Kyong Holdings Pty Limited v Anqueline Pty Ltd (No 2) [2010] NSWSC 727

New South Wales Supreme Court

CITATION : Kyong Holdings Pty Limited v Anqueline Pty Ltd (No 2) [2010] NSWSC 727

HEARING DATE(S) : 11 June 2010

JUDGMENT DATE : 5 July 2010

JURISDICTION : Equity Division

JUDGMENT OF : Lindgren AJ

DECISION : 1. Judgment for Anqueline for the amount of the Consulting Fee and interest from 20 March 2009 to the date of judgment (see the recent Practice Note SC Gen 16). Mr and Mrs Pacanowski are liable as guarantors under cl 4.1 of the Kyong Heads of Agreement. 2. The plaintiff/cross-defendant must pay the costs of the defendants/cross-claimants.

CATCHWORDS : CONTRACT - express and implied terms - duty to co-operate and to ensure other party gets the benefit it was intended to get from performance and achievement of purpose of contract - breach consisting of taking of steps which prevented other party from becoming entitled to consulting fee.

LEGISLATION CITED : Evidence Act 1995 (Cth) Superannuation Industry (Supervision) Act 1993 (Cth)

CATEGORY : Principal judgment

Armory v Delamirie (1722) 1 Str 505; 93 ER 664 Burger King Corporation v Hungry Jack's Pty Ltd (2001) 69 NSWLR 558 CASES CITED : Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Secured Income Real Estate (Australia) Ltd v St Martin's Investments Pty Ltd (1979) 144 CLR 596 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359

TEXTS CITED : Macquarie Dictionary Oxford English Dictionary

Kyong Holdings Pty Limited (Plaintiff/Cross-Defendant) Anqueline Pty Limited (First Defendant/First Cross-Claimant) Paul Zavlasky (Second Defendant/Second Cross-Claimant) PARTIES : Estate Operations Pty Limited (Third Defendant/Third Cross-Claimant) David Pacanowski (Second Cross-Defendant) Mazine Pacanowski (Third Cross-Defendant) Capricorn Developments Pty Limited (Fourth Cross-Defendant)