Busways Blacktown Pty Ltd v Westbus Region 1 Pty Ltd [2018] NSWSC 1590

Supreme Court New South Wales

Medium Neutral Citation: Busways Blacktown Pty Ltd v Westbus Region 1 Pty Ltd [2018] NSWSC 1590 Hearing dates: 3 - 6 September 2018 Decision date: 23 October 2018 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: For the purpose of cl 17.2(e) of the Shareholders Agreement the first defendant's profit is to be determined on basis that it is entitled to book as a cost 25.69% of such of the indirect costs of its parent as are referrable to the former Bosnjak businesses; the first defendant is obliged to distribute any profit so calculated in excess of 12% EBIT to cost; the Standard Kilometre Rates for each Subcontractor are to be adjusted accordingly Catchwords: CONTRACT - Construction – Interpretation – profit distribution clause – whether obligation to distribute profit in excess of 12% EBIT to cost enlivened – whether first defendant has calculated its profit on the same basis as in the relevant bid template - whether distribution of profit would have caused adjustment of integer relevant to income entitlement from government Cases Cited: EDWF Holdings 1 Pty Ltd v EDWF Holdings 2 Pty Ltd [2010] WASCA 78 Electricity Generation Corporation trading as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR 113; [2014] NSWCA 184 Zhang v BM Sydney Building Materials Pty Ltd [2016] NSWCA 166 Category: Principal judgment Parties: Busways Blacktown Pty Limited (Plaintiff) Westbus Region 1 Pty Limited (First Defendant) Area 1 Management Company Pty Ltd (Second Defendant) B Calabro & Sons Pty Ltd (Third Defendant) Representation: Counsel: P M Wood with R E Raffell and T E O'Brien (Plaintiff) I M Jackman SC with D Klineberg (First Defendant)