NSW Caselaw
New South Wales Supreme Court
CITATION : Pact Properties Pty Limited v APF Commercial Pty Limited [2008] NSWSC 889
HEARING DATE(S) : 21/07/08, 22/07/08, 23/07/08 JUDGMENT OF : McDougall J at 1
EX TEMPORE JUDGMENT DATE : 22 July 2008
DECISION : See para [60] of the judgment.
CATCHWORDS : CONTRACTS - construction and interpretation - sale agreement - application of variation agreement - calculation of retention amount - calculation of purchase price - interest rate payable.
LEGISLATION CITED : Property Stock and Business Agent Act 2002
CASES CITED : Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Pact Properties Pty Limited (Plaintiff) PARTIES : APF Commercial Pty Limited (First Defendant) Delwyn Sela (Sedond Defendant)
FILE NUMBER(S) : SC 50036/07
COUNSEL : A F Fernon (Plaintiff) S R Donaldson SC / J Chambers (Defendants)
SOLICITORS : O'Neill Marengo Lawyers (Plaintiff) Abelitis Solicitors (Defendants)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST
McDOUGALL J
22 July 2008 ex tempore (revised – 20 August 2008)
50036/07 PACT PROPERTY PTY LIMITED v APF COMMERCIAL PTY LIMITED (FORMERLY KNOWN AS APF PACT PTY LIMITED) & 1 ORS JUDGMENT 1 HIS HONOUR: The plaintiff (Pact) carried on a property management business. It agreed to sell that business to the first defendant (APF). The sale agreement was made on 30 September 2005 and varied by a variation agreement made on 30 November 2005. 2 The agreement as varied provided for the purchase price to be paid in two instalments - 75 percent (capped at $1.5 million) on "completion" and the balance (called "retention amount") one year thereafter. 3 Completion, or something substantially equivalent to completion, occurred on 30 November 2005. The first instalment of the purchase price, fixed by the variation agreement at $700,000, was paid. The retention amount became payable on 30 November 2006. It has not been paid. In these proceedings Pact sues to recover what it says is the retention amount.
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