Playup Australia Pty Ltd v Kay [2019] NSWSC 771

Supreme Court New South Wales

Medium Neutral Citation: Playup Australia Pty Ltd v Kay [2019] NSWSC 771 Hearing dates: 3 - 5 June 2019; further written submissions 12 June and 21 June 2019 Decision date: 25 June 2019 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Clause 4.3(b) of the Share Sale and Purchase Agreement of 23 March 2018 not engaged; plaintiff entitled to declaratory relief to that effect Catchwords: CONTRACTS – construction and interpretation – share sale agreement – whether the purchaser's obligation to make deferred payments dependent on seller's obligation to ensure adjustments made on completion – where parties agreed time was of the essence in relation to the purchaser's obligation to make the deferred payments – whether parties agreed that the "Date of Completion" was a different date to "Completion" – whether seller no longer bound by restraints and warranties in the agreement

EQUITY – equitable remedies – relief against penalties – clause in share sale agreement provided that restraints and warranties made by defendant are void if payment not made within seven days of due date – whether that clause is a penalty and unenforceable

EQUITY – equitable remedies – relief against forfeiture – non-proprietary rights in the form of restraints and warranties conferred by agreement – whether purchaser should have relief against forfeiture of those rights Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: AMEV-UDC Finance Ltd v Austin (1986) 162 CLR 170; [1986] HCA 63 Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205; [2012] HCA 30 Arab Bank Australia Ltd v Sayde Developments Pty Ltd (2016) 93 NSWLR 231; [2016] NSWCA 328 Australia Capital Financial Management Pty Ltd v Linfield Developments Pty Ltd; Guan v Linfield Developments Pty Ltd [2017] NSWCA 99 Burton v Palmer [1980] 2 NSWLR 878 Cavendish Square Holding BV v Makdessi; ParkingEye Ltd v Beavis [2015] 3 WLR 1373; [2015] UKSC 67 Clydebank Engineering & Shipbuilding Company Ltd v Castaneda [1905] AC 6 Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 Grocon Constructions (QLD) Pty Ltd v Juniper Developer (No 2) Pty Ltd [2015] QCA 291 Hillam v Iacullo (2015) 90 NSWLR 422; [2015] NSWCA 196 Multiplex Constructions Pty Ltd v Abgarus Pty Ltd (1992) 33 NSWLR 504 Newcombe v Newcombe (1934) 34 SR (NSW) 446 Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50 Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525; [2016] HCA 28 Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656; [2005] HCA 71 Tito v Waddell (No 2) [1977] 2 WLR 496; [1977] Ch 106 Texts Cited: J D Heydon, Heydon on Contract (2019, Thomson Reuters) J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed, 2015, LexisNexis Butterworths) J W Carter, Carter on Contract (2014, LexisNexis) Category: Principal judgment Parties: Playup Australia Pty Limited (Plaintiff) Ryan Kay (Defendant) Representation: Counsel: N J Kidd SC with E A Walker (Plaintiff) M K Condon SC (Defendant)