Allco Equity Partners v Allco Equity Partners Management [2008] NSWSC 1401

New South Wales Supreme Court

CITATION : Allco Equity Partners v Allco Equity Partners Management [2008] NSWSC 1401

HEARING DATE(S) : 9 December 2008 JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 9 December 2008

DECISION : See paras [62] and [63] of the judgment.

CATCHWORDS : CONTRACTS - Management agreement - breach - defendant's failure to comply with statutory conditions for a licence constituted breach of Management Agreement where possession of licence a condition of the Agreement - whether serious breach of a material obligation.

LEGISLATION CITED : Corporations Act 2001

CASES CITED : Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115

TEXTS CITED : Oxford Australian Dictionary

Allco Equity Partners Limited (First Plaintiff) PARTIES : AEP Signature Holdings Pty Limited (Second Plaintiff) Allco Equity Partners Management Pty Limited (receivers and managers appointed; voluntary administrators appointed) in its capacity as trustee of the AEP Management Trust (Defendant)

FILE NUMBER(S) : SC 50238/08

COUNSEL : M A Pembroke SC / T M Faulkner (Plaintiffs) J C Sheahan SC / M J Darke (Defendants)

SOLICITORS : Mallesons Stephen Jaques (Plaintiffs) Corrs Chambers Westgarth (Defendant)

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

McDOUGALL J

9 December 2008 ex tempore (revised 9 December 2008)

50238/08 ALLCO EQUITY PARTNERS LTD v ALLCO EQUITY PARTNERS MANAGEMENT PTY LIMITED JUDGMENT 1 HIS HONOUR: The question for decision is whether the plaintiffs (respectively Partners and Signature) have terminated management rights granted to the defendant (Management). There is a significant and urgent commercial interest in the resolution of that question. Accordingly, and having regard both to the time of the year and my other commitments, I have decided to give my judgment ex tempore rather than reserving for a short period of time to reflect, as I would have preferred to do. 2 In the circumstances, in the reasons that follow, I shall not make reference in detail to the submissions of counsel. I wish to make it clear, however, firstly, that I have been greatly assisted by the helpful and concise submissions, both written and oral; and secondly, that I have taken those submissions into account to the extent necessary in reaching the views that I am about to express.