[42] In IBM United Kingdom Ltd v Rockware Glass Ltd,[234] in the context of a covenant to use best endeavours to obtain planning permission, Buckley LJ described the obligation as requiring a vendor to do what an owner who is anxious to obtain permission would do to achieve it:
What would an owner of the property with which we are concerned in this case, who was anxious to obtain planning permission, do to achieve that end. The formula which has been suggested and which would commend itself to me is that the plaintiffs as covenantors are bound to take all those steps in their power which are capable of producing the desired results, namely, the obtaining of planning permission, being steps which a prudent, determined and reasonable owner, acting in his own interests and desiring to achieve that result, would take.[235]
On that basis, his Lordship held that the obligation would include an obligation to appeal from an initial refusal of permission so long as the circumstances were such as to indicate that there was a reasonable chance of success.
[43] Similarly, in Western Australia, in Paltara Pty Ltd v Dempster,[236] Malcolm CJ and Pigeon J held that an obligation to use best endeavours to obtain subdivisional approval in a contract for the sale of land required the obligor company to do what reasonably could be done in the circumstances, and that what could reasonably be done was whatever a reasonable and prudent board of directors acting properly in the interests of their company would do in the circumstances of the case.
[44] To the same effect, in Hawkins v Pender Bros Pty Ltd,[237] the Full Court of the Supreme Court of Queensland approved the formulation that a covenant to use best endeavours to obtain building and town planning approvals required the obligor conscientiously to apply itself to the task of securing approval with the vigour to be expected of it if it were prudently attempting to secure its own interests, and to continue so to do until it should reasonably judge in the circumstances that further efforts would have such remote prospects of success as to be likely to be wasted.
[45] In a similar context, both IBM and Hawkins were recently referred to with approval by the New South Wales Court of Appeal in Foster v Hall.[238]
[46] In Western Australia in O'Rourke v P & B Corp Ltd,[239] Martin CJ sitting at first instance concluded after a thorough and careful consideration of relevant authority that the scope of the obligation to use best endeavours to achieve a planning approval is to be assessed in accordance with what had been said in Paltara, with the result that:
if a prudent and reasonable person, acting in his or her own interests and determined to obtain approval, would have pursued an appeal, the obligation to use best endeavours would extend to an obligation to appeal. Construed in this way, there does not appear to me to be any tension between the decision in IBM United Kingdom Ltd and the decisions in Paltara and Ross in this court.[240]
