ASSK Investments Pty Limited v AMA Group Limited [2020] NSWSC 1756

Supreme Court New South Wales

Medium Neutral Citation: ASSK Investments Pty Limited v AMA Group Limited [2020] NSWSC 1756 Hearing dates: 30 November 2020 Decision date: 07 December 2020 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: Order for specific performance Catchwords: CONTRACT – Construction – Where Binding Heads of Agreement made by the parties on 1 November 2019 contemplate the sale by the plaintiff to the defendant of its smash repairs business – Clause 7(b) under heading 'Conditions Precedent' required all necessary third party consents, authorisations and approvals being obtained (including the defendant's Board Approval) – Whether on non-fulfilment of the condition there is no agreement for the sale and purchase of the plaintiff's business – Whether the condition was operative – HELD – Non-fulfilment of the condition did not have the consequence that there is no binding agreement for sale – HELD – There is a binding agreement for sale – HELD – In any event, condition not operative because defendant's Board Approval was not necessary – Order for specific performance. Cases Cited: Australian Broadcasting Commission v Australasian Performing Rights Association Ltd (1973) 129 CLR 99 Electricity Generation Corporation Ltd v Woodside Energy Ltd (2014) 251 CLR 640 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522 Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 Category: Principal judgment Parties: ASSK Investments Pty Limited - Plaintiff AMA Group Limited - Defendant Representation: Counsel: M.W. Young SC - Plaintiff M. Green SC with J. Treherne - Defendant