NSW Caselaw
New South Wales Court of Appeal 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".
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