Climit Pty Ltd v Captech Group Limited [2003] NSWSC 491

New South Wales Supreme Court

CITATION : Climit Pty Ltd v Captech Group Limited [2003] NSWSC 491 HEARING DATE(S) : 15 May 2003 JUDGMENT DATE : 6 June 2003 JURISDICTION: Equity Division JUDGMENT OF : Windeyer J at 1 DECISION : Plaintiffs' claim dismissed.

CATCHWORDS : CONTRACTS - specific performance - contract for transfer of options to take up shares - options subject to stock exchange escrow agreement - same parties involved in both agreements - no supervening event - no termination by frustration - specific performance not available as plaintiffs had by conduct accepted repudiation of defendants CONTRACTS - termination - frustration - whether agreement incapable of performance CONTRACTS - termination by acceptance of repudiation - whether plaintiffs repudiated by conduct after defendants/purchasers refused to complete or whether repudiation by purchasers/defendants held the latter - no claim for damages for breach of contract LEGISLATION CITED : Corporations Act 2001 s793C Supreme Court Act 1970 s68 Boyns v Lackey (1958) 58 SR(NSW) 395 CASES CITED : Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 Godelfa Constructions Pty Limited v State Rail Authority of NSW (1982) 149 CLR 337 Climit Pty Limited (First Plaintiff) Dalycoy Pty Limited (Second Plaintiff) Kelandrews Corporation Inc (Third Plaintiff) Page Services Pty Limited (Fourth Plaintiff) Active Quest Pty Limited (Fifth Plaintiff) PARTIES : Geraldine Page (Sixth Plaintiff) Robert Page (Seventh Plaintiff) Captech Group Limited (First Defendant) Gerard Amal Wahab (Second Defendant) Mark Roberts Davison (Third Defendant) Capital & Technology Partners Pty Limited (Fourth Defendant) FILE NUMBER(S) : SC 1378 of 2002 COUNSEL : Mr N. Cotman SC with him Mr G Colyer (Plaintiffs) Mr P E Hack SC with him Ms D Hogan-Doran (Defendants) SOLICITORS : Simpson Freed (Plaintiffs) Hopgood Ganim Lawyers (Defendants)