Brown v Akerman [No 2]

In *Brown v Akerman [No 2]*, the New South Wales Court of Appeal considered a dispute between the plaintiffs, Brown and others, and the defendant, Akerman. The case concerned the interpretation and enforceability of certain provisions within a deed, specifically relating to the sale of shares and the calculation of a final adjustment payment.

The primary legal issues before the Court of Appeal were whether the trial judge had erred in their construction of clause 4(b) of the deed, which stipulated the method for calculating a final adjustment payment based on the net profit of the company, and whether the trial judge had correctly determined the date upon which that adjustment payment became due and payable. The court also had to consider the implications of the parties' conduct and any potential waiver of rights in relation to the deed's terms.

The Court of Appeal analysed the language of clause 4(b) in detail, applying principles of contractual interpretation to ascertain the parties' intentions. It considered the context of the entire deed and the surrounding circumstances at the time of its execution. The court ultimately found that the trial judge's interpretation of the clause was correct, holding that the net profit was to be calculated in accordance with the company's audited accounts for the relevant period. Furthermore, the court affirmed the trial judge's finding that the adjustment payment was due and payable upon the finalisation of those audited accounts, as stipulated by the deed.

The appeal was dismissed, with the Court of Appeal affirming the orders made by the trial judge.