Automasters Australia Pty Ltd v Bruness Pty Ltd - [2004] WASCA 229

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: AUTOMASTERS AUSTRALIA PTY LTD -v- BRUNESS PTY LTD & ANOR [2004] WASCA 229

CORAM: MURRAY J
STEYTLER J
WHEELER J

HEARD: 4 AUGUST 2004

DELIVERED : 13 OCTOBER 2004

FILE NO/S: FUL 9 of 2003

BETWEEN: AUTOMASTERS AUSTRALIA PTY LTD
Appellant
AND
BRUNESS PTY LTD
First Respondent
DAVID IAN COOMBES
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram   :HASLUCK J
Citation Number      : [2002] WASC 286
File Number            :  CIV 1298 of 1999

Catchwords:

Evidence - Expert evidence - Reliance by expert witness on hearsay evidence - Accountant gave evidence of projected profits to enable assessment of damages - Evidence based in part on accountant's knowledge of a comparable business where no evidence concerning that business was before the Court - Whether expert witness's conclusions were inadmissible because of reliance on hearsay evidence - Conclusions admissible because based primarily on admissible evidence - Turns on own facts

Damages - Assessment of damage - Whether adequate basis for accountant's evidence of projected profits - Whether trial Judge erred in preferring evidence of one accountant over another accountant - No error in trial Judge's reasons - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr M H Zilko SC & Mr C F McLeod
First Respondent           :     Mr B E S Lauri
Second Respondent       :     Mr B E S Lauri

Solicitors:

Appellant:     Deacons
First Respondent           :     Clairs Keeley
Second Respondent       :     Clairs Keeley

Case(s) referred to in judgment(s):

English Exporters (London) Ltd v Eldonwall Ltd [1973] Ch 415
Holtman v Sampson [1985] 2 Qd R 472
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
McNeil v Commissioner of Taxation (2003) 202 ALR 35
National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
R v Abadom [1983] 1 WLR 126
Steffen v Ruban [1966] 2 NSWR 622

Case(s) also cited:

HG v The Queen (1999) 197 CLR 414
Pollock v Wellington (1996) 15 WAR 1

MURRAY J: I agree with Steytler J that, for the reasons given by his Honour, this appeal should be dismissed.
STEYTLER J: The appellant, Automasters Australia Pty Ltd, and the first respondent, Bruness Pty Ltd, were parties to a franchise agreement. Pursuant to the terms of that agreement Bruness operated an automotive service business at Midland under the direction of the second respondent, Mr David Coombes. The franchise agreement gave to Bruness an exclusive licence to carry on the business, using the "Automasters" trading name and trademark. The agreement also made provision for a number of benefits to the franchisee, including quality assurance accreditation and administrative and marketing support. Bruness operated its business as a franchisee from 1 July 1997 until 15 March 1999, on which date the appellant purported to terminate the franchise agreement, contending that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] WASCA 229
Decision Date: 13 OCTOBER 2004

CaseChat Overview and Summary

In Automasters Australia Pty Ltd v Bruness Pty Ltd, the court was tasked with determining the admissibility of expert evidence and the appropriate assessment of damages. Automasters Australia, the plaintiff, alleged that Bruness Pty Ltd, the defendant, breached contractual obligations, leading to financial losses. The primary dispute centred around the admissibility of an expert witness's evidence concerning projected profits, which was partly based on knowledge of a comparable business for which no evidence was presented to the court. Additionally, the court needed to decide whether the trial judge's preference for one accountant's evidence over another was justified.

The legal issues before the court involved whether the expert witness's conclusions were inadmissible due to reliance on hearsay evidence, and if the trial judge erred in preferring one accountant's evidence over another. The court had to evaluate the basis of the expert's projected profits and whether this evidence provided a sufficient foundation for the assessment of damages. The central question was whether the expert's conclusions, which were partly derived from hearsay, were admissible and whether the trial judge's decision to rely on one expert's evidence was sound.

The court found that the expert witness's conclusions were admissible because they were primarily based on admissible evidence, and the reliance on hearsay was incidental. The court held that the expert's evidence provided an adequate basis for the assessment of damages, and the trial judge did not err in preferring one accountant's evidence over another. The court concluded that the decision to rely on one expert's evidence rather than another was within the trial judge's discretion and was supported by the evidence presented.

The court's final orders confirmed the admissibility of the expert evidence and upheld the trial judge's assessment of damages based on the preferred expert's projections. The court emphasised that the issues of admissibility and the assessment of damages were fact-specific, and the trial judge's decision was appropriately grounded in the evidence provided.

Orders