GREEN & ORS -v- WILDEN PTY LTD & ORS [2004] WASC 105

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 105
Published:	21/05/2004
Case No:	CIV:3049/1991	Heard:	22 APRIL 2004
Coram:	HASLUCK J	Delivered:	22/04/04
No of pages:	17	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	A
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Parties:	GRAEME WILLIAM GREEN W J GREEN & CO (1984) PTY LTD (ACN 008 851 867) SHARYN LEE GREEN JULIE ANNE GREEN WILLIAM JOSEPH GREEN NORMA GLENYCE GREEN WILDEN PTY LTD (ACN 009 143 033) MAGENTA NOMINEES PTY LTD (ACN 009 340 158) TACE PTY LTD (ACN 009 204 915) SYDNEY JAMES CHESSON BERT LEONARD DENBOER CALLAO PTY LTD (ACN 008 867 552) BENRONE PTY LTD (ACN 008 931 084) DELTABROOK PTY LTD (ACN 009 462 695) JOHN MARTIN KELLY
Catchwords:	Practice and procedure No case to answer submissions Application by defendants to put no case submission at close of plaintiffs' case Whether defendants should be required to elect not to call evidence before putting no case submission Principles concerning procedure to be followed General practice that election will be required Circumstances in which a departure from the general practice will be allowed General practice applied in circumstances of the present case Refusal to rule upon no case submission unless an election was made
Legislation:	Nil
Case References:	BHP Steel (RP) Pty Ltd t/as BHP Reinforcing Products v ABB Engineering Construction Pty Ltd [2001] WASCA 294 Compaq Computer Australia Pty Ltd v Merry, Payes, Bunnett, Sharp, Bassat, Kras, Horman & Thomson (1998) 157 ALR 1 J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA) (No 2) (1992) 111 ALR 377 Prentice v Cummins (No 4) [2002] FCA 1215 Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187 Rasomen Pty Ltd (t/as Shell Fairview Park) v Shell Company of Australia Ltd (1997) 144 ALR 497 Humphrey v Collier [1946] VLR 391 Jones v Peters [1948] VLR 331 Residues Treatment Trading Co Ltd v Southern Resources Ltd (1989) 52 SASR 54 Union Bank of Australia Ltd v Puddy [1949] VR 242 William H Muller & Cl Algemeene etc v Ebbw Vale Steel Iron & Coal Co Ltd [1936] 2 All ER 1363

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : GREEN & ORS -v- WILDEN PTY LTD & ORS [2004] WASC 105 CORAM : HASLUCK J HEARD : 22 APRIL 2004 DELIVERED : 22 APRIL 2004 PUBLISHED : 21 MAY 2004 FILE NO/S : CIV 3049 of 1991

CIV 3050 of 1991

CIV 2965 of 1990

CIV 2966 of 1990

Consolidated by order dated 5 August 1998

BETWEEN : GRAEME WILLIAM GREEN

First Plaintiff

W J GREEN & CO (1984) PTY LTD (ACN 008 851 867)

Second Plaintiff

SHARYN LEE GREEN

GRAEME WILLIAM GREEN

JULIE ANNE GREEN

WILLIAM JOSEPH GREEN

NORMA GLENYCE GREEN

Third Plaintiffs

AND

WILDEN PTY LTD (ACN 009 143 033)

First Defendant

(Page 2)

MAGENTA NOMINEES PTY LTD (ACN 009 340 158)

Second Defendant

TACE PTY LTD (ACN…

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.

Continue reading Green v Wilden Pty Ltd

Details

AGLC: Green v Wilden Pty Ltd [2004] WASC 105
Case: [2004] WASC 105
Decision Date: 21 MAY 2004

CaseChat Overview and Summary

In the case of Green v Wilden Pty Ltd, the plaintiffs, Green, sought damages for alleged breaches of contract and misrepresentations made by the defendant, Wilden Pty Ltd, in relation to a property sale. The matter was before the court where the defendants applied to make a no case to answer submission at the close of the plaintiffs' case, without having elected not to call evidence. The court had to determine whether the defendants could proceed with their no case to answer application without having made an election not to call evidence. The primary legal issue was whether the defendants should be required to elect not to call evidence before they could make a no case to answer submission, and what principles should guide the court in deciding this issue.

The court considered the principles concerning the procedure to be followed in such circumstances. It noted the general practice that a party must elect not to call evidence before making a no case to answer submission, but also recognised that there are exceptional circumstances in which a departure from this general practice may be allowed. The court held that the general practice should be applied in the circumstances of this case, and that the defendants' application for a no case to answer submission would be refused unless they first made an election not to call evidence. The court found that the defendants had not made such an election, and therefore dismissed their application.

The court's reasoning was based on the importance of maintaining a fair and orderly trial process, and ensuring that both parties have a reasonable opportunity to present their cases. The court held that the defendants' failure to make an election not to call evidence before making their no case to answer submission was a procedural irregularity that could not be overlooked. The court refused to rule upon the no case to answer submission unless the defendants first made an election not to call evidence, and dismissed their application accordingly.

Orders

Orders of the court

Application 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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