Ryu & anor v Lee [2000] NSWSC 1037

Ryu & anor v Lee [2000] NSWSC 1037

Clause 7, as agreed by the parties, permitted cancellation only if the weekly sales volume of the business was less than $5,000 during the four-week period between 11 September 1995 and 9 October 1995. The Court accepted the defendants' evidence and the takings sheets, which showed weekly takings of $5,930, $8,345, $7,270 and $6,960, so the plaintiffs were not entitled to cancel. Their solicitors' letter of 21 November 1995 was a wrongful repudiation, accepted by the defendants. Damages were assessed as the purchase price less the value of the business at repudiation and less the deposit, producing $29,500. The defamation claim failed because the notices were not reasonably capable of...

Jurisdiction
Australia
Judgment Date
10 November 2000
Procedural Posture
Contract Sale of Business Proceedings With Cross Claims for Damages and Defamation and a Fair Trading Act 1987 (nsw) Claim / Judgment After Hearing
Outcome
Judgment for the defendants on the contract damages claim in the sum of $29,500; plaintiffs' misleading and deceptive conduct claim dismissed; defendants' defamation claim dismissed; plaintiffs to pay 85 percent of the defendants' costs of the proceedings including the cross-claim.
Legal Topics
['sale of Business' 'contractual Right to Rescind' 'wrongful Repudiation' 'misleading and Deceptive Conduct' 'business Valuation' 'defamatory Imputations' 'caveat Notices']
['contract Law' 'damages' 'fair Trading' 'defamation'] ['sale of Business' 'contractual Right to Rescind' 'wrongful Repudiation' 'misleading and Deceptive Conduct' 'business Valuation' 'defamatory Imputations' 'caveat Notices']

Case Brief

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Procedural Posture

Contract Sale of Business Proceedings With Cross Claims for Damages and Defamation and a Fair Trading Act 1987 (nsw) Claim / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the plaintiffs were entitled under clause 7 of the contract to cancel the sale of business contract and recover the deposit because weekly sales volume was below the agreed level.' 'Whether the takings sheets accurately showed that the business weekly takings during the relevant period were not less than $5,000.' "What damages the defendants were entitled to for the plaintiffs' wrongful repudiation of the contract." 'Whether the notices published in Korean publications were reasonably capable of carrying the pleaded defamatory imputation that the defendant was untrustworthy in business and should be dealt with only with legal advice.' 'Whether the first defendant engaged in misleading or deceptive conduct contrary to the Fair Trading Act 1987 (NSW) by making alleged representations about weekly or annual turnover.']

Ratio Decidendi

Clause 7, as agreed by the parties, permitted cancellation only if the weekly sales volume of the business was less than $5,000 during the four-week period between 11 September 1995 and 9 October 1995. The Court accepted the defendants' evidence and the takings sheets, which showed weekly takings of $5,930, $8,345, $7,270 and $6,960, so the plaintiffs were not entitled to cancel. Their solicitors' letter of 21 November 1995 was a wrongful repudiation, accepted by the defendants. Damages were assessed as the purchase price less the value of the business at repudiation and less the deposit, producing $29,500. The defamation claim failed because the notices were not reasonably capable of...

Court Disposition

Judgment for the defendants on the contract damages claim in the sum of $29,500; plaintiffs' misleading and deceptive conduct claim dismissed; defendants' defamation claim dismissed; plaintiffs to pay 85 percent of the defendants' costs of the proceedings including the cross-claim.

Orders

  • ['Judgment for the defendants in the sum of $29,500.00.' 'Otherwise the cross claim of the defendants should be dismissed.' 'The plaintiffs should pay eighty five percent of the costs of the defendants of the proceedings including the cross claim, the deduction being in respect of the claim for damages for...