Smith v Acquire Asia Pacific Philippines Inc [2016] NSWSC 1084

Supreme Court New South Wales

Medium Neutral Citation: Smith v Acquire Asia Pacific Philippines Inc [2016] NSWSC 1084 Hearing dates: 28 July 2016 Date of orders: 09 August 2016 Decision date: 09 August 2016 Jurisdiction: Equity - Commercial List Before: McDougall J Decision: Separate question answered "yes". Stand matter over for directions. Catchwords: CONTRACTS – interpretation and construction of commercial contracts – whether defendant is obliged to direct the Escrow Agent to release the Escrow Amount to the plaintiffs

EQUITY – equitable set-off – whether defendant's warranty and indemnity claims give rise to a right of equitable set-off – whether sufficiently connected with, so as to impeach, plaintiffs' claimed right – whether any right of set-off excluded by necessary implication from terms of contract – whether defendant entitled not to direct the release of the funds Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedures Rules 2005 (NSW) Cases Cited: Drane v Aqualyng Holdings [2016] QSC 139 Hawes v Dean [2014] NSWCA 380 HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479 Palaniappan v Westpac Banking Corporation [2016] WASCA 72 Sun Candies Pty Ltd v Polites [1939] VLR 132 Texts Cited: SR Derham, The Law of Set-off (4th ed, 2010) Heydon, Leeming and Turner, Meagher Gummow and Lehane's Equity: Doctrine and Remedies (5th ed, 2015) Category: Procedural and other rulings Parties: Jonathan James Smith (First Plaintiff) Saffelberg Investments NV (Second Plaintiff) Richard Weatherstone (Third Plaintiff) Darcy Mark Lalonde (Fourth Plaintiff) Alvin Edillon (Fifth Plaintiff) Windy A Dolendo (Sixth Plaintiff) Acquire Asia Pacific Philippines Inc (Defendant) Representation: Counsel: M Elliott (Plaintiffs) I Pike SC / B Lim (Defendant)