Beveridge v Whitton

Case [2001] NSWCA 6
CITATION: Beveridge v Whitton [2001] NSWCA 6
FILE NUMBER(S): CA 40441/99
HEARING DATE(S): 5 February 2001
JUDGMENT DATE:
5 February 2001

PARTIES :
Graeme David Beveridge (Appellant)
Robert W Whitton as Liquidator of HSBB Pty Limited (In Liquidation) (Respondent)
JUDGMENT OF: Mason P at 1,37, 39; Powell JA at 38; Heydon JA at 2
LOWER COURT JURISDICTION : District Court
LOWER COURT
FILE NUMBER(S) : 		DC 1417/97
LOWER COURT
JUDICIAL OFFICER :		 Robison DCJ
COUNSEL: Mr K Smark (Appellant)
Mr P Jacobson QC/Mr J Smith (Respondent)
SOLICITORS: McPhee Kelshaw (Appellant)
Andrew Frank & Co (Respondent)
LEGISLATION CITED: Corporations Law
CASES CITED:
 Airservices Australia v Ferrier (1996) 185 CLR 483
Re Discovery Books Pty Ltd (1973) 20 FLR 470
V R Dye & Co v Peninsula Hotels Pty Ltd (In Liq) [1993] 3 VR 201
Akins v Abigroup Ltd (1998) 43 NSWLR 539
DECISION: See para 36


- 14 -

      THE SUPREME COURT
      OF NEW SOUTH WALES
      COURT OF APPEAL

      CA 40441/99
      DC 1417/97

      MASON P
      POWELL JA
      HEYDON JA

      5 February 2001

      GRAEME DAVID BEVERIDGE v ROBERT W WHITTON
      AS LIQUIDATOR OF HSBB PTY LTD (IN LIQUIDATION)
      JUDGMENT

1    MASON P: I invite Heydon JA to deliver the first judgment.

2    HEYDON JA:

      Background
      This is an appeal, by leave, from orders of Robison DCJ made on 21 May 1999 after a trial conducted in the District Court on 20 and 21 May 1999. The primary orders comprised a verdict and judgment for the plaintiff in the sum of $70,982.85, based on the plaintiff’s successful claim for repayment as an unfair preference of $52,000 plus interest. The claim was made under
      s 588FA of the Corporations Law which at the relevant time provided:
          “ (1) [What is unfair preference] A transaction is an unfair preference given by a company to a credit of the company if, and only if:
          (a) the company and the creditor are parties to the transaction (even if someone else is also a party); and
          (b) the transaction results in the creditor receiving from the company, in respect of an unsecured debt that the company owes to the creditor, more than the creditor would receive from the company in respect of the debt if the transaction were set aside and the creditor were to prove for the debt in a winding up of the company;
          even if the transaction is entered into, is given effect to, or is required to be given effect to, because of an order of an Australian court or a direction by an agency.
          (2) [When secured debt to be unsecured debt]
          For the purposes of subsection (1), a secured debt is taken to be unsecured to the extent of so much of it (if any) as is not reflected in the value of the security.
          (3) [Transaction part of continuing business relationship]
          Where:
          (a) a transaction is, for commercial purposes, an integral part of a continuing business relationship (for example, a running account) between a company and a creditor of the…

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Beveridge v Whitton [2001] NSWCA 6
Case
[2001] NSWCA 6
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between the appellant, Beveridge, and the respondent, Whitton, regarding the enforceability of a deed of settlement. The case was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the deed of settlement, which purported to compromise a claim for damages arising from a motor vehicle accident, was voidable due to a misrepresentation made by the respondent concerning the extent of his injuries. Specifically, the court had to determine if the misrepresentation was material and whether it induced the appellant to enter into the deed.

The Court of Appeal found that the respondent had misrepresented the severity of his injuries, and this misrepresentation was material to the appellant's decision to enter into the settlement. The court applied the principles of contract law relating to misrepresentation, holding that a contract induced by a material misrepresentation is voidable at the option of the representee. The court reasoned that the appellant would not have entered into the deed on the same terms, or at all, had they been aware of the true extent of the respondent's injuries.

Consequently, the Court of Appeal ordered that the appeal be allowed, the deed of settlement be set aside, and the matter be remitted to the Supreme Court for determination of the damages claim.

Orders

Orders of the court

See para 36

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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