JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: KESTELL -v- DAVEY [No 3] [2023] WASC 289
CORAM: SMITH J
HEARD: 5-9 & 20 DECEMBER 2022
DELIVERED : 4 AUGUST 2023
FILE NO/S: CIV 1727 of 2021
BETWEEN: TIMOTHY ARTHUR KESTELL
Plaintiff
AND
GRANT LAWRENCE BURNAFORD DAVEY
First Defendant
KAYELEKERA RESOURCES PTY LTD
Second Defendant
DAVEY HOLDINGS (AUS) PTY LTD
Third Defendant
DAVEY MANAGEMENT (AUS) PTY LTD
Fourth Defendant
Catchwords:
Contract - Terms partly oral, in writing and inferred by acts, conduct and communications exchanged over time
Contract - Whether substance of matters agreed constituted an agreement to agree - Whether terms vague or uncertain or not supported by consideration
Practice and procedure - Voir dire - Whether expert handwriting evidence admissible - Relevance - Basis rule - Statement of reasoning rule - Reasoning of expert insufficiently transparent - Expert opinion inadmissible
Legislation:
Nil
Result:
Declaration made that the second defendant holds 50,954,438 shares of Lotus Resources Ltd on trust for the plaintiff or his nominee
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr G D Cobby SC & Mr A J Papamatheos |
| First Defendant | : | Mr M L Bennett & Mr N Ekanayake |
| Second Defendant | : | Mr M L Bennett & Mr N Ekanayake |
| Third Defendant | : | Mr M L Bennett & Mr N Ekanayake |
| Fourth Defendant | : | Mr M L Bennett & Mr N Ekanayake |
Solicitors:
| Plaintiff | : | Tottle Partners |
| First Defendant | : | Bennett |
| Second Defendant | : | Bennett |
| Third Defendant | : | Bennett |
| Fourth Defendant | : | Bennett |
Cases referred to in decision:
Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101
Australian Broadcasting Corporation v XIVTH Commonwealth Games Ltd (1988) 18 NSWLR 540
Australian Goldfields NL (in liq) v North Australian Diamonds NL [2009] WASCA 98
Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 86 ALJR 522
Automasters Australia Pty Ltd v Bruness Pty Ltd [2004] WASCA 229
BBH v The Queen [2012] HCA 9; (2012) 245 CLR 499
Beer v Duracraft Pty Ltd [2004] WASCA 192
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6] [2019] WASC 5
Blenkinsop v Wilson [2019] WASC 77
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Brown v Gould [1972] Ch 53
Claremont 24-7 Pty Ltd v Invox Pty Ltd [No 2] [2015] WASC 220
Classic Maritime Inc v Lion Diversified Holdings Berhad [2009] EWHC 1142
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Forbes Engineering (Asia) Pte Limited v Forbes (No 4) [2009] FCA 675
Girgis v Poliwka [No 6] [2019] WASC 230
Global Container Lines Ltd v State Black Sea Shipping Co [1999] 1 Lloyd's Rep 127
Goldsmith v Sandilands [2002] HCA 31; (2000) 76 ALJR 1024
Huntingdale Village Pty Ltd (Receivers And Managers Appointed) v Corrs Chambers Westgarth (a Firm) [No 3] [2016] WASC 366
Ironside v Thisainayagan [2016] WASC 174
John Holland Pty Ltd v Kellogg Brown &…
Continue reading Kestell v Davey [No 3]
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- AGLC
- Kestell v Davey [No 3] [2023] WASC 289
- Case
- [2023] WASC 289
- Decision Date
CaseChat Overview and Summary
The court was required to decide several legal issues, including whether the substance of the matters agreed upon constituted an agreement to agree, and whether the terms were vague or uncertain or not supported by consideration. The court also had to consider whether expert handwriting evidence was admissible in the case, and whether the expert's reasoning was sufficiently transparent to be considered reliable.
The court found that the substance of the matters agreed upon did constitute an agreement to agree, and that the terms were not vague or uncertain or not supported by consideration. The court also found that the expert handwriting evidence was inadmissible because the expert's reasoning was not sufficiently transparent. The court held that the plaintiff had adequately justified the contention of the unusual difficulty and complexity of the matter by pointing to the nature of the proceedings that required the court to construe a series of informal (oral and inferred) agreements from a large volume of documentary evidence and lengthy witness cross-examination. Consequently, the court found that the Determination limits for certain items were inadequate due to the unusual difficulty, complexity, and importance of the proceedings as a whole.
The court ordered that the defendants pay the plaintiff's costs of the proceedings, including costs associated with the Items for which the plaintiff had claimed. The court found that the defendants' claim that these were features which the court grapples with on a daily basis and therefore should not give rise to a special costs order, understated the unusual difficulty and complexity of the factual findings that were required to be considered.
Orders
Orders of the court
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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
Deciding whether there is 'unusual difficulty' involves an evaluative judgment by which the court compares its experience of the particular case and the usual run of civil cases determined in the court.[499] This is also the approach to the other two descriptors. In O'Rourke v P & B Corporation Pty Ltd,[500] Martin CJ stated:[501]… the word 'unusual' means unusual having regard to what one might describe as the usual run of civil cases. The question is not, for example, in this case, whether this was an unusually difficult, complex or important case for specific performance of a contract for the sale of land which at the time the contract was entered into was not subdivided. Rather, the question is whether this was an unusually difficult, complex or important case, having regard to the usual run of civil cases determined in the Supreme Court and generally in the District Court, because, of course, the Scale is generally applicable to proceedings in both courts.It also seems to me that the assessment of the question of whether or not there is 'unusual difficulty, complexity or importance' is essentially a value judgment to be made by the court, and which the court is particularly well qualified to make, having regard to the fact that the court has heard and determined the trial and can take into account the court's experience of the usual run of civil cases in the superior courts of the State.[499] Blatchford v Laine [2018] WASC 207 (S) [49] (Vaughan J); Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [15].[500] O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S).[501] O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36 (S) [23] ‑ [24]. Having heard and determined the trial and taking account of the court's experience of the usual run of civil cases, I accept the plaintiff's submissions that the Determination limits for Items 1(a), 1(c), 7(b), 19, 22(a), and 22(b) are inadequate due to the unusual difficulty, complexity and importance of the proceedings as a whole. The plaintiff has adequately justified the contention of the unusual difficulty and complexity of the matter by pointing to the nature of the proceedings that required the court to construe a series of informal (oral and inferred) agreements from a large volume of documentary evidence and lengthy witness cross-examination. In my opinion, the defendants claim that these are features which the court grapples with on a daily basis and therefore should not give rise to a special costs order, understate the unusual difficulty and complexity of the factual findings that were required to be considered through numerous oral and written communications, which communications were largely informal over a lengthy period of time in determining whether the parties had entered into a concluded contract. Although the trial of the action was completed in six days, the issues raised by the parties were complex and resulted in lengthy 196 page reasons for decision. Consequently, it is not surprising that the plaintiff's legal representatives spent more time than is allowable on work relating to the Items claimed by the plaintiff.