Carlow Castle Pty Ltd trading as Greenhill Capital Partners v Aztec Resources Limited

Carlow Castle Pty Ltd, trading as Greenhill Capital Partners (the appellant), appealed to the Court of Appeal of New South Wales against the dismissal of its claim against Aztec Resources Limited (the respondent) for a success fee and its alternative claim for rectification of a Deed. The dispute concerned the interpretation of the Deed and whether the appellant had achieved the conditions for payment of a success fee.

The primary legal issues before the Court of Appeal were whether the Deed should be rectified to reflect the appellant's alleged subjective intention regarding the timing of a board recommendation for a takeover bid, and whether the appellant had proven that "success" had been achieved under the terms of the Deed, thereby entitling it to the success fee. The appellant contended that the primary judge erred in finding insufficient evidence to establish a common intention for rectification and that the evidence fell short of the required clear and convincing proof.

The Court of Appeal, agreeing with the primary judge, found that the appellant had not established clear and convincing proof that the Deed did not reflect the true agreement of the parties. The Court held that there was insufficient evidence of a common intention at the time of the Deed's execution to displace the presumption that the document accurately represented the agreement. The commercial context of the Deed, which settled a dispute regarding the appellant's entitlements, and the statutory requirements governing takeovers under the Corporations Act 2001 (Cth) were considered relevant to the interpretation of the parties' intentions.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.