Groom v Abela

[1992] QCA 43

IN THE COURT OF APPEAL	[1992] QCA 043
SUPREME COURT OF QUEENSLAND	No. 1748 of 1990
Before the Court of Appeal

The President
Mr. Justice Davies

Mr. Justice Shepherdson

BETWEEN:

ERIC LESLIE GROOM, BETTY LESLIE
GROOM and ALAN BERNARD GROOM

(Plaintiffs)

Appellants

AND:

WILLIAM CHARLES ABELA

(Defendant)

Respondent

BY ORIGINAL ACTION

AND BETWEEN:

WILLIAM CHARLES ABELA

(Plaintiff)

Respondent

AND:

ERIC LESLIE GROOM, BETTY LESLIE
GROOM and ALAN BERNARD GROOM

(Defendants)

Appellants

BY COUNTER-CLAIM

JUDGMENT OF THE COURT

Delivered the 1st day of April, 1992

The appellants Eric Leslie Groom and Betty Leslie Groom ("the Grooms") bought from the respondent Abela a 15 metre fibreglass catamaran named "Keno Runner" fitted with two diesel motors. The price was $400,000. The purchase was completed on 19th or 20th September, 1988. Balance purchase moneys of $340,000 which remained owing to Abela were the subject of security documents given by the Grooms and the appellant Alan Bernard Groom.

On or about 16 September, 1990 the respondent re-took possession of the vessel when the appellants were in arrears with payments under the securities. On 30th October, 1990 the appellants issued the writ in this action seeking by way of principal relief to have the sale agreement and the securities declared void on the basis of oral fraudulent misrepresentations allegedly made by the respondent in order to induce the Grooms to enter into the sale agreement and the appellants to execute the securities.

This action, including a counterclaim by the respondent for relief under his securities as well as a claim for damages, was tried by Mackenzie J.. Although their pleadings had been settled by Counsel, Mrs Betty Leslie Groom represented the appellants at the trial.

Mackenzie J. dismissed the appellants' action and gave

judgment for the respondent on his counterclaim.

Before this Court Mr Williams Q.C. for the appellants argued that, if the trial judge had properly understood the evidence concerning the central allegations of fraudulent misstatement in respect of the quality, condition and/or suitability of the vessel's engines and associated parts, he would have made findings adverse to the respondent's credibility and concluded that he had deliberately misled the appellants. Reliance was placed particularly upon the misrepresentations pleaded in paragraphs 7(e) to (g) of the Statement of Claim which read:-

"(e) the motors installed in the said vessel were

`Issota-franchani' [sic] and they were `the best

that money could buy';

(f)	in respect of the motors, there were nothing better for the vessel and that he would `personally guarantee the life of them';
(g)	the gear boxes in the said vessel were Z.F. type and were `the best he could buy'.

As the argument unfolded, it emerged that the appellants' essential complaint could not be related to these allegations without considerable difficulty. The motors and gear box were of the type stated by the respondent in discussions prior to sale, and, as accepted by the appellants, were quality products. However, there had been problems associated with the engine mountings which had been changed once and perhaps twice in a quite brief period between the construction of the vessel for the respondent and the pre-sale discussions between the parties which, because of the appellants' need to arrange finance, took place some months prior to the sale. The appellants relied upon the respondent's favourable statements in the context of his non-disclosure of the problems with, implicitly, an assertion that he knew that the problems continued to exist, presumably when he made the material statements or perhaps when the sale occurred.

The difficulties in the appellants' relying on any such case on the basis of their pleaded allegations were compounded by the absence of a satisfactory evidentiary foundation. The

evidence with respect to the history of the vessel's been problems and that the mountings had been replaced. The appellants completely failed to establish that the respondent knew that there were continuing problems which he concealed from the appellants or that he misrepresented the position in his statements to the appellants. They similarly failed to demonstrate that the trial judge must have erred in accepting the respondent's denials of allegations which the appellants made.

problems, especially with respect to the engine mountings
was, at best, confused. However, there was cogent evidence
to suggest that, not long prior to his discussions with the
appellants, the respondent had had the manufacturer's
recommended mountings installed to replace those which had
previously been used. It is also clear not only from the
respondent's evidence but from the questions put to him by

In the circumstances, it is unnecessary to consider other difficulties which confront the appellants, including the question whether any reliance upon the respondent's

statements was shown.

The appeal is dismissed with costs to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	No. 1748 of 1990
BETWEEN:

ERIC LESLIE GROOM, BETTY LESLIE
GROOM and ALAN BERNARD GROOM

(Plaintiffs)

Appellants

AND:

WILLIAM CHARLES ABELA

(Defendant)

Respondent

BY ORIGINAL ACTION

AND BETWEEN:

WILLIAM CHARLES ABELA

(Plaintiff)

Respondent

AND:

ERIC LESLIE GROOM, BETTY LESLIE
GROOM and ALAN BERNARD GROOM

(Defendants)

Appellants

BY COUNTER-CLAIM

The President
Mr Justice Davies
Mr Justice Shepherdson

Judgment of the Court delivered the 1st day of April, 1992

APPEAL DISMISSED WITH COSTS TO BE TAXED

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	No. 1748 of 1990
Before the Court of Appeal

The President
Mr. Justice Davies

Mr. Justice Shepherdson

BETWEEN:

ERIC LESLIE GROOM, BETTY LESLIE
GROOM and ALAN BERNARD GROOM

(Plaintiffs)

Appellants

AND:

WILLIAM CHARLES ABELA

(Defendant)

Respondent

BY ORIGINAL ACTION

AND BETWEEN:

WILLIAM CHARLES ABELA

(Plaintiff)

Respondent

AND:

ERIC LESLIE GROOM, BETTY LESLIE
GROOM and ALAN BERNARD GROOM

(Defendants)

Appellants

BY COUNTER-CLAIM

JUDGMENT OF THE COURT

Delivered the 1st day of April, 1992

MINUTE OF ORDER:	Appeal dismissed with costs to be taxed.
CATCHWORDS:	Fraudulent misstatement - appeal against findings
Counsel:	S.J. Williams Q.C., with with him K. Varley for appellants
J. Sullivan for respondents
Solicitors:	Barker Gosling for appellants Ollsen and Associates for respondents

Hearing date: 10 March, 1992