Centennial Coal Company Ltd v Xstrata Coal Pty Ltd [2009] NSWSC 788

New South Wales Supreme Court

CITATION : Centennial Coal Company Ltd v Xstrata Coal Pty Ltd [2009] NSWSC 788

HEARING DATE(S) : 22-23 June 2009

JUDGMENT DATE : 11 August 2009

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Brereton J

DECISION : Summons dismissed with costs

CATCHWORDS : CONTRACTS – Construction – obligation to use "all reasonable endeavours" to transfer shares and contractual rights to defendant – where shares subject to pre-emptive rights of other shareholders – whether "best endeavours" require invocation of pre-emptive procedure – where both parties accept that consent of existing shareholders would not have been forthcoming – whether plaintiff has thus taken "all reasonable endeavours" – Held: obligations not discharged as future events may make it possible to affect transfer – where contract requires plaintiff to deal with contractual rights for benefit of defendant – whether dependant upon potential for ultimate transfer – Held: independent obligation unless and until transfer effected – REMEDIES – Declarations – Negative declaration – where plaintiff seeks declaration that defendants are precluded from bringing action against plaintiff for breach of provisions in deed because of limitations provisions contained in deed – where claims that may be brought have not been precisely articulated and may never be brought – Held: inappropriate to make declaration

(Cth) Australian Securities & Investments Commission Act 2001 LEGISLATION CITED : (Cth) Corporations Act 2001 (Cth) Trade Practices Act 1974

CATEGORY : Principal judgment

Hawkins v Pender Bros Pty Ltd [1990] 1 Qd R 135 Hospital Products Limited v United State Surgical Corporation (1984) 156 CLR 41 CASES CITED : Hume v Monro (No 2) (1943) 67 CLR 461 Yewbelle Limited v London Green Developments Limited [2006] EWHC 3166 (Ch) Yewbelle Limited v London Green Developments Limited [2007] EWCACiv 475