Macquarie Retail Pty Ltd v Dexus Capital Funds Management Ltd [2024] NSWSC 1413

Supreme Court New South Wales

Medium Neutral Citation: Macquarie Retail Pty Ltd v Dexus Capital Funds Management Ltd [2024] NSWSC 1413 Hearing dates: 21, 22 October 2024 Date of orders: 8 November 2024 Decision date: 08 November 2024 Jurisdiction: Equity - Commercial List Before: Hammerschlag CJ in Eq Decision: Order for specific performance of the contract of sale issued by the plaintiff to the first defendant on 21 July 2023 Catchwords: CONTRACTS — Construction — Two commercial agreements govern the relationship between co-owners of a large suburban shopping centre – They contain pre-emptive rights clauses and provisions affecting certain disposals of shareholdings or voting rights in a co-owner – Breaches of various terms constitute a default which enlivens machinery for the valuation of the defaulting party's interest in the property and an entitlement in the non-defaulting co-owners to purchase the defaulter's interest – One such breach is a prohibited disposal, which occurs when a co-owner ceases to be a member of a co-owner's group – Whether such a prohibited disposal took place – Whether non-defaulting party has entitlement to acquire whole of defaulting party's interest in the property – Whether notice requirements for the acquisition by the non-defaulting party were complied with – HELD – A prohibited disposal took place, notice requirements were complied with and non-defaulting party is entitled to acquire whole of defaulting party's interest in the property Legislation Cited: Civil Procedure Act 2005 (NSW) s 90 Corporations Act 2001 (Cth) ss 50, 601FS Cases Cited: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Australian Securities and Investments Commission v Bank Leumi Le-Israel (1995) 134 ALR 101 Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520 Electricity Generation Corporation Ltd v Woodside Energy Ltd (2014) 251 CLR 640 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 Mohamed v Farah [2004] NSWSC 482 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Singer v Trustee of the Property of Munro [1981] 3 All ER 215 Taylor v Raglan Developments Pty Ltd [1981] 2 NSWLR 117 Uber Australia Pty Ltd v Chief Commissioner of State Revenue [2024] NSWSC 1124 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: Macquarie Retail Pty Ltd as trustee for the Macquarie Retail Trust (Plaintiff) Dexus Capital Funds Management Ltd (formerly AMP Capital Funds Management Ltd) as responsible entity for the Dexus Wholesale Shopping Centre Fund I (formerly AMP Capital Shopping Centre Fund 1) (First Defendant) Dexus Falcon Pty Ltd (Second Defendant) Representation: Counsel: JA Arnott SC with C Winnett (Plaintiff) DL Williams SC and AE Munro SC (First and Second Defendants)