CB Australia Ltd v Shepherd [2017] NSWSC 1768

Supreme Court New South Wales

Medium Neutral Citation: CB Australia Ltd v Shepherd [2017] NSWSC 1768 Hearing dates: 25, 26, 27 September 2017 Date of orders: 19 December 2017 Decision date: 19 December 2017 Jurisdiction: Equity - Commercial List Before: Parker J Decision: Plaintiff entitled to judgment in the sum of $856,291 by way of adjustment to the purchase price, and defendant entitled to orders for specific performance requiring plaintiff to cause company to pay $440,363.98 on account of payments received by company after completion Catchwords: Contracts – contract for sale of shares in company – construction – alleged failure to do things required at settlement of sale – whether breaches of contract – whether "completion" occurred Contracts – contract for sale of shares in company – construction – obligation to provide assistance reasonably required for the purpose of responding to claimed adjustment of purchase price – alleged breach Evidence – "without prejudice" – discussions between parties to contract concerning claims against third party – whether privileged Equity – estoppel – contract for sale of shares in company – alleged promise not to rely on time limit in contract for responding to claimed adjustment of purchase price – whether requirement of clarity satisfied Equity – specific performance – contract for sale of shares in company – assignment to third party of payments for debts owed to company – company not party to contract and in liquidation – whether purchaser can be compelled by vendor to cause company to pay third party – relief Legislation Cited: Evidence Act 1995 (NSW), s 131 Cases Cited: Coulls v Bagot's Executor and Trustee Co Ltd (1967) 119 CLR 460; [1967] HCA 3 Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11 Texts Cited: JD Heydon, Cross on Evidence (10th ed, 2015, LexisNexis Butterworths) Category: Principal judgment Parties: CB Australia Ltd (Plaintiff) Colin William Shepherd (Defendant) Representation: Counsel: AJ Bulley (Plaintiff/Cross Defendant) JS Drummond (Defendant/Cross Claimant)