Recce Pharmaceuticals Ltd v Ian David Brown

[2022] WASCA 66

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Construction
3. › Commercial instruments
4. › Performance shares
5. › Terms and conditions of issue
6. › Whether conversion right conditional on holder continuing in office as director or key management personnel
7. › Whether plain meaning of conversion clause required ongoing employment
8. › ASX Listing Rule 6.1
9. › ASX Guidance Note 19
1. Contract
2. › Construction
3. › Surrounding circumstances
4. › Admissibility of extrinsic evidence
5. › Whether extrinsic evidence admissible absent ambiguity
6. › Role of commercial purpose in construction
7. › Limits on departing from plain meaning
1. Contract
2. › Implied terms
3. › Terms implied in fact
4. › BP Refinery (Westernport) criteria
5. › Whether implied term that holders materially contributed to achievement of performance milestone
6. › Whether reasonable and equitable
7. › Whether necessary for business efficacy
1. Corporations
2. › Shares
3. › Performance shares
4. › Conversion rights
5. › Whether holder required to remain director or key management personnel at time of milestone achievement
6. › Corporations Act 2001 (Cth)

Quick Take

Performance share conversion rights governed by clear and unambiguous milestone conditions will be enforced according to their terms, without reading in additional conditions requiring holders to remain in office or to have materially contributed to milestone achievement. The general principles of contractual construction apply to terms and conditions of performance shares; no unique or distinctive approach applies to such unilateral commercial instruments. The BP Refinery implied term criteria are not satisfied where the suggested implied term would create practical difficulties in determining whether holders materially contributed to milestone achievement.