Charter Pacific Corporation Ltd v Securicom

Extending the Cut-Off Date under the SPA

1. The Cut-Off Date was originally 30 June 2017. On 28 April 2017 it was extended to 30 September 2017.
2. A meeting took place on 17 August 2017 to discuss, amongst other things, the further extension of the Cut-Off Date.
3. Present at the meeting were Mr Burke and Mr Dart.
4. Also present were Mr David Murray AO and the late Mr Michael Crouch AO. The meeting took place in Mr Crouch's office.
5. Mr Murray and Mr Crouch were present because they held an interest in Microlatch through their companies Lyndcote Holdings Pty Limited and Midgeon Pty Limited. By reason of separate agreements with CPC, those companies were to exchange their shares in Microlatch for shares in CPC once the SPA was completed (I am speaking very loosely here, as the detail does not matter).
6. There is a dispute as to what was agreed at that meeting.
7. This much is common ground: 1. the parties agreed that the Cut-Off Date be extended for 6 months; 2. there was discussion of a request by Mr Burke for creation of a "budget" for payment of existing and anticipated expenses during that period; 3. those expenses included a weekly payment of $1,000 by CPC to Mr Burke for "living expenses" and amounts due by one or other of Mr Burke's companies for accounting, audit, legal and patent attorney's expenses; and 4. Mr Murray and Mr Crouch agreed to finance the proposed budget by causing Lyndcote and Midgeon to subscribe for convertible notes in CPC.
8. What is in dispute is whether Mr Burke's agreement to extend the Cut-Off Date (which the parties referred to as "the Extension Agreement") was conditional on CPC paying the amounts identified in the budget to be prepared following that meeting as payments for August "timeously"; that is strictly on time; no later than the end of August.
9. By documents sent on 31 August 2017 and 1 September 2017 Mr Burke purported to terminate "the Contract" (by which he appears to have meant the Extension Agreement) by reason of CPC's failure to pay the "Budget payments for August".
10. On 20 November 2017, by his solicitor, Mr Burke purported to terminate the SPA itself because CPC had "failed to meet the budget payments which were a precondition" to an extension of the Cut-Off Date.
11. The matters for decision in this case are whether: 1. Mr Burke's agreement to extend the Cut-Off Date under the SPA was so conditioned; 2. Mr Burke was entitled to terminate the Extension Agreement and then the SPA; and, if not; 3. I should order specific performance of the SPA.

Decision

1. Mr Burke was not entitled to terminate either the Extension Agreement or the SPA.
2. The SPA should be specifically performed.

The 17 August 2017 meeting

1. Each of Mr Burke, Mr Dart and Mr Murray has sworn an affidavit giving an account of what was said at the meeting. Mr Crouch died in January 2018, shortly before these proceedings commenced.
2. There is no note of the meeting.

Mr Burke's account of the 17 August 2017 meeting

1. Mr Burke gave evidence that at the outset of the meeting he said: "I don't want any further association with Kevin Dart or CPC. I will not sign another extension agreement. CPC has absolutely failed to deliver."
2. Mr Burke said that the following conversation ensued: "[Mr Crouch]: [Mr Dart], how long do you need to complete CPC's listing on the NSX? [Mr Dart]: It can be done in 90 days. [Mr Crouch]: You won't be able to get everything done in that time period. How about we extend the SPA by six months, and [Mr Murray] and I can arrange the necessary funding needed to support that extension. [Mr Burke]: If it's going to be six months, I will need some financial support. I have ongoing patent fees and expenses, as well as other expenses payable, and I have very little capability at the moment to support myself financially. [Mr Crouch]: We can prepare a budget for the money you need and the patent fees and other expenses that need to be paid over the next six months. This will give CPC the time needed to complete its listing on the NSX and will give you the money you need over the next six months. [Mr Burke]: If a budget is prepared that takes into account my financial needs, as well as the patent fees and other expenses that need to be paid now and over the next six months, I could agree to a further extension of the SPA. But this would have to be the last extension, and the deal's off if the money doesn't come through or if it stops."
3. Mr Burke said that the conversation then turned to the preparation of the budget and that he said: "There are urgent payments owing to Spruson and Ferguson and Venner Shipely in relation to patents. Spruson and Ferguson are owed around $15,000. These need to be paid by tomorrow, otherwise Microlatch will lose these patents. There are also important legal and accounting costs that need to be paid. There will be further patent-related expenses payable in the next few months, which will need to be factored into any budget. In addition I need $1,000 per week to live."
4. Mr Burke said that following that discussion he said: "I will agree to the extension, provided a budget is agreed and paid in respect of the next six months".
5. On Mr Burke's account of it, his agreement to the Extension Agreement is revealed in the last passage.
6. I see nothing from Mr Burke's account of the meeting to justify the conclusion that the Extension Agreement was conditional upon payments in the proposed budget being paid by a particular date.
7. Mr Macauley submits that the agreement was for budget payments to be made "punctiliously", "in their allocated month" or "within the month in which they were to be paid".
8. But on Mr Burke's account of what happened, the only expenses in respect of which a time limit was expressed were the amounts due to Spruson and Ferguson ($15,000) and Venner Shipley ($7,800): said to be due "tomorrow" (18 August 2017). Mr Crouch's company, Midgeon, paid those expenses on or about that day and certainly well prior to the end of August.
9. Otherwise, Mr Burke recalls his agreement to extend the Cut-Off Date would be "off if the money doesn't come through or if it stops" and was conditional on "a budget [being] agreed and paid in respect of the next six months".
10. Thus, on Mr Burke's account of it, his agreement was conditional on the budgeted payments being made; but not on them being made by a particular date.

Mr Dart's and Mr Murray's account of the meeting

1. Each of Mr Dart and Mr Murray denied in their affidavits, and in cross-examination, that Mr Burke's agreement to extend the Cut-Off Date was conditional on anything to do with the proposed budget.
2. Mr Murray denies, in terms, that Mr Burke made the statement I have set out at [31] above. Mr Murray said: "I would never have agreed to make the extension of the SPA contingent on such an open-ended arrangement especially as the figures had not been agreed and because I did not trust Burke. I would not have allowed him basically to scuttle the SPA based on such an open-ended arrangement".
3. On 12 September 2017 Mr Murray spoke to Mr Crouch and said: "We should tell [Mr Burke] our agreement was to fund him through [CPC], according to a budget, to enable us all to extend the deal".
4. I do not see this statement as being inconsistent with Mr Murray's evidence set out at [39]. Mr Murray was simply saying that extension of the Cut-Off Date was to be facilitated by Mr Murray's and Mr Crouch's agreement to finance CPC's payments under the proposed budget. Mr Murray was not saying that he understood Mr Burke's agreement to extend the Cut-Off Date to be conditional on payments being made by any particular time.
5. Mr Dart is also adamant that no link was made at the meeting between the extension to the Cut-Off Date and the formulation of a budget to meet ongoing expenses.
6. I found both Mr Murray and Mr Dart to be impressive witnesses.
7. I am not able to come to the same conclusion about Mr Burke. He did not give responsive answers to questions in cross-examination and seemed incapable of distinguishing between what he actually recalled saying and what he now alleges he claims to have meant. Further his evidence as to his alteration of what I describe below as the "Extension Document" reflects badly on his credit.
8. Were it necessary to do so, I would have preferred Mr Murray's and Mr Dart's evidence to that of Mr Burke.
9. However as I have said, even on Mr Burke's account of it, the Extension Agreement was not on the terms for which he now contends.

Events following the 17 August 2017 meeting

1. Shortly after the meeting Mr Burke sent an email to Mr Cole and Mr Dart: "Following are my requirements for immediate payment and 6 monthly budget being proposed. Immediate: Accountant: $16,000. Should include audit. Legal: $4,000. Clinton Smith Weekly salary to be paid and all back-payments. $1,000 per week unpaid last 6 weeks. Ongoing requirements: Accounting Legal as required Salary Patents".
2. This email purports to express Mr Burke's "requirements for immediate payment". But the email does not reflect what Mr Burke has sworn he said at the meeting. Mr Burke does not claim to have specified "requirements for immediate payment" at the meeting. He said that the patent attorney fees needed to be paid "tomorrow". Those payments were made prior to the end of August. As to the "legal and accounting costs", all Mr Burke said was that they needed "to be paid" (see [30] above).
3. As to Mr Burke's "weekly salary", all that Mr Burke claims he said at the meeting was that "I will need some financial support" and that "I need $1,000 per week to live". My attention was not directed to any evidence to show that Mr Burke was entitled to receive this payment from CPC. Evidently, CPC had been paying Mr Burke some such amount in the past but had ceased the payments because Mr Burke was not responding to requests for information.
4. In any event it is common ground that the Extension Agreement was reached at the meeting. Mr Burke's email represents no more than a post-contractual request by him. It cannot constitute a term of the Extension Agreement.
5. A short time later on 17 August 2017 Mr Dart sent an email to Mr Crouch, with a copy to Mr Burke and Mr Murray: "Thank you for your time today and the opportunity and assistance to reach a resolution to the impasse with Chris Burke which is greatly appreciated. I have attached a letter agreement extending the cut-off date in the SPA by 6 months as agreed today for execution by Chris Burke, Microlatch Pty Ltd, Securicom (NSW) Pty Ltd and Microlatch Limited and return. [Mr Murray] and I spoke about the extension letter and we agreed that it may be better if the extension letter is forwarded by you to [Mr Burke] for execution and return. I have contacted each of the parties in respect to patent fees and accounting/audit fees owing by Burke/Microlatch for the next six months. I expect to complete the budget once I receive schedules for upcoming expenditure during the next six months from each of these parties. In the meantime I have attached a copy of emails to Spruson and [Ferguson], Venner Shipley (patents) and Sattouts (accounting) as well as a copy of the email from [Mr Burke] setting out his requirements for the next 6 months for your information. Once the budget is completed and agreed by all parties I will provide a convertible note document from [CPC] for the agreed amount for a term of 12 months, an interest coupon of 8% and a conversion price of $0.02 per share in the name of the nominated holder for execution. I confirm that monies will only be paid upon production of any invoice from the relevant supplier."
6. Mr Dart's email reflects that agreements were reached at the 17 August 2017 meeting to extend the Cut-Off Date and prepare a budget for existing and anticipated expenses.
7. However I do not see Mr Dart's email as an acknowledgment by him that Mr Burke's agreement to extend the Cut-Off Date was conditional upon the payments in the proposed budget being made by a particular time.
8. That is made clear by the attached "letter agreement" (which the parties referred to as the "Extension Document") which is in the following terms: "RE: Share Purchase Agreement (SPA) Dated 27 September 2016 We refer to the SPA dated 27 September 2016 between [CPC] and Christopher John Burke, Microlatch Pty Ltd, Microlatch Limited (UK), Securicom (NSW) Pty Ltd and confirm that all of the parties agree to amend the SPA as follows; 1. extend the 'Cut-Off Date' in the SPA by 6 months from 30 September 2017 to the 30 March 2018. It is acknowledged and agreed by all parties that other than the amendment dated 28 April 2017 and as set out above there are no other changes to the executed SPA dated 27 September 2016."
9. The next day, as foreshadowed in the last sentence of the first paragraph of Mr Dart's 17 August 2017 email, Mr Crouch wrote to Mr Burke: "Thanks so much for coming down yesterday. It was exceptionally worthwhile your doing so from everyone's point of view and I feel confident that [Mr Dart] will pursue matters successfully. He just needs personal support with the offer of assistance when, and if, he might ever need it again. The big thing is that he's out there battling for us and that's tremendous. As a result of yesterday's meeting, would you please sign the attached extension and return it to me and I'll forward it on to [Mr Dart] with a copy to [Mr Murray]. All the very best, Chris. I very much believe we're all moving together in the right direction."
10. The "attached extension" was the Extension Document that Mr Dart had by then executed on CPC's behalf in Mr Cole's presence.
11. Within half an hour Mr Burke replied to Mr Crouch: "I trust you and your commitment to making this venture successful for all Microlatch shareholders. I have sent payment invoices to [CPC], however they are not certain to be paid. I have signed the document in good faith, but ask Microlatch shareholders to consider the decisions of [Mr Dart] on our behalf, because it is important we have a right to voice our opinions and judgements going forward. We should not allow a single individual to control us in future without recourse. Should the promises turn to fruition, then we can all share the success. However, should the promises not be fulfilled, we should act decisively. I want [Mr Dart] to inform us regularly and accurately of the company['s] position and all correspondence is made by email for an appropriate audit trail. This removes the advantage of individual agreements that are outside the scope and advantage of Microlatch shareholders. Thanks again for convening the meeting yesterday and your commitment to forming a collaborat[ive] approach."
12. Mr Macauley submits that in this email "Mr Burke [is] appearing to make the point…of requesting other shareholders to consider the terms before execution". I am not able to detect that point being made in this email. Mr Burke states that he has sent invoices to CPC and adds "however they are not certain to be paid". I am not sure what point Mr Burke was seeking to make by that Delphic remark. But what he did not say was anything to the effect that the "payment invoices" had to be paid by a particular time.
13. Mr Burke attached the Extension Document executed by him in the presence of his son, Mr Matthew Burke.
14. Although the Extension Document contained provision for execution by Securicom, Microlatch and Microlatch UK, Mr Burke executed the document only in his personal capacity. However, as Mr Burke is the "Seller" as defined in the SPA, only his signature was required to give effect to an extension of the Cut-Off Date.
15. On 21 August 2017 Mr Cole wrote to Mr Burke: "I refer to your email and attachment below and advise that the extension document has not been properly executed by you. Can you please arrange execution of the extension document for Microlatch Pty Ltd, Microlatch Limited and Securicom (NSW) Pty Ltd on page 2 of the document and return. I confirm that I have received responses from Venner Shipley and Sattouts confirming the fees due and payable by Burke/Microlatch to end February 2018. Sprusons have confirmed there are no patent renewal fees due and payable out to end February 2018 and will advise if any other patent fees are due during that period, as soon as possible. In the meantime I have attached a draft spreadsheet of the known expenditure that is due out to end February 2018 for your information."
16. Evidently, Mr Cole considered the Extension Document had not been "properly executed" because Mr Burke had not executed it on behalf of Securicom, Microlatch or Microlatch UK.
17. In fact, it was sufficiently executed for the purposes of the SPA.
18. Mr Cole also attached a budget which forecast expenses totalling $78,050 between August 2017 and February 2018. It contained the following entries concerning August 2017: "BUDGET PAYEE August C Burke (weekly payment) $8,000 Sattout (Accounting) $16,000 YCG (Audit) $1,250 Venner Shipely (patent) $7,800 Spruson & Ferguson (patent) $15,000 Clinton Smith (legal) $4,000 Total $52,050"

1. On 22 August 2017 Mr Burke replied: "I will come back with second page signatures as soon as I get access to my laptop, possibly today or tomorrow morning".
2. The following day on 23 August 2017 Mr Burke sent an email to Mr Cole headed "signed agreement" stating simply: "FYI signed agreement".
3. Attached to that email was a revised version of the Extension Document executed by Mr Burke on his behalf and on behalf of Securicom, Microlatch and Microlatch UK. It attached the page of the original version of the Extension Agreement bearing the signatures of Mr Dart and Mr Cole.
4. Mr Burke had, without any explanation or indication to Mr Cole that he had done this, added words to the Extension Document as emphasised below: "RE: Share Purchase Agreement (SPA) Dated 27 September 2016 We refer to the SPA dated 27 September 2016 between [CPC] and Christopher John Burke, Microlatch Pty Ltd, Microlatch Limited (UK), Securicom (NSW) Pty Ltd and confirm that all of the parties agree to amend the SPA as follows; 1. Agree to budget payments as confirmed between the parties on 17 August 2017, extend the 'Cut-Off Date' in the SPA by 6 months from 17 August 2017 to 17 February 2018. It is acknowledged and agreed by all parties that other than the amendment dated 28 April 2017 and as set out above there are no other changes to the executed SPA dated 27 September 2016". (Emphasis added.)
5. In cross-examination Mr Burke was asked why he had not drawn to Mr Cole's attention the changes he made to the Extension Agreement. His response was to refer to the file name of the attachment which read "SPA Extend Cut-Off Date by 6 Months to 30 February 2018" compared to the file name on Mr Crouch's email of 18 August 2017 (enclosing the original Extension Agreement") which read "SPA Extend Cut-Off Date by 6 Months to 30 March 2018" (my emphasis). I found that explanation to be disingenuous. A change in the file name was not an appropriate means by which to signal to CPC the change that Mr Burke had, unilaterally, made to the form of the Extension Agreement. In any event, the change was not to nominate "30 February 2018" as the "Extend Cut-Off Date". The date Mr Burke had inserted was 17 February 2018.
6. In addition, Mr Burke had added a purported amendment to the Extension Document described as "agree to budget payments as confirmed between the parties on 17 August 2017".
7. In his affidavit, Mr Burke's explanation for adding these words was a conversation that he claims he had with Mr Crouch as follows: "[Mr Burke]: [Mr Crouch], I've been reviewing the extension document that Steven signed and sent through. I've realised that the extension is too long - the six months should be from 17 August 2017, not from 30 September 2017. That's the basis upon which the budget has been prepared. The document should also record that the extension is conditional upon the budget being agreed and paid. As I made plain in the meeting, I'm not letting this drag on for another six months if CPC doesn't pay the required amounts. [Mr Crouch]: I agree."
8. I am cautious about accepting Mr Burke's evidence about this conversation. At the time Mr Burke swore his affidavit he was aware that Mr Crouch had died.
9. In any event all Mr Burke records Mr Crouch agreeing to is the proposition that the extension of the Cut-Off Date was "conditional upon the budget being agreed and paid". Mr Burke does not suggest that Mr Crouch accepted or agreed that the extension be conditional upon any payments being made by any particular date. Indeed, the changes Mr Burke made to the Extension Document make no such suggestion.
10. On 28 August 2017 Mr Cole, who had not noticed the changes made by Mr Burke to the Extension Document, sent Mr Burke a revised budget which forecast payments of $118,955 from August 2017 to February 2018 (rather than $78,050 in the earlier draft). However the budgeted payments for August 2017 remained as set out at [64] above.
11. Mr Cole said: "Everyone is waiting on your approval of the budget to formalise the payment of the amounts owing to your creditors as agreed at the meeting on 17/8/2017. Once the documentation is formalised and executed then payment of your creditors can take place as agreed on 17/8/2017."
12. A short time later on 28 August 2017 Mr Burke replied to Mr Cole: "Yes you have my approval for the budget".
13. Mr Burke expressed no disagreement with Mr Cole's statement that "payment of your creditors" would take place "once the documentation is formalised and executed".
14. The following day, on 29 August 2017, Mr Cole sent an email to Mr Burke, Mr Dart, Mr Crouch and Mr Murray: 1. stating that Mr Burke had approved the budget; 2. attaching a Convertible Note Subscription Agreement for execution by Lyndcote and Midgeon, containing a subscription amount of $59,477.50 (being half of the budget total of $118,955); 3. giving directions to Mr Crouch and Mr Murray as to the bank account into which their companies should pay that amount; and 4. attaching "two funding agreements" to be executed by Mr Burke on behalf of Securicom and returned to CPC in respect of the funds which by then had been paid by Midgeon to Spruson & Ferguson and Venner Shipley (for the fees referred to above) and which would be the subject of a "Debt Facility from CPC to Securicom once Midgeon had subscribed for convertible notes in CPC.
15. Mr Burke did not respond to this email. He did not cause Securicom to execute the two funding agreements attached to Mr Cole's email.
16. On 29 and 30 August 2017 Mr Dart and Mr Burke exchanged emails concerning a telephone conference Mr Dart arranged with a United States litigation funder concerning possible infringement action in relation to Securicom's patents. In an email sent on 30 August 2017 Mr Dart said: "I have no problem with what you are doing in Hong Kong as long as it doesn't impact on the patents within the patent portfolio. I find it difficult to understand that you are in Hong Kong, with no money, which is what you were pleading in the meeting on 17/8/2017, but you haven't expedited any of the matters needed to be completed before the agreed funding is released to you as agreed at the meeting".
17. Mr Burke did not respond to Mr Dart's reference to the matters that Mr Burke "needed to…[complete] before the agreed funding is released".
18. Instead, he purported to give notice terminating the Extension Agreement.
19. Thus, at 7.51pm on 31 August 2017 Mr Burke sent CPC a document called "Notice of termination of the contract Sales and Purchase Agreement".
20. The form of this document suggests that it was written by Mr Burke without the benefit of legal advice. In the document, Mr Burke made no reference to the "funding agreements" that Mr Cole had forwarded to him on 29 August 2017 nor to Mr Dart's 30 August 2017 email referring to "the matters needed to be completed [by Mr Burke] before the agreed funding is released to you as agreed at the meeting [of 17 August 2017]".
21. Instead, Mr Burke purported to give CPC two days' notice of his intention to terminate the Extension Agreement.
22. In his covering email he said: "The attachment serves you with termination of the agreement on August 7th [sic: 17th] between yourself, [Mr Murray], [Mr Crouch] and myself".
23. The attached document read: "Re: Notice of termination of the contract Sales and Purchase Agreement The purpose of this letter is to give you formal notice of termination of the contract Sales and Purchase Agreement (Contract). Introduction 1. The Contract was entered into by and between Microlatch Pty Ltd, Microlatch Limited UK and Securicom (NSW) Pty Ltd and [CPC] on 17 August 2017. 2. Microlatch Pty Ltd, Microlatch Limited UK and Securicom (NSW) Pty Ltd wishes to terminate the Contract. Notice 3. Notice is hereby served to terminate the Contract for default which is not capable of remedy according to clause 'budget schedule' of the Contract. As stated in that clause, this notice is effective immediately after two business days following the date of this letter set out above. The notice is served because the default, detailed below, is incapable of remedy. 4. Under the Contract [CPC] undertook to perform the following obligation(s): a. Budget payments for August. … You signed an SPA Extension Agreement following a meeting in Sydney on 17th August 2017 ('Agreement') with Christopher Burke and you are in material breach of that agreement. The fact that you agreed a budget plan and schedule, conditional on Christopher Burke signing the extension document. The schedule required payments to Christopher Burke in August, to Clinton Smith legal attorney in August and Sam Sattout Accountancy Services in August with Christopher's consent to sign the extension and that you would meet the conditions contained therein. The payment schedule was a mandatory condition and your failure to make payment within the schedule is a complete material breach and violation of the Agreement." (Emphasis in original.)
24. By this document Mr Burke purported to terminate the Extension Agreement "effective immediately after two business days" on the basis of CPC's failure to make the nominated payments to Mr Burke himself, Clinton Smith and to Sam Sattout Accountancy Services "in August".
25. I do not accept Mr Macauley's submission that the fair reading of this document is that Mr Burke was giving CPC two days' notice to make the payments budgeted for August. His notice claims that CPC's default "is not capable of remedy". It also purports to be "formal notice of termination" of the Extension Agreement.
26. In my opinion Mr Burke was not entitled to serve this notice. The 17 August 2017 agreement did not require CPC to make any payments by any particular date. It did not require CPC to make the payments budgeted for August 2017 by the end of August; let alone prior to the end of August. Through Mr Cole's email of 29 August 2017 and Mr Dart's email of 30 August 2017, CPC made quite clear that CPC required that Securicom execute the "funding agreements" referred to in Mr Cole's email of 29 August 2017 before the payments could be made. And Mr Burke knew that CPC was raising the funds for those payments by issuing convertible notes to Lyndcote and Midgeon.
27. The following day on 1 September 2017, Mr Burke sent CPC a second "Notice of Termination of the contract Sales and Purchase Agreement".
28. This document again purported to terminate the Extension Agreement albeit, on this occasion for reasons other than non-payment of the amounts in the budget.
29. On 20 November 2017 Mr Burke, through his solicitor, purported to terminate the SPA itself.
30. The letter stated, amongst other things: "For the sake of clarity we consider that the purported letter of variation of the SPA dated 17 August 2017 has no force and effect as you failed to meet the budget payments which were a precondition to that amendment".

Conclusion as to the purported termination of the SPA

1. Mr Burke was not entitled to terminate the Extension Agreement or the SPA.
2. His purported termination of the SPA was a repudiation of his obligations under the SPA.
3. CPC has not accepted that repudiation.
4. CPC: 1. "disputes that the SPA has been terminated" (Commercial List Statement at Part 1 (6)); 2. contends that Mr Burke's purported termination of the SPA is "void and wholly ineffective" (Commercial List Statement at C25 and C27); 3. contends that it "is and has at all times been ready, willing and able to perform the SPA" (Commercial List Statement at C28); and 4. seeks an order that the SPA be specifically performed.

Should specific performance be granted?

1. Then question, then, is whether specific performance should be granted.
2. CPC has not sought to prove the damage it will suffer as a result of Mr Burke's purported termination of the SPA. No doubt this is because it contends that the SPA remains on foot.
3. CPC contends that should I to decline to order specific performance, "damages should be substituted for an order for specific performance pursuant to s 68 of the Supreme Court Act 1970 [(NSW)]" (the statutory equivalent of the Chancery Amendment Act 1858 (UK) (Lord Cairns' Act).
4. What that measure of damages would be at present, when the SPA is still on foot, is an interesting question.
5. However, as I have foreshadowed, and for the reasons that follow, the question does not arise, as I propose to order specific performance.

The position of Microlatch UK

1. As I have mentioned, Microlatch UK has been dissolved (see [3] above). The implications of this were not addressed in submissions. Neither party submits that this fact, alone, is relevant to the question of what remedy should be granted to CPC. I do not know whether, for example, it would be possible for Mr Burke to cause Microlatch UK to be reinstated as a company under UK law or whether CPC contends that Mr Burke is obliged to cause this to happen.
2. In those circumstances, I will continue to refer to Microlatch UK without reference to its dissolved state.
3. Whatever complications exist by reason of Microlatch UK's current state can be addressed after these reasons are delivered.

Are damages an adequate remedy?

1. The general rule is that: "Equity will not decree specific performance of a contract if the plaintiff has an adequate remedy at law. 'The Court gives specific performance instead of damages only when it can by that means do more perfect and complete justice'." (J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed, 2015, LexisNexis Butterworths) at [20-030].) (Citations omitted.)
2. CPC contends that damages would not be an adequate remedy "given the nature of the SPA and its subject matter".

The nature of the SPA and its subject matter

1. In Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 the High Court (Latham CJ and Williams and Fullagar JJ) said at 438: "Specific performance is not a remedy which should lightly be refused when the plaintiff has established the existence of a contract capable of specific performance which the defendant has refused to complete. 'It is well established that the court cannot judicially exercise its discretion by refusing the remedy in a case of the appropriate class, unless some sound and recognised reason is shown'." (Citation omitted.)
2. As a general rule: "A contract for the sale of shares, stock or other securities is, generally speaking, specifically enforceable if the securities are not readily obtainable in the market". (Equity: Doctrines and Remedies at [20-040] citing Lionsgate Australia Pty Ltd v Macquarie Private Portfolio Management Ltd [2007] NSWSC 371; (2007) 62 ACSR 522 at [64] (Barrett J) and Duncuft v Albrecht (1841) 59 ER 1104.)
3. The subject of the SPA is shares in Securicom and Microlatch UK. As these shares are "not readily obtainable in the market", the starting point of my consideration is that, on the face of it, specific performance should be ordered.
4. So much was accepted by Mr Macauley in his opening and closing submissions. As Mr Macauley very fairly put in supplementary submissions, "the subject matter of the SPA is sufficiently unique to meet the requirement of demonstrating that damages are not an adequate remedy".
5. The substance of the transactions in the SPA points to the same conclusion.
6. The commercial object of the SPC is the acquisition by CPC of the shares in Securicom and Microlatch UK and thereby the patents owned by those companies.
7. The patents are listed in Schedule 5 of the SPA. They relate to technology that assists with the operation of biometric readers which enable mobile or remote electronic devices to be securely accessed and operated through the application of biometric signatures.
8. In Explanatory Notes given to CPC shareholders at an Extraordinary General Meeting held on 3 July 2017 it was stated: "The key technology protected by [the] patents relates to biometrics being aligned with [various technologies] for secure access to mobile computing devices. These patents impact on a number of companies globally using biometrics today. The technology is primarily designed for mobile devices such as smart phone, tablet, notebook, laptop, touchless payment platforms, automotive technologies, PC network access, one-time password generation, building access and many more across a wide range of businesses and industries. The Microlatch technology overcomes the main challenge facing this emerging mobile payment market, being the mobile phone subscriber's fear over the security of payments made…Microlatch advised that their technology offers the most secure and cost-effective mobile smartphone security protocol in the market today."
9. In the same document, shareholders of CPC were advised that CPC proposed to undertake a "Public Offer" to fund the "commercialisation and expansion of the Microlatch patent portfolio".
10. One of the conditions precedent to completion of the SPA is "Completion of the CHF Public Offer" which is defined to mean "the public issue of [fully paid ordinary shares in CPC] with an issue price to be agreed between the parties pursuant to the issue of a prospectus by [CPC] or otherwise, raising up to $5,000,000.00 or such other amount as agreed between the parties".
11. As Mr Ashhurst SC, who appeared with Mr Afshar for CPC, put it in supplementary submissions, "the value of the transaction is reaped only when the patents are eventually commercialised".
12. This is thus a case where CPC "has a particular interest in obtaining the actual subject matter" of the SPA (to adopt the language of Barrett J in Lionsgate at [65]).
13. In those circumstances, CPC contends that it is in a special position and that its objective of achieving ownership of the patents, and the opportunity to commercialise them "leaves no room for the view that money may be a satisfactory substitute" (again adopting Barrett J's language in Lionsgate).

Difficulty quantifying damage?

1. During submissions, Mr Ashhurst emphasised the difficulties involved in proving the damage it has suffered by reason of Mr Burke's wrongful termination of the SPA.
2. Mr Ashhurst submitted that: "…the position in this case is not that the ascertainment of damages would be incredibly difficult, but that it would be practically impossible, given that the SPA concerns the sale of shares in companies that hold Patents that subsist in an ever changing technology market, the commercialisation of which involves, amongst other things, litigation against the likes of Apple and Samsung, the prospects of which are inherently uncertain".
3. Mr Ashhurst's reference to the litigation against Apple and Samsung is a reference to the possibility that those entities are infringing one more of the patents and to the fact that CPC is in negotiation with a United States litigation funder to seek finance with which to challenge those alleged infringements (see [80] above).
4. CPC's claim for damages would be for the loss of the chance to complete the SPA and of enjoying the benefits that completion would bring.
5. First, CPC would have to show on the balance of probabilities that there was substantial, not merely theoretical or negligible "prospect of a beneficial outcome", to adopt the language used by Barrett JA in Mal Owen Consulting Pty Ltd v Ashcroft [2018] NSWCA 135 at [99]. That is, "according to the balance of probabilities, that there is some colour of value to the lost opportunity": Mal Owen at [101]. This is the first of the two stages described by the High Court in Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 at 355.
6. The "beneficial outcome" here would be the completion of the SPA. That requires proof of the likelihood that the parties, using their best endeavours and cooperating, would achieve satisfaction of the 13 conditions precedent in the SPA. It would also require proof of CPC's hypothetical position following completion.
7. If CPC established these matters, then it would have to show the damage it has suffered as a result of not being able to avail itself of the relevant opportunity. This is the second of the two stages in Sellars (at 355).
8. That assessment would be made, again adopting the words of Barrett JA in Mal Owen at [101]: "…by reference to the degree of probabilities and possibilities of factual hypotheses [and] may require a process of estimation extending even to a degree of guesswork…and may lie at any point within a broad range."
9. The task of proving damages in these circumstances would no doubt be difficult in the extreme. It is likely that there will be many factors relevant to the assessment of damage that relate to events that have not yet happened, and about which little more than guesswork will be required.
10. To adopt the language of Brooking J in ANZ Executors and Trustees Ltd v Humes Ltd [1990] VR 615 at 632-33: "If the plaintiff is left to its remedy in damages, it will, at some unknown time in the future, face the difficulties - it having to shoulder the burden of proof - of quantifying its loss in a case which, so far as I know, is entirely novel and which poses great problems."
11. The facts before Brooking J were very different from those here but his Honour's observations are apposite to this case.
12. It is true, as the learned authors of Equity: Doctrines and Remedies point out at [20-030]: "Difficulties in quantifying damages do not render them inadequate". (Citing Fothergill v Rowland (1873) LR 17 Eq 132 at 140.)
13. However, those difficulties, when considered in conjunction with the particular interest CPC has in acquiring the shares in Securicom and Microlatch UK, point to the conclusion that this is a case where specific performance should be ordered.

Discretionary considerations

1. Mr Macauley submits "the inadequacy of damages (as understood within the present context - i.e. for the purposes of discharging a threshold requirement to obtaining an order for specific performance) does not prevent discretionary considerations from leading to a refusal to order specific performance". Mr Macauley referred to I C F Spry, Equitable Remedies (9th ed, 2014, Thomson Reuters).
2. Dr Spry went on, however, to state that the "better" approach of courts is to simply consider "whether it would be more just to grant specific performance than to award damages".
3. Mr Macauley submits there are difficulties likely to be associated with ordering specific performance in this case.
4. The authorities draw a distinction between orders requiring a defendant to carry out an activity (for example running a business: JC Williamson Ltd v Lukey [1931] HCA 15; (1931) 45 CLR 282 and Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1 at 13D) and an order requiring a defendant to achieve a result (for example compliance with a repairing covenant: see the cases referred to in Argyll Stores by Lord Hoffmann at 13G).
5. The SPA is a sale contract. Mr Burke agreed to sell to CPC his shares in Securicom and Microlatch UK.
6. An order for specific performance would compel Mr Burke to comply with his obligations under the SPA.
7. In that sense, it would be an order compelling the achievement of a result.
8. However, because the SPA requires each party to use their best endeavours and to cooperate to achieve satisfaction of the 13 conditions precedent, the SPA also imposes obligations on the parties to engage in various activities.
9. An order for specific performance would therefore also compel performance of an activity. Some of those activities may well require curial supervision.
10. A factor relevant to whether specific performance is granted is the extent to which the Court's continued supervision would be required.
11. This is no longer as strong a factor weighing against ordering specific performance as it was previously thought to be.
12. Thus in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 Brennan CJ and McHugh, Gummow, Kirby and Hayne JJ said at [79]: "What is significant is the acceptance by the House of Lords [in Argyll Stores] that the concept of 'constant supervision by the court' by itself is no longer an effective or useful criterion for refusing a decree of specific performance. Rather, Lord Hoffmann placed stress on other propositions. First, a person who is subject to a mandatory order attended by contempt sanction (which 'must realistically be seen as criminal in nature') ought to know with precision what is required; and, secondly, the possibility of 'repeated applications for rulings on compliance' with orders requiring a party 'to carry on an activity, such as running a business over a more or less extended period of time' should be discouraged. Reference to constant court applications should not be misunderstood. The courts are well accustomed to the exercise of supervisory jurisdiction upon applications by trustees, receivers, provisional liquidators and others with the responsibility for the conduct of administrations." (Citations omitted.)

The relationship between the parties

1. Another consideration is the present relationship between the parties.
2. The relationship between the parties is strained.
3. That is illustrated by the fact that Mr Burke has purported to terminate the Extension Agreement and the SPA.
4. But the problem goes further than this.
5. It appears that Mr Dart and Mr Cole no longer trust Mr Burke, and that the feeling is mutual.
6. Thus Mr Cole spoke in cross-examination of CPC feeling "blackmailed by [Mr] Burke every time he wanted some money".
7. On 8 August 2017 Mr Dart, through Mr Cole, sent an email to Mr Burke speaking of CPC's "concerns about your recent behaviour" which Mr Dart indicated Mr Burke was "simply conspiring to defraud [CPC] and its shareholders".
8. Mr Dart said in cross-examination that by August 2017 CPC "was being extremely careful…with how much more money we [would] put behind [Mr] Burke".
9. Similarly, in his 1 September 2017 notice purporting to terminate the Extension Agreement (see [91]-[92] above) Mr Burke accused CPC of misrepresenting his wishes to the litigation funder to which I have referred.
10. In an email of 30 August 2017 Mr Burke said he did not expect "to be continuously hammered about breaching any of your patents" and continued: "I'm not sure why you want to destroy the only livelihood I have whilst waiting on [CPC]. However, I'm sure you have your reasons and you will continue to drive your agenda. If you want to take legal action, then please go ahead, nothing surprises anymore".
11. The distrustful relationship between these men does not augur well for their future commercial relationship.
12. In this context Mr Macauley submits: "Further, the SPA's effect, as noted above, is to accomplish a reverse takeover, with the presently constituted CPC to form ~50% of a new economic unit, which new economic entity is to have Mr Burke as the other ~50% shareholder. Accordingly, what is being formed is akin to a quasi-partnership, with the direction of CPC to be determined by Mr Burke (as one ~50% shareholder) and the existing shareholders of CPC (as the other ~50%). Forcing these two entities to work together to pursue common financial objectives when there is distrust and discord between the corporate actors of those entities is, to adopt Sackar J's words in Huang v Chen [2017] NSWSC 1699 at [515], 'a recipe for commercial disaster'."
13. There is some force in this submission concerning the position of the parties once the SPA was completed.
14. However an order for specific performance would not itself play a role in the the operations of CPC after completion. It would do no more than ensure that completion occurred. Such difficulties that may arise after completion will be governed by the rights and obligations the parties then have, and must be balanced against the obvious interest CPC currently has in achieving completion.
15. I do not see this case as being akin to that considered by Sackar J in Huang v Chen. That case concerned a joint venture to develop a property. Sackar J declined to order specific performance because of the relationship between the parties and pointed to the "numerous construction and design issues going forward" in relation to the development in question at [516]. It was also a case where there had been a falling out between the plaintiffs themselves, see [134]. But there was no suggestion in that case of the inadequacy of damages (indeed, there is no suggestion that the plaintiffs sought damages) or that the subject matter of the joint venture was "unique" (see [112] above) such as to require its specific performance.

Best endeavours and cooperation

1. Another consideration is the requirements that would be made of the parties in specifically performing the SPA.
2. Clause 2.3 of the SPA requires that CPC and Mr Burke use their best endeavours and to cooperate to fulfil the 13 conditions precedent set out in cl 2.1.
3. Best endeavours clauses are common and import an obligation to do what is reasonable in the circumstances having regard to the nature, capacity, qualifications and responsibilities of the parties involved (per Mason J in Transfield Pty Ltd v Arlo International Ltd [1980] HCA 15; (1980) 144 CLR 83 at 101).
4. In OzEcom Ltd (in liq) v Hudson Investment Group [2007] NSWSC 719 McDougall J summarised the principles as follows: "(1) An obligation to use best endeavours to achieve an outcome is neither an unqualified obligation to achieve that outcome nor a warranty that it will be achieved. (2) The content of the obligation to use 'best endeavours' must be measured having regard to the contract as a whole and to the factual context in which the best endeavours fall to be exerted. (3) In ascertaining whether best endeavours have been exerted, the Court should have regard to the qualifications, abilities and responsibilities of the person obliged to exert them. (4) Stipulation of an obligation to use 'best endeavours' necessarily carries with it an understanding that the outcome, towards the achievement of which the best endeavours are to be directed, may not in fact be achieved." (Citations omitted.)
5. The expression no doubt is, as Mr Macauley submitted, protean.
6. Disputes may arise as to whether CPC or Mr Burke have used their best endeavours in relation to particular matters.

Conditions precedent 1 and 4 - No Material Adverse Change and Audited Accounts

1. For example, Mr Macauley refers to conditions precedent 1 and 4 which require, amongst other things, that there be no material adverse change to the "Business Intellectual Property" (being the patents) and that Mr Burke provide audited accounts for Securicom.
2. Mr Macauley submits that it is unclear whether Mr Burke (or Securicom) would be obliged to borrow money to ensure the patents do not lapse or to ensure that accounts are audited.
3. However, as Mr Ashhurst submits, if such a question arises it would be capable of resolution by the Court, if need be.
4. If specific performance were ordered, CPC and Mr Burke would have to use their best endeavours, that is to do what is reasonable in the circumstances, to deal with whatever circumstance arose.

Condition precedent 9 - Key Employees

1. Condition precedent 9 provides: "(Key Employees): The Key Employees of the Company entering into the employment agreements with the Company, on terms set out in the offer of employment letters set out in Schedule 13". (Emphasis in original.)
2. "Key Employees" is defined to mean Mr Burke. "Company" is defined in the SPA to mean Securicom and Microlatch UK.
3. The combined effect of cl 2.3 of the SPA and condition precedent 9 is that CPC and Mr Burke must use their best endeavours and cooperate to ensure that Mr Burke enters into "employment agreements" with Securicom and Microlatch UK "on the terms set out in the offer of employment letters set out in Schedule 13".
4. A difficulty is that there are no "terms" set out in Schedule 13, which simply reads: "Schedule 13 Offer of Employment letter Employment agreement for Christopher Burke - to be completed".
5. However as Mr Burke currently, in effect, owns Securicom and Microlatch UK it is hard to see why he could not use his best endeavours to cause one or both of those companies to enter into an employment agreement with himself.
6. A dispute may arise as to the terms Mr Burke negotiates for himself, for example, as to salary.
7. But his obligation, and of course CPC's obligation, would be to do what is reasonable in the circumstances. That is no doubt something the Court could determine if the parties cannot agree; and notwithstanding the unhappy relationship between the men in question.
8. Mr Macauley submits that, by reason of cl 5.1 of the SPA, it would be necessary for CPC to approve the terms of any such employment agreement and that this was likely to cause further disputation. Clause 5.1 requires that Mr Burke must ensure that he, Securicom and Microlatch not enter any "related party transaction" otherwise than with CPC's consent. However, cl 5.2(a) provides that cl 5.1 does not apply to "anything which is expressly permitted in this Agreement". Entry by Mr Burke into an employment agreement of the kind referred to in condition precedent 9 is not only permitted by the SPA, it is required by it. In those circumstances I do not see cl 5 as imposing any complication.

Conditions precedent 11 and 12 - Completion of CHF Public Offer & ASX Confirmation

1. Mr Macauley also points to conditions precedent 11 and 12 which require that the "CHF Public Offer", to which I have referred at [118] above, be completed and that the ASX confirm its satisfaction with steps needed to ensure that the current suspension of trading in shares in CPC ceases prior to completion.
2. Mr Macauley asked, rhetorically, whether this would involve an obligation on Mr Burke to provide access to third parties to privileged advices he has received in relation to infringements of Securicom's patents.
3. This may be necessary. If a dispute were to arise about how Mr Burke's privilege should be protected, the parties would have to do what is reasonable in the circumstances, and the Court could determine the matter if need be.

Conditional Precedent 13 - Restriction Agreements

1. Condition precedent 13 deals with "Restriction Agreements" and is in the following form: "(Restriction Agreements): Sellers entering into any Restriction Agreements required by the ASX or the Buyer acting reasonably." (Emphasis in original.)
2. "Restriction Agreement" is defined to mean a restriction agreement substantially in the form of Appendix 9A of the ASX Listing Rules.
3. Such an agreement would, relevantly, impose escrow restrictions on Mr Burke in relation to shares issued to Mr Burke under the SPA.
4. No problem could arise in relation to Restriction Agreements required by the ASX. Mr Burke would be obliged by the SPA to enter any such agreement. Should CPC require Mr Burke to enter such an agreement, it would have to act reasonably. If a dispute arose, it could no doubt be quelled by the Court.

Clause 7.2 - board after completion

1. A further matter arises in relation to cl 7.2 of the SPA which provides: "Subject to Christopher John Burke complying with all applicable laws, the parties acknowledge and agree that he must remain on the board and or pledge his services to the Buyer as set out in his Services Agreement in Schedule 13 of this Agreement for a period of not less than 3 years following the Completion Date."
2. This clause contains, first, an acknowledgment by the parties that Mr Burke must remain "on the board" for not less than three years. The clause is headed "After Completion" suggesting that the "board" referred to is that of CPC (rather than, for example, Securicom).
3. An issue may arise as to whether this clause contains an obligation on Mr Burke to remain on the board of CPC, as opposed to a recitation by the parties of an agreed preferred position.
4. As the SPA contemplates that Mr Burke will have 50.4 per cent of the shares in CPC on completion, it seems likely that Mr Burke would wish to retain a presence on, if not control of, the CPC board.
5. In those circumstances, it is hard to see why a dispute would arise in relation to this.
6. The clause also appears to oblige Mr Burke to "pledge his services" to CPC for not less than three years "as set out in his Services Agreement in Schedule 13".
7. There is no such agreement set out in Schedule 13. One view is that, for that reason, this aspect of Mr Burke's obligations is devoid of content.
8. Another view is that the effect of cl 7.2 when read with Schedule 13 is that the terms of the proposed Services Agreement are to be agreed between the parties.
9. This may well lead to further disputation between the parties, although it appears likely that each would be bound by an implied term of the contract to cooperate and to do all things necessary to enable the other party to have the benefit of the contract (for example Butt v McDonald (1896) 7 QLJ 68 at 70-71; and the cases referred to N C Seddon and R A Bigwood, Cheshire & Fifoot Law of Contract (11th ed, LexisNexis Butterworths) at [10.41]).

Conclusion on specific performance

1. These matters suggest the likelihood of the need for curial supervision of any order for specific performance.
2. However, as I have set out, the High Court in Patrick Stevedores has made clear that this, alone, is not a reason to refuse specific performance.
3. It is true that the parties, and Mr Burke in particular, must know precisely what is required of them in order to comply with such an order.
4. That is because the only means available to the Court to ensure that an order for specific performance is implemented is its coercive powers to punish for contempt.
5. Lord Hoffmann put the matter this way in Argyll Stores: "The judges who have said that the need for constant supervision was an objection to such orders were no doubt well aware that supervision would in practice take the form of rulings by the court, on applications made by the parties, as to whether there had been a breach of the order. It is the possibility of the court having to give an indefinite series of such rulings in order to ensure the execution of the order which has been regarded as undesirable. Why should this be so? A principal reason is that…the only means available to the court to enforce its order is the quasi-criminal procedure of punishment for contempt. This is a powerful weapon; so powerful, in fact, as often to be unsuitable as an instrument for adjudicating upon the disputes which may arise over whether a business is being run in accordance with the terms of the court's order. The heavy-handed nature of the enforcement mechanism is a consideration which may go to the exercise of the court's discretion in other cases as well, but its use to compel the running of a business is perhaps the paradigm case of its disadvantages and it is in this context that I shall discuss them."
6. This is not a case where an order for specific performance would "compel the running of a business". But an order for specific performance would compel completion of a complicated transaction, where much depends upon the parties using their best endeavours and cooperating to achieve the various conditions precedent and where there are many possibilities for differences of opinion and disputation.
7. The unhappy relationship which has now developed between Mr Burke, Mr Dart and Mr Cole (and Mr Murray) suggest that disputation may well occur.
8. However, it appears to me also to be likely that some or all of the issues that might arise could be dealt with by the Court short of a contempt application; by interlocutory applications for declaratory relief as to the nature of the parties' obligations.
9. The alternative is to leave CPC without the benefit of the SPA and all that may flow from its completion, including the subsequent commercialisation of the patents. Further, CPC would be left with the near impossible task of proving the damage it has suffered by reason of being denied the opportunity to complete the SPA.
10. The decision is not an easy one but, on balance, and taking all these matters into account, my conclusion is that I should order specific performance.

Conclusion

1. I propose to order that the SPA be specifically performed.
2. I invite the parties to confer and agree on the precise orders to be made.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2018