MAZZAROLO -v- ACN 641495561 PTY LTD [2025] WASC 530 (11 December 2025)

22.1 Neither party will be at liberty to enforce any rights or remedies hereunder or at common law or in equity (other than the right of any party to sue for any monies already fallen due) arising out of the default of the other in performing or observing any of the terms and conditions of the Agreement unless it has complied with the procedure set out in this clause 22.

22.2 The party not in default of the terms of the Agreement must serve upon the other a written notice:

(a) specifying the default; and

(b) requiring the party in default to

(c) remedy the default; and

(d) pay to the party not in default the proper legal costs incurred in the issuance of the default notice and otherwise attributable to the default;

(e) and stating its intention to enforce its rights and remedies if the default is not remedied and the legal costs incurred not paid within ten (10) Business Days of service of the notice upon the party in default.

22.3 If the notice also states that unless the default is so remedied and the costs paid the Agreement will be terminated, then if the default is not remedied and the costs paid within the said period, the Agreement will be terminated upon the expiry of the period.

22.4 If the notice was given by the Buyer it will be entitled to the return of the Deposit and to all other monies (if any) paid to the Seller, the Broker or the Seller's Representative, and to such damages to which it may be entitled at common law or in equity.

22.5 If the notice was given by the Seller it may:

(a) forfeit the Deposit paid except so much as exceeds ten per centum (10%) of the Purchase Price which excess (if any) will be deemed for the purposes of this Condition to be an instalment of the Purchase Price paid under the Agreement; and...[10]

1. The AIBB 2012 General Conditions (for the sale of a business) were incorporated into the business sale contract. Clause 17 provided relevantly as follows:
   1. DEFAULT AND TERMINATION

17.1 Neither party will be at liberty to enforce any rights or remedies hereunder or at common law or in equity (other than the right of any party to sue for any monies already fallen due) arising out of the default of the other in performing or observing any of the terms and conditions of the Agreement unless it has complied with the procedure set out in this condition 17.

17.2 The party not in default of the terms of the Agreement must serve upon the other a written notice:

(a) specifying the default; and

(b) requiring the party in default to:

(i) remedy the default; and

(ii) pay to the party not in default the proper legal costs incurred in the issuance of the default notice and otherwise attributable to the default;

(c) and stating its intention to enforce its rights and remedies if the default is not remedied and the legal costs incurred not paid within ten (10) Business Days of service of the notice upon the party in default.

17.3 If the notice also states that unless the default is so remedied and the costs paid the Agreement will be terminated, then if the default is not remedied and the costs paid within the said period, the Agreement will be terminated upon the expiry of the period.

17.4 If the notice was given by the Buyer it will be entitled to the return of the Deposit and to all other monies (if any) paid to the Seller, the Seller's Broker or the Seller's Representative, and to such damages to which it may be entitled at common law or in equity.

17.5 If the notice was given by the Seller it may:

(a) forfeit the Deposit paid except so much as exceeds ten per centum (10%) of the Purchase Price which excess (if any) will be deemed for the purposes of this condition to be an instalment of the Purchase Price paid under the Agreement; and...[11]

1. The parties agreed, on a number of occasions, to vary the contracts' Settlement Date.
2. On 6 January 2025, the plaintiffs issued notices of default under the contracts to the defendant, but these were subsequently withdrawn by the plaintiffs on 17 January 2025.[12]
3. On 28 January 2025, the plaintiffs issued to the defendant:
   1. a business sale default notice;[13] and
   2. a land sale default notice.[14]
4. Both default notices relevantly were in the same following terms:

1. The Seller instructed the Buyer that it is ready, willing and able to settle on 3 January 2025 in respect of the Business Contract and the Land Contract.
2. By various notices, the Buyer advised the Seller it intended to settle on 24 January 2025.
3. On 21 January 2025 the Seller advised the Buyer that it was ready willing and able to settle on 24 January 2025 and sought particulars of any outstanding items according to the Buyer.
4. The Buyer did not advise any outstanding items pursuant to the Sellers request of 21 January 2025.
5. The Buyer failed to settle on 24 January 2025.
6. The Buyer has failed to settle and comply with its obligations at settlement ("Default").

1. The Buyer has committed the Default.
2. The Seller requires the Buyer within 10 business days after the date this Default Notice is duly given to the Buyer:
   1. to remedy the Default by agreeing to settle and settling, complying with all obligations of the Buyer at settlement pursuant to the Land Contract and the Business Contract; and
   2. pay the Seller's costs incurred addressing the Default of$2,500.
3. If the Buyer does not remedy the Default and pay the costs in accordance with Clause 2 above, the Buyer intends to enforce its rights and remedies in accordance with the Business Contract.[15]
4. Clause 4 of the business sale default notice stated:
   1. Pursuant to clause 16.3 of the Business General Conditions if Buyer does not comply with Clause 2 above within the time provided, the Business Contract (therein called the 'Agreement') is terminated.[16]
5. Clause 4 of the land sale default notice (differently from the business sale default notice) stated:
   1. Pursuant to clause 22.3 of the Land General Conditions if Buyer does not comply with Clause 2 above within the time provided, the Land Contract (therein called the 'Agreement') is terminated.[17]
6. There was no settlement on either the land sale or business sale contracts within 10 business days after 28 January 2025.[18]
7. The plaintiffs then plead and claim that pursuant to cl 22.3 of the land sale contract and cl 17.3 of the business sale contract, the contracts respectively terminated automatically 10 business days after 28 January 2025.[19]
8. As I understood it, at the hearing counsel for the defendant accepted that the default notices would have that effect unless they were invalid or otherwise ineffective.

1. The principles applicable to an application for summary judgment are well known.
2. Both parties relied upon the recent judgment of the Master in Private Lender Pty Ltd v Moodley [2025] WASC 418 [27] - [30] and the cases cited therein.
3. I have not repeated those principles here.
4. The plaintiffs, in particular, relied on the principle and cases cited in [29] of the Master's judgment to the effect that O 14 r 3 of the RSC operates so that once a prima facie case is established on the part of the plaintiffs, then the defendant bears an evidential burden to establish, relevantly in this case, a triable issue. That, again, was not disputed by the defendant.

1. The defendant accepts that it did not settle on 24 January 2025.[20]
2. The defendant asserts that the two default notices issued on 28 January 2025 are 'nugatory and or invalid by virtue of the plaintiffs [sic] failure to meet its [sic] obligations under the contracts'.[21]
3. As became apparent at the hearing, and was confirmed by counsel for the defendant, the defendant relies on some agreement between the parties which is relevantly different from the written land sale and business sale contracts.
4. However, as counsel for the defendant accepted at the hearing, there is no evidence from the defendant as to:
   1. when that different agreement was made;
   2. how it was made;
   3. the terms of it; and
   4. how it was to interact with the written contracts.
5. Rather, the highest the defendant put it was that its solicitor's email written 14 January 2025 to the plaintiffs' solicitors[22] evidenced a different contract. More particularly, the submission was that because the plaintiffs had not countered certain of the assertions made in that email, the different contract was evidenced.
6. I do not accept that submission.
7. Firstly, that email contains a number of assertions of fact and, maybe, law. The defendant, however, has not put on any evidence which in any way seeks to verify the matters of fact contained within its solicitor's email. That is, they remain mere assertions.
8. Secondly, and in any event as the plaintiffs submit, it is not accurate to say that there may be some inferred acceptance by the plaintiffs of the assertions when one has regard to the responsive letter sent by the plaintiffs' solicitors on 17 January 2025.[23] I accept that submission.
9. Where the defendant referred to the default notices issued 6 January 2025,[24] (but did not seek to adduce those into evidence) and then proceeded on the basis that they had been withdrawn on 17 January 2025,[25] it remains unclear to me what significance those default notices and their subsequent withdrawal have to the present application.
10. In this Application, the defendant has 'asserted' the following 'defences':
    1. Defendant's asserted defences
       1. The contract was subject to due diligence including matters pertinent to the transfer of the liquor licence relating to the Pubtab [sic].
       2. The transfer of the liquor licence must be construed as a condition precedent to allowing settlement to proceed.
       3. The defendant did inform the plaintiffs on 11 December 2025 that the liquor licence was about to expire in December 2024 and that the defendant did in fact pay department of local government sport and cultural industries [sic] a fee of $680.50 on 12 December 2024 as evinced by the Boytt annexure GB‑2.
       4. The implication and impediment of the plaintiff's [sic] continual failure (despite numerous requests) to provide the defendant with the information as set out and described in Gareth Boytt's affidavit [15].
       5. The failure by the plaintiff [sic] to provide at all or to provide at the eleventh hour the requested information and materials was the cause for the settlement not proceeding.[26]
11. Mr Boytt deposed to the following:

[13] The contract was subject to due diligence including matters pertinent to the transfer of the liquor licence particularly relating to the PubTAB approval.

...

[15] It was resolved that settlement was to take place on or about 24 January 2025, this did not occur due to continuing delays in obtaining the requisite information. Throughout this period it was a condition of the contract that the sellers provide certain further information pertaining to the financials and in relation to the transfer of the liquor licence. The list of handover information was not received until 17 January 2025, together with the long-requested monthly financials. Critical occupancy data was never provided, despite repeated requests. All of which I say are pertinent to facilitate settlement. Missing or delayed information included:

• Suppliers' accounts - eventually provided.
• Employee details - partial data was supplied; I subsequently obtained additional information directly from staff (at least 10 further employees).
• Ongoing commitments (contracted services) - later received.
• Month-by-month revenue figures - provided on 28 January 2025.
• Corporate client listing - never provided.
• Occupancy figures - never received
• Average room rate information - never provided.

[16] During a site visit in December 2024, it was apparent that the hotel was being run down by the sellers. Issues included: Cobwebs and dirty windows in the reception area. Rubbish and neglected garden areas. Water leaks causing deterioration of the building proper. Inconsistent food quality and presentation, which was also reflected in increased complaints noted in booking.com reviews from November 2024 onwards

[17] Emails passing between myself and the owners regarding handover continued until 13 February 2025, evidencing the piecemeal nature of disclosures and the clear intention to continue to settlement albeit delayed. Annexed hereto marked GB‑1 is a copy of the email.

...

[19] I also identified that the liquor licence was due to expire shortly prior to handover. This was raised in correspondence dated 11 December 2025 to the sellers' agent and paid by the buyer 19 December 2024.

...

[25] It was our intention to settle on 24 January 2025, this did not occur by virtue of the delay in handover information not being provided until 17 January 2025.

...

[28] As at 22 April 2025, the defendant was ready, willing and able to settle. Annexed hereto marked GB-5 is a copy of S and D Settlements R W A.

[29] In open correspondence dated 20 May 2025, my lawyer sought a formal response to the previous WP correspondence but informed the sellers lawyer that should the matter remain unresolved we would be at liberty to issue formal process. Annexed hereto marked GB-6 is a copy of that email.

...

1. I find that the plaintiffs have established a prima facie case and that there is no defence based on: the undisputed facts; the terms of the written contracts; and the defaults and non‑compliance with the notices of default.
2. In dealing with the last two paragraphs ([28] and [29]) of Mr Boytt's affidavit quoted above, it was accepted by counsel for the defendant that if the default notices were effective, then those events deposed to in April and May of 2025 were irrelevant. As will be seen, I have, consequently, put those matters from April and May 2025 to one side without further consideration.
3. As I said above, central to the defendant's 'defences' is an asserted agreement which is different from the two written contracts.
4. I do not find that there is any material before the Court from the defendant which might support some different contractual agreement between the parties.
5. The defendant's evidence led is entirely inadequate to establish that there is any triable issue between the parties as to there being some different contractual agreement.
6. That lack of evidence in the context of this case is fatal for the defendant in resisting the Application.
7. The short point is that, in the absence of some different contractual agreement, none of the matters asserted as defences or deposed to by Mr Boytt relevantly above, gives rise to a triable issue.
8. I will briefly address the particular 'defences' asserted for completeness. I do not accept that it was any part of the written contracts that there should be any 'due diligence' relating to the PubTAB cf defendant's submission at [7(a)].[27]
9. The assertion of the defendant that the transfer of the relevant liquor licence must be construed as a condition precedent for settlement to occur[28] may be accepted but does not provide a defence.
10. There appears to be a dispute on the evidence as to whether the defendant paid the 'transfer fee' to the relevant department.[29] However, even if the defendant did pay the fee as asserted, that does not go to any defence: cf defendant's submissions [7(c)]. I accept the plaintiffs' submission as put at the hearing that it is 'neither here nor there' in the context of this Application.
11. As to the assertions of the plaintiffs' 'failure' or 'refusal' to provide information, the defendant was unable to point to any provision in the written contracts which required the provision of any of the asserted information prior to the Settlement Date.
12. That is, even if it be accepted that the information had not been supplied, that nonetheless would not provide a defence based on the business and land sale contracts for a failure to settle on the part of the defendant.
13. In any event, factually, there is some reason to regard the defendant's assertions in this respect with some circumspection. That is because on 21 January 2025, the plaintiffs' solicitors wrote to the defendant's solicitor and asked the defendant to: 'clearly itemise what your client says is currently outstanding which is required prior to settlement'.[30] This correspondence is reflected in Recital S to both the default notices (as quoted at paragraph [24] above).
14. There is no evidence before me that the defendant complied with the plaintiffs' request set out above. This gives me pause in accepting the defendant's position as articulated at the hearing. For the reasons already given, I do not need to reach a view on that.
15. A further matter which may give pause for an acceptance of that position is Mr Boytt's affidavit at [25] as quoted above.

1. For the above reasons, I find:
   1. that the plaintiffs have raised a (strong) prima facie case for judgment;
   2. the defendant has not established any triable case; and
   3. there should therefore be judgment for the plaintiffs on their application.
2. I will hear the parties as to the form of final orders and as to costs (including as to any special costs orders sought), as is necessary.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] ASOC [4]; First Mazzarolo Affidavit, Attachment '5' at pages 24 - 42.

[3] ASOC [4]; First Mazzarolo Affidavit, Attachment '6' at pages 43 - 66.

[4] ASOC [5]; First Mazzarolo Affidavit: business sale contract at page 25 and land sale contract at page 43.

[5] First Mazzarolo Affidavit; business sale contract, Annexure 'A' [3] at page 28 and land sale contract, Annexure 'A' [3] at page 46.

[6] ASOC [8]; First Mazzarolo Affidavit, Attachment '8' at pages 69 - 70.

[7] First Mazzarolo Affidavit: land sale contract at page 43.

[8] First Mazzarolo Affidavit: business sale contract at page 25.

[9] ASOC [9]; First Mazzarolo Affidavit: business sale contract, Annexure 'A' [2(b)] and land sale contract, Annexure 'A' [2(b)] at page 28.

[10] ASOC [11]; First Mazzarolo Affidavit: land sale contract at page 64.

[11] ASOC [12]; First Mazzarolo Affidavit: business sale contract at page 39.

[12] Boytt Affidavit [23] - [24] and Attachments 'GB-3' at pages 12 - 14 and 'GB-4' at page 15.

[13] ASOC [15]; First Mazzarolo Affidavit: business sale default notice, Attachment '10' at pages 73 ‑ 74 (business sale default notice).

[14] ASOC [15]; First Mazzarolo Affidavit: land sale default notice, Attachment '9' at pages 71 - 72 (land sale default notice).

[15] First Mazzarolo Affidavit: business sale default notice at page 74 and land sale default notice at page 72.

[16] First Mazzarolo Affidavit: business sale default notice at page 74. There is an obvious typographical error in that the notice should have referred to cl 17.3 and not to cl 16.3. The defendant did not seek to make anything of the error, and I have not considered it further.

[17] First Mazzarolo Affidavit: land sale default notice at page 72.

[18] ASOC [16]; First Mazzarolo Affidavit [6(l)].

[20] Defendant's submissions filed 10 November 2025 (Defendant's submissions) [2].

[22] Boytt Affidavit [23] and Attachment 'GB-3' at pages 12 - 13.

[23] Boytt Affidavit [24] and Attachment 'GB-4' at page 15.

[30] Second Mazzarolo Affidavit, Attachment '4' at pages 12 - 13.