Flynn v PPK Mining Equipment Pty Ltd [2023] NSWCA 201

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Flynn v PPK Mining Equipment Pty Ltd [2023] NSWCA 201 Hearing dates: 28-29 July 2023 Date of orders: 30 August 2023 Decision date: 30 August 2023 Before: Leeming and Mitchelmore JJA at [1]; Stern JA at [2]. Decision: (1) The appeal is allowed. (2) The notice of contention is dismissed. (3) Orders 2 and 3 of the orders of the Supreme Court on 2 December 2022 are set aside. (4) The issue of damages or other relief, and subject to order 6 below, the issue of costs at first instance, is remitted to the primary judge for determination. (5) The respondents pay the appellants' costs of the appeal. (6) If either side wishes this Court to determine costs at first instance, then the appellants file and serve written submissions, limited to two pages, within seven days of these orders, as to whether and to what extent they are entitled to the costs of the hearing before the primary judge, and the respondents file and serve responsive submissions, again limited to two pages, within fourteen days of these orders, as to the costs of the hearing before the primary judge. Catchwords: CONTRACTS – construction – share purchase agreement to be understood objectively having regard to commercial purpose and object CONTRACTS – construction – meaning of business revenue for purpose of determining whether second performance conditions satisfied – business revenue includes revenue from internal supply – internal supply calculated by transfer price as agreed by the parties CONTRACTS – breach of share purchase agreement – where respondents prepared NPAT statements on the basis of incorrect contractual premise Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd [2023] HCA 6; (2023) 97 ALJR 194 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 Category: Principal judgment Parties: Daniel Flynn (First Appellant) Flynfam Pty Ltd as trustee for the Flynn Family Trust (Second Appellant)