Cadbury Pty Ltd v Mercer Investment Nominees Ltd [2011] NSWSC 622

Supreme Court New South Wales

Medium Neutral Citation: Cadbury Pty Ltd v Mercer Investment Nominees Ltd [2011] NSWSC 622 Hearing dates: 14-15 June 2011 Decision date: 23 June 2011 Jurisdiction: Equity Division Before: Windeyer AJ Decision: 1. Answer the first question - Yes. 2. Answer the second question - No. 3. Further amended summons be dismissed. 4. Plaintiff to pay the defendants' costs, those of the second to eighth defendants as submitting defendants. Catchwords: CONTRACTS - construction - the meaning of the words "change of control" and "following" in a superannuation agreement - whether the definition of "change of control" in the agreement was intended to include an internal restructure of the group of companies of which the plaintiff is part - whether literal construction absurd - ambiguity - whether "following" in the relevant clause has a temporal or causal construction Cases Cited: Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Fitzgerald v Masters (1956) 95 CLR 420 Grey v Pearson (1857) 6 HL Cas 61 Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 Jireh International Pty Ltd t/as Gloria Jean's Coffee v Western Exports Services Inc [2011] NSWCA 137 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 Spooner v British Telecommunications plc [1999] All ER (D) 1090 Westpac Banking Corporation v Tanzone Pty Ltd [2000] NSWCA 25 Category: Principal judgment Parties: Cadbury Pty Ltd (now Kraft Foods Australia Pty Ltd) (plaintiff) Mercer Investment Nominees Ltd (first defendant) Luke Mulkearns (second defendant) Joe Ferraro (third defendant) Rod McNeil (fourth defendant) Michael Keenan (fifth defendant) Andrew Nowicki (sixth defendant) Tricia Fields (seventh defendant) Michael Magee (eighth defendant) Representation: Counsel: P J Brereton SC; K E Day (plaintiff) I J Hardingham QC; V Culkoff (first defendant) Solicitors: Freehills (plaintiff) Maddocks (first defendant) File Number(s): SC 2009/290784