Nauru Phosphate Royalties Trust (Receivers and Managers appointed) & Business Australia Capital Mortgage Pty Ltd (in liquidation) & Ors; Andrew Hugh Jenner Wily in his capacity as liquidator of Business Australia Capital Finance Pty Ltd & Ors v Nauru Phosphate Royalties Trust (Receivers and Managers appointed) & Ors [2008] NSWSC 916

New South Wales Supreme Court

CITATION : Nauru Phosphate Royalties Trust (Receivers and Managers appointed) & Business Australia Capital Mortgage Pty Ltd (in liquidation) & Ors; Andrew Hugh Jenner Wily in his capacity as liquidator of Business Australia Capital Finance Pty Ltd & Ors v Nauru Phosphate Royalties Trust (Receivers and Managers appointed) & Ors [2008] NSWSC 916

HEARING DATE(S) : 28/08/08, 29/08/08, 1/09/08

JUDGMENT DATE : 5 September 2008

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

DECISION : Parties to bring in short minutes of order

CATCHWORDS : Contract - Construction - Express obligation to take reasonable steps to give effect to agreement and to provide reasonable assistance - Obligation the same in substance as an obligation to use 'best endeavours' - Obligation to use 'best endeavours' does not require person who undertakes obligation to go beyond the bounds of reason but requires that he do all he reasonably can in the circumstances to achieve the contractual object, but no more - Content of obligation to provide 'reasonable assistance' - Interdependent contractual provisions - Derivation of duty to cooperate - What is reasonable will turn on the particular circumstances - Implied obligations of good faith - Causation

CATEGORY : Principal judgment

Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 Burger King Corp v Hungry Jack's Pty Ltd [2001] NSWCA 187 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 Mackay v Dick (1881) 6 App Cas 251 Overlook v Foxtel (Barrett J) CASES CITED : Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Sheffield District Railway Co v Great Central Railway Co (1911) 27 TLR 451 State of New South Wales v Banabelle Electrical Pty Ltd [2002] 54 NSWLR 503 Terrell v Mabie Todd & Co Ltd (1952) 69 RPC 234 Tymshare Inc v Covell (1984) 727 F2d 1145 Vodafone Pacific Limited v Mobile Innovations Limited [2004] NSWCA 15 Waters Lane Pty Ltd & Anor v Sweeney & Ors [2007] NSWCA 200 Wentworth v De Montfort (1988) 15 NSWLR 348