O'Halloran v Penrit Pty Ltd & Anor [1999] NSWCA 184

New South Wales Court of Appeal CITATION : O'Halloran v Penrit Pty Ltd & Anor [1999] NSWCA 184 FILE NUMBER(S) : CA 40243/97 HEARING DATE(S) : 28 May 1999 JUDGMENT DATE : 11 June 1999

PARTIES : James O'Halloran Penrit Pty Ltd & Ors JUDGMENT OF : Mason P at 1; Handley JA at 2; Giles JA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC4681/95 LOWER COURT JUDICIAL OFFICER : Sinclair DCJ

COUNSEL : Appellant - J B Simpkins & T W L Stuart First and Second Respondents - K Tapsell (Solr) SOLICITORS : Appellant - David H West, Pymble First and Second Respondents - Watkins Tapsell, Kirrawee CATCHWORDS : CONTRACT - sale of business - offer and acceptance by faxes - entity to conduct business not decided - whether concluded agreement with person making offer - whether later novation or abandonment in favour of fresh agreement with company which in fact conducted business; CONTRACT - sale of business - purchaser to take over lease and cause release of guarantors - did not - guarantor had to pay - guarantor not party to contract - whether promise held by vendor on trust for guarantor - whether guarantor entitled to judgment against purchaser. DECISION : 1. Appeal allowed in part; 2. Set aside the verdict and judgment for the second plaintiff; 3. In lieu thereof, judgment for the defendant as against the second plaintiff; 4. No order varying the order for costs made by Sinclair DCJ; 5. Order the first respondent to pay one third of the appellant's costs of the appeal.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40243/97 DC 4681/95

MASON P HANDLEY JA GILES JA