Dangerous Goods Training Centre Pty Ltd v South Pacific Training Group Pty Ltd

1. [1]

   This judgment involves an appeal from part of the decision of Magistrate Towney in the Local Court in relation to a deed of settlement and concerns the sum of $55,526.22.

2. [2]

   The first plaintiff is Dangerous Goods Training Centre Pty Ltd (Dangerous Goods). The second plaintiff is John Kells (Kells). For convenience of understanding, I shall refer to both plaintiffs as Dangerous Goods except where John Kells is separately mentioned. Within the deed of settlement, the first plaintiff is referred to as Kells, and the second plaintiff is referred to as John. Both plaintiffs are represented by J O’Sullivan of counsel. The defendant is South Pacific Training Group Pty Ltd (SPTG) and is represented B McManus of counsel.

3. [3]

   The parties relied on a joint court book consisting of three volumes marked as exhibit A1, A2 and A3 respectively.

Background

1. [4]

   Dangerous Goods conducted a business training workers in the handling of dangerous goods and equipment (business). Kells was the sole director of Dangerous Goods and its head trainer. He negotiated with SPTG to sell the business to SPTG.

2. [5]

   The parties fell into a dispute that resulted in the commencement of Federal Court proceedings numbered NSD861/2021. On 3 March 2022 (contract date), the parties executed a deed of settlement (the deed) in full and final settlement of the Federal Court proceedings (CB 943). The deed provided for the sale of the business, being the first plaintiff, from Dangerous Goods to SPTG on the terms of sale in Annexure B to the deed (the sale terms) (CB 943). It is the terms of the deed and the sale terms that form the bases of this current dispute.

3. [6]

   The sale was completed on 1 April 2022 (the completion date) (CB 943). The purchase price was $200,000 (sale terms cl 39; CB 72), of which, “goodwill” comprised $190,000 (sale terms cl 39; CB 72) and a maximum of $50,000 for “stock” (sale terms cl 15; CB 67).

4. [7]

   In the Local Court, SPTG alleged that Dangerous Goods had committed three breaches of the deed, a subject to which I will return to below.

5. [8]

   On 8 November 2024, Magistrate Towney (the Magistrate) delivered an ex-tempore judgment in favour of SPTG (reasons for judgment). The Magistrate ordered that Dangerous Goods pay SPTG the sum of $58,861.53 as well as costs and interest.

   1. (1)

      SPTG claimed that Dangerous Goods breached the confidentiality clause in the deed (cl 17; CB 62). Nominal damages of $100 were awarded (CB 41; reasons for judgment T10 [11]-[12]). This issue is not in dispute on appeal.

   2. (2)

      SPTG claimed that Dangerous Goods breached a restraint of trade clause in the deed (cl 37; CB 70). The Magistrate awarded $3,235.08 (CB 43; reasons for judgment T12 [45]-[47]). This issue is also not in dispute on appeal.

   3. (3)

      SPTG alleged that there was non-payment by Dangerous Goods of money owed to SPTG after the completion date. The Magistrate found that Dangerous Goods had breached the deed by retaining payments in the sum of $55,526.22 made by customers of the business to Dangerous Goods directly or that SPTG remitted to Dangerous Goods (the disputed payments).

The issues that were in dispute in the Local Court

1. [9]

   Hence, the only issue for determination on this appeal is whether Dangerous Goods was entitled to retain the disputed payments. The resolution of this issue turns upon the construction of the deed and the sale terms.

Summons filed on 6 December 2024

1. [10]

   Some of these grounds of appeal frame the same issue by different formulations and some of them are, more strictly speaking, reasons in support of the actual grounds of appeal. By summons filed on 6 December 2024, Dangerous Goods seeks the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Order 1 be varied as follows: “Decision for the plaintiff [SPTG] in the sum of $3,335.31.” [I note that this amount should in fact be $3,235.08.]

   3. (3)

      Orders 2 and 3 be set aside.

   4. (4)

      That SPTG pay 90% of Dangerous Goods’ costs in the Court below.

2. [11]

   Dangerous Goods appeals on the following grounds:

   1. (1)

      The Magistrate erred in law:

   2. (2)

      The Magistrate’s construction of the deed:

   3. (3)

      The Magistrate erred in not construing cl 35 and sub-cl (n) of the definition of “assets” in cl 39 of Annexure B to the deed in the context of the deed as a whole, including the following matters (Appeal Ground 6):

   4. (4)

      If it is necessary to examine the parties’ conduct, SPTG conducted itself consistently with the construction for which Dangerous Goods contend. After completion, SPTG’s accounts clerk directed SPTG’s customers to pay invoices issued before completion to Dangerous Goods, not SPTG (Appeal Ground 7).

   5. (5)

      The Magistrate erred in not construing the deed contra proferentem. This ground of appeal is not pressed (Appeal Gound 8).

   6. (6)

      The Magistrate erred in admitting the deed into evidence contrary to s 304(1) of the Duties Act 1997 (NSW) since it had not been stamped and no arrangement was made to transmit the deed to the Chief Commissioner in accordance with arrangements approved by the Court pursuant to s 304(2) of that Act (CB 773-775). However, Dangerous Goods acknowledged that this irregularity could be overcome if SPTG were to be granted leave to adduce evidence on the appeal to tender the deed subject to appropriate undertakings to pay stamp duty being given. SPTG undertook to this Court that it would pay the stamp duty on the deed and transmit the deed to the Chief Commissioner pursuant to s 304(2) of the Duties Act (T24 [48]-T25 [15]. This issue is no longer pressed (Appeal Ground 9).

3. [12]

   Dangerous Goods conceded that SPTG is entitled to retain damages for breach of the restraint of trade clause in the deed in the sum of $3,235.08 but that Dangerous Goods is entitled to retain the disputed payments in the sum of $55,526.22.

4. [13]

   For reasons set out later in this judgment, it is not necessary to examine the parties’ objective intentions as the terms of the deed and sale term are clear and unambiguous. Hence, appeal grounds 3, 4, 5, 7, 8, and 9 need not be dealt with. As appeal grounds 1, 2 and 6 relate to the proper construction of the deed and the sale terms, I will deal with all the appeal grounds together.

The deed and sale terms

1. [14]

   The parties to the deed are South Pacific Training Group Pty Ltd (referred to as SPTG), and Training Centre Pty Ltd and John Kells (referred to collectively as Dangerous Goods in this Judgment).

2. [15]

   The relevant terms of the deed and terms of sale are set out below (CB56-73):

3. [16]

   The relevant clauses of the deed are as follows:

   1. (1)

      Clause 1.2 of the deed refers to interpretation. It relevantly provides:

   2. (2)

      Clauses 12 and 18 provide:

4. [17]

   Under this heading, cll 2-8 of the sale terms provide:

5. [18]

   Clause 17 relevantly provides:

6. [19]

   Clause 19 provides:

7. [20]

   Clauses 34 and 35 provide:

8. [21]

   Clause 39 of the sale terms is headed “Definitions” and relevantly provides (CB 70-73):

The law

1. [22]

   While the parties quoted a number of authorities, it is not necessary to go beyond Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited; Wright Prospecting Pty Limited v Mount Bruce Mining Pty Limited (2015) 256 CLR 104; [2015] HCA 37 (‘Mount Bruce Mining’).

2. [23]

   The legal principles of the construction of a contract are not in dispute. In Mount Bruce Mining, French CJ, Nettle and Gordon JJ said at [46]-[52] (footnotes omitted):

3. [24]

   Paragraphs [46]-[49] above were recently cited by Griffiths AJA in Sanmik Food Pvt Ltd v Alfa Laval Australia Pty Ltd [2025] NSWCA 7 at [152].

4. [25]

   In Mount Bruce Mining, Kiefel and Keane JJ said at [108]-[110] (footnotes omitted):

The Magistrate’s ex-tempore decision dated 8 November 2024

1. [26]

   The Magistrate delivered ex-tempore reasons for judgment on 8 November 2024, where she said:

2. [27]

   The Magistrate further explained:

3. [28]

   The Magistrate decided:

4. [29]

   Her Honour subsequently amended the amount awarded in relation to the second claim to $3,235.08 due to a mathematical oversight (T12[46]-[47]; CB 43).

Construction of the deed and sale terms

1. [30]

   Dangerous Goods submitted that where it did work and issued an invoice for it to a customer, it acquired a debt, being a chose in action. As such, the accounts receivable were intangible assets of Dangerous Goods. For example, in Metal Manufactures Pty Limited t/as TLE Electrical v WesTrac Pty Limited [2025] NSWCA 97 Gleeson JA, with whom Mitchelmore JA and Basten AJA agreed, described a chose in action at [71]-[72]:

2. [31]

   Read in isolation, the effect of cll 5 and 7 of the sale terms read with the definition of “assets” in cl 39(n) might be that Dangerous Goods sold these intangible assets to SPTG. This construction is difficult if not impossible to reconcile with cl 35, which required Dangerous Goods to remit payments for work done by SPTG to SPTG, but did not require it to remit payment for work done by Dangerous Goods to SPTG.

3. [32]

   The tension between cl 35 and cll 5 and 7 is best reconciled by reading cl 35 as a “carve out” for debts derived from work done by Dangerous Goods before the completion date. The “carve out” should extend equally to the more general words that appear in cl 35: “or that is otherwise rightly the property of SPTG”. The tension between cll 5 and 7 and cl 35 can be reconciled by reading the document as a whole, so that the general provisions of cll 5 and 7 yield to the specific provisions of cl 35.

4. [33]

   If cl 35 were intended to require Dangerous Goods to remit payment for work done by it before the completion date, as SPTG contends, it would have to be rewritten to read “If, after Completion, Kells [Dangerous Goods] and/or John [Kells] receive funds erroneously or inadvertently for goods and/or services supplied by Kells [Dangerous Goods] in the course of running the Business…”. However, cl 35 instead refers to “goods and/or services supplied (or to be supplied) by SPTG in the course of running the Business…”. It is common ground that the disputed payments were made for work done by Dangerous Goods, not SPTG. Accordingly, there was no contractual obligation for Dangerous Goods to remit payments made to it for work done by it to SPTG.

5. [34]

   In oral submissions counsel for Dangerous Goods submitted that the parties intended, through cl 35, to deal specifically with the issue of outstanding debts with trade debtors and to provide a mechanism for allocating trade debts, namely that if the purchaser supplied or was going to supply the goods or services it would get paid for that.

6. [35]

   The disputed payments could not be “money had and received” as SPTG pleaded in the second further amended statement of claim (pars 38-41; CB 14) because Dangerous Goods had done work and incurred the cost of sales necessary to earn the disputed payments.

7. [36]

   An account receivable created prior to completion is an “intangible asset”. Dangerous Goods does not contest this. “Intangible assets” are a defined asset in cl 39(n) of the sale terms and were accordingly sold to SPTG pursuant to cll 5, 7 and 17 of the sale terms.

8. [37]

   Choses in action and debts are non-current intangible assets. In Owners of Strata Plan 5290 v CGS & Co Pty Ltd [2011] NSWCA 168 at [44], the Court of Appeal said:

9. [38]

   It is not difficult to reconcile cll 5 and 7 with cl 35. Namely, cl 35 contains the obligation to remit property that is “otherwise rightly the property of SPTG” which may include the obligation to remit payment for work done by Dangerous Goods to SPTG.

10. [39]

    There are two scenarios to which cl 35 might apply:

    1. (1)

       Where Dangerous Goods received funds erroneously for goods or services which SPTG supplied (that is, post completion, as SPTG was not running the business before that date). This is not relevant here; and

    2. (2)

       Where after completion, Dangerous Goods and/or Kells receives funds erroneously or inadvertently for goods and/or services that are “otherwise rightly the property of SPTG.”

11. [40]

    SPTG submitted that this may be construed asking what, after completion, is “rightly the property of SPTG”. When looking at the list of assets it may be noted that cll 5, 7 and 17 have the effect of transferring those assets on completion. The choses in action are an asset so must be transferred.

12. [41]

    The tension between cll 5 and 7 and cl 35 to which Dangerous Goods refers is manufactured because it does not give meaning to the words “that is otherwise rightly the property of SPTG”.

13. [42]

    SPTG submitted that there is no logical reason why cl 35 should be regarded as a “carve out” for work done by Dangerous Goods before the completion date. The first scenario above does not refer to work done by Dangerous Goods, only SPTG. It is difficult to understand what Dangerous Goods means by this “carve out” being extended to the more general words “that is otherwise the property of SPTG”.

14. [43]

    Clause 35 would not need to be “rewritten” for it to require Dangerous Goods to remit payments for work done before completion to SPTG, as the obligation already exists to remit funds “otherwise rightly the property of SPTG.”

15. [44]

    Clause 35 must be construed according to its natural and ordinary meaning. That the words used are unambiguous and therefore cannot be ignored simply to reach a result that is allegedly commercially convenient. As per HDI Global Specialty SE v Wonkana No. 3 Pty Ltd (2020) 104 NSWLR 634; [2020] NSWCA 296 at [22]:

The definition of “assets”

1. [45]

   Sub-clause 39(n) in the definition of “assets” is a “catch all” provision that refers to “all other assets, current and noncurrent, tangible and intangible of Kells [Dangerous Goods] and/or John [Kells] which form part of or are used in connection with the Business”.

2. [46]

   Dangerous Goods submitted that SPTG relies upon cl 39(n) to contend that the that the disputed payments fall within the definition of “assets”.

3. [47]

   Clause 39 is prefaced with the words: “Unless the context otherwise requires, the following words have the following meanings…”. Here, the context includes the specific provisions of cl 35, requiring it to be read as a “carve out” to the more general provisions of cll 5, 7 and 39(n).

4. [48]

   Further, cl 39(n) is the last sub-clause in a long list of sub-clauses that identify specific assets, such as stock, trademarks and trade secrets, plant and equipment. It is therefore open to the Court to call in aid the ejusdem generis principle to construe cl 39(n).

5. [49]

   In Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378, Sackville AJA, with whom Beazley JA and Tobias AJA agreed, said at [127] (‘Huntlee’):

6. [50]

   In Brighton v Australia and New Zealand Banking Group Ltd [2011] NSWCA 152 Campbell JA, with whom Giles and Hodgson JJA agreed, said at [96]-[97] (‘Brighton v ANZ’):

7. [51]

   In Chief Commissioner of State Revenue v Tasty Chicks Pty Ltd [2012] NSWCA 181, Meagher JA, Barrett JA and Sackville AJA agreeing, said at [54] (‘Tasty Chicks’):

8. [52]

   The list of assets in cl 39 all form part of the same genus, being assets used in connection with the business.

9. [53]

   The parties did not agree to exclude the operation of the ejusdem generis principle. The “catch all” definition of “assets” in cl 39(n) does not contain any words designed to defeat the application of that principle such as the typical formulation: “Without limiting the generality of the foregoing…”.

10. [54]

    Clause 2 of the sale terms provides that: “The definitions and rules of interpretation set out in the Deed of Settlement are adopted in this annexure unless the context otherwise requires.” Clause 1.2 of the deed headed “Interpretation” does not expressly exclude the application of the ejusdem generis principle. Instead, it states in sub-clause 1.2(n): “A reference to includes or including must be construed without limitation.” Clause 39(n) does not use the words “includes or including” at all. Therefore cl 39(n) should be read ejusdem generis, as was submitted at the hearing below.

11. [55]

    Clause 39(k) refers to “the rights to and title in all agreements, registrations, and licences in respect of the Business”. A chose in action is not an agreement, registration nor a licence. Rather, it is a proprietary right, enforceable by an action, quite distinct from an agreement.

12. [56]

    The list of assets that precedes cl 39(n) makes no reference to “debts”, “book debts”, “receivables”, “accounts receivable”, “trade debtors”, “outstanding invoices”, “choses in action” or similar. If cl 39(n) is read ejusdem generis, then it cannot be referring to debts attributable to work done by Dangerous Goods before completion.

13. [57]

    The parties acknowledged that they had received independent legal advice in relation to its terms and effect: deed cl 7. Mr Christodolou, the director of SPTG was himself admitted to practice as a solicitor. Legally advised parties with commercial and legal acumen could have included a sub-clause in the definition of “assets” in cl 39 that specified “accounts receivable” or similar but did not. Therefore, the objective intention of the parties must have been to exclude such debts from the general definition of assets in cl 39(n), consonant with the specific provisions of cll 34 and 35.

14. [58]

    The disputed payments were paid to Dangerous Goods for work done by Dangerous Goods pursuant to agreements entered into by Dangerous Goods and the business’ customers, but payment was received after the completion date. Dangerous Goods submitted that on the proper construction of the deed and the sale terms, Dangerous Goods was entitled to retain the disputed payments.

15. [59]

    In oral submissions, counsel for Dangerous Goods submitted that payments done for work pre-completion were not necessary to run the business going forward. The definition of “business” in the deed is subject to the qualification that the things that form the business are necessary for the continued operation of the business enterprise (T30 [37]-[39]). In cl 39, “business” is defined to include “without limitation … the assets and all other things that are necessary for the continued operation of the business enterprise”. Counsel for Dangerous Goods orally submitted that choses in action for debts are not necessary for the continued operation of the business and so the disputed transactions fall outside of the definition of “business” (T31 [7]-[9]).

16. [60]

    SPTG does not solely rely upon cl 39(n) to contend that the disputed payments fall within the definition of “assets”, but also cl 39(k) and the reading of the contract as a whole.

17. [61]

    The reading of cl 35 does not need to be confined to a “carve out” for work done by Dangerous Goods before the completion date. There is no context that requires “assets” to be interpreted otherwise than in accordance with the definition provided in cl 39(n).

18. [62]

    “[T]he ejusdem generis principle of construction is not to be applied mechanically. It is a guide in the process of interpretation which must take into account the whole instrument and the subject matter”: Huntlee at [127].

19. [63]

    It is necessary to identify some more limited genus or category within the specific listed examples that is narrower than the general words: see Brighton v ANZ at [96] and Huntlee at [127].

20. [64]

    There are other well recognised limitations to the ejusdem generis rule. As Elkaim J noted in R v Hicks [2019] ACTSC 331 at [17], citing Tasty Chicks, “[t]he first thing to be stated about the rule is that it is not of universal or mandatory application.”

21. [65]

    As Spigelman CJ noted in Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113; [2003] NSWCA 91 at [126]: “It is essential for the application of the ejusdem generis rule that some common characteristic capable of being described as a genus is able to be identified.”

22. [66]

    Dangerous Goods is incorrect in limiting the references in cl 39 to certain specific physical or intellectual property assets. In the present case “assets” are defined to mean a wide range of assets related to the business. They are not assets of a narrow, particular category, in contrast with, for example, that in Goldsborough Mort & Co v Tolson (1909) 10 CLR 470; [1909] HCA 80 where a reference to “chattels and effects” at the end of a list of farm property items was read ejusdem generis to be limited to physical items, and not to include a chose in action.

23. [67]

    The list at cl 39(k) includes “the rights to and title in all agreements ... in respect of the business”. A chose in action is not an agreement. A chose in action is a right to an agreement. There was an agreement between the business and the customer to provide a certain service and rights arose in relation to that agreement. The chose in action is a right to that particular agreement (that is, to insist upon payment) and therefore is an asset under cl 39(k).

24. [68]

    The “genus” of assets within the list preceding the general cl 39(n) specifically already includes choses in action.

25. [69]

    In Tasty Chicks, the Court of Appeal said at [55]:

26. [70]

    Clause 39(n) is in very specific terms itself, referring to:

27. [71]

    These words are to be interpreted in the normal course in accordance with the construction rules set out above:

    1. (1)

       “All” is of the widest import and on its own goes close to making the ejusdem generis argument irrelevant in the present case.

    2. (2)

       The use of the words “non-current” and “intangible” must encompass choses in action. A chose in action is one of the foremost examples of an intangible asset. These words are unambiguous and plain.

    3. (3)

       “In connection with” are additional words of wide import.

28. [72]

    In oral submissions, SPTG contended that the words “which form part of or in connection to the Business” in 39(n) offers more information as to how the clause should be interpreted, as “business” is subsequently defined as including “without limitations the assets…”. This is itself an indication that the ejusdem generis rule does not apply.

29. [73]

    The words in 39(n) can be contrasted to mere general terms such as “other assets”. The general words to which Dangerous Goods attempts to apply the ejusdem generis rule to are specific and meaning must be given to those words.

30. [74]

    The words used have an unambiguous meaning, and it is not to the point that more specific words could have been used when all-encompassing terms such as those used in cl 39(n) were in fact used.

31. [75]

    In Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295, Leeming JA stated at [72]:

The commercial context

1. [76]

   If any ambiguity as to the construction of the sale terms remains, it can be resolved by examining their commercial context and purpose.

2. [77]

   The sale effected by the deed was a sale of specific assets, not a sale of shares in Dangerous Goods that would transfer the entirety of the assets and liabilities of the business. The deal was for a sale of the business as a “going concern”. Clause 8 of the sale terms required Dangerous Goods to conduct the business in the “usual manner” from the contract date to the completion date. Most of the disputed invoices that yielded the disputed payments were issued during this period.

3. [78]

   It would be commercially and objectively wholly unreasonable for the parties to expect Dangerous Goods to run the business during the period between the contract date and the completion date in the “usual manner”, incurring the cost of sales (including wages, rent, utilities, the cost of acquiring goods and services, income tax and GST liabilities) while having no assurance that it would be paid for its labour and expenditure in the “usual manner”. Support for this construction is found in cl 34 (immediately preceding cl 35) that provided that SPTG was to notify customers of the change in bank details from Dangerous Goods’ bank account to SPTG’s bank account from the completion date, not from the contract date, so that customers were expected to pay Dangerous Goods for work done up to the completion date.

4. [79]

   On SPTG’s construction, whether or not Dangerous Goods got paid for the work it had done, would be held hostage to the caprice of third party customers who may or may not pay their invoices before or after the completion date (being something beyond Dangerous Goods’ control). For example, if a debtor happened to pay a debt on 31 March 2022, Dangerous Goods was entitled to retain the payment as remuneration for the work done. If the debtor happened to pay on 2 April 2022, SPTG would be entitled to retain the payment as a windfall gain. It is unlikely that, objectively, these commercial parties intended such a bargain but rather, consistent with the express wording of cl 35, Dangerous Goods was not obliged to remit payments it received for work it did up to the completion date and only to remit to SPTG, payments received “erroneously” for work done by SPTG after the completion date. For example, where SPTG had provided goods or services to a customer after the completion date, but the customer had erroneously made payment for them by payment into Dangerous Goods’ bank account having not been given or overlooked any notification of the change in bank account details contemplated in cl 34.

5. [80]

   The construction for which SPTG contends would render the price for the agreement ambulatory, and would be “a very strange agreement for the parties to make” (T32[9]-[10]).

6. [81]

   There is no ambiguity, so there is no remit to examine the commercial context and purpose.

7. [82]

   Even if this was the case, while the construction for which Dangerous Goods contends is one that they may prefer commercially, it does not reflect the words used in the agreement.

8. [83]

   In The Trust Company Ltd v Commonwealth of Australia [2025] NSWSC 502 Rees J recently considered some of the authorities on the question of commercial context and the focus on the text of the contract at [67]-[70]:

9. [84]

   In SAS (Vic) Pty Ltd v Urban Ecological Systems Ltd [2021] VSCA 335 at [66]:

10. [85]

    The deal that was reached, for the price it was reached, is reflected in the sale terms. It is not a matter for the Court to descend into deciding it was uncommercial, especially when a price is involved. Perhaps a deal along the lines of what Dangerous Goods suggests might have been reached but at a completely different price.

11. [86]

    The entire agreement provision in cl 12 of the deed precludes any understanding, agreement, representation or warranty that the provisions of the deed are modified or qualified by their commercial context or purpose.

12. [87]

    Counsel for SPTG submitted orally that it is unnecessary and inappropriate to consider what a particular commercial interpretation of a clause might be in light of clear and unambiguous wording, and that the wording in cll 35 and 39 are clear and unambiguous, as cl 39(n) specifies that “assets” includes “[a]ll other assets, current and non-current, tangible and intangible”.

Resolution

1. [88]

   The central dispute between the parties depends on the proper construction of the terms “business” and “assets” and the interpretation of cl 35 of the sale terms that are annexed to the deed.

2. [89]

   The document is to be read as a whole and given the ordinary grammatical meaning of the legal terms. Clause 1.2 of the deed refers to interpretation. Clause 1.2(n) stipulates that a reference to includes or including must be construed without limitation. Clauses 7 and 8 of the sale terms refer to the sale of the business as a going concern with effect from completion and that between the date of the execution of the deed and completion, Dangerous Goods is to continue to run the business in its usual manner as a going concern.

3. [90]

   Clause 35 of the sale terms provides:

4. [91]

   Clause 39(n) defines assets as other assets, current or non-current, tangible and intangible of Dangerous Goods which form part of or are used in connection with the business. The definition of “assets” contained in cl 39 is wide. An intangible asset includes a chose in action.

5. [92]

   In her ex-tempore reasons, the Magistrate said that SPTG’s claim was in relation to 42 separate payments that Dangerous Goods received after 1 April 2022 in relation to goods or services provided up to or before 31 March 2022. These came to a total of $55,526.22. The business was sold as a going concern in the deed, and the assets include cl 39(k): “The rights to [and title] in all agreements in all other assets current and non-current tangible and intangible of Kells and/or John which form part of or are used in connection with the business”. In addition, the business includes without limitation, “[t]he assets and other things that are necessary for the continued operation of the business enterprise”. The Magistrate found that the business conducted between 3 March 2022 and the completion date of 1 April 2022, was included whether or not they were outstanding. The Magistrate found the deed to be unambiguous.

6. [93]

   I agree with her Honour’s reasoning. The terms of the deed were clear and unambiguous. I agree with her Honour’s findings concerning the terms of the deed including the sale terms. It is my view that her Honour’s interpretation was correct.

7. [94]

   So far as ejusdem generis is concerned, it is to be used as an aid to construction. It does not assist the construction of the deed and sale agreement here in circumstances where the definitions of the words “assets” and “business” are very wide. “Assets” are defined to include choses in action. The description of “assets” does not fall into a narrow, particular category. The application of ejusdem generis is not applicable here. The words contained in cl 35 cannot be read as “creating a carve out”.

8. [95]

   It is also my view that it is unnecessary to refer to surrounding circumstances or post-contractual conduct.

9. [96]

   The plaintiffs’ grounds of appeal fail. The result is that the appeal is dismissed. As such, the costs order in the Local Court remains the same.

Costs

1. [97]

   The costs of this appeal are discretionary. Costs normally follow the event. The plaintiffs are to pay the defendant’s costs.

Orders

1. [98]

   The Court orders that:

   1. (1)

      The decision of the Magistrate dated 8 November 2024 is affirmed.

   2. (2)

      The appeal is dismissed.

   3. (3)

      The summons dated 6 December 2024 is dismissed.

   4. (4)

      The plaintiffs are to pay the defendant’s costs.