Kay v Playup Australia Pty Ltd [2020] NSWCA 33

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kay v Playup Australia Pty Ltd [2020] NSWCA 33 Hearing dates: 11 September 2019 Date of orders: 04 March 2020 Decision date: 04 March 2020 Before: Macfarlan JA at [1] Brereton JA at [2] Simpson AJA at [132] Decision: 1. Leave to appeal be granted, and the draft notice of appeal stand as the notice of appeal; 2. Leave to cross-appeal be granted, and the draft notice of cross-appeal stand as the notice of cross-appeal; 3. The appeal be allowed; 4. The amended notice of contention be dismissed; 5. The cross-appeal be allowed; 6. Declarations (1), (2), (3) and (4) made in the Equity Division on 5 July 2019 be set aside, and in lieu therefore the Court declares that: (a) Subclause 4.3(b)(i) and (ii) of the Share Sale and Purchase Agreement relating to Bestbet.com.au Pty Ltd between the plaintiff (as buyer) and the defendant (as seller) dated 23 March 2018 ("Agreement"), is a penalty and unenforceable and of no effect; (b) in the events which have happened, the restraints imposed on the defendant by the Agreement, and the restraints imposed on the defendant by the Restraint Deed signed, sealed and delivered by the defendant in favour of the plaintiff on or around 7 June 2018, have not been rendered void ab initio by operation of cl 4.3(b)(i) of the Agreement; (c) in the events which have happened, the Warranties given by the defendant in the Agreement have not been rendered void ab initio by operation of cl 4.3(b)(ii) of the Agreement. 7. Leave be reserved to either party to apply within 14 days in respect of order (5) made in the Equity Division on 5 July 2019. 8. The appellant pay the respondent's costs of the application for leave to appeal, the appeal, the application for leave to cross-appeal and the cross-appeal. Catchwords: EQUITY – Equitable remedies – Relief against forfeiture – Doctrine confined to proprietary or possessory rights as distinct from mere contractual rights