M & W Zaki Pty Ltd v MindChamps Preschool Ltd (No 2) [2022] NSWCA 266

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: M & W Zaki Pty Ltd v MindChamps Preschool Ltd (No 2) [2022] NSWCA 266 Hearing dates: 4 October 2022 Date of orders: 14 December 2022 Decision date: 14 December 2022 Before: Meagher JA at [1]; Brereton JA at [35]; Basten AJA at [36] Decision: Appeal dismissed with costs. Catchwords: CONTRACT – breach of contract – construction – where appellants as sellers of nine childcare centres executed Term Sheet with respondent as prospective buyer in sale process which called for expressions of interest – where Term Sheet gave respondent the benefit of six-week period during which discussions and communications between appellants and other interested parties were to be terminated – where appellants continued to communicate with other such parties during exclusivity period – whether primary judge erred in holding exclusivity obligations breached – whether primary judge erred in holding that such breaches enlivened obligation to return $500,000 deposit Cases Cited: McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65 Category: Principal judgment Parties: M & W Zaki Pty Ltd ATF the Zaki Group Trust (ABN 99 233 987 815) (First Appellant) Childcare Income Protection Pty Ltd ATF the KZ Trust (ABN 94 358 741 310) (Second Appellant) Mark Zaki (Third Appellant) MindChamps Preschool Ltd (Respondent) Representation: Counsel:

R Newlinds SC with A Horvath SC (Appellants) M Izzo SC with B Hancock (Respondent)