Halkett v APG & Co Pty Ltd [2023] NSWSC 1058

Supreme Court New South Wales

Medium Neutral Citation: Halkett v APG & Co Pty Ltd [2023] NSWSC 1058 Hearing dates: 28 July 2023 Date of orders: 6 September 2023 Decision date: 06 September 2023 Jurisdiction: Equity - Commercial List Before: Rees J Decision: Summons dismissed with costs. Catchwords: CONTRACT — chief executive officer owns 5% of employer's shares — employer operates 200 retail fashion stores – COVID-19 lockdowns close stores –foreign exchange hedge book sold – employer receives 'windfall' JobKeeper payments – CEO resigns — employer entitled to buyback shares for "Fair Market Value" calculated by contractual formula "after accounting for abnormal or extraordinary items" – employer to "act reasonably" and in "good faith" — construction of contract — no pleaded allegation that calculation did not meet required standard of performance under contract — matter of judgment. WORDS AND PHRASES — "after accounting for" — abnormal items — extraordinary items. Cases Cited: Australian Broadcasting Commission v Australian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 LCA Marrickville Pty Ltd v Swiss Re International Se [2022] FCAFC 17; (2022) 290 FCR 435 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 Republic of Turkey v Mackie Pty Ltd [2019] VSC 103 Sugar Australia Pty Ltd v Lendlease Services Pty Ltd [2015] VSCA 98 Swiss Re International Se v LCA Marrickville Pty Ltd (Second COVID-19 insurance test cases) [2021] FCA 1206; (2021) 394 ALR 461 Walton v Illawarra [2011] NSWSC 1188 Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522; [2005] HCA 17 Category: Principal judgment Parties: Peter Halkett (Plaintiff) APG & Co Pty Ltd (First Defendant) Sports Fashions Group Pty Ltd (Second Defendant) Representation: Counsel: Mr M Elliott SC / Mr B Goodyear (Plaintiff) Mr P Braham SC / Mr S Gray (Defendants)