Australian Hardboards Limited and Others v Hudson Investment Group Limited [2006] NSWCA 146

New South Wales Court of Appeal

CITATION: Australian Hardboards Limited and Others v Hudson Investment Group Limited [2006] NSWCA 146

HEARING DATE(S): 14, 15, 16 February 2006

JUDGMENT DATE: 6 June 2006

JUDGMENT OF: Giles JA at 1; Santow JA at 2; Bryson JA at 133

DECISION: (1) Save for the variation in (2), appeal and cross-appeal dismissed. ; (2) Vary order 8 made by Einstein J on 15 September 2005 to read –; 8. Order that the Third Defendant execute and deliver to the Plaintiff mortgages in favour of the Plaintiff in such form as the parties may agree or, in default of agreement within 21 days from 6 June 2006, as may be settled by an Associate Justice.; (3) Appellants to pay the costs of the appeal and cross-appellant to pay the costs of the cross-appeal.

CATCHWORDS: RECTIFICATION – Rectification of a deed (the "Entitlement Deed"). - CORPORATIONS – Whether a previous deed purporting to amend the Entitlement Deed was validly executed by the two companies concerned – Whether absence of board authority to execute deed – Whether there was breach of fiduciary duty and its effect where common directors purporting to act for each company – "ratification" by way of ratifying what occurred at non-existent meeting – formalities required for genuine board meetings. - CONTRACT – Whether letter intended to constitute legally binding agreement – Masters v Cameron – possible fourth category.

LEGISLATION CITED: Corporations Law s260B

Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 CASES CITED: Bush v National Australia Bank Ltd (1992) 35 NSWLR 390 Commissioner of Stamp Duties (NSW) v Carlenka Pty Limited (1995) 41 NSWLR 329 Masters v Cameron (1954) 91 CLR 343 Poliwka v Heven Holdings Ltd (No 2) (1992) 8 ACSR 747