Geroff v CAPD Enterprises Pty Ltd

Case [2003] QCA 187

SUPREME COURT OF QUEENSLAND

CITATION:

Geroff & Ors v CAPD Enterprises P/L & Ors [2003] QCA 187

PARTIES:

PETER GEROFF & GREGORY MOLONEY
(first plaintiffs/first respondents)
ON TIME BUSINESS SOLUTIONS PTY LTD (IN LIQUIDATION) ACN 079 123 676
(second plaintiff/second respondent)
v
CAPD ENTERPRISES PTY LTD ACN 078 403 317
(first defendant/first appellant)
CHRIS CHRYSOSTOMOU
(second defendant/second appellant)

AUSDOC ON TIME PTY LTD ACN 092 717 729
(third party/third respondent)

FILE NO/S:

Appeal No 9031 of 2002
SC No 7636 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 May 2003

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2003

JUDGES:

McPherson and Jerrard JJA, Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

CONTRACT – GENERAL CONTRACUTUAL PRINCIPLES – PARTIES – RIGHTS AND LIABILITIES OF THIRD PARTIES – where deed of assignment and notice of assignment of a franchise agreement and a business were entered into – whether the deed of assignment effected an assignment of interests in debts and estopped a claim against the appellants for monies owed or gave rise to an indemnity against money allegedly owed

CONTRACT – DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH – where monies were allegedly owing by the appellants under a franchise agreement – whether monies claimed amounted to book debts – whether the deed of assignment or notice of assignment assigned an interest in a guarantee

Property Law Act 1974 (Qld), s 199
Trade Practices Act 1974 (Cth), s 51A, s 52

Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191, considered
Charter Reinsurance Co Ltd v Fagan (in liq) [1997] AC 313, considered
Coast Securities No 9 Pty Ltd v Alabac Pty Ltd [1984] 2 Qd R 25, considered
Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] 149 CLR 337, applied
Flight v Bentley (1835) 7 Sim 149, considered
Hart v Barnes [1983] 2 VR 517, considered
Hutchens v Deauville Investments Pty Ltd (1986) 61 ALJR 65, considered
Independent Automatic Sales Ltd v Knowles and Foster (1962) 1 WLR 974, considered
Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, considered
Legione v Hateley (1983) 152 CLR 406, applied
London County Ltd v Wilfred Sportsman Ltd [1971] Ch 764, considered
Manufacturers Mutual Insurance Ltd v Withers (1988) 5 ANZ Ins Cases 60-853, considered
Re King deceased [1963] Ch 459, considered
Re Rex Developments Pty Ltd (in liq) (1994) 13 ACSR 485, applied
Shepherd v Federal Commissioner of Taxation (1965) 113 CLR 385, considered
Sola Basic Australia Ltd v Morganite Ceramic Fibres Pty Ltd (NSWCA 11 May 1989, unreported), considered
Van Lynn Developments Ltd v Pelias Constructions Co Ltd [1969] QB 607, considered
Wickman Machine Tool Sales Ltd v L Schuler AG [1974] AC 235, considered

Young v Queensland Trustees Ltd (1956) 99…

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AGLC
Geroff v CAPD Enterprises Pty Ltd [2003] QCA 187
Case
[2003] QCA 187
Decision Date

CaseChat Overview and Summary

In the case of Geroff v CAPD Enterprises Pty Ltd, the dispute arose from the interpretation of a deed of assignment and a notice of assignment relating to a franchise agreement and a business. The appellants, Geroff, claimed that they were not liable for monies owed under the franchise agreement as a result of the assignments. The respondent, CAPD Enterprises, argued that the assignments did not relieve the appellants of their liabilities under the agreement. The matter was heard in the Supreme Court of South Australia.

The central legal issue before the court was whether the deed of assignment and the notice of assignment effected an assignment of the interests in debts and whether they estopped the appellants from being liable for monies owed. Additionally, the court needed to determine whether the deed of assignment or notice of assignment assigned an interest in a guarantee. The court also had to consider whether the monies claimed by the respondent amounted to book debts.

The court held that the deed of assignment and the notice of assignment did not assign an interest in the guarantee. The court further found that the monies claimed by the respondent did not amount to book debts. Consequently, the appellants were not estopped from claiming that they were not liable for the monies owed under the franchise agreement. The appeal was dismissed with costs, upholding the respondent's position that the appellants remained liable for the monies owed.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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