NSW Caselaw
New South Wales Supreme Court
CITATION : Hexiva Pty Ltd v Lederer [2006] NSWSC 1129
HEARING DATE(S) : 25, 28, 29 September 2006, 3, 4 October 2006
JUDGMENT DATE : 30 October 2006
JURISDICTION : Equity Division
JUDGMENT OF : Brereton J
DECISION : Declare that D2 failed to use best endeavours to pay debt as required by agreement. Order inquiry as to damages. Judgment for amount certified upon inquiry. Declare that GSP indebted to the LFP for $1,344,737, but not for interest in respect of any part of that sum. Declare that upon making of appropriate journal entries in books of LFP and GSP recording reimbursement to LFP of sum of $800,000 and reduction of indebtedness of GSP to LFP by $800,000, D2 is entitled to $200,000 contributed by P1. Amended First Cross-claim otherwise dismissed.
CATCHWORDS : CONTRACT – obligation to use "best endeavours" to pay debt – construction - whether breached – waiver – Damages – interest as damages - mitigation of damages – whether duty to mitigate applicable to claim for liquidated sum under contract – PARTNERSHIP - whether interest chargeable on inter-partnership loan account
LEGISLATION CITED : (NSW) Uniform Civil Procedure Rules, r 28.2
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Banning v Wright (Inspector of Taxes) [1972] 1 WLR 972 Bennett v Jones [1977] 2 NSWLR 355 Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Cook v Fowler (1874) LR 7 QB 27 Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 Du Maurier v Wechsler [2001] NSWSC 4 Fowler v Midland Electric Corporation for Power Distribution Ltd [1917] 1 Ch 656 Francis May Pty Ltd v Tikitere Pty Ltd (NSWSC, Miles J, 2 April 1982, unreported) General Tire and Rubber Co v Firestone Tyre and Rubber Co Ltd [1975] 1 WLR 819 CASES CITED : Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 Hexiva Pty Ltd v Lederer [2006] NSWSC 318 Hospital Products Limited v United States Surgical Corporation (1985) 156 CLR 41 Hungerfords v Walker (1989) 171 CLR 125 Kadian v Richards (2004) 61 NSWLR 222 Serisier Investments Pty Limited v English [1989] 1 QdR 678 Sheffield District Railway Co v Great Central Railway Co (1911) 27 TLR 451 Terrell v Mabie Todd & Co Ltd (1952) 69 RPC 234 Transfield Pty Ltd v Arlo Engineering Ltd (1980) 144 CLR 83 Wechsler v Du Maurier [2002] NSWCA 13 White & Carter (Councils) Ltd v McGregor [1962] AC 413
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