Bradken Resources Pty Limited v The ANI Corporation Limited [2002] NSWSC 463

New South Wales Supreme Court

CITATION : Bradken Resources Pty Limited v The ANI Corporation Limited [2002] NSWSC 463 CURRENT JURISDICTION: Equity Division Commercial List FILE NUMBER(S) : SC 50045/02 HEARING DATE(S) : 24 May 2002 JUDGMENT DATE : 4 June 2002

PARTIES : Bradken Resources Pty Limited (Plt/Resp) The ANI Corporation Limited (Def/Appl) JUDGMENT OF : McClellan J

COUNSEL : N C Hutley SC/J Stoljar (Pltf/Resp) N Mukhtar QC/P Santamaria (Def/Appl) SOLICITORS : Corrs Chambers Westgarth (Pltf/Resp) Clayton Utz (Def/Appl) CATCHWORDS : COMMERCIAL - application for stay of proceedings - contractual clause for the resolution of disputes relating to Completion Accounts by an Accounting Expert - payment by a third party was claimed in the Completion Accounts - conduct of the officers of the defendant and third party is an issue - whether expert is competent to determine issues relating to conduct - whether parties should resolve disputes in accordance with terms of contract. Huddert Parker Limited v The Ship Mill Hill (1950) 81 CLR 502 Savcor Pty Limited v State of New South Wales (2001) 52 NSWLR 587 CASES CITED : Fidelitas Shipping v V/O Exportchleb [1966] 1 QB 630 Baulderstone Hornibrook Engineering Pty Limited v Kayah Holdings Pty Limited (1987) 14 BCL 277 Cott UK Limited v F E Barber Limited [1997] 3 All ER 540 DECISION : See para 23

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

McCLELLAN J

TUESDAY, 4 JUNE 2002

50045/02 BRADKEN RESOURCES PTY LIMITED v THE ANI CORPORATION LIMITED JUDGMENT 1 HIS HONOUR: This is a motion brought by the defendant, The ANI Corporation Limited ("ANI"), seeking a stay of the proceedings. The plaintiff, Bradken Resources Pty Limited ("Bradken") as buyer and the defendant as seller, executed a deed of sale and purchase ("the Deed") of a substantial business in October 2001. 2 The contract between the parties provided a provisional purchase price with completion to occur on 21 December 2001. Prior to this date, ANI was to continue to conduct the business and a mechanism was included in the Deed for the ultimate adjustment of the provisional purchase price at the date of completion. Amongst other activities, ANI was in the business of manufacturing railway cars. 3 The Deed provided that the subject matter of the sale and purchase were the "Assets", which were defined in Schedule 21. That Schedule stated that "Assets" meant a number of matters but did not include the "Excluded Assets". Excluded Assets were also identified and defined to exclude "Trade Debts". 4 Schedule 21 provides a definition of Trade Debts in the following terms: "Trade Debts means the aggregate of all amounts due or owing to the Seller in connection with the Business and which relate to goods and services provided by the Seller in relation to the Business on or prior to the Completion Date as specified in the Completion Accounts." 5 Clause 15.2 of the Deed requires ANI to carry on the business until completion of the contract. The obligation is to "carry on the business in the ordinary course consistent with the past practice." 6 Clause 3.3 of the Deed provides that on the completion date, Bradken will pay ANI the provisional purchase price adjusted in accordance with clause 3.4 to produce an amount being the purchase price. That adjustment is to be undertaken in accordance with Schedule 6 to the Deed. 7 Schedule 6 provides amongst other things: