FLETCHER & ANOR -v- OULD PTY LTD [2003] WASC 226

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 226
Case No:	CIV:2628/2000	Heard:	3-4 FEBRUARY & 2021 MARCH 2003
Coram:	COMMISSIONER JOHNSON QC	Delivered:	12/11/03
No of pages:	52	Judgment Part:	1 of 1
Result:	Judgment for the plaintiff Dismissal of the defendant's counterclaim
Category:	B
PDF Version

Parties:	BRIAN FLETCHER BAYSILK HOLDINGS PTY LTD OULD PTY LTD (ACN 009 408 584)
Catchwords:	Mortgages and securities Mortgages Indebtedness Onus of proof Turns on own facts Contract Existence of contract Turns on own facts
Legislation:	Nil
Case References:	Browne v Dunn (1894) 6 R 67 Fletcher & Anor v Ould Pty Ltd [2001] WASC 181 Jones v Dunkel (1959) 101 CLR 298 Julong Pty Ltd v Fenn [2003] ANZ ConvR 379 Young v Queensland Trustees Ltd (1956) 99 CLR 560 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : FLETCHER & ANOR -v- OULD PTY LTD [2003] WASC 226 CORAM : COMMISSIONER JOHNSON QC HEARD : 3-4 FEBRUARY & 2021 MARCH 2003 DELIVERED : 12 NOVEMBER 2003 FILE NO/S : CIV 2628 of 2000 BETWEEN : BRIAN FLETCHER

BAYSILK HOLDINGS PTY LTD

Plaintiffs

AND

OULD PTY LTD (ACN 009 408 584)

Defendant

FILE NO/S : CIV 2208 of 2001 BETWEEN : OULD PTY LTD (ACN 009 408 584)

Plaintiff

AND

BRIAN FLETCHER

Defendants

Catchwords:

Mortgages and securities - Mortgages - Indebtedness - Onus of proof - Turns on own facts

(Page 2)

Contract - Existence of contract - Turns on own facts

Legislation:

Nil

Result:

Judgment for the plaintiff

Dismissal of the defendant's counterclaim

Category: B

Representation:

CIV 2628 of 2000

Counsel:

Plaintiffs : Mr M J McCusker QC

Defendant : Mr M J Hawkins

Solicitors:

Plaintiffs : Chris Stokes & Associates

Defendant : Williams & Co

CIV 2208 of 2001

Counsel:

Plaintiff : Mr M J Hawkins

Defendants : Mr M J McCusker QC

Solicitors:

Plaintiff : Williams & Co

Defendants : Chris Stokes & Associates

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

Browne v Dunn (1894) 6 R 67
Fletcher & Anor v Ould Pty Ltd [2001] WASC 181
Jones v Dunkel (1959) 101 CLR 298
Julong Pty Ltd v Fenn [2003] ANZ ConvR 379
Young v Queensland Trustees Ltd (1956) 99 CLR 560

(Page 3)

Case(s) also cited:

Nil

(Page 4)

1 COMMISSIONER JOHNSON QC: This action was commenced by originating summons on 28 November 2000. The plaintiffs seek a declaration that all moneys secured in favour of the defendant pursuant to a mortgage and a debenture, both dated 4 July 1995, have been repaid and also seek consequential orders requiring the discharge of the mortgage and debenture and the release of the real and personal property secured thereby and subject to caveat.

2 As the action involves considerable factual disputes which cannot be effectively disposed of upon affidavit material alone, an originating summons is not, in my view, the appropriate initiating process. However, the Master has already ruled on this issue…

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: [2003] WASC 226
Decision Date

CaseChat Overview and Summary

In the case of Fletcher v Ould Pty Ltd, the Supreme Court of Western Australia ruled on a dispute involving two loans and consultancy fees between the plaintiffs, Brian Fletcher and Baysilk Holdings Pty Ltd, and the defendant, Ould Pty Ltd. The court examined the credibility of the evidence presented by both parties, focusing on the documentary evidence and witness testimonies. The plaintiffs argued that the loans had been repaid and that no additional consultancy fees were owed, while the defendant claimed that two loans and consultancy fees were still outstanding. The court found that Mr Hooper, the defendant's representative, was an unsatisfactory witness due to inconsistencies and evasiveness in his testimony. The court concluded that the plaintiffs had discharged the burden of proving that the sums claimed by the defendant had been repaid, and dismissed the defendant's counterclaim. The court ruled in favour of the plaintiffs, finding that the loans had been repaid and no additional consultancy fees were owed.

Orders