GALCIF PTY LTD v DUDLEY'S CORNER PTY LTD AND ORS [1995] NSWCA 161

GALCIF PTY LTD v DUDLEY'S CORNER PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, HANDLEY and SHELLER JJA 16 May 1995, 16 May 1995

[1995] NSWCA 161

COMPANIES — articles of association — shopping centre — negative covenant — promise not to conduct similar class of business — whether identical business of medical practice is "similar" — held: It is. INTERPRETATION — rules of construction — achievement of purpose of document — articles of association — ambiguity of words — caution in use of earlier cases and dictionaries. WORDS AND PHRASES- "similar''.

COMPANIES — articles of association — negative covenant — construction of — company's articles govern shares in commercial shopping centre — articles limit carrying on of "similar class of business" to that carried on by another member — one member leases shop for use as medical practice — that member wishes to reclaim shop and to use the same itself as a medical practice — existing medical practice seeks and obtains lease of an adjacent shop from another member — whether that conduct amounts to carrying on or permitting to be carried on "a similar class of business" — primary judge (Bryson J) holds that it does not as the classes of business were identical, not similar — on appeal to the Court of Appeal — held: (1) The articles should be construed with a view to achieving their purpose and having regard to the ambiguity of their language. Manufacturers' Mutual Insurance Ltd v Withers AND Anor (1988) 5 ANZ Ins Cas 60-853 (NSWCA); Aspden v Seddon (1874) 10 Ch App 394 (CA); Cabell vy Markham 148 F 2d 737 (1945) applied; (2) Within the meaning of the articles, and for the achievement of their purpose, the conduct of an identical business, being a medical practice, would be in breach of the articles; (3) Proceedings returned to the Equity Division of the Supreme Court for determination of remaining issues conformably with the opinion of the Court of Appeal.