Cummings v Lewis &

[1993] HCATrans 280

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S49 of 1993

B e t w e e n -

JAMES BARTHOLOMEW CUMMINGS

Applicant

and

MICHAEL TERENCE LEWIS

First Respondent

DESMOND RUNDLE

Second Respondent

JOHN BRADSHAW, AS REPRESENTING
ALL MEMBERS OF THE FIRM

PRACTISING AS KPMG PEAT

MARWICK HUNGERFORDS BETWEEN

1 FEBRUARY 1989 and 28 MARCH

1989

Third Respondent

Cummings	1	17/9/93
DAWSON J
TOOHEY J
GAUDRON J

NOEL SIDNEY LECKIE

Fourth Respondent

PAUL ISHERWOOD, AS REPRESENTING
ALL MEMBERS OF THE FIRM

PRACTISING AS COOPERS &

LYBRAND BETWEEN 1 MAY 1988 AND

30 JUNE 1989

Fifth Respondent

Application for special leave

to appeal

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 SEPTEMBER 1993, AT 9.30 AM

Copyright in the High Court of Australia

MR D.F. JACKSON. QC:  May it please the Court, I appear with

my learned friends, MR F.M. DOUGLAS. QC and

MR V.R.W. GRAY for the applicant. (instructed by

Malcolm Johns & Company)

MR D.E. HORTON. QC: If Your Honours please, I appear with

MR J.T. GLEESON for Lewis, that is to say for Peat

Marwick Hungerfords, which is the first firm of

accountants. (instructed by Freehill Hollingdale &

Page)

MR T.E.F. HUGHES, QC:  May it please the Court, I appear

with MR T.D.F. HUGHES for the fourth and fifth

respondents, they are the Coopers & Lybrand

parties, Your Honours.	(instructed by Norton Smith
& Co)

DAWSON J: Yes, Mr Jackson.
MR JACKSON:	Your Honours, there are two matters which, it

is submitted, merit the grant of special leave.

The first concerns the question whether, on the

facts as found, the applicant had established a

claim to contribution in respect of losses on the

horse syndication venture, if I can put it shortly,

and I will come to that in just a moment. The

second concerns the course taken in the Full Court

in relation to the disposition of his appeal.

Your Honours, I should say immediately that in

relation to the second of those matter it is a

question depending on the particular case, although

it is possible to say that it does turn on a rather

larger issue concerning the onus of proof provision

and the relevant parts of the Fair Trading Act

Cummings 2 17/9/93

which mirror the provisions of the Trade Pracrices

Act. But may I come to that a little later.

Could I turn first to the question of the

claim to contribution. Your Honours, the issue

which arises in that connection is whether there is

an entitlement, indeed a mutual entitlement to

contribution between persons who have associated

themselves, for the purposes of a business venture

which fails because the substratum of it

disappears, in circumstances where the benefit

which each would have obtained if it had gone ahead

would have been different in kind - the benefits

would have -been different in kind. When I say

"different in kind", one often has cases such as a

mining joint venture where each obtains separate

parts of the product. But in the present case the
benefits were different. And on the other hand,

one party has incurred liabilities in acquiring the

property which is to be used for the purposes of

the venture.

Could I come for just a moment to the basic

facts. They may be seen conveniently enough stated

in the reasons for judgment of Mr Justice Sheppard

and Mr Justice Neaves at page 136, commencing at

line 20, and Your Honours will see that His Honour

refers to the fact:

that the relationship between Mr. Cummings and

Mr. Leckie on behalf of Coopers & Lybrand was

not that of client and accountant; rather

Mr. Leckie was acting in an entrepreneurial

capacity.

Your Honours will see what is set out at the bottom

of that page. If one goes on then to the top of

the next page where a similar position was

obtaining in respect of KPMG Peat Marwick

Hungerfords.

the syndicates referred to in the next paragraph Your Honours will see the nature of

and the facts are set out by Their Honours until

one gets to the top of the next page, page 138.

The essential facts are then summarized at page 138 where Your Honours will see that:

There was no contract or partnership .....

There was a loose arrangement pursuant to

which Mr. Cummings would acquire horses and

the two firms of accountants would prepare the

tax effective packages through which the

horses would be marketed -

None of the parties contemplated failure and,

Your Honours, I shall not read out the remainder of

it, but we would refer Your Honours to what

Cummings 17/9/93

continues through to paragraph 7 on the next page.

What happened was that the packages were, if I can

call it that, the packages were intended to be

available to be sold by 30 June 1989 in order to

provide potential taxation benefits for those who

entered into them. Not enough persons entered into

the syndicates with the result that the syndicates

could not proceed at all because there was a

minimum requirement.

Your Honours, having said that, if one goes from there to the bottom of page 139, line 30, in

the passage which follows from that on the next

page and the top of the page after that, the view

taken by the majority in the Full Court was that

the case was simply one where, albeit there was a

common purpose in mind, and again albeit to arrive

at individual profit, it was simply a case where

each one made a contribution of a different kind,
each one would get different profits of a different

kind if it went ahead successfully.

It was also, however, a case where no

provision was made, and the matter was not in-

contemplation of what might happen if it should be

that it did not go ahead at all, with Mr Cummings
being left with a very significant liability to pay

for the horses.

DAWSON J:  It was up to Mr Cummings what amount he expended

in the purchase of horses.

MR JACKSON:  Well in one sense that is correct, but in

another sense it is not correct, in the sense that

there was an understanding as to what might be

purchased and the general range of the purchases,

although Mr Cummings was the one whose expertise

was relied on in order to acquire the horses, in

order to select the horses, what to pay for them

and so on.	But the broad range was a matter which
had been the subject of discussion between the

parties.

If I could take Your Honours for just one more

moment to the reasons for judgment in the Full

Court, the issue was dealt with by

Mr Justice Cooper who, correctly in our submission,

accepted that there were circumstances in which

persons might be liable for losses or expenses even though their expectations, if the projects had been

successful, were of different kinds. His Honour's

discussion appears at page 211 and in the second

paragraph on the page Your Honours will see he sets

out the proposition in that paragraph and then

proceeds to deal with the three cases to which he

there refers. I will not go through the details of

those, of course, but may I just say that when he

Cummings 17/9/93

came to the test which he actually proceeded to

apply, that appears a little further on when one

comes to page 221, commencing at about line 22,

where he said:

To succeed on the appeal the appellant

must show that the respondent had a common

liability to discharge the debt to the

auctioneers or to meet the loss on resale -

I am sorry, Your Honours, I think His Honour should

have said" the appellant must show that the

appellant and the respondents" -

had a common liability to discharge the debt

to the auctioneers or to meet the loss on

resale which he alone has discharged or

incurred, or that he has against the

respondents an equity to enforce equitable

contribution -

At the top of the next page, when he came to apply

that test, he said "there was no co-ordinate

liability" and no:

co-ordinate liability inter se because account of himself and the accountants.

He went on to say the cases to which he had

referred were not applicable:

because the characteristics of joining
together for a common end or purpose is

lacking.

Now, Your Honours, in our submission His Honour and

the other members of the Full Court were in error

in taking the view that the characteristic of a

joining together for the common end was lacking and

that therefore there was no entitlement to

contribution. The burden of buying the horses as

principal was undertaken for the benefit of all to

achieve a common end, even if the benefits to flow

from it were different.

This is not a case where one can simply say in

the end the venture turned out not to be
profitable, but it is a case where the venture did
not ever get going because the requisite number of
shares was not sold and all moneys had to be

returned. Your Honours, in those circumstances we

would submit there is no particular reason why one

should say that the doctrine of contribution would

not be applicable. Indeed, that is a question, we

would submit, of some importance. But,

alternatively - - -

Cummings 17/9/93

GAUDRON J: But is it not the other way around. Is not the

question why the doctrine of contribution should be

applicable on the facts as found?

MR JACKSON: Well, it should, Your Honour, whichever way one

puts it - I am sorry, perhaps I am putting it a

little too highly. Whichever way one puts it, the

question which arises is whether, in circumstances
of the nature to which I have referred, there is an

entitlement to contribution, not in circumstances
where there has been some failure of the venture

because the venture turned out to be one that was

not a profitable venture in the end, but one where
the underlying basis of it, namely the selling or

the proceeding to sell, just could not occur.

TOOHEY J: But the approach you take may be important here

because the draft notice of appeal suggests that

there are a number of finding of fact made by the

Full Court that you would wish to challenge. I do not want to take you to those at the moment but it is not as simple, perhaps, as the way in which you explain it. What findings of fact do you have,

Mr Jackson, that would support a basis for

contribution?

MR JACKSON: Essentially the findings of fact to which I

referred earlier, namely that the two parties

were - I am putting it on a relatively short

basis - essentially that the two groups of parties

were agreed that there would be a purchase of

horses; there would then be a syndication of the

horses; the roles to be played by the parties were

different, of course; on the one hand, Mr Cummings

to buy the horses and, if the venture went ahead,

he obtained the benefits from the purchase of them

from him then. The second thing was that, on the

other hand, the accountants were then in a position

where they had packages which they could sell off

and obtain their own profits from that.

Now, Your Honours, we would accept that in

terms of contribution each party would be liable to
the other for any losses that the other might have

sustained but that is the basic nature of it, as I

have said, and in those circumstances what we would

submit is that one party is as much entitled to

contribution as would have been the case if they

had agreed to share the profits of the venture

equally, even though the ownership of the property

remained in different hands.

Could I say that we would also submit, in one

sense alternatively, and in another sense as
another facet of the same thing, that the approach

taken by Justice Deane and the Chief Justice in

Huschinski v Dodds, (1985) 160 CLR 583, would, we

Cummings 17/9/93

would submit, support the proposition~

Your Honours will see that there is a volume called

supplementary appeal book in which the relevant

pages of that have been extracted, behind tab refer Your Honours is at page 618, the first page extracted, the paragraph commencing half-way down

the page where His Honour referred to a recognition

by both common law and equity:

that, where money or other property is paid or

applied on the basis of some consensual joint

relationship or endeavour which fails without

attributable blame, it will often be

inappropriate simply to -

leave things where they lie. And His Honour goes

on to say, half-way down that paragraph, about
three-quarters the way down the page:

Where, however, there are no applicable contractual provisions or the only applicable

provisions were not framed to meet the

contingency of premature failure ..... other

rules or principles will commonly be called

into play.

He went on to say, Your Honour, at page 619, about

a third of the way down the page - and,

Your Honours, I shall not read it out but it is the sentence commencing "If the relevant relationship"

and it goes on to the end of that paragraph. Could

I refer also, Your Honours, to the bottom of

page 619, the paragraph that goes through to

half-way down page 620.

True it is that the observations there made by

His Honour are directed to a somewhat different factual situation but we would submit the question

of the appropriateness of application of principles

of that kind to joint undertakings, if I can use a

term of some neutrality, when they fail for no very

good reason, no reason attributable to the

parties - - -

GAUDRON J:  You really have to equate a loose arrangement,

that being the finding, with the joint undertaking,

do you not, in this case?

MR JACKSON:  With respect, Your Honour, it is a question of

what is contemplated by the concept of a joint

undertaking and there can be a joint undertaking

which does not give rise to contractual

relationships but which, at the same time, is

really not terribly loose. Your Honour, no doubt

it was not regarded as a terrible loose thing when

Mr Cummings put up his hand to buy $20 million

Cummings 17/9/93

worth of horses. So that one accepts, of course,

that the situation is one where, if the

arrangement had proceeded, each party would be

benefitted in a different way, but the question is

what the law does in circumstances where the

understandinq of the parties cannot proceed because

of something not attributable to the fault of

either.

DAWSON J:  But what the law does, if you look at the

principles	which Justice	Deane expounds, is to
prevent one	party taking	a benefit at the expense
of another.	That really	is not this situation, is
it?

MR JACKSON:  No, Your Honour. That is why I said a moment

ago that what His Honour was speaking about there

was in relation to particular circumstances, but

benefit and burden are, in a sense, two sides of

the one coin.

DAWSON J: But it is a question of unconscionability and

that arises in the circumstances I have just

mentioned, but it does not arise here.

MR JACKSON: Well, Your Honour, it may, we would submit, and

the question whether it does is itself a question

of importance because if one is looking at

unconscionability as a notion, then
unconscionability is a notion which is capable of

application to various circumstances. The question

whether it applies in circumstances where one party

is left with the burden is as much - Your Honour,

we would submit should be resolved by

considerations similar to those applying when one

party is left with the benefit. And there does not

seem, we would submit with respect, any

particularly good reason why that should not be so.

But the question whether that is right, we would

matter. That concerns the representation case.	submit, is a question of importance. Your Honours, may I move then to the second
Your Honours will find, if I might say so
initially, that this occupies a lot of the
judgments in the appeal and in the written
submissions that our learned friends have given, or
are about to give Your Honours, it seems to excite
much comment. However, the issue which arises, in
our submission, is fundamentally a narrow one and
it will take me just a moment to define it, if I
may. The applicant's case had been that there had
been a contract with the respondents, or each of
them, or alternatively, that they had engaged in
misleading or deceptive conduct. The contract
claim failed, it was not proceeded with on appeal.

Cummings 17/9/93

The misleading and deceptive conduct case was based on provisions of the Fair Trading Act of New

South Wales which are in the same terms as

section 52 and section 51A of the Trade Practices

Act. Your Honours, the relevant provision - the

first relevant provision was section 42 which is in

the same terms as section 52. The nature of the

conduct relied on in that regard, as Your Honours

will see from the pleading to which I will come in

a moment, was set out in the amended statement of claim, the relevant extract from which appears at tab 8 in the supplementary appeal book. It is

paragraph 22. May I invite Your Honours to read

that and Your Honours will see that it is set out

as a representation but the relevant part of it is

to be found in the lines between letters Mand P.

TOOHEY J:	Is it in precisely the same terms as the contract said to have been made between the parties?
MR JACKSON:	Yes.
TOOHEY J:	So there is a finding that there was no

misleading or deceptive conduct in the terms

pleaded.

MR JACKSON: Your Honour, that is right. I was just about

to say that that is correct and it is the question

then of what follows from that.

TOOHEY J: Yes, I understand that.

MR JACKSON:  So I accept, and I was about to say that, in

effect, as His Honour did, he did not find a

representation in those precise terms. But

Your Honours will see the nature of it there set

out:

and would procure Peats partners and clients

to subscribe and pay for all shares in the

· syndicate by -

the critical date. The next page is the equivalent

pleading in the other case in the same terms.

The case was fought on the representations as pleaded but the respondents' case was that no such

representations had been made. In that regard,

Your Honours will see, behind tabs 10 and 11, by

way of example in respect of the principal

witnesses in respect of each of the respondents

that the way in which they were examined was, "Did this conversation take place? 11 , "No", "No 11 , "No. "

And Your Honours, if one reads through those pages it is like, one might think, one was listening to

the USSR representative of the Security Council in

the days that are past.

Cummings 17/9/93

Having said that, both the Fair Trading Act

and the Trade Practices Act contain provisions dealing with the burden of proof in respect of representations as to future matters, as

Your Honours will see from their terms, these were.

The relevant provision may be seen extracted at

page 145. It is the provision, of course, from the

Fair Trading Act. Your Honours will see it says two things: first in subsection (1) that:

where a person makes a representation with

respect to any future matter ..... and the

person does not have reasonable grounds for

making the representation, the representation

shall be taken to be misleading.

So the test is reasonable grounds. Subsection (2) reverses the onus of proof and puts it on the

person who made the representation. So that the

burden of establishing that the respondents had a

basis for making the statements lay on them. They

did not seek to satisfy that onus, simply saying

that the statements had not been made.

Your Honours will see from the part to which I

referred a moment ago that the statements pleaded

were that all the shares in the syndicate would be

disposed of by the end of the financial year. The

primary judge did not go quite so far and

Your Honours will see what he found in three

passages. At page 103 Your Honours will see at the

top of - it is really a passage that goes through

in effect the whole of the page and, indeed, a

summary of it appears in a passage to which I will come in just a moment. Your Honours will see, for

example, that one of the things that was said,

between lines 20 and 25, was:

I have no difficulty in accepting that

Mr Leckie gave Mr Cummings to understand that	he (Mr Leckie) believed that, with a dealer's
licence and plenty of time, it would be
possible to sell down units worth $10 million in 1989.

That means, of course, June 1989. What His Honour

found against us on was what appears at the top of

page 104 in the first new paragraph, that we ran:

into the difficulty that there is nothing to

show that Mr Leckie did not have the

intentions and beliefs -

So that His Honour really treated the case as if it

Fair

were a case in which the section of the of reasonableness, had no application but it was a

Cummings 10 17/9/93

case which required, in a different and perhaps

older style, that absence of belief be shown.

That that is so appears from His Honour's

summary, in effect, of his reasons for decision

when he came to give his reasons for judgment on

the question of costs. Two things emerge from it,

and I will come to the passage in just a moment,

but the first is that His Honour was not himself

conscious that the finding which he made about the

representations which were made was in any way

outside the ambit of the trial which he had been

conducting, and the second thing was that he makes

it clear he did not deal with reasonableness,

although no doubt he should have because the matter

had been the subject of written submissions by us,

but dealt with it on the question whether we had

proved the absence of honest belief.

His Honour's reasons for judgment on the costs

question appear in the supplementary appeal book

behind tab 1, page 7. Your Honours will see

letter L, second sentence. It is the page numbered

at the bottom 3985.

The content of the communications between the

applicant and the representatives of the

respondents was a major question at the

trial ..... There were two aspects of that

question: whether any representations as to

success were made by the respondents, and

whether the respondents undertook an

entrepreneurial, as distinct from a

professional adviser's, role.

His Honour then goes on to say that he made findings about that, which he summarizes there and

through the next page and going on to the end of

that paragraph at letter L. Your Honours will see

that in that there is no hint in anything that

His Honour says that he thought the findings that

he made were outside the range of the case, and he

goes on to say, particularly at letter G on

page 3986, that the:

claims failed, not because I was unsatisfied

about the making of the representations but

because there was no evidence to suggest that

those who made the representations lacked an

honest belief in their truth.

Now, Your Honours, one also sees at page 19 in the

same reasons for judgment - I am using the number

at the top of the page, Your Honours - that in the

passage which goes from letter I to letter N he

says the claim failed only because he:

Cummings 11 17/9/93

was not persuaded that those who made the

optimistic statements lacked a bona fide

belief in their correctness.

Of course, the question in reality, in our

submission, was whether the respondents had proved

a reasonable basis for the making of the

representations and His Honour did not deal with

that issue at all. One sees, for example, that if

he had proceeded to deal with it, matters that

would be taken into account by him would be, for

example, that which appears at page 105 of the

application book where he compares, in the third

line, the view taken by people other than Mr Leckie with the view of Mr Leckie. He proceeds to say, in

effect, Mr Leckie was honest but other people had a

different view.

The Full Cow:t, when the matter came - - -

TOOHEY J: Just before you go to the Full Court, Mr Jackson,

is it the position that the trial judge made no

express finding rejecting the claims under the Fair

Trading Act as pleaded?

MR JACKSON:  Your Honour, may I answer it this way: what

His Honour did was that he did not accept that the representations upon which we relied in the

pleading had been made in those terms. He then

proceeded to say, as appears from the passages to

which I referred a moment ago, that there were

representations which were made - I will not go

back - - -

TOOHEY J: No, I understand that. It was the first step

that my question was directed at. Can you tell us

where we find what His Honour said as to the

representations as pleaded.

MR JACKSON:  Yes, I can, Your Honour. It is the bottom of

page 102 - it is the last couple of lines and the

top of the next page. Although His Honour does

not, in terms, say that he is there rejecting the

representations as pleaded, that seems to be the

effect of what he was saying.

DAWSON J:  And His Honour may have thought that relieved him

from the obligation of considering the question of

onus of proof. It does not appear explicitly, does

it?

MR JACKSON:  No, I am sorry, Your Honour, with respect,

His Honour does not really take that view because,

if one looks at his substantive judgment, and also

the costs judgment, what he says is that the claim
under the Fair Trading Act, although the precise

representations he found were not exactly the same

Cummings 12 17/9/93

as those pleaded, that claim would have succeeded

had it not been for our being unable to prove the

lack of honest belief. One sees that particularly

set out in the second of the passages to which I

referred in the judgment on costs.

TOOHEY J: And is that passage on pages 102 and 103 the only

relevant statement as to the representations as

pleaded?

MR JACKSON:  I think so. If my learned friends have another

passage, they can no doubt give it to Your Honours

if it becomes necessary. But, at any event,

Your Honours, we accept that His Honour did not

find in our favour on the representations in the

terms in which they were pleaded.

But one would think, however, with respect,

that in a sense the best judge of how the case was

fought and what the range of matters before the

court was was the primary judge and Your Honours

will see in the observations which he made on the

question of costs that there is no hint that the
finding of representations in the way in which he

did find them was something outside the range of

the case.

Could I just go then to the position in the

Full Court. The Full Court adverted to the

matter - and I am referring to the judgment of

Mr Justice Sheppard and Mr Justice Neaves at

page 146. Your Honours will see in the passage

commencing at about line 10 and going through to

line 22 Their Honours refer to the fact that the

finding made by His Honour about relief did not

really deal with the point of the reasonableness of

the representation. Your Honours will see then

that Their Honours then dealt with the question, in

effect, of what should happen, what should happen

to the case.

At page 149 Their Honours say, commencing at

about line 14, having referred to the matters which

appear in the paragraph commencing on page 148 at

line 20, that they, on the appeal, could:

safely draw the conclusion that the likelihood

is that reasonable grounds would also be

established so that a new trial would serve no

purpose.

The issue was one on which the primary judge had

the advantage of seeing witnesses. Your Honours

will see that he had expressed a view which, in a

sense, was a kind of tentative view, about the

state of the market, at page 105. The proper

course, in our submission, would have been for the

Cummings 13 17/9/93

matter to be remitted to the trial judge to make

findings on the issue of reasonableness in the

light of the evidence which was before him. And it

may have been that, on such a hearing, it would

have been sought to adduce further evidence on the

part of the respondents. Maybe they could, maybe

they could not. But, Your Honours, that would be a

matter of discretion really for the primary judge. But it was not appropriate, in our submission, for the Full Court itself to say, in matters that must

have involved some understanding of the witnesses,

and on a matter on which His Honour had not

directed his attention at all, it was not

appropriate for them to say, well, we think we can

safely draw the conclusion that the likelihood is

that reasonable grounds would be established.

Then Their Honours went on - - -

GAUDRON J: Is not your difficulty, though, that in a sense

case was conducted differently on the appeal from

Their Honours were being unduly favourable to you?

the way it was conducted below.

MR JACKSON: Differently only, Your Honour, in the most

marginal way, with respect. What had happened at

the trial was that it was contended that the

representations had been made. What was found was

that representations, not quite in those terms or

in somewhat different terms, had been made and

those were representations which would themselves

give rise to a cause of action. They would give

rise to a cause of action and they were ones on

which the primary judge would have allowed us to

succeed, had it - - -

DAWSON J:	But they did not give rise to questions of onus.
MR JACKSON:	But they did, Your Honour.

DAWSON J:	No, because they were not the ones pleaded.
MR JACKSON:	Your Honour, I am sorry, with respect, what I am seeking to say about it is that in relation to
them what one has inevitably in cases of this kind
is that the representations which are found may differ in various respects from those which are
actually pleaded, but if one looks at what was
pleaded in the present case and what was found, the
difference is only of a relatively marginal kind
because what was found, in effect, was that they
could sell sufficient, on the one hand; what was
alleged was that they could sell all. Now,
Your Honour, that difference, in our submission,
was not of especial significance and one would
think it is the kind of thing that inevitably arises in cases of this kind dealing with

Cummings 14 17/9/93

section 52 and the equivalent provisions of the

State Act.

DAWSON J: It is not really as simple as that, is it,

Mr Jackson? I mean you point to the pages where

they denied the representations which are pleaded.

Once the judge accepts that, that is the end of

that. Perhaps he could find that there were other

representations made but, naturally enough, the

evidence was not directed to the reasonableness of

both representations. The pleadings do have some

function in defining the issues ..

MR JACKSON:  Your Honour, I would not debate that

proposition, would not cavil with that proposition,

of course, but it is a question of what - one does

not, of course, in our submission, have to - it is

undoubtedly a counsel of perfection to get

everything exactly right, but the whole nature of representations of this kind is that they tend to be representations made orally, they tend to be

ones where it is very likely that the judge will

find that they were not made in precisely the same
terms, and in circumstances of that kind the

parties are really working within an area, the

ultimate conclusion sought to be arrived at is

indicated by the pleading but the range of matters,

in our submission, is not quite as wide as that.

Now, Your Honours, if one were to seek to - it

puts one in the difficult situation, is one to seek

then to amend when the judge has given his decision

to encompass the new representation.

DAWSON J: That may be, but when you seek, in effect, to

amend at the stage of the appeal, then surely it is

open to the appeal court to say, well, we can look

at the evidence and see whether there is any real

foundation for any suggestion that there was no

foundation for these representations you now want

to plead. Surely the appeal court can do that and

it did, and found against you - or these two judges

did.

MR JACKSON:  What Their Honours did was not to say t~e

representations had not been made but rather to say
that they thought, on a view they took of the

evidence, that the finding would be made against us

on that point. But the point of complaint, as it

were, about that is that that really was a matter
which should have been remitted to the primary

judge to deal with, rather than the court itself

endeavouring to form a view on a question which must have turned, at least to some extent, on a

question of the view of the witnesses.

Cummings 15 17/9/93

Your Honours, the other thing that I wish to

say about this, the other view taken by the
majority was that the case was one that had been

fought on rather narrower grounds. What we would simply say about that is that if one looks at the view taken by the primary judge on the matter, that

seems a view that we would submit, with respect,

was not open. His Honour clearly had the case in

mind and deals with the whole of it.

DAWSON J: But the view they took was, having regard to the

success of the 1989 venture, the previous venture,

you could not really under any circumstances come

to the conclusion that there were not reasonable

grounds for the representations which the trial

judge actually found to have been made.

MR JACKSON:  Your Honour, the representations that

His Honour found were representations which were

continuing, and they were representations which

continued up to the time of the events of the

syndicates, which took one past that and to a time
when, to the extent to which His Honour did make

any finding about it, he said that the tide had

turned. Now, if they were continuing

representations, or to be treated as continuing,

then in those circumstances, if there had been a

change, there should have been some notification of

it.

Your Honours, those are our submissions.

DAWSON J:  We need not trouble you, Mr Horton and Mr Hughes.

This case turns on its own facts and raises no

point of general principle. In all the
circumstances, and having regard to the manner in
which the applicant's case was conducted in the

courts below, it does not warrant the grant of

special leave.

Special leave will therefore be refused.

MR HUGHES: Costs, Your Honour?

MR JACKSON: There is nothing I can say to that,

Your Honour.

DAWSON J: With costs.

AT 10.09 AM THE MATTER WAS ADJOURNED SINE DIE

Cummings 16 17/9/93