Chow v Yang

[2010] SASC 96

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

CHOW & ORS v YANG & ORS

[2010] SASC 96

Judgment of The Full Court

(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Vanstone)

9 April 2010

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES - GENERALLY

PROCEDURE - JUDGMENTS AND ORDERS - INTEREST ON JUDGMENTS - IN GENERAL

Appeal from decision of District Court Judge - contractual dispute relating to purchase of supermarket business - variation of terms of contract for transfer of business - transfer of business never effected - agreement at trial as to failure of consideration - issue at trial as to extent of rundown of stock and of amount unpaid to suppliers in intervening period - Judge did not award interest - whether Judge’s reasons as to defendant’s credit indicative of error - whether findings as to depletion of stock and unpaid suppliers could be sustained - whether Judge erred in assessing credibility of defendant’s evidence - whether Judge erred in declining to award interest - consideration of approach of appellate Court.

Held: primary findings upheld but error as to decision not to award interest - Judge erred in declining to award interest in favour of plaintiff - defendant had use of moneys paid by plaintiff - Judge’s reasons made plain his findings and were adequate - finding as to depletion of stock and unpaid suppliers supported by evidence - Judge entitled to accept evidence of defendant in preference to plaintiff.  Appeal allowed in part.

Supreme Court Civil Rules 2006 (SA) r 292, referred to.
Chow & Ors v Yang & Ors [2009] SADC 33; Fox v Percy (2003) 214 CLR 118; Abalos v Australian Postal Commission (1990) 171 CLR 167; Jones v Hyde (1989) 63 ALJR 349; Devries v Australian National Railways Commission (1993) 177 CLR 472; Chew v Amanatidis [2009] SASC 334; State of South Australia v McDonald (2009) 104 SASR 344; Queen Elizabeth Hospital v Curtis (2008) 102 SASR 534; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Sun Alliance Insurance Ltd v Massoud [1989] VR 8; Papps v Police (2000) 77 SASR 210, considered.

CHOW & ORS v YANG & ORS
[2010] SASC 96

Full Court:       Nyland, Gray and Vanstone JJ

NYLAND and GRAY JJ:

1. This is an appeal arising from a judgment of a District Court Judge following a trial with respect to a contractual dispute. 

   Introduction

2. The dispute related to the sale and purchase of a supermarket business situated in the Chinatown precinct of Grote Street, Adelaide.  The vendor, Peter Liu Li Yang, the first defendant in the proceedings and a respondent to the appeal, was the owner of the business through a corporate structure.  Mr Yang migrated from Taiwan in 1998 and in that year, with two others, bought the business and the real…