In the matter of Italian Forum Limited (subject to a deed of company arrangement) (No 2) [2015] NSWSC 1382

In the matter of Italian Forum Limited (subject to a deed of company arrangement) (No 2) [2015] NSWSC 1382

Clause 86(m) did not require the plaintiffs to pay the first and second period BMC amounts on or before settlement because cl 86 required payment only of amounts for which the Purchaser was or might be held liable, not amounts for which IFL alone was liable. The first and second period BMC amounts were liabilities incurred by IFL while it was registered proprietor, although subject to a condition precedent, and s 28W did not impose those liabilities on the Purchaser after settlement. The second and third defendants had filed submitting appearances, no vitiating factor or compromise was established, and the plaintiffs were entitled to identify the perceived error before final orders were...

Jurisdiction
Australia
Judgment Date
11 September 2015
Procedural Posture
Equity Corporations List / Further Argument After August Reasons and Before Final Orders on the Effect of Cl 86(m) of the Sale Contract and the Form of Relief
Outcome
The Court accepted the plaintiffs' contention that the August reasons were erroneous as to cl 86(m) and held that the declarations and orders sought in the Alternative Orders should be made subject to amendments identified by the fourth defendant and accepted by the plaintiffs.
Legal Topics
['deed of Company Arrangement' 'commercial Strata Management Scheme Liabilities' 'submitting Appearances' 'declarations and Directions' 'condition Precedent' 'liability of Purchaser After Settlement']
['equity' 'corporations' 'property' 'civil Procedure'] ['deed of Company Arrangement' 'commercial Strata Management Scheme Liabilities' 'submitting Appearances' 'declarations and Directions' 'condition Precedent' 'liability of Purchaser After Settlement']

Case Brief

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Procedural Posture

Equity Corporations List / Further Argument After August Reasons and Before Final Orders on the Effect of Cl 86(m) of the Sale Contract and the Form of Relief

Legal Issues

  1. 1 ['Whether reliance on cl 86(m) of the Sale Contract in the August reasons was erroneous.' 'Whether the Purchaser would be liable for BMC amounts incurred while IFL was the registered owner but subject to an unfulfilled condition precedent.' 'Whether the second and third defendants, having filed submitting appearances, could contest the Alternative Orders or withdraw their submitting appearances.' 'Whether s 28W of the Strata Schemes (Freehold Development) Act 1973 (NSW) imposed liability on the Purchaser for obligations incurred before it became registered proprietor.']

Ratio Decidendi

Clause 86(m) did not require the plaintiffs to pay the first and second period BMC amounts on or before settlement because cl 86 required payment only of amounts for which the Purchaser was or might be held liable, not amounts for which IFL alone was liable. The first and second period BMC amounts were liabilities incurred by IFL while it was registered proprietor, although subject to a condition precedent, and s 28W did not impose those liabilities on the Purchaser after settlement. The second and third defendants had filed submitting appearances, no vitiating factor or compromise was established, and the plaintiffs were entitled to identify the perceived error before final orders were...

Court Disposition

The Court accepted the plaintiffs' contention that the August reasons were erroneous as to cl 86(m) and held that the declarations and orders sought in the Alternative Orders should be made subject to amendments identified by the fourth defendant and accepted by the plaintiffs.

Orders

  • ['The declarations and orders sought by the plaintiffs in the Alternative Orders should be made subject to the amendments identified by Mr Carruthers and accepted by the plaintiffs.']