Aquatic Air Pty Limited v Siewert & anor [2015] NSWSC 928

Supreme Court New South Wales

Medium Neutral Citation: Aquatic Air Pty Limited v Siewert & anor [2015] NSWSC 928 Hearing dates: 10, 11, 12, 13, 17, 19 February 2015 Date of orders: 27 July 2015 Decision date: 27 July 2015 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Aquatic is entitled to: (1) Reimbursement by Siewerts of the amounts paid by it in respect of outgoings in respect of the Mosman property accruing on and after 13 October 2011; and (2) A declaration that the Call Option has not been validly exercised. The remainder of Aquatic's claims should be dismissed. Catchwords: CONTRACTS – setting aside share sale agreements – where agreements allegedly vitiated by misleading and deceptive conduct – whether representations made as to GST liability of company – where representation reliant upon warranties in agreement – where warranties uncertain and severable – held, no such representations made – whether representations, if made, were false – effect of (CTH) A New Tax System (Goods and Services Tax) Act 1999, s 38-10(5) – held, company not liable for GST – whether representations made as to liability of company to pay employee and redundancy entitlements – held, no representation made.

PERSONAL PROPERTY – alienation of personal property – assignment of choses in action – where choses in action derive from (CTH) Competition and Consumer Act 2010 and (CTH) Australian Securities and Investments Commission Act 2001 – where statutory choses in action do not contemplate award of damages for loss not suffered by party to proceeding – held, choses in action not assignable – whether, if right to rescind were available, plaintiff affirmed or rescinded contract – where plaintiff's conduct inconsistent with rescission – where restitution not possible – held, no entitlement to rescission.