Creative Typographics Pty Ltd v Glade-Wright

[1999] TASSC 91

[1999] TASSC 91

CITATION:           Creative Typographics Pty Ltd & Ors v Glade-Wright [1999] TASSC 91

PARTIES:  CREATIVE TYPOGRAPHICS PTY LTD
  and
  ERNST, Victor Andrew
  and
  ERNST, Marilyn Anne
  v
  GLADE-WRIGHT, Robert

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 24/1999
DELIVERED ON:  25 August 1999
DELIVERED AT:  Hobart
HEARING DATE/S:  25 August 1999
JUDGMENT OF:  Cox CJ, Underwood J, Crawford J

CATCHWORDS:

[Edited reasons given orally]

REPRESENTATION:

Counsel:
           Applicant:  A M Blow QC
           Respondent:  P E Barker
Solicitors:
           Appellant:  Wallace Wilkinson & Webster
           Respondent:  Butler McIntyre & Butler

Judgment ID Number:  [1999] TASSC 91
Number of paragraphs:  4

Serial No 91/1999

File No FCA 24/1999

CREATIVE TYPOGRAPHICS PTY LTD ACN 003 611 425 and
VICTOR ANDREW ERNST and MARILYN ANNE ERNST v
ROBERT GLADE-WRIGHT (t/as Glade-Wright & Co,
Barristers and Solicitors)

REASONS FOR JUDGMENT  FULL COURT
(DELIVERED ORALLY)  COX CJ
  UNDERWOOD J
  CRAWFORD J
  25 August 1999

Orders of the Court:

1. Appeal allowed.

2. Judgment at first instance set aside.

3. Order that the case be retried.

Serial No 91/1999

File No FCA 24/1999

CREATIVE TYPOGRAPHICS PTY LTD ACN 003 611 425 and
VICTOR ANDREW ERNST and MARILYN ANNE ERNST v
ROBERT GLADE-WRIGHT (t/as Glade-Wright & Co,
Barristers and Solicitors)

REASONS FOR JUDGMENT  FULL COURT
(DELIVERED ORALLY)  COX CJ
  UNDERWOOD J
  CRAWFORD J
  25 August 1999

1. In this case the learned trial judge made a manifest error in respect of the bargaining position of the appellant.  Although the evidence indicates that a preliminary conditional contract had lapsed and was replaced by a draft contract upon which the respondent's clerk, Mr Fife, was asked to advise, and which was the subject of some negotiation which resulted in the execution of a binding contract containing an inadequately drawn clause (cl 19) in respect of restraint of trade, the learned trial judge made a finding that the draft contract had binding effect.  He found that Mr Fife was asked to give advice at a time when the parties were bound by a contract they had signed, and that all Mr Fife could do was to seek to persuade the vendor to abandon or reduce the advantageous position which it had had under that contract, whereas his client was still in a position to negotiate at arm's length.  It was in this context that he assessed the evidence of the witnesses and made findings, preferring the evidence of Mr Fife to that of the first named appellant's director, Mr Ernst.

1. The evidence of Mr Ernst as to the advice given in respect of cl 19, was that it was simply a standard clause.  Mr Fife made a file note indicating that he had drawn Mr Ernst's attention to the possibility that it had been too widely drawn but there is no mention in it of the problems of lack of privity in respect of the directors of the vendor company.  Indeed, the presence of a note to the effect that another clause, cl 26, suffered such a defect, suggests that privity in relation to cl 19 was not in fact discussed. 

1. Mr Fife, in his evidence-in-chief and in cross-examination, did not specifically traverse or deny Mr Ernst's evidence and the learned trial judge made no finding on this critical issue.  In our view the learned trial judge's error fundamentally affected his analysis of the evidence, and his acceptance of Mr Fife's generalised evidence, at the expense of Mr Ernst's specific evidence of a failure to give the necessary advice.  His ultimate conclusion cannot be sustained on the premise which he falsely assumed. 

1. We note that counsel for the respondent did not offer any submissions in opposition to the upholding of the appeal and the ordering of a new trial.  We think both courses ought to be adopted and accordingly order that the appeal be upheld, the decision set aside and that the matter be retried.