Witham v Holloway (No2)

In *Witham v Holloway (No 2)*, the New South Wales Court of Appeal considered a dispute between the plaintiff, Mr. Witham, and the defendant, Mr. Holloway. The case concerned the enforceability of an agreement for the sale of shares in a company, where the plaintiff alleged that the defendant had breached the terms of that agreement.

The central legal issue before the Court of Appeal was whether the plaintiff had validly exercised his option to purchase the shares in question. This involved determining whether the plaintiff had complied with the conditions precedent stipulated in the agreement for the exercise of that option, and if not, whether those conditions had been waived by the defendant.

The Court of Appeal found that the plaintiff had failed to comply with the express terms of the option agreement regarding the notice period for exercising the option. It held that the defendant had not waived strict compliance with these terms, and therefore, the plaintiff had not validly exercised his option to purchase the shares. The legal principle applied was that contractual conditions precedent must be strictly performed unless there is a clear waiver by the party for whose benefit they were imposed.

Consequently, the Court of Appeal dismissed the plaintiff's appeal and affirmed the decision of the primary judge, finding that no contract for the sale of shares had come into existence.