BB Retail Capital Pty Ltd v Alexandria Landfill Pty Ltd [2015] NSWCA 319

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: BB Retail Capital Pty Ltd v Alexandria Landfill Pty Ltd [2015] NSWCA 319 Hearing dates: 23 July 2015 Date of orders: 15 October 2015 Decision date: 15 October 2015 Before: Bathurst CJ at [1]; Beazley P at [111]; Macfarlan JA at [112] Decision: 1 Appeal allowed. 2 Cross-appeal dismissed. 3 Set aside the orders made by Stevenson J on 23 October 2014. 4 Order that the second respondent pay the appellant's costs of the appeal and cross-appeal and have a certificate under the Suitors' Fund Act 1951 (NSW), if eligible. 5 Order that the second respondent pay the appellant's costs of the proceedings in the Court below. 6 Direct the parties to bring in short minutes of any consequential orders required to give effect to these reasons. Catchwords: CONTRACT – construction – variation of contract – commercial agreement - whether convertible notes were converted at the rate specified in the terms of issue or whether the parties "otherwise agreed" to convert the notes on a $1 to 1 note basis – whether borrowing to raise funds to redeem convertible notes fell within the definition of "organic debt" in the terms of issue

EVIDENCE – admissibility – contractual construction – extrinsic material - pre-contractual negotiations - whether evidence of prior negotiations was admissible to demonstrate the manner of calculation of the exercise price in a put option agreement Legislation Cited: Suitors' Fund Act 1951 (NSW) Cases Cited: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; 129 CLR 99 BB Retail Capital Pty Ltd v Alexandria Landfill Pty Ltd [2014] NSWSC 1363 Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; 53 NSWLR 153 Brogden v Metropolitan Railway Co [1877] 2 App Cas 666 Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; 149 CLR 337 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 Fire Nymph Products Pty Ltd v Heating Centre Pty Ltd (1988) 14 NSWLR 460 Fire Nymph Products Pty Ltd v Heating Centre Pty Ltd (in liq) (1992) 7 ACSR 365 Reynolds Bros (Motors) Pty Ltd v Esanda Ltd (1983) 8 ACLR 422 Righi v Kissane Family Pty Ltd [2015] NSWCA 238 Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; 240 CLR 45 Texts Cited: Francis Beaufort Palmer, AF Topham, Palmers Company Precedents, (16th ed 1951, Stevens) Category: Principal judgment Parties: BB Retail Capital Pty Limited (Appellant and Cross-Respondent) Alexandria Landfill Pty Limited (First Respondent and First Cross-Appellant) Mr Ian Raymond Malouf (Second Respondent and Second Cross-Appellant) Representation: Counsel: NC Hutley SC / J Williams (Appellant and Cross-Respondent) C Birch SC / B Debuse (First and Second Respondents and First and Second Cross-Appellants)