Halvorson & Anor v Birkenhead Super Pty Limited atf Birkenhead Superannuation Benefits Fund

[2021] QCA 211

Queensland Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Summary Judgment
3. › Summary judgment for plaintiff
4. › Whether defendant has no real prospect of successfully defending claim
5. › Whether there is no need for a trial
6. › High degree of certainty about ultimate outcome required
7. › Uniform Civil Procedure Rules 1999 (Qld), r 292
1. Contract
2. › Construction
3. › Ambiguity
4. › Objective framework of facts
5. › Whether terms of agreement plain on their face
6. › Need for evidence of surrounding circumstances to construe agreement
1. Corporations
2. › Shares
3. › Redeemable preference shares
4. › Redemption of partly paid shares
5. › Whether agreement providing for redemption contrary to statutory prohibition is enforceable
6. › Presumption that parties contract on basis of the law
7. › Corporations Act 2001 (Cth), ss 254K, 254L

Quick Take

Summary judgment is inappropriate where a contract is attended by significant ambiguities that cannot be resolved without evidence of the objective framework of facts within which the contract came into existence. An agreement that on its face provides for the redemption of a partly paid redeemable preference share, contrary to s 254K of the Corporations Act 2001 (Cth), may be unenforceable, and s 254L(1) does not necessarily save an executory agreement (as opposed to a completed redemption) from that consequence.