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

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

The Court held the Siewerts did not make relevant representations or warranties regarding GST, redundancy, or Avtex liabilities, and no reliance by the purchaser was established. Even if made, representations would not have been false, as GST and redundancy liabilities did not exist as alleged at the date of the agreements. Any right to rescind was foreclosed by affirmation and impossibility of restitution. As for the Security Agreement, the alleged Bank Accounts representation was not made and, in any event, did not induce entry into the agreement. The Siewerts were found liable for breach of obligation to pay outgoings on the Mosman property, and the call option was not validly...

Jurisdiction
Australia
Judgment Date
27 July 2015
Procedural Posture
Principal Judgment / Final Judgment After Hearing
Outcome
Judgment for Aquatic Air Pty Ltd in part; declaration re call option; remainder of claims dismissed
Legal Topics
['breach of Warranty' 'misrepresentation' 'setting Aside Agreements' 'remedies—rescission and Damages' 'option to Purchase Property' 'obligations Under Security Instruments' 'assignability of Statutory Causes of Action']
['contracts' 'personal Property' 'corporations Law' 'equity'] ['breach of Warranty' 'misrepresentation' 'setting Aside Agreements' 'remedies—rescission and Damages' 'option to Purchase Property' 'obligations Under Security Instruments' 'assignability of Statutory Causes of Action']

Case Brief

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Procedural Posture

Principal Judgment / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether Siewerts made misrepresentations or warranties as to GST and redundancy liability in Share Sale Agreements' 'Whether such representations, if made, were false' 'Whether representations as to Avtex redundancy/liabilities were made and/or false' 'Whether Share Sale Agreements or Security Agreements could be set aside for misrepresentation' 'Breach of contractual obligations under Security Agreement (payment of outgoings and exercise of call option)']

Ratio Decidendi

The Court held the Siewerts did not make relevant representations or warranties regarding GST, redundancy, or Avtex liabilities, and no reliance by the purchaser was established. Even if made, representations would not have been false, as GST and redundancy liabilities did not exist as alleged at the date of the agreements. Any right to rescind was foreclosed by affirmation and impossibility of restitution. As for the Security Agreement, the alleged Bank Accounts representation was not made and, in any event, did not induce entry into the agreement. The Siewerts were found liable for breach of obligation to pay outgoings on the Mosman property, and the call option was not validly...

Court Disposition

Judgment for Aquatic Air Pty Ltd in part; declaration re call option; remainder of claims dismissed

Orders

  • ['Siewerts to reimburse Aquatic Air Pty Ltd $60,360.71 for outgoings incurred on Mosman property from 13 October 2011' 'Declaration that the Call Option has not been validly exercised' "Remainder of Aquatic's claims dismissed" 'Direct parties to bring in short minutes to give effect to the judgment']