LIQUORLAND (AUSTRALIA) PTY LTD v GYG HOLDINGS PTY LTD and ORS [1994] NSWCA 361

LIQUORLAND (AUSTRALIA) PTY LTD v GYG HOLDINGS PTY LTD and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, HANDLEY and POWELL JJA 16 September 1994, 28 October 1994

[1994] NSWCA 361

CONTRACT — informal contract — whether concluded agreement reached — bidding war for sale of liquor business — parties shake hands on deal — held: (by maj): No concluded agreement — if so purchaser subsequently accepted repudiation — no specific performance. EQUITY — specific performance — availability of — requirements of pleading — unconscientious conduct. LIQUOR — sale of off-licence (retail) license and liquor business — whether concluded agreement reached — held: (by maj): It was not.

CONTRACT — oral agreement — sale of liquor business in shopping mall — competing bids between owner of mall keen to preserve liquor business and owner of a chain of liquor stores — shopping mall owner offers increased bid which vendor accepts — vendor shakes hands on bargain, telephones solicitor and notifies liquor chain that business sold — subsequently vendor signs agreement with liquor chain for sale of business to it at higher price — primary judge (Brownie J) holds that a concluded bargain was made between the vendor and the shopping mall — orders vendor to give specific performance of sale of business to shopping mall — on appeal — held: (Powell JA, Handley JA concurring; Kirby P dissenting):

(1) The proper interpretation of the negotiations between the parties was that no concluded agreement had been reached between the vendor and the shopping mall. Masters and Anor v Cameron (1954) 91 CLR 353 applied; Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 97023 (SC), 9251 discussed; Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 (CA) applied;