In the matter of Two Italian Boys Holdings Pty Limited (ACN 158 310 671) [2015] NSWSC 2100

In the matter of Two Italian Boys Holdings Pty Limited (ACN 158 310 671) [2015] NSWSC 2100

Specific performance was ordered because no party sought rescission, the plaintiffs sought to enforce the deed, the admitted set-off could be dealt with by adjusting the payment under cl 5.1, the non-disparagement clause did not make enforcement inappropriate, and the sale of stock in trade was part of an overall settlement of proceedings.

Jurisdiction
Australia
Judgment Date
10 August 2015
Procedural Posture
Equity Corporations List / Interlocutory Process Seeking Specific Performance of Deed of Settlement
Outcome
Specific performance ordered.
Legal Topics
['specific Performance' 'deed of Settlement' 'set Off' 'non Disparagement Provision' 'costs']
['equity' 'corporations'] ['specific Performance' 'deed of Settlement' 'set Off' 'non Disparagement Provision' 'costs']

Case Brief

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Procedural Posture

Equity Corporations List / Interlocutory Process Seeking Specific Performance of Deed of Settlement

Legal Issues

  1. 1 ['Whether the deed of settlement dated 10 June 2015 should be specifically enforced.' 'Whether an admitted set-off against the purchase price was a discretionary reason to refuse specific performance.' 'Whether a non-disparagement provision in the deed would require ongoing supervision of the Court so as to justify refusing specific performance.' 'Whether the sale of personal property in the nature of stock in trade was a reason to decline specific performance in the context of an overall settlement of litigious proceedings.']

Ratio Decidendi

Specific performance was ordered because no party sought rescission, the plaintiffs sought to enforce the deed, the admitted set-off could be dealt with by adjusting the payment under cl 5.1, the non-disparagement clause did not make enforcement inappropriate, and the sale of stock in trade was part of an overall settlement of proceedings.

Court Disposition

Specific performance ordered.

Orders

  • ['The deed of settlement dated 10 June 2015 be specifically enforced and carried into execution insofar as it has not already been performed.' 'Pursuant to cl 1.1, the plaintiffs pay to the second defendant the sum of $500,000 and the second defendant thereupon execute and deliver to the plaintiffs a transfer in...