Bremner v Sinclair (No 3)

[2000] NSWCA 252

CITATION:	BREMNER v SINCLAIR & ORS (No 3) [2000] NSWCA 252
FILE NUMBER(S):	CA 40615/95
HEARING DATE(S):	17 March 2000
JUDGMENT DATE:	8 September 2000
PARTIES :	BRIAN SEFTON BREMNER v SONDRA JEAN SINCLAIR & ORS
JUDGMENT OF:	Mason P at 1; Meagher JA at 28; Powell JA at 29

COUNSEL:	Appellant: B Walker SC; P Brereton 1st Respondent: B Rayment QC; D Kell 2nd Respondent: J Armfield 3rd Respondent: K Smark
SOLICITORS:	Appellant: Corrs Chambers Westgarth 1st Respondent: John M Fitzgerald & Asociates 2nd Respondent: Gordon Cavanagh 3rd Respondent: Marsdens
CATCHWORDS:	Appeal - submissions against the merits of finding made in earlier hearing - alternative basis of authority - absence of authority against auctioneers - facts established at trial support inference that ultimate auction bid was actually authorised. ND
DECISION:	See par 27 of judgment

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40615/95


MASON P
MEAGHER JA
POWELL JA

Friday 8 September 2000



Brian Sefton BREMNER v Sondra Jean SINCLAIR & Ors (No 3)

JUDGMENT

1    MASON P: The Court turns to this matter, for the third time. The original judgment was given on 3 November 1998 (Bremner (No 1)). Judgment in Bremner v Sinclair (No 2) [1999] NSWCA 407 (Bremner (No 2)) was given on 29 October 1999. 2    In Bremner (No 2) I set out (at par 60) proposed orders designed to place the parties in the position in which they would have been had the orders been made at trial which, in my view, should have been made in the light of the alternative basis for actual authority argument which found favour with the majority of the Court in Bremner (No 1). I discussed costs and suggested appropriate orders as to costs in pars 62-64. Meagher JA agreed with my judgment. Powell JA did not and his Honour set out reasons why the appeal to this Court should be dismissed with costs. Those reasons related both to the powers of the Court of Appeal and to the merits. 3    The formal order of the Court in Bremner (No 2) was that the parties were directed to bring in Short Minutes to give effect to the reasons of the majority. 4    The majority of the Court in Bremner (No 1) (Mason P and Meagher JA) decided that the facts found at trial established Mr Bremner’s actual authority, albeit on an alternative basis to that addressed by the learned trial judge. The proceedings in Bremner (No 2) contested the propriety of the Court in Bremner (No 1) having entertained or perceived the ultimately determinative argument as to an alternative basis for actual authority. No party in Bremner (No 2) disputed the merits of that alternative argument at that stage. 5    Faced with Short Minutes drawn to give effect to the majority reasons in Bremner (No 2), Mr Hudson and Mrs Clissold (formerly Hudson) and belatedly Mr and Mrs Sinclair now advance submissions against the merits of the finding…