Crest One Pty Ltd v Olynthos Australia Pty Ltd & Ors [2013] NSWSC 1766

Supreme Court New South Wales

Medium Neutral Citation: Crest One Pty Ltd v Olynthos Australia Pty Ltd & Ors [2013] NSWSC 1766 Hearing dates: 27 November 2013 Decision date: 29 November 2013 Jurisdiction: Equity Division Before: Sackar J Decision: See paragraph [42] Catchwords: EQUITY - specific performance - effect of honestly held but mistaken belief as to proper construction of arrangements. Legislation Cited: N/a Cases Cited: DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423 Quest Rose Hill Pty Ltd v Owners Corporation of Strata Plan 64025 [2012] NSWSC 1548; (2012) 16 BPR 31,387 Remax Developments Pty Ltd v Chamwell Pty Ltd [2011] NSWSC 695; (2011) 15 BPR 29,479 Velik v Steingold [2013] NSWCA 303 Texts Cited: N/a Category: Principal judgment Parties: Crest One Pty Ltd (Plaintiff) Olynthos Australia Pty Ltd (First Defendant) Olynthos Pte Ltd (Second Defendant) Ilias Christianos (Third Defendant) Representation: Counsel: D Ash (Plaintiff) N Newton (Defendants) Solicitors: Robert H Butler (Plaintiff) Iles Selley Lawyers (Defendants) File Number(s): 2012/183848

Judgment

Proceedings 1By its amended summons filed on 22 February 2013, the plaintiff seeks relief in the following terms: 1. A declaration that the Plaintiff is entitled to have the Agreement made between the Plaintiff and each of the Defendants on 4 July 2011 and varied by them on 16 September 2011 specifically performed and carried into execution. 2. An order that the Defendants specifically perform and carry into execution the said Agreement, in particular: a) by the Defendants and each of them doing all things necessary to register 11,850,000 of the First Defendant's shares currently in the name of the Third Defendant, into the name of the Second Defendant; and b) by the Second Defendant executing a charge in favour of the Plaintiff over its business assets and undertakings. 3. In default of the Defendants or any of them complying with Order 2, a direction that a Registrar of the Court be empowered to execute all such instruments and do all such things in the name of and on behalf of every defaulting Defendant as may be necessary in order to specifically perform and carry into execution the said Agreement. 4. As to the 150,000 of the First Defendant's shares which can no longer be the subject of an order for specific performance, the Plaintiff seeks from all Defendants damages. 5. Interest on any damages. 6. Costs. 7. Further or other orders, including an order that the restraint on the Third Defendant ordered on 7 February 2013 be discharged or varied to the extent necessary to give effect to any other relief granted. 2The defendants oppose the relief sought.