CLK Kitchens & Joinery Pty Ltd v Mayneline Kitchens & Joinery Pty Ltd [2017] NSWSC 1737

Supreme Court New South Wales

Medium Neutral Citation: CLK Kitchens & Joinery Pty Ltd v Mayneline Kitchens & Joinery Pty Ltd [2017] NSWSC 1737 Hearing dates: 6 December 2017 Decision date: 14 December 2017 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Order that, subject to agreement by the expert nominated by the Australian Disputes Centre Ltd (Mr Ross) that, for the purposes of cl 6.1, the Buyer's General Counsel and Company Secretary, Mr Lonsdale, is not to be treated as a "legal adviser" who could be excluded from a meeting convened by the expert (if Mr Lonsdale seeks to attend that meeting in his capacity as company secretary representing the company), the defendant execute within 7 days the Expert Determination Agreement a copy of which is Annexure "B" to the amended summons. (2) Otherwise dismiss the plaintiffs' amended summons. (3) Order each party to pay its own costs of the proceedings. (4) Direct that if either party seeks a variation of order 3, that party serve brief written submissions within 3 days, with the other party to serve brief submissions within 3 days in response, with a view to the issue of costs being determined on the papers. (5) Liberty to apply on 3 days' notice if Mr Ross does not agree to the carve-out from cl 6.1 contemplated in order 1 above. Catchwords: CONTRACT – Construction – Words and phrases – Whether "management accounts" means "accounting records" – Whether information requested by plaintiffs falls within the phrase "management accounts" – Whether proposed expert is the appointed "Expert" for the purposes of a business sale agreement – Significance of proposed expert's reference to "rescinding" his appointment – Whether terms of proposed appointment are reasonable Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60 Cases Cited: 1144 Nepean Highway Pty Ltd v Abnote Australasia Pty Ltd (2009) 26 VR 551; [2009] VSCA 308 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36 Belvino Investments No. 2 Pty Limited v Australian Vintage Ltd [2014] NSWSC 978 Butt v M'Donald (1896) 7QLJ 68 Cherry v Steele-Park [2017] NSWCA 295 Equuscorp Pty Limited v Glengallan Investments Pty Limited (2004) 218 CLR 471; [2004] HCA 55 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 International Air Transport Association v Ansett Australia Holdings Ltd (2008) 243 CLR 151; [2008] HCA 3 Mackay v Dick (1881) 6 App Cas 251 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Newey v Westpac Banking Corporation [2014] NSWCA 319 Pacific Carriers Limited v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 Redland Bricks Ltd v Morris [1970] AC 652 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Watpac Construction NSW Pty Limited v Taylor Thompson Whitting (NSW) Pty Ltd [ 2015] NSWSC 780 Westpac Banking Corp v Tanzone Pty Ltd (2000) 9 BPR 17,521; [2000] NSWCA 25 Category: Principal judgment Parties: CLK Kitchens & Joinery Pty Limited (First Plaintiff) Clint Lucky Karananos (Second Plaintiff) Mayneline Kitchens & Joinery Pty Limited (Defendant) Representation: Counsel: S Couper QC with C Bolger (Plaintiffs) S Robertson (Defendant)