Moraitis Fresh Packaging (NSW) Pty Ltd v Fresh Express (Australia) Pty Ltd [2008] NSWCA 327

New South Wales Court of Appeal

CITATION: Moraitis Fresh Packaging (NSW) Pty Ltd v Fresh Express (Australia) Pty Ltd [2008] NSWCA 327

HEARING DATE(S): 4 & 5 June 2008

JUDGMENT DATE: 2 December 2008

JUDGMENT OF: Giles JA at 1; Hodgson JA at 121; Ipp JA at 163

DECISION: (By majority) (1) Appeal dismissed; (2) Cross-appeal allowed; (3) Orders below set aside and in lieu thereof: (a) Plaintiff's claim dismissed; (b) Declaration that 'the amount' in cl 3 of the second Deed dated 6 June 1996 means the price at which the Trustee would otherwise be selling the Stands to another buyer; (c) Plaintiff to pay two-thirds of the costs of the defendant and the cross-claimants of the statement of claim and the cross-claim; (4) Appellant to pay the respondent's and cross-appellant's costs of the appeal and cross-appeal, and to have a certificate under the Suitors Fund Act if otherwise eligible.

CATCHWORDS: Contract - right of first refusal - right to occupy stands at Sydney Markets - grant of right of first refusal in 1996 - whether void because an assignment forbidden by statute - whether ineffecive because right to occupy stands not capable of assignment - whether present right to occupy stands under new legislative regime not caught by right of first refusal - consideration on a purchase pursuant to the right of first refusal was a stated amount or the price at which the stands would be sold to another purchaser - if the former, whether void as a restraint upon alienation - whether could contend on appeal that it was - whether pursuant to the right of first refusal a deemed offer was made and accepted - construction of deed recording right of first refusal - consideration of construction or correction to avoid absurd or uncommercial result.

CATEGORY: Principal judgment