Cypjayne Pty Limited v Babcock & Brown International Pty Ltd [2010] NSWSC 180

New South Wales Supreme Court

CITATION : Cypjayne Pty Limited v Babcock & Brown International Pty Ltd [2010] NSWSC 180

HEARING DATE(S) : 9-13,16,17 November 2009

JUDGMENT DATE : 12 March 2010

JUDGMENT OF : Bryson AJ at 1

(1) On the plaintiffs' claim, give judgment for the defendants with costs. DECISION : (2) On the cross-claim, declare that the cross-claimant CAGCare Pty Ltd is entitled to the deposit of $400,000 and interest thereon paid on 19 December 2007 and held as stakeholder by Osbornes lawyers pursuant to clause 4.2(d) of the Allocated Places Purchase Agreement. (3) Direct that the cross-defendant Blue Hills Village Management (Liverpool) Pty Ltd direct Osbornes Lawyers to pay over the deposit and interest to the cross-claimant. (4) Order that the cross-defendant pay the cross-claimant's costs of the cross-claim.

CATCHWORDS : CONTRACT – Formation – Reasonable commercial endeavours. - TRADE PRACTICES ACT – Misleading and deceptive conduct – Extended negotiation for sale of Retirement Village business began September 2007 – Contracts drafted and two exchanged on 19 December 2007 for sale of Allocated Places – complex continuing negotiations and dealings involving – Heads of Agreement stating when agreements would become binding – Modifications in detail of proposed contracts and parties – Contemplated extended sequence of entry into agreements to accommodate Vendors' concept of effects on their CGT position – Applications to Commonwealth Department of Health and Ageing for administrative approvals for transfer – Obligation of purchaser of Allocated Places to use reasonable commercial endeavours to bring about fulfilment of conditions precedent which would require decisions of others to commit capital – DOHA approvals available on 23 June 2008 but conditions precedent not fulfilled – Detailed consideration of complex facts led to findings that there was no breach of contract and no misleading or deceptive conduct – Claims dismissed deposit refunded – Decision on facts.