Take Off Opportunities Pty Ltd atf The Clear Runway Trust v Susan Quinn Pty Ltd atf The Susan Amelia Quinn Trust

1. [1]

   These proceedings concern a unit sale deed entered into on 3 August 2023 between the plaintiff, Take Off Opportunities Pty Ltd, and the defendant, Susan Quinn Pty Ltd (Unit Sale Deed).

2. [2]

   By the Unit Sale Deed, Take Off agreed to sell and Susan Quinn agreed to buy 10 million units in an established trust known as “BC Land Trust No 57” (Trust). Pursuant to cl 2.2(a) of the Unit Sale Deed, completion of the transaction was subject to receipt of written consent from a financing company, Alceon Finance Pty Ltd. In the event, written consent was not obtained and the sale did not complete. The plaintiff now seeks to recover $1,510,000 by way of damages, being the entirety of the purchase price under the Unit Sale Deed.

3. [3]

   The plaintiff also seeks to recover $990,000 by way of damages, being the amount which the plaintiff contends it was entitled to receive under a Unitholder Loan Agreement, said to be dated 21 May 2021 (Loan). The parties to the Loan are BC Land Pty Ltd, as trustee of the BC Land Trust No 57 (Trustee) and the plaintiff as principal. The “Repayment Date” is defined in the Loan as “the date the Trustee resolves to distribute funds in accordance with the Trust Deed”. As will be developed further below, under cl 5.4(c) of the Unit Sale Deed, the defendant was obliged on completion to cause the Trustee to repay the Loan in the amount of $990,000.

4. [4]

   Take Off alleges that:

5. [5]

   The statement of claim was filed on 22 December 2023. One of the few things the defendant has actively done in the proceeding is to file a defence on 12 April 2024. Relevantly:

6. [6]

   The key issues are whether Susan Quinn breached the Unit Sale Deed in either of the two ways claimed by the plaintiff. If it did, a further issue is the amount to which Take Off is entitled by way of damages.

Absent defendant

1. [7]

   Susan Quinn was initially represented in the proceeding by lawyers, including in relation to the preparation of its defence. On 25 October 2024, however, Susan Quinn’s lawyers filed a notice of intention to file a notice of ceasing to act. A notice of ceasing to act was subsequently filed on 1 November 2024 and, to date, no new solicitors have come on the record, nor has the defendant complied with the pre-hearing directions concerning the filing of evidence and submissions.

2. [8]

   Following the filing of the notice of ceasing to act, three directions hearings took place before the Common Law Registrar. At the first directions hearing, on 8 November 2024, the following orders/directions were made:

3. [9]

   At the second directions hearing, on 6 December 2024, the following orders/directions were made:

4. [10]

   Following the 6 December 2024 directions hearing, Take Off filed an affidavit sworn by its solicitor, Mr Alexander Trevena, on 5 February 2025. Mr Trevena annexed correspondence demonstrating that Take Off had complied with order 5 of the 8 November 2024 orders and order 5 of the 6 December 2024 orders. Mr Trevena further deposed that no evidence had been received from Susan Quinn as at that date on which the affidavit was sworn. I accept that evidence.

5. [11]

   At the most recent directions hearing, on 7 February 2025, the following orders/directions were made:

6. [12]

   The Court File confirms that a copy of the 7 February 2025 orders was emailed to the parties on the same day. The email attaching the orders was sent to the defendant using its last-known email address.

7. [13]

   At the hearing before me, on 13 March 2025, no appearance was announced for Susan Quinn, including after the matter was called outside. To date, no explanation for its non-attendance has been forthcoming.

8. [14]

   In these circumstances, r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides that the Court may either proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or adjourn the trial. In circumstances where I am satisfied that Susan Quinn has been notified of the progress of the proceedings on multiple occasions, including of the final hearing, I considered it appropriate to proceed with the hearing. As Black J noted in Re Central Management (NSW) Pty Ltd (in liq) [2017] NSWSC 1258 at [2], a defendant’s right to be heard is “not a right to frustrate the hearing of proceedings by not attending them”.

9. [15]

   In adopting this course, I note r 36.16(2)(b) of the UCPR, which empowers the Court to set aside or vary a judgment or order after it has been entered if “it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order” (emphasis added).

10. [16]

    Notwithstanding Susan Quinn’s absence, Take Off must “prove its claim so far as the burden of proof lies upon it and if it proves its claim is entitled to the relief claimed and such other relief as is consistent therewith” (Re Anton Fabrications (NSW) Pty Ltd — Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd [2011] NSWSC 186; 248 FLR 384 at [11] per Ward J (as the President then was)).

11. [17]

    I am satisfied that Susan Quinn has been served with all relevant documents and been afforded ample opportunity to attend and be heard.

12. [18]

    The defendant’s non-attendance does not mean that the plaintiff becomes liable to a more demanding obligation to assist the Court as would apply if, for example, the defendant was absent because the Court was dealing with an ex parte application. I respectfully agree with Barrett J’s observations in Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 at [68] where, after referring to several authorities, including Isaacs J’s observations in Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; [1912] HCA 72 at 681 concerning a “most serious responsibility” imposed upon a party who comes to court seeking relief in the absence of the other party, Barrett J stated:

The Unit Sale Deed and ancillary documents

1. [19]

   The Unit Sale Deed the subject of these proceedings was preceded by the following steps. On 11 May 2021, a trust deed constituting the Trust was executed by Susan Quinn and BC Land (Trust Deed). Susan Quinn was the initial unit holder of all 20 million units in the Trust and, as noted above, BC Land was Trustee. As also noted, the Trust was styled the “BC Land Trust No 57”.

2. [20]

   Three further documents were entered into concerning the Trust. The first was a Unit Sale Agreement dated 21 May 2021, under which Susan Quinn agreed to sell, and Take Off agreed to buy, 10 million units in the Trust. The purchase price was $100,000 and the date of completion was 21 May 2021. The other parties to this agreement were Mr Simon John Quinn, as covenantor, and Mr James Farrugia, as guarantor. Mr Quinn is the sole shareholder and former sole director of Susan Quinn. Mr Quinn is also a director of BC Land. Mr Farrugia is the sole director and secretary of Take Off.

3. [21]

   The second document is the Loan said to be dated 21 May 2021, as referred to above. By that Loan, Take Off agreed to lend BC Land $900,000 in two instalments. The purpose of the Loan, as specified in cl 2.2, was to enable BC Land to pay a call option fee to secure a call option for the purchase of a property at 165 Lawson Road, Badgerys Creek, NSW. By cl 3.1, the Trustee was obliged to repay the Loan to Take Off on the “Repayment Date”, which was defined in Item 8 of the Schedule as the date the Trustee resolves to distribute funds in accordance with the Trust Deed.

4. [22]

   The third document is an Equityholders Deed dated 20 May 2021, between BC Land, Susan Quinn, Take Off, Mr Quinn and Mr Farrugia. The Equityholders Deed regulates, among other things, the rights and obligations of unit holders under the Trust, the issuance of further units in the Trust and the transfer of units in the Trust. Relevantly, under cl 18 of the Equityholders Deed, a unit holder is not entitled to transfer its units in the Trust to a third party purchaser unless it first gives notice to the other unitholders and obtains the approval of the board of directors of BC Land. The Equityholders Deed was varied by a Deed of Variation dated 9 November 2022. However, the terms of the variation are not relevant to this proceeding.

5. [23]

   It is against this background that the Unit Sale Deed the subject of these proceedings was subsequently entered into on 3 August 2023. The Unit Sale Deed was entered into by Take Off in its capacity as the trustee of a trust known as “The Clear Runway Trust” and by Susan Quinn in its capacity as the trustee of a trust known as the “Susan Amelia Quinn Trust”. By cl 4.1 of the Deed, Susan Quinn agreed to pay the purchase price of $1,510,000 upon “Completion” of the transaction. Clause 4.2 described the form of payment. Clause 5.1 specified that “Completion will take place at 4:00pm on the Completion Date at [a specified location] or another time and place … as agreed by the Purchaser and the Vendor in writing”. “Completion Date” was defined to mean “the date specified in Item 4 or such other date as agreed between the parties in writing”. Item 4 specified the Completion Date as: “The date being eight calendar weeks after the Effective Date”. “Effective Date” was defined, in turn, to mean “the date of this Deed”, being 3 August 2023.

6. [24]

   Take Off submitted that, in these circumstances, the Completion Date was 23 September 2023, noting, however, that, as the Court pointed out, there are references elsewhere in Take Off’s evidence to the Completion Date being either 27 or 28 September 2023. I understood Take Off ultimately to also accept that the parties agreed to extend the Completion Date to 27 October 2023.

7. [25]

   Clause 2 of the Unit Sale Deed imposed a condition precedent which is relevant to Take Off’s claim in these proceedings. Clause 2 is as follows, noting that the term “Financier” is defined to mean Alceon:

8. [26]

   Under the Unit Sale Deed, Susan Quinn had various other obligations at Completion, including those specified in cl 5.4 (noting, in particular, cll 5.4(b) and (c)):

9. [27]

   The reference in cl 5.4(c) to the “Loan in the amount of $990,000.00” is a reference to the Loan noted above.

10. [28]

    In a Supplementary Tender Bundle tendered by Take Off at the commencement of the hearing (which was admitted as Exhibit D), a copy of a Facility Agreement dated 15 November 2022 was tendered. It set out the terms and conditions upon which Alceon provided a cash advance facility to the borrowers, who were identified in Schedule 1 as BC Land in its personal capacity and as trustee for five different trusts, including the BC Land Trust No 57. The guarantors were identified as Mr Simon Quinn and BC Land in its personal capacity and as trustee for the same five trusts.

11. [29]

    A General Security Deed dated 15 November 2022 was also tendered as part of Exhibit D. In Schedule 1 of the General Security Deed, the grantors were defined as BC Land in its personal capacity and as trustee of the same five trusts identified in the Facility Agreement.

Take Off’s evidence

1. [30]

   In addition to the documents tendered in Exhibit D, Take Off read the following affidavits (and associated exhibits): an affidavit of Zina Edwards, partner at Hamilton Locke, affirmed 19 September 2024; an affidavit of James Farrugia, sole director and secretary of Take Off, sworn 23 September 2024; and an affidavit of Alexander Trevena, solicitor, sworn 8 October 2024. For the most part, the evidence is limited to exhibiting correspondence between the parties and their solicitors. The correspondence is voluminous and much of it is duplicated across all three exhibits to the affidavits.

2. [31]

   I will return below to describe the events which occurred preceding the commencement of these proceedings on 22 December 2023.

Take Off’s submissions summarised

1. [32]

   Take Off provided an outline of written submissions dated 7 March 2025, a chronology and an outline of supplementary submissions dated 13 March 2025, which addressed the quantum of its loss. It was represented at the hearing by Mr David Robertson of counsel.

2. [33]

   As noted, Take Off’s statement of claim pleads that Susan Quinn has breached the Unit Sale Deed by failing to make “all reasonable efforts within its own capacity” to procure Alceon’s written consent. However, the submissions did not identify the relevant standard of conduct imposed by cl 2.2(a) of the Unit Sale Deed.

3. [34]

   When the Court raised these matters with Mr Robertson, he initially described Take Off’s claim for breach as relating to Susan Quinn’s failure to complete the contract by 20 December 2023 and its failure to pay the purchase price, referring to cl 5.4(b) and (c) of the Unit Sale Deed.

4. [35]

   Later in his oral submissions, however, I understood Mr Robertson to revive the claim made in the statement of claim that Susan Quinn was also in breach of contract because of its failure to use “all reasonable efforts within its own capacity” to ensure Alceon provided written consent to the sale of the units as required by cll 2.1 and 2.2(a).

5. [36]

   At [7] of its first written submissions, Take Off submits that “[a]t all times the plaintiff was ready, willing and able to perform its obligations under the Unit Sale Deed”. At [11], it similarly refers to a breach “by the purchaser by their failure to complete the purchase of the units”.

6. [37]

   For the most part, Take Off’s first written submissions are confined to the question of damages. In this respect, Take Off acknowledges that the usual measure of damages would be the difference between the contract price of the units and the market value of the units as at the date of breach. Referring to Vieira v O’Shea [2012] NSWCA 21 at [44]-[45] and Janos v Chama Motors [2011] NSWCA 238 at [35]-[44], however, it submits that this is not the appropriate course on the facts of the case. This is said to be because Take Off was “locked in” to holding its units by the terms of the Equityholders Deed, which required Take Off to obtain approval for transfer from the board of directors of BC Land.

7. [38]

   As developed in its supplementary submissions and in oral address, Take Off contends that the Court should instead assess damages at a date 6 to 12 months after the breach of contract, at which time the units are said to have had “nil value because the Trustee company had been placed into receivership and its secured liabilities exceed the value of its assets”.

8. [39]

   Take Off submits that the Court should also award the plaintiff damages in the sum of $990,000 to compensate it for Susan Quinn’s failure to comply with its obligation under cl 5.4(c) concerning the Loan from Take Off to the Trustee.

9. [40]

   Take Off relied upon the following documents in Exhibit D in support of its contention that the units had no value. First, it noted that BC Land was registered as the owner of 5 parcels of land at Lawson Road, Badgerys Creek. Each of those parcels was purchased by BC Land in its capacity as trustee of one of the five trusts referred to at [28] above. The total purchase price for the five lots was approximately $50 million.

10. [41]

    It is evident that BC Land used funds obtained under its Facility Agreement with Alceon, as secured by the General Security Agreement, to purchase the 5 parcels of land.

11. [42]

    Exhibit D also contains a copy of a Mezzanine Facility Agreement dated 15 November 2022 between BC Land and PrivateInvest Capital Securities Limited, which provided BC Land with a cash advance facility up to $34 million. This Agreement was also secured by a General Security Agreement. These arrangements were entered into by BC Land in its capacity as trustee of each of the five trusts, including BC Land Trust No 57.

12. [43]

    On 24 November 2023, Alceon served on BC Land a Notice of Default because of BC Land’s failure to repay by the repayment date of 16 November 2023 the amounts it had borrowed under the Facility Agreement with Alceon. As at that date, the outstanding principal and interest owing to Alceon totalled $59,455,053.

13. [44]

    On 3 April 2024, Alceon appointed a receiver to BC Land (Mr Costas Nikodemou).

14. [45]

    Exhibit D includes Mr Nikodemou’s Report on Company Activities and Property dated 29 April 2024. It identifies BC Land’s only assets as the various parcels of land at Lawson Road, Badgerys Creek.

15. [46]

    The evidence also includes valuations for the five parcels of land at Lawson Road. As at March 2024, the land was valued at $68 million if it were sold in one line and at $79.3 million if sold as individual allotments. Lot 5, to which BC Land Trust No 57 is directed, was valued at $23 million if sold as an individual allotment. Also in evidence were valuations from a different valuer, who determined that the land was valued at $60 million if sold in one line and at $64 million if sold as individual allotments. This valuer also valued Lot 5 at $23 million if sold as an individual allotment.

16. [47]

    Exhibit D also includes material which demonstrates that, as at March-April 2024, BC Land owed Alceon principal and interest totalling $65,269,068 and owed PrivateInvest principal and interest totalling $38,093,267.57. Take Off submitted, and I accept, that as at March-April 2024, even if the highest valuation was used for BC Land’s land ($79.3 million), its liabilities significantly exceeded its assets by approximately $24 million.

17. [48]

    Having regard to this evidence, I find that when Mr Nikodemou was appointed receiver to BC Land, the value of the units in the BC Land Trust No 57 owned by Take Off was nil. It was clear then that there would be no return to the unit holders of that Trust at the end of the receivership. The evidence does not suggest that the position changed thereafter.

(a) Chronology of events post 10 August 2023

1. [49]

   The evidence establishes the following chronology of events which give rise to these proceedings. In brief, the evidence indicates that the relevant parties were actively engaged, to a greater or lesser extent, in completing the transaction to which the Unit Sale Deed related for the period up to and including 2 November 2023, when Susan Quinn’s involvement abruptly ceased, without explanation.

2. [50]

   On 10 August 2023, Susan Quinn’s solicitors sent an email to Alceon’s solicitors concerning the steps required to obtain Alceon’s written consent to the Unit Sale Deed. Alceon’s solicitors responded on the same day, noting that they had not yet been formally engaged to advise Alceon “on this part of the transaction”.

3. [51]

   On 18 August 2023, James McMurdo of Alceon sent an email to Mr Quinn, attaching a fee estimate “for the work around the James Farrugia payout” for Mr Quinn’s confirmation. Mr McMurdo sent a follow up email to Mr Quinn on 6 September 2023, asking whether “the transfer to James Farrugia” was going ahead and noting the same fee estimate. Ms Gracey Tamariki of Vedast Pty Ltd was copied to this email and replied, on the same day, confirming Mr Quinn’s approval.

4. [52]

   On 11 September 2023, Alceon’s solicitors sent an email to Susan Quinn’s solicitors in relation to the Unit Sale Deed. Alceon’s solicitors attached an “initial draft of the deed of release” and raised the following matters (emphasis added):

5. [53]

   On 13 September 2023, Susan Quinn’s solicitors responded to this correspondence, attaching a copy of the draft deed of release marked-up by Take Off’s solicitors and confirming that the “absolute intention” of the parties was that “both the legal and beneficial interests will be transferred as a result of the proposed transaction and that this was an omission in the deed”.

6. [54]

   Alceon’s solicitors responded on the same day, accepting the marked-up changes to the draft deed of release but noting that no response had been given to the other questions posed in their 11 September 2023 correspondence.

7. [55]

   On 20 September 2023, Alceon’s solicitors sent a further email to the solicitors for Susan Quinn and Take Off, again emphasising that it was awaiting a response to the balance of the questions raised in the 11 September 2023 correspondence.

8. [56]

   On 22 September 2023, Take Off’s solicitors sent an email to Susan Quinn’s solicitors, noting that Susan Quinn had not responded to the remaining questions posed by Alceon. The obligation in the Unit Sale Deed to use “all reasonable efforts” was noted and it was further suggested that Susan Quinn’s delay in providing the requested information was “jeopardising the prospect of the matter settling by the Completion Date …”.

9. [57]

   On 25 September 2025, Take Off’s solicitors responded to the email sent by Alceon’s solicitors on 20 September 2023, including the following:

10. [58]

    On 27 September 2023, Susan Quinn’s solicitors sent an email to the solicitors for Take Off and Alceon, providing the following answers to the balance of the questions posed on 11 September 2023 (emphasis added):

11. [59]

    On the same day, Alceon’s solicitors responded to this correspondence, noting that they would “take instructions on point one”. In relation to the second point, Alceon’s solicitors explained that “the issue here is that no nomination can take place, given that the lender is only consenting on the basis of its security pool staying the same”.

12. [60]

    In an additional email sent on the same day, Alceon’s solicitors noted, in relation to “point one”, that if the transaction was “to be structured as a loan, this will need to be subordinated to the Lender and a subordination deed will be required as well”.

13. [61]

    A third email from Alceon’s solicitors sent on the same day attached a draft subordination deed, which was said to subordinate “the loan repayable to the Purchaser to the Lender’s debt”.

14. [62]

    On 28 September 2023, Take Off’s solicitors sent an email to Susan Quinn’s solicitors, noting the following:

15. [63]

    In an email to Alceon’s solicitors dated 2 October 2023, Susan Quinn’s solicitors attached a signed copy of the deed of subordination and confirmed that their instructions were that no nomination would be taking place.

16. [64]

    Alceon’s solicitors responded to this correspondence on 3 October 2023, asking Susan Quinn’s solicitors, among other things, to confirm that an attached unit transfer form was “in order”. Mr Trevena deposed that, on the same day, he also had a conservation with Susan Quinn’s solicitors, who said words to following effect (which I accept):

17. [65]

    On 5 October 2023, Mr Farrugia sent an email to Alceon’s solicitors, asking “have the documents now been signed resolving all outstanding matters?”. Mr Farrugia noted that “the settlement date (8 weeks from 3 August) was a week ago/last Thursday so appeal [sic] to you for any assistance in expediting the matter”. On the same day, Alceon’s solicitors responded, including:

18. [66]

    Mr Trevena’s evidence (which I accept) is that, on the same day, he also telephoned Susan Quinn’s solicitors to ask for an update, which was given to him in words to the following effect:

19. [67]

    On 11 October 2023, Mr Farrugia also exchanged a number of text messages with Mr Quinn. The exchange included the following (without alteration):

20. [68]

    On 11 October 2023, Susan Quinn’s solicitors also sent an email to Alceon’s solicitors and Take Off’s solicitors, confirming “that funds for completion are available” but noting that “our client is awaiting final confirmation of advice regarding post-completion structure”.

21. [69]

    Mr Farrugia’s evidence is that, on the same day, he also had a conversation with James McMurdo of Alceon. Mr Farrugia’s evidence (which is supported by a contemporaneous email to his solicitors describing the conversation) is that Mr McMurdo said the following when asked when Alceon would be able to formally approve the Unit Sale Deed:

22. [70]

    On 17 October 2023, Susan Quinn’s solicitors sent an email to Alceon’s solicitors and Take Off’s solicitors. The email included the following:

23. [71]

    On the same day, Alceon’s solicitors responded, noting that “this change in structure requires additional work from an Alceon perspective, including new security documents and various deliverables for each entity.”

24. [72]

    On 18 October 2023, Mr Farrugia responded to the email from Alceon’s solicitors of the previous day, including the following:

25. [73]

    Alceon’s solicitors responded to Mr Farrugia’s email on the same day, including:

26. [74]

    Mr Farrugia deposes that, on 19 October 2023, a conversation took place between himself, Mr Trevena, Isaac Hanna (a solicitor acting for Susan Quinn), Mr Quinn and Nils Miller (who appears to control the companies nominated by Susan Quinn). His evidence concerning that conversation (which I accept) is as follows:

27. [75]

    Mr Trevena also gave evidence, which I accept, concerning the inter partes conversation on 19 October 2023. He deposed that one of Mr Quinn, Isaac Hanna or Nils Miller said words to the following effect:

28. [76]

    After the 19 October 2023 conversation, Take Off’s solicitors sent an email to Susan Quinn’s solicitors confirming Take Off’s agreement to the proposed new purchase structure, subject to a number of qualifications.

29. [77]

    On 23 October 2023, Alceon’s solicitors sent an email to Mr Farrugia in reply to an earlier email sent by Mr Farrugia requesting a status update. The email sent by Alceon’s solicitors included the following:

30. [78]

    On 23 October 2023, Susan Quinn’s solicitors also sent Take Off’s solicitors updated documents in relation to the unit sale, including two new unit sale deeds. The first was in respect of the sale of 1 million units to a company called Two James Holdings Pty Ltd. The second was in respect of the sale of 9 million units to a company called Sardinia Pty Ltd. These companies and their respective proposed unit holdings were different to those notified to Alceon in the 17 October 2023 correspondence noted above.

31. [79]

    Take Off’s solicitors responded to this correspondence the next day, on 24 October 2023, attaching marked-up copies of the documents and asking Susan Quinn’s solicitors to circulate execution copies. On the same day, the documents were also sent to Alceon’s lawyers. Subsequently, on 25 October 2023, Alceon’s solicitors responded, attaching a number of revised documents “prepared based on the proposed change of the unit sale structure” and asking for clarification on a number of points.

32. [80]

    On 26 October 2023, Mr Trevena had a conversation with Susan Quinn’s solicitor. His evidence is that Susan Quinn’s solicitor said that they had received documents from Alceon the previous night and that he needed to “speak with Simon and Nils about them”, but that “from Simon’s perspective we are still settling tomorrow.” I accept this evidence. On the same day, Mr Trevena also sent an email to Susan Quinn’s solicitor asking for an update. No response to that email is in evidence.

33. [81]

    It appears that Take Off and Susan Quinn began to engage in negotiations concerning an extended Completion Date from around this time. On 31 October 2023, Susan Quinn’s solicitors sent an email to Take Off’s solicitors, which included the following:

34. [82]

    On 2 November 2023, Susan Quinn’s solicitors sent a further email to Take Off’s solicitors, noting that “[o]ur client has instructed us to reject your client’s offer” and “the parties appear to be at an impasse and no concluded agreement has been reached”. It is not clear what this offer was. The plaintiff contends that Susan Quinn then abruptly ceased discussions on 2 November 2023. The evidence supports that contention.

35. [83]

    On 6 December 2023, Take Off’s solicitors sent Susan Quinn’s solicitors a letter demanding payment of the amount of $1,510,000 within 14 days. The letter explained why Take Off considered that Susan Quinn was in breach of the Unit Sale Deed. After setting out the relevant chronology of events during the period 27 September 2023 to late October 2023, it was contended that Susan Quinn’s failure promptly to request, obtain or alternatively consider its taxation advice, and its failure to ensure that the nominated entities proceeded with the unit sale, fell short of the obligation to take “all reasonable efforts” as required by cl 2.2 of the Unit Sale Deed.

36. [84]

    The plaintiff's fundamental position is stated in [4] of its letter dated 6 December 2023:

37. [85]

    In oral address, Mr Robertson said that Take Off’s position was that the Unit Sale Deed terminated when Take Off commenced these proceedings on 22 December 2023.

(b) The “all reasonable efforts” clause

1. [86]

   As noted above, although there was some equivocation in the presentation of Take Off’s case, ultimately its claim for breach of contract included a claim that the defendant had breached the obligation imposed upon it by cl 2.2(a) to use “all reasonable efforts within its own capacity” to ensure that Alceon provided its written consent to the transaction prior to Completion. In those circumstances, it is well to summarise the relevant legal principles relating to such a provision.

2. [87]

   Clauses requiring “best endeavours”, “reasonable endeavours” and “reasonable (or best) efforts” are well-known to the law. In Foster v Hall [2012] NSWCA 122 at [33], Macfarlan JA (with whom Meagher JA and Tobias AJA agreed) considered that there was no significant difference between “best reasonable endeavours” and “best endeavours”. In Cypjayne Pty Ltd v Babcock & Brown International Pty Ltd [2011] NSWCA 173; 282 ALR 152 at [67], Bathurst CJ (with whom Macfarlan and Young JJA agreed) likewise observed that “[t]he expressions “best endeavours” and “reasonable endeavours” generally speaking have been considered by the courts as imposing similar obligations”. The Chief Justice’s remarks were subsequently referred to with approval by the High Court in Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [40] per French CJ, Hayne, Crennan and Kiefel JJ.

3. [88]

   Authorities on the meaning of “best endeavours” and “reasonable endeavours” can therefore be relied upon to shed light on the meaning of “reasonable efforts” under cl 2.2(a) of the Unit Sale Deed. This is subject to the proviso that “decisions on the effect of the same words in a different context must be viewed with caution” (Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 at 64 per Gibbs J). The same point no doubt applies to decisions on the effect of similar words in a different context.

4. [89]

   The canonical authority on “best endeavours” clauses is Hospital Products. There, Mason J explained (at 91-2) that the extent of the obligation imposed by such a clause is “governed by what is reasonable in the circumstances”. Wilson and Dawson JJ were of a similar view (at 118 and 144 respectively). Gibbs J considered (at 62) that “best endeavours” clauses required one “to do all he reasonably can in the circumstances to achieve the contractual object” but not “to go beyond the bounds of reason”. Wilson and Dawson JJ also emphasised that they did not require a party to disregard their own interests (at 118 and 144 respectively).

5. [90]

   To these propositions, the Court of Appeal in Foster at [34] added Buckley LJ’s observation, in IBM United Kingdom Ltd v Rockware Glass Ltd [1980] FSR 335 at 343, that a party subject to a “best endeavours” clause must take steps “which a prudent, determined and reasonable [party], acting in his own interests and desiring to achieve [the results specified in the contract] would take”.

6. [91]

   The High Court’s most recent consideration of “reasonable endeavours” clauses is in Electricity Generation, where it made three “general observations” concerning their operation. First, the obligation to use reasonable endeavours was said at [41] not to be an absolute or unconditional obligation. Secondly, the nature and extent of the obligation was said at [41]-[42] to be conditioned by what is reasonable in the circumstances, which may include circumstances that affect the obligee’s business. In this respect, the Court emphasised that the qualification of reasonableness is aimed at resolving conflicts between the obligation and the independent business interests of the person subject to it. Thirdly, contracts containing “reasonable endeavours” clauses were said at [43] to sometimes “contain their own internal standard of what is reasonable, by some express reference relevant to the business interests of an obligee”.

7. [92]

   It is occasionally said that a more onerous obligation will be imposed where, as here, the contract requires “all reasonable efforts”, “all best endeavours” or “all reasonable endeavours” (see, for example, Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1459 at [41] per Stevenson J, citing Jolley v Carmel Ltd [2000] 2 EGLR 153 at 159 per Lewison QC (as his Lordship then was); and Stepping Stones Child Care Centre (Act) Pty Ltd v Early Learning Services Limited [2013] ACTSC 173 at [283] per Refshauge J). However, it is unnecessary to decide this point. It is sufficient to note that in Waters Lane Pty Ltd v Sweeney [2007] NSWCA 200, Tobias JA (with whom Santow and Giles JJA agreed) considered (at [106]) that an “all reasonable endeavours” clause required the promisor to do “all it reasonably could in the circumstances” to satisfy certain conditions by a particular date, but not “to go beyond the bounds of reason”. In effect, his Honour therefore adopted Gibbs J’s definition of “best endeavours” from Hospital Products.

8. [93]

   The obligation in Waters Lane was for property developers to use “all reasonable endeavours” to satisfy certain conditions subsequent by a sunset date. That date was two years from the date of the agreement but was capable of being unilaterally extended by a further two years. The condition subsequent related to the rezoning of the subject property and the granting of a development consent to enable its development for residential purposes. In dismissing the appeal, Tobias JA said at [139]:

9. [94]

   Returning to the present case, I find that the evidence establishes that Susan Quinn did not make “all reasonable efforts within its own capacity” to ensure that the condition precedent was fulfilled. The evidence establishes that Take Off did everything within its capacity to bring about that state of affairs. The evidence also establishes that Alceon was willing to give its consent to the transaction as long as Susan Quinn met its reasonable requirements, including in relation to the proposed new purchase structure, such as new security documents.

10. [95]

    For completeness, I also consider that the evidence establishes that the defendant breached cl 5.4(b) in failing to pay the Purchase Price as demanded by Take Off in the letter of demand dated 6 December 2023.

11. [96]

    Susan Quinn cannot escape liability on the basis that, in the events that occurred, completion did not take place because Alceon did not give its written consent as required by the condition precedent. The relevant legal principles were stated by Sir Harry Gibbs in Newmont Pty Ltd v Laverton Nickel NL [1983] 1 NSWLR 18 at 188-189 in giving the opinion of the Privy Council (emphasis added):

12. [97]

    A similar approach was taken by the High Court in Sandra Investments Pty Ltd v Booth (1982) 152 CLR 153; [1983] HCA 46. In that case, a contract for the sale of land was expressed to be “subject to and conditional upon” council approval of a plan of subdivision. The Full Court of the Supreme Court of Queensland considered that the parties’ obligations to complete the contract had not been enlivened, since the condition precedent was not satisfied. The High Court disagreed, finding that the parties’ obligations under the contract continued notwithstanding failure of the condition precedent.

13. [98]

    In reaching this conclusion, the High Court emphasised cl 24 of the contract, which stipulated: “In the event that such approval is not obtained then the purchaser may at their option cancel the contract ...". Referring to this clause, Gibbs CJ (with whom Mason, Murphy and Brennan JJ agreed) explained at 158:

14. [99]

    Similarly, in cl 2.3 of the Unit Sale Deed, the parties agreed that if the condition precedent had not been fulfilled by the Completion Date, either party may, by written notice to the other party, terminate the Deed. That right was not exercised until Take Off filed its statement of claim on 23 December 2023, which necessarily terminated the Deed.

15. [100]

    The Newmont principles were more recently applied by Biscoe J in Neighbourhood Association DP 285249 v Watson [2008] NSWSC 876; 162 LGERA 322. His Honour observed:

16. [101]

    For these reasons, I find that the defendant breached both cll 2.2(a) and 5.4(b) of the Unit Sale Deed.

(c) Repayment of $990,000 under the Loan dated 21 May 2021

1. [102]

   I consider that Susan Quinn also breached cl 5.4(c) of the Unit Sale Deed by failing to cause the Trustee to repay the money the subject of the Loan dated 21 May 2021. The fact that Completion did not occur cannot excuse or avoid this breach. I repeat and apply the analysis above of the Newmont principles.

(e) Damages

1. [103]

   The usual rule is that damages for breach of contract are to be assessed as at the date of breach (Clark v Macourt (2013) 253 CLR 1; [2013] HCA 56 at [109]-[110] per Keane J). Where, as here, the contract concerns the sale of personal property, damages are also typically quantified having regard to the difference between the contract price of the property and the value of the property as at the date of breach. However, the usual rule can “give way in particular cases to solutions best adapted to giving an injured plaintiff that amount in damages which will most fairly compensate him for the wrong he has suffered” (Johnson v Perez (1988) 166 CLR 351; [1988] HCA 64 at 355-6 per Mason CJ).

2. [104]

   As noted above, Take Off cites two authorities in support of its submission that damages here should not be assessed as at the date of breach. The first is Vieira. The respondent in that case breached a contract with the appellant by advising him to purchase an interest in an unhealthy racehorse. The trial judge assessed damages in terms of the difference between the amount paid for the interest and the value of the interest, not as at the date of breach, but as at the date the appellant could reasonably be expected to sell. This was over two years after the date of breach, since the horse’s health problems had not been uncovered for some time and it then became necessary for it to undergo surgery. Basten and Meagher JJA (with whom Handley AJA agreed) considered that there was no error in this approach. At [45], their Honours identified various circumstances in which it might be appropriate to depart from the usual rule (emphasis added):

3. [105]

   The second case, Janos, concerned a tenant’s breach of lease. It appears to be relied upon for the following statement of principles (at [35]-[41]):

4. [106]

   Although not referred to by Take Off, the case of Brimaud v Boston Securities Entertainment Investments Pty Ltd (Federal Court of Australia, 9 September 1998, unrep) is also illustrative. It concerned a contract for the sale of a parcel of shares in a listed company. The shares were subject to escrow provisions, so that Mr Brimaud would not have been entitled to transfer them for a period of approximately two years. In any event, the vendor failed to transfer the shares and Mr Brimaud terminated and sued for loss of bargain damages. In assessing Mr Brimaud’s damages, Emmett J reasoned as follows at 66-68:

5. [107]

   I accept Take Off’s submission that this is an appropriate case in which damages may be assessed at a date other than the date of breach because an assessment as at that date would yield injustice. That injustice is starkly revealed in the evidence in Exhibit D, which is summarised at [40]ff. The evidence establishes that, as at April 2024, the value of BC Land’s only assets were far outweighed by its liabilities. The value of the units in the BC Land Trust No 57 was nil. The evidence before the Court does not disclose anything subsequent to that date which changes that position.

Conclusion

1. [108]

   For all these reasons, the Court will make the following orders:

   1. (1)

      Order the defendant to pay the plaintiff damages in the amount of $2,500,000.

   2. (2)

      Order the defendant to pay interest on the amount identified in order (1) from 22 December 2023 pursuant to s 100 of the Civil Procedure Act 2005 (NSW).

   3. (3)

      Order the defendant to pay the plaintiff’s costs.