Carlow Castle Pty Limited trading as Greenhill Capital Partners -v- Aztec Resources Limited [2013] NSWSC 188

Supreme Court New South Wales

Medium Neutral Citation: Carlow Castle Pty Limited trading as Greenhill Capital Partners -v- Aztec Resources Limited [2013] NSWSC 188 Hearing dates: 28 February 2013 Decision date: 12 March 2013 Jurisdiction: Equity Division - Commercial List Before: Hammerschlag J Decision: Summons dismissed with costs Catchwords: CONTRACT - construction - where agreement provided for the payment to a corporate advisor of a success fee in the event that a bidder acquired 50% or more of the shares in the defendant under an offer which had been recommended by a majority of the defendant's board of directors - where a bidder made an offer which the board did not recommend but opposed - notwithstanding opposition the bidder succeeded in obtaining more than 50% of the shares in the defendant, thereafter the board changed its recommended - whether success fee payable - RECTIFICATION - the plaintiff claimed that if the construction of the agreement was not as it contended, the agreement should be rectified as not reflecting the continuing common intention of the parties - requirements for the establishment of such intention - whether such requirements were met Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Wilkie v Gordian Runoff Limited (2005) 221 CLR 522 International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 Jireh International Pty Ltd v Western Export Services Inc [2011] NSWCA 137 Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45; (2011) 86 ALJR 1 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Crane v Hegeman-Harris Co Inc [1939] 1 All ER 662 Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 NSW Medical Defence Union Ltd v Transport Industries Insurance Co Ltd (1986) 6 NSWLR 740 Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 Westland Savings Bank v Hancock [1987] 2 NZLR 21 Muriti v Prendergast [2005] NSWSC 281 Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 Pukallus v Cameron (1982) 180 CLR 447 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Category: Principal judgment Parties: Carlow Castle Pty Limited trading as Greenhill Capital Partners - Plaintiff Aztec Resources Limited - Defendant Representation: Counsel: A.S. Bell SC with J.R. Williams - Plaintiff B.A.J. Coles QC with K. de KERLOY - Defendant Solicitors: Slater & Gordon - Plaintiff Herbert Smith Freehills - Defendant File Number(s): 2012/225319