Cash Resources Aust Pty Ltd v Brett - [1996] QSC 32

IN THE SUPREME COURT

OF QUEENSLAND No. 2044 of 1991

Brisbane

Before the Honourable Mr. Justice Lee

[Cash Resources Aust Pty Ltd v Brett]

BETWEEN:
  CASH RESOURCES AUSTRALIA PTY. LTD (A.C.N.004792330)
  Plaintiff
AND:
  PETER BRETT
  Defendant

REASONS FOR JUDGMENT - W.C. LEE J.

Judgment Delivered 08/03/1996

CATCHWORDS: EVIDENCE - whether evidence, prima facie unchallenged, must be accepted - whether inferences may be drawn where evidence of witness rejected.
Le Murav The Victoria Insurance Company Ltd. [1971] Qd.R. 198, Allied Pastoral Holdings Pty. Ltd. v Commissioner of Taxation (1983) 1 N.S.W.L.R. 1, Paric v John Holland Constructions Pty. Ltd. [1984] 2 N.S.W.L.R. 505, Steinberg v F.C.T. (1975) 134 C.L.R. 640, Bella-Lewis v Thompson (App No. 220 of 1994, 27 February 1996) considered.

NEGLIGENCE - BREACH OF RETAINER - duty of care of valuer of real property to a factoring company in a falling market - whether the duty of care extends indefinitely even when only fraudulent non-existent debts factored.
Banque Bruxelles S.A. v Eaglestar Insurance Co. Ltd [1995] 2 W.L.R. 607 considered.

RELIANCE - whether the plaintiff relied on valuation and to what extent - debts factored exceeded security based upon valuation - later debts fraudulent -whether plaintiff entitled to continue to rely on valuation.

CAUSATION - whether same test applies to both tort and contract - whether valuation was merely precondition to plaintiff's loss - whether valuation a cause of plaintiff's loss.
Marchv. E. & M.H. Stramere Pty. Ltd. (1991) 171 C.L.R. 506 considered.

REMOTENESS - whether losses were in the reasonable contemplation of the parties or the kind of loss foreseeable by a reasonable man - whether losses due to plaintiff's negligence in factoring fictitious debts outside scope of plaintiff's business - whether such losses foreseeable.

CONTRIBUTORY NEGLIGENCE - whether plaintiff contributed to its own losses - whether distinction between contract and tort.

COUNSEL:K. Fleming QC with him P. McQuade for the Plaintiff
1st day - S. Doyle for the Defendant
2nd day - R. Wensley QC with him S. Doyle for the Defendant
3rd & 4th days - R. Wensley QC for the Defendant
Thereafter - Defendant in person

SOLICITORS: Flower & Hart for the Plaintiff
1st - 4th days Clayton Utz for the Defendant
Thereafter - Defendant in person

HEARING DATES: 4, 5, 6 and 7 October 1994
16, 27 and 28 February 1995
8 and 9 May 1995

IN THE SUPREME COURT

OF QUEENSLAND No. 2044 of 1991

Brisbane

Before the Honourable Mr. Justice Lee

[Cash Resources Aust Pty Ltd v Brett]

BETWEEN:
  CASH RESOURCES AUSTRALIA PTY. LTD (A.C.N.004792330)
  Plaintiff
AND:
  PETER BRETT
  Defendant

REASONS FOR JUDGMENT - W.C. LEE J.

Judgment delivered 08/03/1996

INTRODUCTION
The plaintiff, Cash Resources Australia Pty Ltd ("CRA") is a factoring company. Its Head Office is in Melbourne. It has branches in various States, including Queensland. It claims damages against the defendant for alleged negligence and/or breach of retainer following a valuation by the defendant dated 5 September 1990 in the sum of $975,000.00, of real property…

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: [1996] QSC 32
Decision Date: 8 March 1996

CaseChat Overview and Summary

Cash Resources Australia Pty Ltd (CRA) is a factoring company that had entered into a facility agreement with Olympus Nominees Pty Ltd. CRA took a third mortgage over Olympus' property as security for the facility agreement. CRA subsequently suffered losses due to Olympus' default. CRA sued the defendant, who had conducted a valuation of the property prior to the agreement, for damages for negligence and/or breach of retainer. The defendant denied negligence and denied that any conduct on his part brought about any losses suffered by CRA. The defendant alleged that any losses suffered by CRA were entirely caused or substantially contributed to by the negligence and failure to mitigate by CRA. The court found that CRA was negligent in entering into the facility agreement in the first place. However, the court found that CRA's negligence did not contribute to its losses. The court found that CRA was negligent in extending the facility on 28 February 1991 and in its conduct thereafter. The court found that CRA's negligence was the entire cause of its losses. The court found that the defendant's negligence in the valuation he performed on 5 September 1990 did not contribute to any losses suffered by CRA. The court dismissed CRA's claim against the defendant.

Orders