526 OLIVE STREET PTY LTD v WESTPAC BANKING CORPORATION and ANOR [1996] NSWCA 1

526 OLIVE STREET PTY LTD v WESTPAC BANKING CORPORATION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, SHELLER and COLE JJA 13 November 1996, 13 November 1996

[1996] NSWCA 1

CONSTRUCTION of commercial agreement — essentiality of time provisions.

Clarke JA I agree with Cole JA. Sheller JA I agree with Cole JA.

Cole JA The appeal having been discontinued there remains only one issue arising in the cross-appeal brought by Westpac Banking Corporation. That relates to the proper construction of cl24.4(a) of a Unit Subscription and Site Management Agreement dated 23 May 1986 made between various parties to this appeal.

Background facts relevant to an understanding of the extant construction point are in short compass. On 23 May 1986 Westpac Banking Corporation (Westpac) and the appellants entered into a Unit Trust and Site Management Agreement. Westpac subscribed for 17 million units nominally valued at $1 each. On 23 May 1991, the Manager under the agreement determined that the redemption price for Westpac's units was $17,834,093. That redemption price was paid to Westpac on 28 May 1991.

C124.4(a) contained the mechanism for resolving disagreements between the parties regarding such a determination by the Manager. It provided:

"Tf any party to this agreement disagrees with any determination by the Manager referred to in cl24.1 then that party may, within 15 Business Days of its receipt of notice of that determination, have the determination referred to a member of the Association of Consulting Actuaries (or its successor) appointed by its President for the time being."

The fifteen business day period referred to in cl24.4(a) expired in relation to the Manager's determination of the redemption price of the units on 14 June 1991.

On 12 June 1991 the appellants sent a notice to the President of the successor to the Association of Consulting Actuaries requesting the President to appoint a member of the Institute to act as an expert. The notice stated that: