PAGE v VANKER and ANOR [1990] NSWCA 143

PAGE v VANKER and ANOR [1990] NSWCA 143

The transfer of shares in Hynbrood Pty Ltd and Kadello Pty Ltd to Kelpie Industries Ltd did not amount to a sale of the 'Kelpie' rights and patents in the USA as contemplated by the agreement, as the transaction was not limited to those rights and no ascertainable sale price for the rights and patents could be identified, thus the payment event under the agreement was not triggered.

Parties
Appellant/first Defendant: Page; Respondent/plaintiff: Vanker; Second Defendant: Thompson
Jurisdiction
Australia
Judgment Date
07 December 1990
Procedural Posture
Appeal From Commercial Division / Judgment – Appeal Allowed, Judgment Below Set Aside
Outcome
Appeal allowed; judgment for the defendants; costs to defendants below and on appeal; reference of relevant material to Deputy Commissioner of Taxation.
Legal Topics
Construction of Contracts, Sale of Business Assets, Admissions of Fresh Evidence on Appeal, Proportional Payment Clauses, Corporate Structure and Effect on Contractual Obligations, Tax Evasion – Evidence and Reference to Tax Authorities
Contract Law Equity Intellectual Property Evidence Construction of Contracts Sale of Business Assets Admissions of Fresh Evidence on Appeal Proportional Payment Clauses +2 more

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Parties

Page

Appellant/first Defendant

Vanker

Respondent/plaintiff

Thompson

Second Defendant

Procedural Posture

Appeal From Commercial Division / Judgment – Appeal Allowed, Judgment Below Set Aside

Legal Issues

  1. 1 Whether the transfer of shares in companies owning the 'Kelpie' rights and patents amounted to a sale of the rights and patents for the purpose of the agreement.
  2. 2 Whether fresh evidence should be admitted on appeal under s75A of the Supreme Court Act.
  3. 3 Whether the event triggering the obligation to pay $100,000 under the agreement had occurred.

Ratio Decidendi

The transfer of shares in Hynbrood Pty Ltd and Kadello Pty Ltd to Kelpie Industries Ltd did not amount to a sale of the 'Kelpie' rights and patents in the USA as contemplated by the agreement, as the transaction was not limited to those rights and no ascertainable sale price for the rights and patents could be identified, thus the payment event under the agreement was not triggered.

Court Disposition

Appeal allowed; judgment for the defendants; costs to defendants below and on appeal; reference of relevant material to Deputy Commissioner of Taxation.

Orders

  • Appeal allowed.
  • Judgment below set aside and judgment for the defendants in lieu.