orders made without the limitation condition sought by Cariste. Separate preliminary construction questions answered in Zoobury's favour: the final Property Share is 16.51%, not 5.37%, and did not have to await the letting of all Shops. Cariste's restitution cross-claim fails on construction, but...

Orders

  • ['Order that the purported execution by the first plaintiff of the instrument styled "Deed of Option to acquire Property Share" dated 30 July 2010 be validated.' 'Order that acts purportedly done by the first plaintiff pursuant to that instrument before 8 October 2020 be validated.' 'Order that, nunc pro tunc, there...