Tin-Tagel Majikk Pty Ltd v Wayne Craig Hockey

2025/00254170

CONTRACTS – these proceedings relate to a dispute arising from a transaction where first to fourth appellants (the Appellants), purchased from the first to fifth respondents, (the Respondents) shares of Danc Pty Limited (Danc) – Danc operated a real estate business known as Ray White Bateau Bay – on 17 May 2018, a Share Sale Agreement (the Agreement) was entered into under which the Respondents agreed to sell their shares in Danc to Tin-Tagel Majikk Pty Ltd (the First Appellant) as trustee for the “KR & KM FOLLEY FAMILY TRUST” – the sale of the shares in Danc was completed on 1 June 2018 (Completion) – the $2.3 million purchase price under the Agreement was settled through a $230,000 deposit, with the remaining $2.07 million to be paid – at first instance, the Appellants claimed that the Respondents made several representations prior to entering into the Agreement which were misleading and deceptive and were in breach of the Agreement by: (1) failing to adjust the purchase price for tax liabilities and employee entitlements; (2) not paying the value of lost Management Agency Agreements; (3) loaning Mrs Susan Hockey’s real estate licence to a competing business during restraint period; and (4) failing to comply with the conditions precedent under cl 3 of the Agreement and breached the warranties under the Agreement by not disclosing, or causing to be discharged, the Charge over Danc held by Macquarie Bank – the Respondent’s, by cross-claim sought repayment of the vendor finance (less an offset for employee entitlements required by the Agreement) and the balance of the retention amount, plus interest – the primary judge dismissed the Appellants’ statement of claim and ordered judgment in favour of the Respondents in the sum of $631,657.29 – the primary judge further ordered that the balance of the retention amount held on trust in the amount of $54,915.36 be released to the Respondents – whether the primary judge erred in finding that, by proceeding with the purchase of the shares in Danc, the Appellants must have been waiving the requirement to satisfy any unfulfilled conditions – whether the primary judged erred in various findings of fact in relation to the Appellants’ knowledge of the existence of the Charge over Danc held by Macquarie Bank – whether the primary judge erred in failing to find or observe that any presumption at law that the knowledge of an agent (such as a solicitor) is imputed to the principal (the client) will only apply where the agent is authorised to commit the principal to the transaction – the primary judge erred in finding that the Appellants must have been aware of the PPSR registration and waived compliance with cl 3.2(g) of the Agreement by proceeding to Completion – whether the primary judge erred in finding that by proceeding to Completion rather than terminating the Agreement, the Appellants must have been waiving the requirement to satisfy any unfulfilled conditions precedent – whether the primary judge erred in finding that the conditions precedent in clause 3.2 of the Agreement which had not been fulfilled (namely cl 3.2(g)) were waived by the Appellants – whether the primary judge erred in finding that the Appellants had abandoned their pleaded claim that the Respondents had breached cl 3.4(b) of the Agreement – whether the primary judge erred in finding that the Appellants had sufficient knowledge of the breach by the Respondents (of cl 3.2(g) of the Agreement) to constitute an election to affirm the Agreement and in finding that the Appellants had elected to affirm the Agreement – whether the primary judge erred in failing to order partial recission of the Agreement so as to remove the obligation for the First Appellant to pay the sum of $690,0000 to the Respondents as identified in clause 6.6(e) of the Agreement.

Tin-Tagel Majikk Pty Limited v Hockey [2025] NSWSC 578