Aquatic Air Pty Ltd v Siewert [2016] NSWCA 318

Aquatic Air Pty Ltd v Siewert [2016] NSWCA 318

The appeal and cross-appeal were dismissed because no actionable misrepresentation or breach of warranty was established, as there were no operative accounts to found a warranty and no evidence of liability undisclosed; statutory causes of action were not assignable; the call option was not effectively exercised without payment of the deposit.

Parties
Appellant / First Cross Respondent: Aquatic Air Pty Limited; First Respondent / First Cross Appellant: Dieter Siewert; Second Respondent / Second Cross Appellant: Lieselotte Siewert; Third Respondent / Second Cross Respondent: Heron Airlines Travel Pty Limited; Fourth Respondent / Third Cross Respondent: Wingaway Air Pty Limited (In liq); Fifth Respondent / Fourth Cross Respondent: AT Air Group Pty Limited (In liq)
Jurisdiction
Australia
Judgment Date
24 November 2016
Procedural Posture
Civil Appeal / Court of Appeal – Decision on Appeal and Cross Appeal
Outcome
Appeal dismissed. Cross-appeal dismissed.
Legal Topics
Misrepresentation, Breach of Warranty, Assignment of Causes of Action, GST Liability, Damages, Exercise of Options in Property Contracts
Trade Practices Contracts Personal Property Misrepresentation Breach of Warranty Assignment of Causes of Action GST Liability Damages +1 more

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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

Procedural Posture

Civil Appeal / Court of Appeal – Decision on Appeal and Cross Appeal

Legal Issues

  1. 1 Whether share sale agreements were vitiated by misleading or deceptive conduct regarding GST liability and employee entitlements; Whether contractual warranties were breached; Whether warranties could be severed; Whether causes of action under Competition and Consumer Act 2010 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth) are assignable; Whether exercise of a call option over property without deposit was effective

Ratio Decidendi

The appeal and cross-appeal were dismissed because no actionable misrepresentation or breach of warranty was established, as there were no operative accounts to found a warranty and no evidence of liability undisclosed; statutory causes of action were not assignable; the call option was not effectively exercised without payment of the deposit.

Court Disposition

Appeal dismissed. Cross-appeal dismissed.

Orders

  • Appeal dismissed.
  • Cross-appeal dismissed.