KOH & ANOR -v- TAY & ANOR [1999] WASC 197

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 197
Case No:	CIV:1332/1994	Heard:	22-25 MARCH, 21-22, 25 JUNE & 3 SEPTEMBER 1999
Coram:	SCOTT J	Delivered:	15/10/99
No of pages:	22	Judgment Part:	1 of 1
Result:	Judgment for the first plaintiff against the first defendant with damages to be awarded in accordance with the orders set out
PDF Version

Parties:	ANDREW KEE SUAN KOH KT & T DEVELOPMENTS PTY LTD (ACN 009 379 471) RICHARD AH BOEY TAY COTSWOLD HOLDINGS PTY LTD (ACN 009 332 138)
Catchwords:	Contract law Fraud Misrepresentation as to term of contract Misrepresentation as to purchase price of land and value of land Knowingly making untrue representations to induce party to contract Express term of contract Buy back clause Acquisition of share in commercial development Offer and acceptance documents not the same as those initialled by party to contract Fiduciary duty of care owed by director Discharge of fiduciary duty Evidence Credibility of witness Accuracy of valuation Damages Remoteness of damage Proceeding with development after revelation of fraud Duty at law to mitigate loss
Legislation:	Nil
Case References:	Briginshaw v Briginshaw (1938) 60 CLR 336 Gould v Vaggelas (1983-1985) 157 CLR 215 Helton v Allan (1940) 63 CLR 691 Jubilee Cotton Mills Ltd v Lewis [1924] AC 958 Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25 March v Stramare (1991) 71 CLR 506 Snarski v Barbarich [1969] WAR 46 Toteff v Antonas (1952) 87 CLR 647 Van den Esschert v Chappell [1960] WAR 114 Commonwealth Bank v Smith (1991) 102 ALR 453 Daniels v Anderson (1995) 37 NSWLR 438 Derry v Peek (1889) LR 14 App Cas 337 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 Hawkins v Clayton (1988) 164 CLR 538 Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1999) 33 FCR 1 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Wardley Australia v The State of Western Australia (1992) 175 CLR 514 York v Lucas (1983-1984) 158 CLR 661

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : KOH & ANOR -v- TAY & ANOR [1999] WASC 197 CORAM : SCOTT J HEARD : 22-25 MARCH, 21-22, 25 JUNE & 3 SEPTEMBER 1999 DELIVERED : 15 OCTOBER 1999 FILE NO/S : CIV 1332 of 1994 BETWEEN : ANDREW KEE SUAN KOH

First Plaintiff

KT & T DEVELOPMENTS PTY LTD (ACN 009 379 471)

Second Plaintiff

AND

RICHARD AH BOEY TAY

First Defendant

COTSWOLD HOLDINGS PTY LTD (ACN 009 332 138)

Second Defendant

Catchwords:

Contract law - Fraud - Misrepresentation as to term of contract - Misrepresentation as to purchase price of land and value of land - Knowingly making untrue representations to induce party to contract - Express term of contract - Buy back clause - Acquisition of share in commercial development - Offer and acceptance documents not the same as those initialled…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Koh v Tay and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1999] WASC 197
Decision Date

CaseChat Overview and Summary

The first plaintiff, Dr Koh, sought to recover the sum of $400,000 that he had paid to the first defendant, Tay, for a 50 per cent share of a commercial development in Pelican Cove. Dr Koh had been induced to enter into the agreement with Tay by means of fraudulent misrepresentations. Dr Koh sought to recover the difference between the amount he had paid and the true value of the property, together with interest on the amount he had paid. Dr Koh also sought to recover the loss of use of the money invested in the project. The second plaintiff, KT & T Developments Pty Ltd, sought to recover damages on the basis that the first defendant had breached his fiduciary duty to the company. The court found that Tay had indeed made fraudulent misrepresentations to Dr Koh and that Dr Koh was entitled to recover the difference between the amount he had paid for the half-share and its true value, together with interest on the amount paid. The court held that any damage which Dr Koh sustained by proceeding with the development of the project was too remote to be recoverable. The court found that Tay owed a fiduciary duty to KT & T but that no additional damages were sustained by the company as a result of the breach of fiduciary duty. The court dismissed the claim by KT & T and ordered that damages be paid to Dr Koh.

Orders