Aquatic Air Pty Ltd v Siewert [2016] NSWCA 318

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Aquatic Air Pty Ltd v Siewert [2016] NSWCA 318 Hearing dates: 11 October 2016; 12 October 2016 Decision date: 24 November 2016 Before: Macfarlan JA at [1]; Ward JA at [2]; Emmett AJA at [3] Decision: 1. Appeal dismissed. 2. Cross-appeal dismissed. 3. The Appellant to pay 85 per cent of the costs of the First and Second Respondents of the appeal. Catchwords: TRADE PRACTICES / CONTRACTS – appeal from decision of primary judge refusing to set aside share sale agreements and make award for damages – shares in third and fourth respondents sold to fifth respondent – where agreements allegedly vitiated by misleading and deceptive conduct in failing to disclose purported GST liability – whether representations were made as to GST liability of company – where representation reliant upon warranties in agreement – whether such representations, as warranted, were made – whether the warranties could be severed from agreement –whether representations, if made, were false – effect of A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 38-10(5) – whether company not liable for GST – whether representations made as to liability of company to pay employee and redundancy entitlements – cross-appeal from decision of primary judge that option for sale of a property had not been validly exercised – where option for sale had been exercised without payment of a deposit as contractually required – whether contractual right to vary price extended to capacity to waive requirement for payment of a deposit

PERSONAL PROPERTY – alienation of personal property – assignment of causes of action – where causes of action derive from Competition and Consumer Act 2010 (Cth) and Australian Securities and Investments Commission Act 2001(Cth) – whether s477(2)(c) of Corporations Act enables assignment of otherwise unassignable cause of action Legislation Cited: A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 38-10(5) Australian Securities and Investments Commission Act 2001 (Cth), s 12DA Competition and Consumer Act 2010 (Cth), Sch 2, ss 18, 237, 243 Corporations Act 2001 (Cth), s 477(2)(c) Taxation Administration Act 1953 (Cth), Sch 1, ss 105-5, 105-15 Cases Cited: Aquatic Air Pty Ltd v Siewert [2015] NSWSC 928 Aquatic Air Pty Ltd v Siewert (No 2) [2016] NSWSC 10 Strata Plan 5290 v CGS & Co Pty Ltd [2011] NSWCA 168 Category: Principal judgment Parties: Aquatic Air Pty Limited (Appellant / First Cross-Respondent) Dieter Siewert (First Respondent / First Cross-Appellant) Lieselotte Siewert (Second Respondent / Second Cross-Appellant) Heron Airlines Travel Pty Limited (Third Respondent / Second Cross-Respondent) Wingaway Air Pty Limited (In liq) (Fourth Respondent / Third Cross-Respondent) AT Air Group Pty Limited (In liq) (Fifth Respondent / Fourth Cross-Respondent) Representation: Counsel: Mr DKL Raphael (Appellant / First Cross-Respondent) Mr D Studdy SC / Mr B DeBuse (First and Second Respondents / First and Second Cross-Appellants)