MARSHALL & MORRIS

The parties to this proceeding were Marshall and Morris. The dispute concerned the interpretation of a clause within a deed of settlement. The matter came before Harland J of the Supreme Court of Queensland.

The central legal issue before the Court was whether the settlement deed, which contained a clause requiring the parties to use their best endeavours to procure the execution of a further agreement, imposed a positive obligation on the parties to take all reasonable steps to achieve that outcome, or whether it merely required them to act in good faith.

Harland J considered the plain meaning of the words "best endeavours" and concluded that they imposed a more stringent obligation than merely acting in good faith. His Honour referred to established legal principles that require a party undertaking best endeavours to take all reasonable steps in their power to achieve the stipulated objective, even if those steps might be costly or inconvenient. The Court found that the wording of the clause in question clearly indicated an intention to impose a positive and active obligation on the parties to actively pursue the execution of the further agreement.

The Court ultimately found that the respondent had failed to demonstrate that they had used their best endeavours as required by the deed.