ThoughtWare Australia Pty Limited v IonMy Pty Ltd (No 2) [2023] FCA 1161

ThoughtWare Australia Pty Limited v IonMy Pty Ltd (No 2) [2023] FCA 1161

The applicant is entitled to summary judgment for the unpaid purchase price instalments under the Business Sale Agreement because (a) the respondent’s expert determination challenge fails, (b) the correct calculation of 'gross profit' confirms the debt, (c) the respondent is unable to pay and the contractual...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
18 August 2023
Procedural Posture
Civil / Interlocutory Application for Summary Judgment and Related Relief; Orders After Initial Summary Judgment
Outcome
Judgment for the applicant; declarations, specific performance, restraint, and costs orders made.
Legal Topics
['contracts—business Sale Agreement' 'construction of Contract Terms' 'expert Determination—binding Nature' 'summary Judgment—commercial Contracts' 'insolvency—corporations Act']
['commercial Law' 'corporations Law'] ['contracts—business Sale Agreement' 'construction of Contract Terms' 'expert Determination—binding Nature' 'summary Judgment—commercial Contracts' 'insolvency—corporations Act']

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Procedural Posture

Civil / Interlocutory Application for Summary Judgment and Related Relief; Orders After Initial Summary Judgment

Legal Issues

  1. 1 ["Whether the expert determination as to 'gross profit' under the Business Sale Agreement is binding on the parties" 'Whether the applicant is entitled to summary judgment for unpaid instalments under the Business Sale Agreement' "Whether the defendant's appointment of a small business restructuring practitioner affects the court's ability to proceed" 'Whether the applicant is entitled to declarations of inability to pay and termination under the contract' 'Whether specific performance of contractual reversal and restraint orders are appropriate']

Ratio Decidendi

The applicant is entitled to summary judgment for the unpaid purchase price instalments under the Business Sale Agreement because (a) the respondent’s expert determination challenge fails, (b) the correct calculation of 'gross profit' confirms the debt, (c) the respondent is unable to pay and the contractual termination and reversal mechanisms apply. Leave to proceed is either granted by consent of the restructuring practitioner or by the court under s 453S. Specific performance and injunctive relief follow from the contract and circumstances.

Court Disposition

Judgment for the applicant; declarations, specific performance, restraint, and costs orders made.

Orders

  • ['The applicant has leave to proceed with the proceeding under s 453S of the Corporations Act 2001 (Cth).' 'The applicant has leave to file an Amended Originating Application and Amended Concise Statement.' 'There is judgment for the applicant in the sum of $2,368,903.59.' 'The respondent must pay the applicant...