Khneiger v Cookson

[2009] SASC 203

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

KHNEIGER & ANOR v COOKSON

[2009] SASC 203

Judgment of The Full Court

(The Honourable Justice Anderson, The Honourable Justice Kelly and The Honourable Justice Kourakis)

10 July 2009

CONTRACTS - PARTICULAR PARTIES - VENDOR AND PURCHASER - DISCLOSURE OF MATERIAL FACTS

The appellants sold a Snack Bar to the respondent – before the sale the appellants provided the respondent with the disclosure statement required by s 8 of the Land and Business (Sale and Conveyancing) Act 1994 – in that statement the appellants represented that they were not aware of “any written notice served on the landlord or licensor, or any other circumstance that may positively have a significant adverse effect on the business” – six months after the sale construction work started near the Snack Bar – the turnover of the business fell significantly and the respondent eventually closed the business down – the respondent sought compensation from the appellants, claiming that they knew about the construction work – the trial Judge held that the appellants did know of the construction work and were obliged to disclose that fact – the appellants appealed that decision on the basis of errors of fact made by the trial Judge in reaching his conclusion.

Held:  The trial Judge erred in finding that the construction received prominent front page coverage in the City Messenger newspaper and in finding that there were piles of the Advertiser and Messenger newspapers available in the Snack Bar for customers to read – those findings were not supported by the evidence – the factual errors of the trial Judge are material enough to affect the result and require this Court to review his conclusion – appeal allowed.

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - NEW TRIAL

Whether this Court should give effect to its own view of the evidence, and either uphold or dismiss the respondent’s (plaintiff’s) claim in accordance with that view, or whether the matter should be remitted for re-trial.

Held:  The nature of the factual dispute is such that it cannot be safely resolved on the papers – the matter must be remitted to the District Court for re-trial.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - REMOTENESS AND CAUSATION

Whether the trial Judge erred in his assessment of damages.

Held:  Appeal allowed - the trial Judge erred in assessing the damages to be awarded to the respondent - that question too must be remitted to the District Court to be reheard.

Land and Business (Sale and Conveyancing) Act 1994 (SA) s 8, s 15, referred to.
Fox v Percy (2003) 214 CLR 118; Mak v Police [2008] SASC 342, distinguished.
Cookson v Khneiger & Anor [2008] SADC 97; Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281; Kenny & Good Pty Ltd v MGICA (1992) Limited (1999) 199 CLR 413; Henville v…