Montgomery & Anor v My FootDr (Aust) Pty Ltd [2021] NSWDC 439

District Court New South Wales

Medium Neutral Citation: Montgomery & Anor v My FootDr (Aust) Pty Ltd [2021] NSWDC 439 Hearing dates: 11, 12, 13 August 2021 Date of orders: 25 August 2021 Decision date: 25 August 2021 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Judgment for the defendant. (2) Reserve the question of the costs of the proceedings, including reserved costs. (3) Grant leave to the parties to approach my Associate by email within seven days to fix a further date for any argument on costs. Catchwords: CONTRACT – dispute over payment of deferred purchase price – agreement to settle that dispute by appointing an independent auditor – whether auditor's report was final and binding Category: Principal judgment Parties: Kevin Montgomery (First Plaintiff) Kemcare Pty Ltd (Second Plaintiff) My FootDr (Aust) Pty Ltd (Defendant) Representation: Counsel: A Crossland (Plaintiffs) D Robertson (Defendant)

Solicitors: Attwood Marshall Lawyers (Plaintiffs) Colin Biggers & Paisley (Defendant) File Number(s): 2019/00380408

Judgment

Introduction 1. The plaintiffs carried on a podiatry business. In November 2016 the plaintiffs agreed in writing to sell the business to the defendant. The purchase price was $500,000. The amount of $400,000 was payable on completion of the contract and the remaining $100,000 was a deferred purchase price, to be adjusted and determined in accordance with a formula in the written agreement. 2. In September 2017 a dispute arose between the parties over whether or not the defendant was liable to pay the final instalment of $100,000 to the plaintiffs. 3. By correspondence between the parties in the period May 2018 to November 2018, the parties reached an agreement to resolve their dispute. They jointly engaged an accountant to conduct an audit of a particular document required by their agreement. 4. The plaintiffs submitted that the report produced by that accountant in September 2019 was a final and binding report which obliged the defendant to pay $89,072.24 plus $3,000 for the fees of the accountant, a total of $92,072.24. 5. The defendant submitted that the September 2019 report was not a final and binding report and that no obligation has arisen to make any payment of the deferred purchase price. 6. It is a great shame that the sensible settlement mechanism agreed upon by the plaintiffs did not lead to a resolution of their differences many years ago. All parties have no doubt spent a multiple of the amount in issue upon their legal costs. The parties have incurred the expense of 12 interlocutory hearings, a mediation, a three-day trial and a Court Book ("CB") which ran to 804 pages. 7. Counsel for the plaintiffs submitted that it was never intended that the parties could argue about the figure payable "till the cows come home". Unfortunately that is what has happened for the last four years. Two cows branded "Plaintiffs" and "Defendant" have now been herded into the District Court. Only one of those cows will be released to the grassy uplands and the other will be going to the abattoir.