Brown v Stewart - [2022] WASC 399

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BROWN -v- STEWART [2022] WASC 399
CORAM:   MASTER SANDERSON
HEARD:   13 SEPTEMBER 2022
DELIVERED          :   23 NOVEMBER 2022
PUBLISHED           :   23 NOVEMBER 2022
FILE NO/S:   CIV 1166 of 2022
BETWEEN:   ADAM SYDNEY BROWN
Plaintiff
AND
BENJAMIN STEWART
Defendant

Catchwords:

Practice and procedure - Application for pre-action discovery - Turns on own facts

Legislation:

Australian Consumer Law
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	LJ Michelmore
Defendant	:	RL Conder

Solicitors:

Plaintiff	:	L J Michelmore
Defendant	:	Cullen Macleod Lawyers

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

BWS v ARV [No 2] [2021] WASCA 62

MASTER SANDERSON:

By originating summons filed 28 February 2022, the plaintiff sought pre‑action discovery from the defendant. The application was brought under O 26A r 4 of the Rules of the Supreme Court 1971 (WA). The defendant opposed the application on the basis that the evidence did not disclose the plaintiff may have a cause of action against the defendant. Although none of the other requirements of O 26A r 4 were conceded, it was this one point on which the application really turned. The application was supported by an affidavit of the plaintiff sworn 14 February 2022. That affidavit provides a convenient summary of the relevant facts.
On or about 1 May 2019, the plaintiff saw an advertisement for a 'Genuine Bathurst Spec Car' '1968 Holden Monaro HK GTS 327 Coupe' with a 'GTS 327ci V8 engine' (Vehicle). The Vehicle was to be auctioned by an auction house known as Manheim. A copy of this advertisement appears as attachment 'ASB‑1' to the plaintiff's affidavit.
On 7 May 2019 the plaintiff attended a viewing appointment at Manheim's premises. In the course of the appointment, Ms Emily Jones, who was advertised as the contact for viewing the Vehicle, pointed out a number of physical aspects of the Vehicle, including the engine. The plaintiff says he advised Ms Jones that he was interested in the Vehicle but he knew nothing about Holden cars such as the Vehicle. During the course of the inspection, the plaintiff says Ms Jones said she would show the plaintiff what was used to determine the 'genuineness' of the Vehicle.
For the uninitiated, I should say that cars such as the Vehicle have a particular value to collectors. Presumably, there are only a limited number of cars such as the Vehicle still available to collectors. The value of such cars lies in their being the genuine article - that is to say, a car that was produced by General Motors, marketed as a Holden Monaro, had original body work and perhaps most importantly, had the original engine. The photograph in the advertising material to which I have referred above shows that the Vehicle was in a dilapidated condition. The average person would probably regard a car such as this as fit for nothing but scrap. To a collector, it is a treasure. But it is…

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.

Continue reading Brown v Stewart

Details

AGLC: Brown v Stewart [2022] WASC 399
Case: [2022] WASC 399
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the plaintiff, Adam Sydney Brown, sought pre-action discovery from the defendant, Benjamin Stewart, under O 26A r 4 of the Rules of the Supreme Court 1971 (WA). The plaintiff alleged that the defendant, who had expertise in identifying genuine vehicles, provided misleading information to Manheim, the auction house, regarding the authenticity of a vehicle the plaintiff purchased. The defendant opposed the application, arguing that the plaintiff had not demonstrated a reasonable prospect of having a cause of action against him.

The court considered whether the plaintiff had demonstrated more than mere assertion, conjecture, or suspicion that he may have a cause of action. The plaintiff relied on the defendant's advice to Manheim, which included recommendations for further enquiries to verify the vehicle's authenticity. However, the court found that the defendant's advice did not amount to misleading or deceptive conduct, as it did not provide an unequivocal opinion that the vehicle was genuine. Additionally, the court noted that Manheim's advertising material was equivocal, and there was no statement to the effect that the defendant believed the vehicle was genuine.

The court concluded that the plaintiff had not satisfied the jurisdictional requirement to make the orders sought. The evidence amounted to mere assertion, conjecture, or suspicion, and did not warrant an order for discovery. The plaintiff's application was dismissed, and the plaintiff was ordered to pay the defendant's costs of the application, including reserved costs.

Orders