McGettigan v Eliran Pty Limited [1999] NSWSC 769

McGettigan v Eliran Pty Limited [1999] NSWSC 769

Clause 4 required the defendant by 30 June 1999 to have found an investor who was then willing and able to provide sufficient funds within a reasonable time, not necessarily to have obtained the investment by that date. On the evidence, the Court was not satisfied on the balance of probabilities that the Dickensons were willing and able as at 30 June 1999 to invest sufficient funds. Properly construed, 30 June 1999 was an essential date because the terms of settlement imposed time requirements on almost every provision and used the word "forthwith" in clause 4. Therefore clause 4 ceased to have contractual significance and the matter proceeded under clause 5.

Jurisdiction
Australia
Judgment Date
22 July 1999
Procedural Posture
Notice of Motion Seeking Declarations Concerning Terms of Settlement for Redemption of Unit Trust Interests and Sale of Hotel Asset / Hearing of Notice of Motion
Outcome
Declarations made for the plaintiffs; defendant ordered to pay costs of the motion; further consideration reserved.
Legal Topics
['time of the Essence' 'construction of Terms of Settlement' 'meaning of "find an Investor"' 'unit Trust Redemption' 'public Auction of Hotel Asset']
['equity' 'conveyancing' 'contract Law' 'trusts'] ['time of the Essence' 'construction of Terms of Settlement' 'meaning of "find an Investor"' 'unit Trust Redemption' 'public Auction of Hotel Asset']

Case Brief

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Procedural Posture

Notice of Motion Seeking Declarations Concerning Terms of Settlement for Redemption of Unit Trust Interests and Sale of Hotel Asset / Hearing of Notice of Motion

Legal Issues

  1. 1 ['Whether the defendant had found an investor within the meaning of clause 4 of the terms of settlement by 30 June 1999.' 'Whether 30 June 1999 was an essential date under the terms of settlement.' 'Whether the plaintiffs could reject a later tender of the sums referred to in clause 4 and require the hotel to proceed to auction under clause 5.']

Ratio Decidendi

Clause 4 required the defendant by 30 June 1999 to have found an investor who was then willing and able to provide sufficient funds within a reasonable time, not necessarily to have obtained the investment by that date. On the evidence, the Court was not satisfied on the balance of probabilities that the Dickensons were willing and able as at 30 June 1999 to invest sufficient funds. Properly construed, 30 June 1999 was an essential date because the terms of settlement imposed time requirements on almost every provision and used the word "forthwith" in clause 4. Therefore clause 4 ceased to have contractual significance and the matter proceeded under clause 5.

Court Disposition

Declarations made for the plaintiffs; defendant ordered to pay costs of the motion; further consideration reserved.

Orders

  • ['Declarations 2(a) and (b) in the notice of motion made.' 'Defendant to pay the costs of the motion.' 'Further consideration reserved.']