IPN Medical Centres (NSW) Pty Limited v Idoshore Pty Limited [2008] FCAFC 163

IPN Medical Centres (NSW) Pty Limited v Idoshore Pty Limited [2008] FCAFC 163

The appeal and cross-appeal were dismissed because the trial judge correctly found that the appellant had breached cl 3.9 of the contract by failing to consult and obtain consent for material changes, wrongly included certain costs in the EBITDA calculation, and that the respondent was entitled to repayment of the $125,000 as the consideration failed. The respondent could not show error in method of quantification or that further sums were due, while the appellant failed to show an error in the findings on breach, construction of the contract, or the manner in which upward adjustment and the Dr Grech issue were assessed.

Jurisdiction
Australia
Judgment Date
09 September 2008
Procedural Posture
Civil Appeal and Cross Appeal / Judgment of Full Court on Appeal From a Single Judge
Outcome
Appeal dismissed; cross-appeal dismissed.
Legal Topics
['contract Construction' 'breach of Contract' 'misleading or Deceptive Conduct' 'damages' 'warranties' 'ebitda Calculation' 'costs']
['contract Law' 'commercial Law'] ['contract Construction' 'breach of Contract' 'misleading or Deceptive Conduct' 'damages' 'warranties' 'ebitda Calculation' 'costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Civil Appeal and Cross Appeal / Judgment of Full Court on Appeal From a Single Judge

Legal Issues

  1. 1 ['Whether the appellant breached cl 3.9 of the contract regarding material changes without consent.' 'Whether costs had been wrongly included in EBITDA calculation contrary to contract.' 'Whether the $125,000 should be repaid to the respondent due to failure of consideration or inducement by representation.' 'Whether the departure of Dr Grech and its financial impact was a liability of the purchaser.']

Ratio Decidendi

The appeal and cross-appeal were dismissed because the trial judge correctly found that the appellant had breached cl 3.9 of the contract by failing to consult and obtain consent for material changes, wrongly included certain costs in the EBITDA calculation, and that the respondent was entitled to repayment of the $125,000 as the consideration failed. The respondent could not show error in method of quantification or that further sums were due, while the appellant failed to show an error in the findings on breach, construction of the contract, or the manner in which upward adjustment and the Dr Grech issue were assessed.

Court Disposition

Appeal dismissed; cross-appeal dismissed.

Orders

  • ['The appeal be dismissed.' 'The cross-appeal be dismissed.' "The appellants pay the respondent's costs of the mention before Lindgren J on 22 May 2008, such costs to be assessed on the basis that the attendance of senior counsel was not required." 'Otherwise, there be no order as to the costs of the appeal or the...