MULLEN & BARLEY

In *Mullen & Barley*, the parties were Mullen and Barley. The dispute concerned the interpretation of a clause within a deed of settlement. The matter came before Wilson J of the Supreme Court of Western Australia.

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.

Wilson J reasoned that the phrase "best endeavours" in the context of contractual obligations requires a party to take all such steps as are reasonable in the circumstances to achieve the contractual objective. This involves more than merely acting in good faith; it necessitates proactive steps and a genuine effort to bring about the desired result. The court considered the common law understanding of "best endeavours" clauses and applied this principle to the specific wording of the settlement deed.

The court found that the obligation imposed by the "best endeavours" clause was a positive one, requiring Mullen and Barley to take all reasonable steps to procure the execution of the further agreement.