Brasington v Overton Investments Pty Ltd

FEDERAL COURT OF AUSTRALIA

Brasington v Overton Investments Pty Ltd [2002] FCA 1495

RITA BRASINGTON v OVERTON INVESTMENTS PTY LTD & ANOR

N 878 OF 1999

EMMETT J
28 NOVEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N878 OF 1999

BETWEEN:

RITA BRASINGTON
APPLICANT

AND:

OVERTON INVESTMENTS PTY LIMITED
FIRST RESPONDENT

JOHN EDWARD JAMES
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	28 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR RULING AND FINDINGS

1. In 1994 the first respondent, Overton Investments Pty Limited (“Overton”), was the owner and manager of the Heritage Retirement Village located at 33 Bernard Road, Padstow Heights (“the Heritage Village”).  At that time, the second respondent, John Edward James (“Mr James”), was the managing director of Overton.

2. By lease dated 6 June 1994 (“the Lease”), Overton granted to the applicant, Rita May Brasington (“Mrs Brasington”) and her husband, Sydney James Phillip Brasington (“Mr Brasington”), a term of 99 years in respect of Unit 65 in the Heritage Village (“Unit 65”).

3. Mrs Brasington commenced this proceeding on 30 August 1999.  In the proceeding, Mrs Brasington complains about the circumstances in which she and Mr Brasington entered into the Lease.  All of her complaints arise out of alleged failure on the part of Overton to make full disclosure concerning the extent of the liability of Mr and Mrs Brasington under the Lease to contribute to the expenses of operating the Heritage Village.  Mr Brasington died on 29 April 1995 and the proceeding has been conducted on the basis that Mrs Brasington has succeeded to any rights that may have been vested in Mr Brasington in relation to the subject matter of the proceeding. 

4. Prior to the commencement of the proceeding, there had been a history of litigation between Overton and the persons who are lessees of units in the Heritage Village (“Lessees”).  The history of the litigation is summarised in my reasons in Murphy v Overton Investments Pty Limited [2000] FCA 801 and [2001] FCA 1725.

   the present stage of the proceeding

5. The trial of the proceeding was fixed to begin on 21 October 2002.  Mrs Brasington intended to call her daughter, Mrs Beryl Rita Burton (“Mrs Burton”), to give evidence at the trial.  Because Mrs Burton was unavailable to give evidence during the period fixed for the trial, Mrs Brasington gave most of her evidence-in-chief, and the evidence of Mrs Burton was given in full, on 10 October 2002.  Apart from documentary evidence, Mrs Brasington’s case consists of the evidence of herself and Mrs Burton, together with expert evidence relating to the value of Unit 65 at various times. 

6. The valuation evidence is relevant to the question of the relief to which Mrs Brasington would be entitled if she succeeds, including the quantification of any loss or damage that might be an essential element of certain of the causes of action relied on by her.  I have rejected valuation evidence in the form in which it was propounded on behalf of Mrs Brasington.  However,…