Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227 Hearing dates: 16 May 2012 Decision date: 27 July 2012 Before: Bathurst CJ at [1] Macfarlan JA at [2] Meagher JA at [58] Decision: (1) Grant leave to appeal from the orders made at first instance on 28 February 2012. (2) Appeal allowed in part. (3) Set aside Orders 2 to 13 inclusive made on 28 February 2012. (4) Order that the contract referred to in Order 1 made on that date be specifically performed as provided in the orders below. (5) Order that within 14 days of the date of these orders (or within such extended period as may be determined by a judge of the Equity Division) each of the appellants and the respondents executes a document in the form set out in Annexure A to these orders (the "Formal Contract"). (6) Liberty to apply on three days' notice to a judge of the Equity Division in relation to the date and time of settlement of the Formal Contract and generally in relation to the implementation and enforcement of these orders. (7) Order that the Formal Contract be settled in accordance with clause (2) of it and such directions as to the date and time of settlement as may be given by a judge of the Equity Division (8) Order, pursuant to s. 94 of the Civil Procedure Act 2005, that if any of the appellants does not comply with order 5, the Formal Contract be executed on his or its behalf by a Registrar of the Supreme Court. (9) Order that the appellants specifically perform each of the obligations assumed by them under the Formal Contract as and when the time for performance of those obligations arises under the Deed. (10) Order the appellants to pay 75 per cent of the respondents' costs of the proceedings on appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONTRACTS - Heads of Agreement relating to super yacht marina business - whether parties intended to be legally bound - whether void for uncertainty or incompleteness