MCGETTIGAN V. ELIRAN PTY LTD [1999] NSWSC 769
Supreme Court of New South Wales – 22 July 1999
FACTS
Eliran was the trustee of a hotel business. McGettigan was one of three beneficiaries. The beneficiaries fell into dispute and the hotel business was to be sold to redeem the McGettigan interest. An auction of the hotel was unsuccessful and McGettigan sought to appoint a receiver. The parties agreed to terms which provided that:
Eliran had until 30 June 1999 to find an investor willing and able to invest sufficient funds to allow Eliran to pay McGettigan for its interest in the trust business.
If there was no investor found, the hotel was to be submitted to public auction by 31 July 1999.
Eliran negotiated with an investor before 30 June 1999 but they were unable to confirm that they would invest the sufficient funds by that date. However the investor later offered to pay the funds by 23 July 1999. McGettigan sought a declaration that the find an investor clause had not been complied with and the hotel had to be sold at a public auction.
ISSUES
What was the meaning of the ‘find an investor” clause and had that clause been complied with?
Was time of the essence for the “find an investor” clause?
FINDING
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