Zoobury Pty Ltd v Cariste Pty Ltd [2022] NSWSC 18

Supreme Court New South Wales

Medium Neutral Citation: Zoobury Pty Ltd v Cariste Pty Ltd [2022] NSWSC 18 Hearing dates: 16, 17 December 2021 Date of orders: 17 January 2022 Decision date: 17 January 2022 Jurisdiction: Equity - Commercial List Before: Parker J Decision: See [173]-[176] Catchwords: CONTRACTS – construction – interpretation – contract for the redevelopment of a commercial property – contract gave the plaintiff a right to a transfer of a share of the property – contract also entitled the plaintiff to distributions of the net income derived from the property proportionate to its share of the property – dispute as to the amount of the plaintiff's share under the contract – admissibility of evidence said to form part of the "matrix of fact" CORPORATIONS – reinstatement – Corporations Act, s 601AH – plaintiff company deregistered at the time of entry into the contract – all parties unaware of the plaintiff's deregistration until after the proceedings had commenced – plaintiff seeks validation order – dispute as to form of order – cross-claim by defendant for misleading and deceptive conduct – whether the validation order should be conditional upon the plaintiff abandoning its limitation defence to the cross-claim Legislation Cited: Companies Act 1948 (UK), s 353 Corporations Act 2001 (Cth), s 601AH Trade Practices Act 1974 (Cth), ss 52, 82, 87 Cases Cited: Allianz Australia Insurance Ltd v Viksne [2021] NSWCA 268 CGU Workers Compensation (NSW) Ltd v Rockwall Interiors Pty Ltd (2006) 201 FLR 296 Cherry v Steele-Park (2017) 96 NSWLR 548 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669 Re Austral Bronze Pty Ltd (No 2) [2020] NSWSC 1633 Re Donald Kenyon Ltd [1956] 3 All ER 596 Re Gia Firenze Investments Pty Ltd [2013] NSWSC 99 Re Moore Murphy Holdings Pty Ltd [2021] FCA 103 Re Regional Planners Developments Co Pty Ltd [2015] NSWSC 1996 Re West (New Zealand High Court (Napier), Ronald Young J, 15 May 2002, unrep) Category: Principal judgment Parties: Zoobury Pty Limited (First Plaintiff/First Cross-Defendant) Tobruk Pty Limited as trustee for the Tobruk Trust (Second Plaintiff/Second Cross-Defendant) Frederic Harrison & Co Pty Limited (Third Plaintiff/Third Cross-Defendant) Cariste Pty Limited (Defendant/Cross-Claimaint) Representation: Counsel: G Sirtes SC/R McEwen (Plaintiffs/Cross-Defendants) D Williams SC/R Size (Defendant/Cross-Claimaint)