Invacare v Hartog [2007] NSWSC 1172

New South Wales Supreme Court

CITATION : Invacare v Hartog [2007] NSWSC 1172 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 18/07/2007

JUDGMENT DATE : 23 October 2007

JURISDICTION : Commercial List

JUDGMENT OF : Associate Justice Macready at 1

CATCHWORDS : Procedure. Adoption of Referee's report. Matter referred back to Referee for further report.

PARTIES : Invacare Australia Pty Ltd v Phillip Henry Hartog and Ors

FILE NUMBER(S) : SC 50178/2005

COUNSEL : JR Sackar QC & P Kulevski for plaintiff JC Kelly SC & JAC Potts for defendants

SOLICITORS : Mallesons Stephen Jaques for plaintiff Clayton Utz for defendants

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Associate Justice Macready

Tuesday 23 October 2007

50178/05 Invacare Australia Pty Ltd v Phillip Henry Hartog & ors JUDGMENT 1 His Honour: This is the hearing of two amended notices of motion filed on 22 June 2007. The plaintiff seeks orders for the adoption of the report provided to the court by Mr Gower on 5 April 2007 as amended by the report provided to the court by him on 1 June 2007. The defendants seek an order that certain matters be referred back to the referee for further consideration in respect of the amended report. 2 The parties' submissions have helpfully set out some of the background in the matter and I and will incorporate them with some amendments. 3 This case concerns a Share Sale and Purchase Agreement dated 29 December 2004 pursuant to which the plaintiff purchased all of the issued share capital of a company known as Australian Healthcare Equipment Pty Ltd from the first and second defendants Mr & Mrs Hartog for a price of $11,455,394. 4 The Agreement included provisions for the retention of $2.4 million in escrow to secure the performance of certain contractual warranties and for a price adjustment that was subject to the preparation of certain Completion Accounts by the plaintiff, as at 30 December 2004. 5 The third defendant, represented by its executive director, the fourth defendant, was the adviser to the first and second defendants during the sale, including a lengthy period of due diligence by the plaintiff.