Gould v Day

[1999] NSWCA 61

CITATION:	Gould v Day & Anor [1999] NSWCA 61
FILE NUMBER(S):	CA 40828/97
HEARING DATE(S):	16 March 1999
JUDGMENT DATE:	16 March 1999
PARTIES :	Stephen Gould v Julian Day & Alan Manly
JUDGMENT OF:	Priestley JA at 1; Stein JA at 15; Fitzgerald AJA at 16

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	3616
LOWER COURT JUDICIAL OFFICER:	His Honour Judge Patten

COUNSEL:	Appellant - S. Gould in person Respondent (1) - J. Day in person Respondent (2) - A. Manly in person
SOLICITORS:	Appellant - S. Gould in person Respondent (1) - J. Day in person Respondent (2) - A. Manly in person
CATCHWORDS:	Breach of agreement
DECISION:	Appeal dismissed

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40828/97
DCC 3616

PRIESTLEY JA
STEIN JA
FITZGERALD JA

Tuesday, 16 March 1999

GOULD v DAY & ANOR

1 PRIESTLEY JA: We are of the view that this appeal must fail. Mr Gould has put a number of submissions to the Court with a certain degree of combined persistence and good humour, only some of which, however, had any relevance to the case that was made before the District Court and hence to the appeal.
2 The District Court judge described in his reasons the claim that was brought by Mr Gould before him. It was based on two documents that were said to have become binding contracts between Mr Gould on the one hand and Mr Day and Mr Manly on the other.
3 The judge found that none of those people were parties to either of the contracts. The judge also found that the documents did not amount to binding contracts in any event irrespective of the parties.
4 Mr Gould has submitted that when one looks at the documents they can be seen to be fully contractual in form. It is unnecessary to decide that submission because the point about parties is quite decisive in this case.
5 The documents relied on, whether they were contracts or not, make quite clear who the parties to them were, and the parties did not include Mr Gould, Mr Day or Mr Manly.
6 The judge also found that on the evidence presented before him Mr Gould had not established any damage. The Court is unable to say anything about that because there is not before the Court all the materials necessary to assess whether the judge may have made an error in that respect. On such materials as are available, the Court has no reason to doubt what the judge said on this point.
7 So, we have before us a situation where the judge found in regard to the alleged breaches of two alleged contracts which breaches wee alleged to have caused damage, that there were no binding contracts, the parties were not the proper parties and there had been no damage.
8 An appeal against such findings faces formidable obstacles at the best of times. In the present case where Mr Gould, in preparing his appeal papers, did not include the transcript of what happened before the trial judge, the difficulties for the appellant became even greater.
9 Having heard Mr Gould say what he could in support of his appeal, the Court is of the view that there is no substance in any of his grounds. There is no need to go into them because the matter of the parties, which I have already mentioned, is the clearest and most obvious reason why the appeal must fail. The parties are not right on either side of the record.
10 The only other thing that may possibly be useful to say is that Mr Gould may be labouring under a sense of grievance about what happened to him in the transactions in which he and Messrs Day and Manly were concerned.
11 In dealing with his application for adjournment earlier I mentioned what he had said in a letter that he wrote to Messrs Day and Manly very shortly before the hearing in the District Court.
12 In the light of that letter it may be questionable just how deeply based Mr Gould’s sense of grievance is, but in any event if he has a genuine grievance he chose a cause of action which was really, as things turned out, quite inappropriate for such grievance as he might have. When I say “cause of action” I am referring to the various matters that he set out in his statement of claim in its form before the trial judge.
13 On the materials before this Court there is no basis for any criticism of what the trial judge said in his reasons for dismissing Mr Gould's case before him.
14 In my opinion, therefore, the appeal must be dismissed with costs.
15 STEIN JA: I agree.
16 FITZGERALD JA: I agree and would only add that Mr Gould referred before us to claims for negligence, misrepresentation and unconscionable conduct on the part of the respondents. No claim for negligence was pleaded and the misrepresentations and unconscionable conduct as pleaded were not the subject of evidence so far as can be discerned from the material which is available to this Court.
17 The only other matter that I would add is that the notice of appeal does not include a ground of appeal against the judge's conclusion with respect to the appellant’s failure to prove loss.
18 I agree that the appeal should be dismissed for the reasons given by the presiding judge.
19 PRIESTLEY JA: The orders of the Court are that the appeal is dismissed with costs.

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