Guerinoni v Argyle Concrete and Quarry Supplies Pty Ltd
[1999] WASCA 185
•22 SEPTEMBER 1999
GUERINONI -v- ARGYLE CONCRETE & QUARRY SUPPLIES PTY LTD [1999] WASCA 185
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASCA 185 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:53/1999 | 22 SEPTEMBER 1999 | |
| Coram: | OWEN J WHITE J PARKER J | 22/09/99 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | MICHAEL GUERINONI ARGYLE CONCRETE & QUARRY SUPPLIES PTY LTD (ACN 009 453 294) GUERINONI INVESTMENTS PTY LTD (ACN 055 748 591) |
Catchwords: | Appeal General principles Admission of fresh evidence Whether evidence of sufficient degree to materially impact on primary issue before appeal court |
Legislation: | Corporations Law s 461(1) |
Case References: | Ebrahimi v Westbourne Galleries Ltd (1973) AC 360 Orr v Holmes (1948) 76 CLR 632 Masel v Semini, unreported; FCt SCt of WA; Library No 960383; 19 July 1996 Mulholland v Mitchell [1971] AC 666 Wollongong Corporation v Cowen (1954) 93 CLR 435 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : GUERINONI -v- ARGYLE CONCRETE & QUARRY SUPPLIES PTY LTD [1999] WASCA 185 CORAM : OWEN J
- WHITE J
PARKER J
- Appellant
AND
ARGYLE CONCRETE & QUARRY SUPPLIES PTY LTD (ACN 009 453 294)
Respondent
- Appellant
AND
GUERINONI INVESTMENTS PTY LTD (ACN 055 748 591)
- Respondent
(Page 2)
Catchwords:
Appeal - General principles - Admission of fresh evidence - Whether evidence of sufficient degree to materially impact on primary issue before appeal court
Legislation:
Corporations Law s 461(1)
Result:
Application dismissed
Representation:
FUL 53 of 1999
Counsel:
Appellant : Mr K L Christensen
Respondent : Mr P I Jooste QC
Solicitors:
Appellant : Tottle Christensen
Respondent : Paiker & Overmeire
FUL 54 of 1999
Counsel:
Appellant : Mr K L Christensen
Respondent : Mr P I Jooste QC
Solicitors:
Appellant : Tottle Christensen
Respondent : Paiker & Overmeire
(Page 3)
Case(s) referred to in judgment(s):
Ebrahimi v Westbourne Galleries Ltd (1973) AC 360
Orr v Holmes (1948) 76 CLR 632
Case(s) also cited:
Masel v Semini, unreported; FCt SCt of WA; Library No 960383; 19 July 1996
Mulholland v Mitchell [1971] AC 666
Wollongong Corporation v Cowen (1954) 93 CLR 435
(Page 4)
1 OWEN J : This is an application for leave to adduce further or fresh evidence at the hearing of an appeal which has been listed for hearing on 14 October 1999. The applicant brought an application under s 461(1) of the Corporations Law for the winding up of three companies: Argyle Concrete and Quarry Supplies Pty Ltd, Guerinoni Investments Pty Ltd and Guerinoni Nominees Pty Ltd. In relation to Nominees the application was dismissed by consent on jurisdictional grounds and it proceeded in relation to the other two companies.
2 The application in each case was brought under what is commonly called the just and equitable ground and it is relevant that the primary thrust of the applicant's case is that these companies form what is commonly referred to as a quasi-partnership as that term was developed and used in Ebrahimi v Westbourne Galleries Ltd(1973) AC 360.
3 The learned Master found that this was not, in fact, a quasi-partnership situation largely because there had never been the requisite degree of mutual trust and confidence between the principal protagonists, namely Mr Steven Guerinoni, the applicant Mr Michael Guerinoni and their sister Lisa Guerinoni.
4 The learned Master made three principal findings which are now under attack in this appeal. When I say three principal findings I am here referring to findings of fact rather than what I have referred to as the principal conclusion namely that this was not, in essence, a quasi-partnership situation. The first is to be found at p 13 of the judgment, p 28 of the appeal book, and I quote:
"There is also no doubt that there is always likely to be tension between them -
- and I interpolate Steven and Michael -
"But Steven appears to have been willing to forge a working relationship with Michael. He always attended the meetings arranged by Chegwidden. He still says that he can and will work with his brother on a day-to-day basis. This stands in contrast to Michael's attitude. The relationship between the two men has got to the point where the family business cannot function at all. But the fact that no effective working relationship has developed between the active direction seems to be entirely a product of Michael's intransigence."
(Page 5)
5 The next finding of fact appears on p 29 to 30 of the judgment, p 44 - 45 of the appeal book:
"Fourthly, neither Steven nor Lisa have done anything which can be seen as unreasonable in the context of the running the Family Business. Steven has, on the evidence, always been willing to attend meetings with his brother and he has attempted to play a meaningful rule in the business. It is true that a number of actions have been taken by Steven and Lisa which have caused Michael disquiet.
6 The final finding of fact is a little further down on p 30 of the judgment, p 45 of the appeal book, where the Master says:
"I am of the view that neither Steven or Lisa have behaved unreasonably. They have exhibited, perhaps, a level of frustration, but that is not surprising. They have certainly not attempted to exclude Michael from management of the Family Business nor have they ignored his interest."
7 The structure of the reasons for decision is to be seen where the Master acknowledges and finds that there is and always has been considerable animosity between the two brothers. He then goes on to make a number of findings and give a number of illustrations of the depth of that animosity and the way that it exhibited itself.
8 The Master then indicated that there was clearly a factor in favour of the making of a winding-up order, namely that the applicant was locked in the present structure and that it was difficult to see how they could work together even in the short term and that the outcome of the application would have adverse consequences on their relationship.
9 The Master also indicated that the effect of the winding up of Investments and Argyle would have a severe impact, although he could not say quite what it would be, but nonetheless a severe impact on the family business. The conclusion to which the Master came is this:
"But in my view this one factor of winding up the respondents is not sufficient to tip the balance. The totality of the evidence establishes overwhelmingly that it would be neither just nor equitable to wind up the respondents."
10 For those reasons the Master refused the application. The applicant now says, and I refer to the affidavit of Michael Angelo Guerinoni sworn
(Page 6)
- 15 September 1999, that there are two principal areas in which he wishes to bring forward further evidence, and this, it is said, is evidence of matters occurring after the date of judgment.
11 The first is the fact that the applicant has been denied access to the financial records of the companies other than by way of being given access to a computer upon which the financial records are stored. Reference is made to s 288 of the Corporations Law which provides:
"Where financial records are kept in electronic form they must be convertible into hard copy. A hard copy must be made available within a reasonable time to a person who is entitled to inspect the records."
12 It is not in dispute that at a time when the applicant was a director certainly of Nominees, if not the other companies, he was a person entitled to inspect the records.
13 The second area is that in July of 1999 the applicant was first suspended and then dismissed as an employee and a director of Guerinoni Nominees Pty Ltd. The law in relation to the adducing of further evidence on appeal is not in dispute. Order 63 r 10(1) empowers the Court on an appeal to receive further evidence not in existence at the time of trial. The rule provides, and I quote:
"Such further evidence may be given without special leave in any case as to matters which have occurred after the date of decision from which the appeal is brought. Upon appeals from a judgment after trial or hearing of any cause or matter upon the merits, such further evidence, save as to the matters aforesaid, shall be admitted on special grounds only and not without special leave of the Court."
14 It is clear therefore that this is not a matter which requires special leave or the presentation of special grounds but nonetheless it requires leave and is within the discretion of the Court. The principle to be applied is that set out by Dixon J in Orr v Holmes (1948) 76 CLR 632 where his Honour said at 640, and I quote:
"The successful party is not to be deprived of the verdict he has obtained except to fulfil an imperative demand of justice. The discovery of fresh evidence makes no such demand upon justice unless it is almost certain that if the evidence had been available
(Page 7)
- and had been adduced an opposite result would have been reached."
- At p 642 his Honour said, and I quote:
"New trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue. The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable."
16 The first goes to the issue of access to the records. As counsel for the applicant conceded, that was a matter that was before the Master, although it is not specifically dealt with in the reasons for decision. There is no indication that the further evidence that is contained in the affidavit insofar as it relates to access to the financial records per medium, and only per medium, of the computer, is anything other than, to revert to the vernacular, more of the same. That, in my view, would not of itself qualify as fresh evidence in accordance with the principles that I have outlined.
17 A more substantial argument though relates to the question of the applicant's status as an employee and a director of Nominees.
18 The Master found and it is not challenged by cross-appeal that that which affects Nominees is relevant in the applications to wind up the other two companies, namely Argyle Concrete on the one hand and Investments on the other because the affairs of the three companies are intertwined and it is through the joint enterprise of the three companies that the family business is run.
19 However the issue of what counsel for the applicant described as expulsion seems to me to be an issue going to the question of
(Page 8)
- quasi-partnership because it is one of the three indicia of quasi-partnership mentioned by Lord Wilberforce in the Ebrahimi case and, as I have indicated, the primary question there is whether or not this is a quasi-partnership case at all by reason of their being from the outset the degree of mutual trust and confidence necessary to bring about that result.
20 The question again of the suspension of the applicant from his positions within Nominees may well be categorised, again, as more of the same and not having an impact in the material sense on the primary issue which the appeal court would have to find.
21 For those reasons I am not satisfied that the new evidence or the additional evidence, had it been before the Master, is "almost certain that had it been available and been adduced an opposite result would have been reached" or that it to a sufficient degree throws a different complexion upon the case or that the findings would have been improbable, if not unreasonable.
22 There is an additional matter. The affidavit material raises questions of fact and questions of conduct of the parties. We have been told from the Bar table that the respondents' solicitors indicated to the applicant's solicitors that they would wish to avail themselves of an opportunity to reply. It is a reasonable inference that the reply would put in issue matters of conduct of the parties that could only be resolved by cross-examination of the various deponents of affidavits.
23 Looked at in the broad, in the interests of the proper and most efficient administration of justice, this Court ought to be slow to bring about a result which would have a fact-finding exercise of that nature visited upon the Full Court. That is an additional discretionary reason why I would decline the application and for all of those reasons I would not accede to the application to adduce further evidence.
24 WHITE J: I agree with what has been said by the learned presiding Judge and have nothing further to add.
25 PARKER J: I too agree.
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