Sarker Trading Pty Ltd v Vanage Pty Limited [2016] NSWDC 250

Sarker Trading Pty Ltd v Vanage Pty Limited [2016] NSWDC 250

Mr Sarker was entitled to rescind the contract due to non-fulfilment of a condition precedent (Subway approval), having genuinely attempted to obtain approval within a reasonable time but failed the skills test; Mr Arora was not entitled to forfeit or retain any deposits as there was no breach by Mr Sarker justifying such forfeiture and the contract was properly rescinded for non-fulfilment of a condition precedent; the sums paid by Mr Sarker were to be refunded to him as there was no basis for damages or forfeiture by Mr Arora.

Jurisdiction
Australia
Judgment Date
09 August 2016
Procedural Posture
Civil / Trial Principal Judgment
Outcome
Judgment for the plaintiffs on the statement of claim and cross-claim dismissed; costs reserved.
Legal Topics
['purchase of a Business' 'condition Precedent' 'rescission' 'deposits' 'forfeiture' 'penalty' 'representations About Profit and Rent' 'damages']
['contract' 'misleading Conduct'] ['purchase of a Business' 'condition Precedent' 'rescission' 'deposits' 'forfeiture' 'penalty' 'representations About Profit and Rent' 'damages']

Case Brief

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Procedural Posture

Civil / Trial Principal Judgment

Legal Issues

  1. 1 ['Whether contract was subject to a condition precedent the non-fulfilment of which entitled Mr Sarker to rescind the agreement' 'Whether Mr Arora was entitled to forfeit and retain deposits paid by Mr Sarker' 'Whether Mr Sarker established a cause of action for misleading conduct' 'Whether Mr Arora was entitled to damages for losses after termination from alleged breach by Mr Sarker' 'What is the quantum of damage suffered by Mr Sarker']

Ratio Decidendi

Mr Sarker was entitled to rescind the contract due to non-fulfilment of a condition precedent (Subway approval), having genuinely attempted to obtain approval within a reasonable time but failed the skills test; Mr Arora was not entitled to forfeit or retain any deposits as there was no breach by Mr Sarker justifying such forfeiture and the contract was properly rescinded for non-fulfilment of a condition precedent; the sums paid by Mr Sarker were to be refunded to him as there was no basis for damages or forfeiture by Mr Arora.

Court Disposition

Judgment for the plaintiffs on the statement of claim and cross-claim dismissed; costs reserved.

Orders

  • ['On the statement of claim, judgment in favour of the plaintiffs against the defendants in the sum of $105,653.19.' 'Dismiss the cross-claim.' 'Reserve all questions of costs.']