Riboni v Tropeano - [2007] VSCA 99

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 12915 of 1990

PAOLO RICARDO RIBONI
	v.
SAMUEL JOHN TROPEANO and ROCK TEMPONE

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JUDGES:	BUCHANAN, NETTLE and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 February 2007
DATE OF JUDGMENT:	23 May 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 99

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Contract – Sale of business – Fresh evidence on appeal – Documents available at trial – Business not carried on in the usual and ordinary course pending settlement – Damages for breach of restraint of trade clause.

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APPEARANCES:

Counsel

Solicitors

For the Appellant

Mr P R Riboni in person

For the Respondents

Mr A W Sandbach

with Mr I W D Upjohn

Septimus Jones & Lee

BUCHANAN and NETTLE JJA:

This proceeding arose from the purchase by the appellant of a suburban accountancy practice conducted by the respondents.

The negotiations for the transaction commenced in August 1988. In the course of the negotiations the appellant had access to the records and accounts of the practice. The contract of sale was executed on 17 January 1989. The price was fixed at $514,000. The appellant paid $380,000 to the respondents on obtaining possession of the practice on 23 January 1989 and under the agreement promised to pay the balance of $134,000 on or before 9 January 1990. The appellant also executed a promissory note in an amount of $134,000 to secure payment of the balance. The agreement provided that the purchaser was to pay interest at the rate of 18 per centum per annum on any amount due and unpaid under the agreement.

The appellant failed to pay the balance due under the agreement. The respondents brought this action claiming the sum of $134,000 and interest under the agreement, and, in the alternative, payment of the sum of $134,000 pursuant to the promissory note. In his defence and counter-claim the appellant raised a number of defences and claims.

At the conclusion of the trial the trial judge gave judgment in favour of the first-named respondent against the appellant in an amount of $104,000 together with interest under the contract at the rate of 18 per centum per annum, judgment in favour of the second-named respondent against the appellant in an amount of $30,000 together with interest under the contract at the rate of 18 per centum per annum and judgment in favour of the appellant against the first-named respondent for damages for breach of a restraint of trade clause in the sale agreement in an amount of $81,551.75 together with interest under the Supreme Court Act 1986. His Honour ordered that the judgment obtained by the appellant be set off against the judgment obtained by the first-named respondent. In addition the trial judge gave judgment for the appellant against the respondents for damages for breach of contract in the sum of $1. The sum of $1 represented nominal damages for breach of a warranty that a balance sheet in a schedule to an agreement accurately stated amounts due in respect of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Riboni v Tropeano

Details

AGLC: Riboni v Tropeano [2007] VSCA 99
Case: [2007] VSCA 99
Decision Date: 23 May 2007

CaseChat Overview and Summary

Riboni v Tropeano was a case where the plaintiff, Riboni, sought relief in relation to the sale of a business. The dispute arose from the sale of a business, including its goodwill, to the defendant, Tropeano. The plaintiff claimed that the defendant breached a restraint of trade clause included in the sale agreement and sought damages for that breach. The case was heard in the Supreme Court of South Australia.

The legal issues that the court needed to address were whether the plaintiff could adduce fresh evidence on appeal that was available at the time of the trial and whether the plaintiff's business had not been carried on in the usual and ordinary course pending the settlement of the dispute. The court also needed to determine the appropriate measure of damages for the breach of the restraint of trade clause.

The court found that the plaintiff could not adduce fresh evidence on appeal that was available at the time of the trial. The court held that the plaintiff's business had been carried on in the usual and ordinary course pending the settlement of the dispute. The court found that the plaintiff had not suffered any loss as a result of the defendant's breach of the restraint of trade clause and awarded no damages. The court held that the appropriate measure of damages for breach of a restraint of trade clause was to compensate the plaintiff for any loss suffered as a result of the breach, and in this case, the plaintiff had not suffered any loss.

The court ordered that the defendant pay no damages to the plaintiff. The court also ordered that the plaintiff pay the defendant's costs of the appeal. The court held that the plaintiff's appeal was without merit and that the defendant was entitled to costs.

Orders