CLK Kitchens & Joinery Pty Ltd v Mayneline Kitchens & Joinery Pty Ltd [2017] NSWSC 1737

CLK Kitchens & Joinery Pty Ltd v Mayneline Kitchens & Joinery Pty Ltd [2017] NSWSC 1737

Clause 9.10 does not entitle the Seller to general access to accounting records or the broader information requested; access is limited to management, draft, and final accounts as understood in the context of the contract and related warranties. The Buyer must execute the Expert Determination Agreement, subject to the carve-out permitting attendance of its General Counsel/Company Secretary, as the terms proposed by the nominated expert are reasonable, reflecting the parties' implied obligation to facilitate the expert determination process.

Jurisdiction
Australia
Judgment Date
14 December 2017
Procedural Posture
Principal Judgment / Final Determination
Outcome
Partly allowed, partly dismissed
Legal Topics
['construction of Contract Terms' 'expert Determination' 'access to Financial Statements']
['contract' 'equity'] ['construction of Contract Terms' 'expert Determination' 'access to Financial Statements']

Case Brief

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Procedural Posture

Principal Judgment / Final Determination

Legal Issues

  1. 1 ["Proper construction of 'management accounts' under cl 9.10" 'Status and appointment of expert under cl 9.8' 'Reasonableness of expert determination agreement terms']

Ratio Decidendi

Clause 9.10 does not entitle the Seller to general access to accounting records or the broader information requested; access is limited to management, draft, and final accounts as understood in the context of the contract and related warranties. The Buyer must execute the Expert Determination Agreement, subject to the carve-out permitting attendance of its General Counsel/Company Secretary, as the terms proposed by the nominated expert are reasonable, reflecting the parties' implied obligation to facilitate the expert determination process.

Court Disposition

Partly allowed, partly dismissed

Orders

  • ['Order defendant execute the Expert Determination Agreement (Annexure B) subject to carve-out regarding General Counsel/Company Secretary attendance at meetings.' "Plaintiffs' amended summons otherwise dismissed." 'Each party to pay its own costs.' 'Direction for written submissions on costs variation (if sought).'...