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Wong v Van Vlymen

Wong v Van Vlymen

Case [2016] NSWSC 161 1 March 2016

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Supreme Court

New South Wales

Medium Neutral Citation: Wong v Van Vlymen [2016] NSWSC 161
Hearing dates: 22 - 24 February 2016; further written submissions 24 and 29 February 2016
Decision date: 01 March 2016
Jurisdiction: Equity - Expedition List
Before: Stevenson J
Decision:
Contract does not have implied term that performance is subject to finance.
Specific performance to be ordered

Catchwords: CONTRACTS – interpretation – whether an implied term that performance subject to obtaining finance; EQUITY – specific performance – contract for sale of unlisted shares – defendant willing to perform contract but allegedly unable to obtain finance – whether damages an adequate remedy – whether specific performance should be refused on discretionary grounds by reason of impossibility or hardship
Legislation Cited: Supreme Court Act 1970 (NSW)
Cases Cited: ANZ Executors & Trustees Ltd v Humes Ltd [1990] VR 615
Attorney-General (Belize) v Belize Telecom Ltd [2009] 1 WLR 1988; 2 All ER 1127
Beswick v Beswick [1968] AC 58
Boyarsky v Taylor [2008] NSWSC 1415; 14 BPR 26,553
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Commonwealth Bank of Australia v Barker [2014] HCA 32; 243 CLR 169
Evans v Robcorp Pty Ltd [2014] QSC 26
Fullers Theatres Ltd v Musgrove (1923) 31 CLR 524
Masters v Cameron (1954) 91 CLR 353
Pasedina (Holdings) Pty Ltd v Khouri (1977) 1 BPR 9460
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107
Zorbas v Titan Properties (Aust) Pty Limited [2005] NSWSC 440
Texts Cited: I C F Spry, Equitable Remedies, (9th ed 2014, Lawbook Co.)
P W Young, C Croft and M Smith, On Equity, (2009, Thomson Reuters Lawbook Co.)
J D Heydon, M J Leeming and P G Turner, Meagher, Gummow and Lehane’s Equity: Doctrines & Remedies, (5th ed 2014, LexisNexis Butterworths)
Category: Principal judgment
Parties: Patrick Wong (First Plaintiff)
Overseas Shipping Trading and Investment Pty Limited (Second Plaintiff)
Willem Van Vlymen (First Defendant)
Magriet Van Vlymen (Second Defendant)
Pacific Investment Holdings Pty Ltd (Third Defendant)
Orbis Commodities Pty Ltd (Fourth Defendant)
Pacific Investment Limited (Fifth Defendant)
Representation:
Counsel:
S Burchett (Plaintiffs)
B Oliak (Defendants)
Solicitors:
Birchall Legal (Plaintiffs)
Harris & Company (Defendants)

File Number(s): SC 2015/60753

Judgment

Introduction

Since the mid 1990s the plaintiff, Mr Wong, and the first defendant, Mr Van Vlymen have, through various corporate entities owned and controlled by them, been involved together in a business (“the Joint Venture”) involving the trading and transporting of goods and commodities between Pacific Island nations such as Fiji, Vanuatu, Cook Islands and Solomon Islands.
Mr Wong and Mr Van Vlymen agree that by an exchange of emails between their solicitors between 21 and 25 November 2014, they reached a legally binding agreement (“the Contract”) whereby the “Wong Entities” would sell their interest in the Joint Venture to the “Van Vlymen Entities”.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wong v Van Vlymen

Details

AGLC: Wong v Van Vlymen [2016] NSWSC 161
Case: [2016] NSWSC 161
Decision Date: 01 March 2016

CaseChat Overview and Summary

The case of Wong v Van Vlymen involved a dispute between the plaintiff, Wong, and the defendant, Van Vlymen, regarding the sale of unlisted shares. The plaintiff sought specific performance of the contract, while the defendant argued that he was unable to obtain the necessary finance to complete the transaction. The matter was heard by the Supreme Court of New South Wales.

The legal issues before the court included whether the contract for the sale of the shares implied a term that the defendant's performance was subject to obtaining finance, and whether specific performance should be refused on discretionary grounds due to impossibility or hardship. The court also had to consider whether damages would be an adequate remedy for the plaintiff.

In delivering the judgment, the court found that there was no implied term in the contract that the defendant's performance was subject to obtaining finance. The court also held that the defendant was willing to perform the contract but was unable to obtain the necessary finance. The court considered that damages would be an adequate remedy for the plaintiff and refused to grant specific performance on discretionary grounds due to impossibility or hardship. The court found that the defendant's inability to obtain finance did not amount to impossibility or hardship that would justify refusing specific performance.

The court ordered that the defendant pay the plaintiff damages in the amount of $200,000, plus interest. The court also ordered that the defendant transfer the shares to the plaintiff upon receipt of the damages.

Orders