Gangemi v Osborne & Anor; Bloomingdale Holdings Pty Ltd & Anor v 63 Buckley Street Pty Ltd & Ors

[2009] VSCA 297

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Formation
3. › Intention to create legal relations
4. › Heads of Agreement
5. › Whether binding as between signatories where not signed by all named parties
6. › Subsequent conduct as evidence of existence of agreement
1. Contract
2. › Breach
3. › Repudiation
4. › Whether attempted evasion of tax, other improprieties and attempts to re-negotiate evinced intention no longer to be bound
1. Equity
2. › Estoppel
3. › Statements by party of no longer being involved in project
4. › Whether unconscionable later to assert rights as if still involved
5. › Whether estopped as against third party dealing on faith of statements
1. Corporations
2. › Shares
3. › Transfer of shares
4. › Procedural irregularities
5. › Whether valid
6. › Whether appropriate to make validating orders
7. › Corporations Act 2001 (Cth), ss 201M(1), 254E, 1322(4)

Quick Take

Heads of Agreement signed by only some of the named parties may be binding as between the signatories where the objective circumstances show the other named parties were under the signatories' control and there was no commercial reason for them to sign. Subsequent conduct of the parties is admissible as evidence of the existence and binding nature of the agreement. Section 1322(4) of the Corporations Act 2001 (Cth) may be used to validate share transfers and director appointments attended by gross informality where the transactions were undertaken pursuant to a binding contractual obligation. Estoppel may independently prevent a party from asserting shareholder rights even where corporate validation is unavailable.