Chilcotin Pty Ltd v Cenelage Pty Ltd

CITATION:	Chilcotin Pty Ltd & Anor v Cenelage Pty Ltd & Ors [1999] NSWCA 11 revised - 29/04/99
FILE NUMBER(S):	CA 40414/96
HEARING DATE(S):	4 & 5 February 1999
JUDGMENT DATE:	8 April 1999
PARTIES :	Chilcotin Pty Ltd & Anor v Cenelage Pty Ltd & Ors
JUDGMENT OF:	Mason P at 1; Priestley JA at 2; Giles JA at 3

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	ED 1662/92
LOWER COURT JUDICIAL OFFICER:	Brownie J

COUNSEL:	Appellant - S J Burchett Respondent - M R Speakman
SOLICITORS:	Appellant - John M Fitzgerald & Associates Respondent - Halliday & Stainlay, Murwillumbah
CATCHWORDS:	APPEAL - rehearing - taking point not taken at trial - departing from course adopted at trial - when not permitted.
DECISION:	Dismissed with costs.

29

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40414 of 1996
ED 1662 of 1992

Mason P
Priestley JA
Giles JA

Thursday 8 April 1999

CHILCOTIN PTY LTD & ANOR v CENELAGE PTY LTD & ORS

JUDGMENT

1 MASON P: I agree with Giles JA.

2 PRIESTLEY JA: I agree with Giles JA.

3 GILES JA: Cenelage Pty Ltd (“Cenelage”) conducted a business of providing training courses for persons wishing to enter the hospitality industry. Courses were provided in various country centres throughout eastern Australia, each occupying a week and being delivered by an instructor from hired premises. The business was administered by Mr Thomas Ganz and his wife Ms Natasha Lakaev, who were the shareholders and directors of Cenelage.

4 By two contracts dated 27 September 1991 Cenelage sold part of the business to Chilcotin Pty Ltd (“Chilcotin”) for $100,000 and the balance of the business to Gemeden Pty Ltd (“Gemeden”) for $35,000 plus an amount for stock in trade. Gemeden was a subsidiary of Chilcotin, and both Chilcotin and Gemeden were effectively controlled by Mr Johann Hoefl. The first of the contracts provided for adjustment of the purchase price by a formula related to the net earnings of the business for the year ended 30 June 1992. Mr Ganz and Ms Lakaev were parties to the contracts, described as “the Covenantors”.

5 Each contract contained a clause 20 and a special condition 7 in the terms:

“20. The Purchasers acknowledge that, in entering into this agreement they have not relied upon any statement, representation, warranty or condition made or given by the Vendors or anyone on their behalf in respect of the subject matter of this agreement, other than those that are expressly herein contained.”

“7. Notwithstanding the provisions of Clause 20 hereof the Vendor and the Covenantors hereby expressly acknowledge that the Purchasers have been induced to enter into this Agreement on the basis of the information contained in Annexures ‘A’ through ‘F’ hereof and the Vendor and Covenantors hereby warrant the reliability, accuracy, completeness and truthfulness of the information provided in those Annexures.

The Vendor further agrees, if requested by the Purchasers, to permit the Purchasers or their Accountants,…