James Atkinson v Oakleigh Holdings Pty Ltd

[2000] NSWCA 166

CITATION:	JAMES ATKINSON v OAKLEIGH HOLDINGS PTY LTD [2000] NSWCA 166
FILE NUMBER(S):	CA 40996/98
HEARING DATE(S):	28 June 2000
JUDGMENT DATE:	28 June 2000
PARTIES :	JAMES ATKINSON v OAKLEIGH HOLDINGS PTY LTD
JUDGMENT OF:	Mason P; Meagher JA; Heydon JA

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 2361/96
LOWER COURT JUDICIAL OFFICER :	Mitchelmore DCJ

COUNSEL:	G Parncutt (Appellant) J Trebeck (Respondent)
SOLICITORS:	Gregory Falk & Associates (Appellant) Garden & Montgomerie (Respondent)
DECISION:	Dismissed

SUPREME COURT OF
NEW SOUTH WALES
COURT OF APPEAL
No CA 40996 of 1998
No DC 2361 of 1996

MASON P
MEAGHER JA
HEYDON JA

Form 62AA1

JAMES ATKINSON v
OAKLEIGH HOLDINGS PTY LIMITED

SHORT REASONS FOR DECISION

The appeal is dismissed with costs and the Court is of the unanimous opinion that the appeal does not raise any question of general principle. Pursuant to section 45(4) of the Supreme Court Act 1970, the Court’s reasons for decision in short form are:

The Court agrees substantially with the reasons of the trial judge.

His Honour was entitled to accept the evidence of Mr Stone in part. The representation in the letter of 8 March 1995, coming from a lawyer, was inherently capable of being relied upon and was relied upon by the respondent to its detriment. Assuming in the appellant’s favour that the $US60,000 was destined to become the value of a non-refundable fee payable to Mittelbank Ltd, the appellant’s representation that the loan money would remain under his effective control (as signatory on a “fiduciary” account) would, if true, have been an effective security to help ensure the viability and enforceability of the wider transaction. If that transaction turned out to be as illusory as it was ultimately shown to be then the $US60,000 would not have been lost to the respondent.

The letter represented (emphases added) that “your loan” (ie $US60,000) “is being placed in the fiduciary bank as a minimum amount required in the account”. It was a represented condition of the loan that the appellant would be a signatory on the fiduciary account “and will act as trustee to ensure compliance with the terms of the loan agreement”. Later the letter spoke of the repayment of “the principal of $US60,000” with the writer expecting that the lender should receive this sum (plus much more) before the end of next week. The suggestion that the solicitor’s representation was that he would become a signatory at some time after the money went into the account flies in the face of the letter and therefore reflects badly on the appellant’s case as a whole.

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Mason P

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Meagher JA

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Heydon JA

28 June 2000