Re: JAMES BARTHOLOMEW CUMMINGS and NOEL SIDNEY LECKIE And: DESMOND RUNDLE; JOHN BRADSHAW; PAUL ISHERWOOD and MICHAEL TERENCE LEWIS No. N G488 of 1991, 392 and 406 of 1992 FED No. 190 Number of pages - 99 Appeal - Practice and Procedure - Contribution - Costs (1993) 113 ALR 285 (1993) 41 FCR 559
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION Sheppard(1), Neaves(1) and Cooper(2) JJ.
CATCHWORDS
Appeal - whether appellant precluded from relying upon representations (found by the trial judge) which were not pleaded or which diverged from those pleaded - whether trial conducted on pleadings - whether respondents may have conducted their cases differently if they had known nature of case made against them for the first time on appeal.
Practice and Procedure - pleadings - whether alleged representations as to future conduct - whether alleged representations promissory - statutory reversal of onus of proof - whether necessary for an applicant to plead representation clearly.
Contribution - scheme for the syndication of horses in a tax-attractive manner and marketing thereof to clients of accounting firms - whether appellants entitled to contribution from respondents for losses resulting from purchase of bloodstock - whether circumstances such that an order for contribution should be made.
Costs - appeal against order for costs depriving successful respondents of part of their costs - whether trial judge entitled to take into account conduct of respondents in failing to concede matters which ought to have been conceded - whether conduct of respondents unreasonable - whether circumstances in which Full Court entitled to interfere with exercise of discretion by trial judge.
Counsel for the Appellant: Mr F.S. McAlary QC and Mr V.R.W.Gray
Solicitors for the Appellant: Malcolm Johns and Company
Counsel for the First, Second and Third Respondents: Mr D.E. Horton QC and Mr J.T. Gleeson
Solicitors for the First, Second and Third Respondents: Freehill, Hollingdale and Page
Counsel for the Fourth and Fifth Respondents: Mr T.E.F. Hughes QC and Mr P.M. Jacobson
Solicitors for the Fourth and Fifth Respondents: Norton Smith and Co.
ORDER
1. The Appeal is dismissed.
2. The Appellants pay the Respondents' costs of and incidental
to the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
SHEPPARD and NEAVES JJ. In this matter we have had the advantage of reading the judgment to be delivered by Cooper J. We agree with his conclusion that the three appeals should be dismissed and generally with his reasons.
The appeal by Mr. Cummings, with which we first deal, has been concerned with two causes of action, an action by Mr. Cummings for contribution and an action by him for misleading or deceptive conduct engaged in by the respondents brought pursuant to s.41 of…
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.
Cummings v Lewis was an appeal by the appellants against the judgment of the trial judge in the Federal Court. The respondents had alleged that the appellants had engaged in misleading and deceptive conduct by making false representations regarding the quality of certain goods sold. The appellants denied the allegations and the case proceeded to trial. At trial, the trial judge found that the appellants had made certain representations that were misleading and deceptive. However, these representations were not pleaded by the respondents, and the representations found by the trial judge were different to those pleaded.
The central legal issue before the court was whether the appellants were precluded from relying upon the representations found by the trial judge because they were not pleaded or because they diverged from those pleaded. The appellants argued that the trial should have been conducted on the pleadings and that the respondents may have conducted their cases differently if they had known the nature of the case made against them for the first time on appeal.
The court held that the appellants were precluded from relying upon the representations found by the trial judge as they were not pleaded or because they diverged from those pleaded. The court held that the trial was not conducted on the pleadings but rather on the evidence adduced at trial. The court also held that the respondents could not be said to have conducted their cases differently if they had known the nature of the case made against them for the first time on appeal. The appeal was dismissed and the appellants were ordered to pay the respondents' costs of and incidental to the appeal.
Orders
Orders of the court
1. The Appeal is dismissed.
2. The Appellants pay the Respondents' costs of and incidental
to the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.