Upintheair Pty Ltd v Business Custodians Ltd [2016] NSWCA 287

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Upintheair Pty Ltd v Business Custodians Ltd [2016] NSWCA 287 Hearing dates: 12 September 2016 Decision date: 19 October 2016 Before: McColl JA at [1] Macfarlan JA at [2] Stevenson J at [10] Decision: Appeal dismissed with costs Catchwords: CONTRACTS –– breach of contractual warranties – misleading and deceptive conduct – contractual sale of printing business – where vendor misrepresented income of the business by disguising machinery sales as printing sales in the Profit and Loss Statement ('P&L') provided to purchaser prior to completion of sale – where fictitious invoices were created by vendor to mask misrepresentation – where vendor admitted to creating some of the fictitious invoices – whether further invoices fictitious – whether purchaser relied on the representations as to income in purchasing business – CONTRACTS – interpretation – implication of terms – where contract provided that vendor loan funds to purchaser to facilitate the sale of the business – where contract provided loan amount to be repaid with interest 90 days after completion – where no provision in contract for interest payable in event of default – whether term can be implied that parties intended interest to continue to accrue at the pre 90 day rate – PRACTICE AND PROCEDURE - whether on proper construction of pleadings it was necessary for purchaser to prove that fictitious invoices themselves and not merely their amounts were included in the P&L Legislation Cited: Civil Procedure Act 2005 (NSW) Competition and Consumer Act 2010 (Cth) Cases Cited: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32 Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Potts v Miller (1940) 64 CLR 282; [1940] HCA 43 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Category: Principal judgment Parties: Upintheair Pty Ltd (First Appellant) Jamie McKinnon (Second Appellant) Business Custodians Limited (First Respondent) Pepperprint Pty Limited (Second Respondent) Bruce Dwyer (Third Respondent) Representation: Counsel: A F Fernon (Appellants) J J Priestley SC (Respondents)