In the matter of Pendal Group Limited [2022] NSWSC 1575

In the matter of Pendal Group Limited [2022] NSWSC 1575

On the proper construction of the SID, cl 11.8(f) imposed a liquidated damages obligation for specified breaches connected with a Perpetual Major Transaction but did not entitle Perpetual to terminate or elect to pay instead of performing, and did not exclude interlocutory or other equitable relief. Clause 13.8 was directed to monetary liability to Pendal and did not exclude specific performance or injunctive relief. Accordingly, Pendal was entitled to the declaration sought, as amended, and Perpetual's contrary declaration was refused.

Jurisdiction
Australia
Judgment Date
17 November 2022
Procedural Posture
Application Under S 411 of the Corporations Act 2001 (cth) Concerning a Proposed Scheme of Arrangement and Construction of a Scheme Implementation Deed / Determination of Separate Questions Raised by Paragraph 6 AA of the Further Amended Originating Process and Perpetual's Cross Summons
Outcome
Order 6AA of the Further Amended Originating Process was made as amended; Perpetual's Cross-Summons was dismissed; costs reserved.
Legal Topics
['scheme of Arrangement' 'scheme Implementation Deed' 'contract Construction' 'specific Performance' 'injunctive Relief' 'liquidated Damages' 'reverse Reimbursement Fee']
['corporations' 'equity' 'contract Law'] ['scheme of Arrangement' 'scheme Implementation Deed' 'contract Construction' 'specific Performance' 'injunctive Relief' 'liquidated Damages' 'reverse Reimbursement Fee']

Case Brief

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Procedural Posture

Application Under S 411 of the Corporations Act 2001 (cth) Concerning a Proposed Scheme of Arrangement and Construction of a Scheme Implementation Deed / Determination of Separate Questions Raised by Paragraph 6 AA of the Further Amended Originating Process and Perpetual's Cross Summons

Legal Issues

  1. 1 ["Whether cl 11.8(f) of the SID excludes Pendal's rights at law to seek specific performance of Perpetual's obligations under cl 7.2 of the SID or injunctive relief in the stated circumstances." "Whether cl 13.8 of the SID limits Perpetual's liability to the Reverse Reimbursement Fee and excludes all other remedies other than termination and fraud exceptions." "Whether Perpetual's Cross-Summons declaration should be made."]

Ratio Decidendi

On the proper construction of the SID, cl 11.8(f) imposed a liquidated damages obligation for specified breaches connected with a Perpetual Major Transaction but did not entitle Perpetual to terminate or elect to pay instead of performing, and did not exclude interlocutory or other equitable relief. Clause 13.8 was directed to monetary liability to Pendal and did not exclude specific performance or injunctive relief. Accordingly, Pendal was entitled to the declaration sought, as amended, and Perpetual's contrary declaration was refused.

Court Disposition

Order 6AA of the Further Amended Originating Process was made as amended; Perpetual's Cross-Summons was dismissed; costs reserved.

Orders

  • ['Court makes order 6AA of the Further Amended Originating Process, inserting the words "or injunctive relief" after the reference to "clause 7.2 of the SID".' 'Cross-Summons brought by Perpetual Group Ltd is dismissed.' 'Costs reserved.']