B and R Stevens Transport Pty Ltd v Burkitt

The appeal concerned a dispute arising from the sale of a prime mover. B and R Stevens Transport Pty Ltd (the vendor) and Mr Burkitt (the purchaser) entered into an agreement for the sale of the prime mover. At settlement, the purchaser paid $350,000, with a further $50,000 to be paid over the following twelve months. The trial judge found that the total purchase price was $400,000, comprising the sale of the truck and associated work, with the $50,000 payable in instalments after settlement constituting a "side deal". The vendor appealed this decision to the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the "side deal" for the additional $50,000 was a collateral agreement that was inconsistent with the main contract and therefore invalid, and whether the vendor had promised to sell the goodwill of the business as part of the agreement.

The Court of Appeal, comprising Macfarlan, Meagher and Leeming JJA, dismissed the appeal. The court reasoned that the trial judge's finding that the $50,000 was part of the overall purchase price, structured as a deferred payment, was open to be made on the evidence. The court found no inconsistency between the main contract for the sale of the prime mover and the arrangement for the payment of the remaining $50,000, nor was there any basis to conclude that the vendor had promised to sell goodwill. The court upheld the trial judge's determination that the parties had agreed on a total purchase price of $400,000.

The appeal was dismissed, with costs awarded to the respondent.