Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Lodge Partners Pty Ltd v Pegum [2009] FCA 519
CORPORATIONS – application to set aside statutory demand – whether a "genuine dispute" as to existence of debt – where only on question of construction of written contract – no factual investigation called for, no conflict in the evidence to be resolved, no question of credit, no oral evidence. Held: appropriate to decide the question of construction. CONTRACT – construction – pre-contract negotiations – contractual provision ambiguous – one of the two competing constructions rejected in antecedent draft of the contract. Held: evidence of rejection of draft admissible as showing the subjective intention of both parties as to the meaning of particular word or expression used in contract. Corporations Act (2001) (Cth) ss 459G and 459H
BBX Holdings Ltd v American Home Assurance Co [2007] NSWSC 549 followed Delnorth Pty Ltd v State Bank of New South Wales (1995) 17 ACSR 379 followed Lifestyle Retirement Projects No 2 Pty Ltd v Parisi Homes Pty Ltd [2005] NSWSC 705 followed Solarite Air Conditioning Pty Ltd v York International Australia Pty Ltd [2002] NSWSC 411 cited Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd (1997) 76 FCR 452cited Symbion Medical Centre Operations Pty Ltd v Thomco (No 2113) Pty Ltd [2009] SASC 65 distinguished Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 followed Prenn v Simmonds [1971] 1 WLR 1381 followed ProForce Recruit Ltd v Rugby Group Ltd [2008] 1 All ER 569 (Comm) Yoshimoto v Canterbury Golf International Ltd [2001] 1 NZLR 523 followed Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 followed LODGE PARTNERS PTY LTD (ACN 053 432 769) v MICHAEL PATRICK PEGUM AND THOMAS JAMES SHARP
NSD 2023 of 2008
LINDGREN J
20 MAY 2009
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
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