Grimson, Martin Harold v O'Donnell, Gary Francis

[1997] FCA 887

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 935  of   1996

BETWEEN:

MARTIN HAROLD GRIMSON
FIRST APPELLANT

RICKY MARTIN GRIMSON
SECOND APPELLANT

AND:

GARY FRANCIS O'DONNELL
FIRST RESPONDENT

EVENLONG PTY LTD
SECOND RESPONDENT

ENIMA PTY LTD
THIRD RESPONDENT

JUDGES:

WHITLAM, TAMBERLIN, SACKVILLE JJ

DATE OF ORDER:

13 MAY 1997

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 935 of 1996

BETWEEN:

MARTIN HAROLD GRIMSON
FIRST APPELLANT

RICKY MARTIN GRIMSON
SECOND APPELLANT

AND:

GARY FRANCIS O'DONNELL
FIRST RESPONDENT

EVENLONG PTY LTD
SECOND RESPONDENT

ENIMA PTY LTD
THIRD RESPONDENT

JUDGES:	WHITLAM, TAMBERLIN, SACKVILLE JJ
DATE:	13 MAY 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WHITLAM J

This is an appeal from a judgment of Lindgren J dismissing the appellants’ claims against the respondents.  The appellants’ case at first instance involved alleged representations by the respondents in respect of the sale of a hotel business and lease of hotel premises at Bungendore in New South Wales.  His Honour dealt with the case very thoroughly in reasons for judgment comprising nearly seventy pages.

The supplementary notice of appeal specifies forty-two grounds of appeal.  Yet Mr Rothman, senior counsel for the appellants, has developed essentially only two bases of attack upon the judgment below.  One relates to the involvement of the third respondent in representations allegedly made in July 1991. That will only become relevant if the other basis upon which the decision is challenged succeeds.  This relates to one of those representations, namely, that a valuation of the hotel by a Mr L C Marjason was “an accurate document in all respects”.  This representation is alleged against all the respondents.

In support of his argument on this second point, Mr Rothman referred particularly to the figures for takings from poker machines (or “approved amusement devices” as his Honour called them) in the Marjason report.  The figures in the report are derived for weekly periods.  Mr Rothman drew attention to the way in which, prior to the sale, a loan made by the first respondent to the former proprietor of the hotel was being repaid out of the proceeds of those devices.  Mr Rothman was at pains to point out the information that the first respondent must, therefore, have had of the actual takings being achieved from the amusement device machines, and that material, it is said, must have revealed to him that the figures in the Marjason report were wrong.  However, his Honour specifically found that the first respondent never turned his mind to that question.  In addition, his Honour made express findings that the trading figures were not shown to be incorrect or false.

The appellants have been unable to demonstrate either that the trial judge erred in his approach to any question or that any finding of fact was not amply justified on the evidence before him.  I would accordingly dismiss the appeal with costs.

TAMBERLIN J:        I agree with that order and with the reasons which have been given by the presiding judge in this matter.

SACKVILLE J:         I too agree with the conclusions and the reasons of the presiding judge.  It seems to me that no basis has been established for challenging any of the findings made by the learned trial judge and dealt with in such detail in his Honour’s judgment.

I certify that this and the preceding two (2) pages is a true copy of the Reasons for Judgment respectively of their Honours Justice Whitlam,  Justice Tamberlin and Justice Sackville

Associate:

Dated:            13 May 1997

Counsel for the appellants:	S C Rothman SC and I H Wallach
Counsel for the respondents:	J W J Stevenson
Solicitors for the respondents:	Clayton Utz
Date of hearing:	13 May 1997
Date of judgment:	13 May 1997