Healthscope Limited v Symbion Health Limited [2008] NSWSC 893

New South Wales Supreme Court

CITATION : Healthscope Limited v Symbion Health Limited [2008] NSWSC 893

HEARING DATE(S) : 24 July 2008

JUDGMENT DATE : 1 September 2008

JUDGMENT OF : Hammerschlag J

DECISION : Summons dismissed. Plaintiff to pay the defendant's costs of the proceedings.

CATCHWORDS : CONTRACT – Construction – whether on proper construction of Transaction Implementation Deed ("the Deed") and Termination Deed break fee payable – Plaintiff proposed to take over Diagnostics Businesses owned by defendant's subsidiary – Deed provided for payment of break fee if the transaction did not proceed in specified circumstances one of which was if a Competing Proposal was announced "prior to the date" of defendant's general meeting which was to consider transaction and that proposal was ultimately completed – date was set for meeting to be held but after adverse tax rulings the meeting was cancelled and the parties agreed to terminate the Deed – Competing Proposal had been announced before the date the meeting was to be held and was ultimately completed – question of construction whether "date of" the meeting meant date the meeting took place or date for which it was scheduled to take place but did not – Termination Deed had provisions that break fee provisions survive termination of the Deed – effect.

LEGISLATION CITED : Corporations Act 2001 (Cth)

CATEGORY : Principal judgment

Idameneo (No 123) Pty Ltd v Symbion Health Ltd (2007) 165 FCR 19 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 CASES CITED : International Air Transport Association v Ansett Australia Holdings Ltd (Subject to Deed of Company Arrangement) (2008) 212 ALR 47 Wilkie v Gordian Runoff Limited (2005) 221 CLR 522 Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99