ALDERSON & MILBURN

In the matter of Alderson & Milburn, Newbrun J of the Supreme Court of New South Wales considered a dispute between the parties concerning the interpretation of a deed. The core of the disagreement revolved around the obligations of the parties under the deed and whether certain actions constituted a breach.

The primary legal issue before the Court was to determine the proper construction of clause 7.1 of the deed, specifically whether it imposed a positive obligation on the respondent to take all reasonable steps to procure the consent of a third party, or merely a negative obligation not to prevent the appellant from seeking that consent. This interpretation was critical to establishing whether a breach of contract had occurred.

Newbrun J analysed the language of clause 7.1 in its commercial context, applying established principles of contractual interpretation. His Honour considered the ordinary meaning of the words used, the surrounding circumstances known to the parties at the time of the deed's execution, and the commercial purpose of the provision. The Court concluded that the wording of clause 7.1 imposed a positive obligation on the respondent to actively pursue the necessary consent, rather than a passive obligation.

The Court found that the respondent had failed to discharge this positive obligation, thereby breaching the deed. Consequently, Newbrun J made orders in favour of the appellant.