FIREPAT PTY LTD -v- CLYDEBANK PTY LTD [2007] WASCA 13

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 13
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:92/2005	Heard:	6 SEPTEMBER 2006
Coram:	MARTIN CJ ROBERTS-SMITH JA BUSS JA	Delivered:	18/01/07
No of pages:	18	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
PDF Version

Parties:	FIREPAT PTY LTD CLYDEBANK PTY LTD
Catchwords:	Appeal Deficiencies in grounds of appeal and inadequacy of submissions Allegations of breach of contract for manufacture and supply of greenhouse Allegations of misleading and deceptive conduct and negligence Ample evidence to sustain findings of fact made at first instance No apparent error in evaluation of that evidence Turns on its own facts
Legislation:	Nil
Case References:	Baltic Shipping Co v Dillon (1993) 176 CLR 344 Hoenig v Isaacs [1952] 2 All ER 176 House v The King (1936) 55 CLR 499 Marginson v Ian Potter & Co (1976) 136 CLR 161 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FIREPAT PTY LTD -v- CLYDEBANK PTY LTD [2007] WASCA 13 CORAM : MARTIN CJ

ROBERTS-SMITH JA

BUSS JA

HEARD : 6 SEPTEMBER 2006 DELIVERED : 19 JANUARY 2007 FILE NO/S : CACV 92 of 2005 BETWEEN : FIREPAT PTY LTD

Appellant

AND

CLYDEBANK PTY LTD

Respondent

ON APPEAL FROM:

For File No : CACV 92 of 2005

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : COMMISSIONER STAVRIANOU

Citation : FIREPAT PTY LTD v CLYDEBANK PTY LTD

File No : CIV 2894 of 2002

(Page 2)

Catchwords:

Appeal - Deficiencies in grounds of appeal and inadequacy of submissions - Allegations of breach of contract for manufacture and supply of greenhouse - Allegations of misleading and deceptive conduct and negligence - Ample evidence to sustain findings of fact made at first instance - No apparent error in evaluation of that evidence - Turns on its own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr B P Wheatley

Respondent : Mr P T Arns

Solicitors:

Appellant : Nicholson Clement

Respondent : Arns & Associates

Case(s) referred to in judgment(s):

Baltic Shipping Co v Dillon (1993) 176 CLR 344
Hoenig v Isaacs [1952] 2 All ER 176
House v The King (1936) 55 CLR 499
Marginson v Ian Potter & Co (1976) 136 CLR 161

Case(s) also cited:

Nil
(Page 3)

MARTIN CJ

Summary

1 This appeal was brought from a decision of a Commissioner of the District Court. The proceedings before the Commissioner arose from a dispute relating to the sale of a kit for the construction of a greenhouse. For reasons which I will give, the grounds of appeal are without substance. The decision of the Commissioner should be affirmed and the appeal dismissed.

The Issues in the Case

2 The proceedings in the District Court were commenced by Mr Barry McFarlane and Firepat Pty Ltd ("Firepat"). Mr McFarlane is a director of Firepat. Firepat carries on…

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: [2007] WASCA 13
Decision Date: 19 JANUARY 2007

CaseChat Overview and Summary

The case of Firepat Pty Ltd v Clydebank Pty Ltd was heard in the court of appeal. The plaintiff, Firepat, sought to appeal against the findings of the lower court which dismissed their claims against the defendant, Clydebank. Firepat had alleged that Clydebank breached a contract for the manufacture and supply of greenhouses, engaged in misleading and deceptive conduct, and was negligent in their actions. The appeal was based on the grounds that the lower court had erred in its evaluation of the evidence and its conclusions of fact.

The central legal issues in the appeal were whether the lower court had sufficient evidence to support its findings, and whether there were any apparent errors in the evaluation of that evidence. Firepat argued that the lower court's findings were not supported by the evidence presented and that there were material errors in the evaluation of that evidence. The court had to determine whether the appeal was valid and whether the findings of the lower court were correct.

The court found that there was ample evidence to sustain the findings of fact made at first instance and that there was no apparent error in the evaluation of that evidence. The court held that the appeal was deficient in that the grounds of appeal and submissions were inadequate. The court found that the appeal turned on its own facts and that there was no basis for the appeal to succeed. The appeal was dismissed, and the findings of the lower court were upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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