LAWLESS -v- MACKENDRICK [No 3] [2016] WASCA 208

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 208
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:94/2013	Heard:	10 AUGUST 2016
Coram:	NEWNES JA MURPHY JA MITCHELL JA	Delivered:	1/12/16
No of pages:	31	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	KEVIN GERARD LAWLESS ALASTAIR MACKENDRICK PAMELA ALISON GABRIELS CHRISTOPHER DEREK BLAKE THE KING AND I PTY LTD
Catchwords:	Tort Negligent misrepresentation Deceit Sale of hotel Whether expected profit misrepresented Whether appellant/purchaser aware of expected profit figure before settlement Whether first respondents/vendors were negligent in their statement as to expected profit Whether additional evidence should be admitted on appeal Turns on own facts
Legislation:	Nil
Case References:	Leeder v The State of Western Australia [2008] WASCA 192 Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679 Saunders v The Public Trustee [2015] WASCA 203

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LAWLESS -v- MACKENDRICK [No 3] [2016] WASCA 208 CORAM : NEWNES JA

MURPHY JA

MITCHELL JA

HEARD : 10 AUGUST 2016 DELIVERED : 1 DECEMBER 2016 FILE NO/S : CACV 94 of 2013 BETWEEN : KEVIN GERARD LAWLESS

Appellant

AND

ALASTAIR MACKENDRICK

PAMELA ALISON GABRIELS

First respondents

CHRISTOPHER DEREK BLAKE

Second respondent

THE KING AND I PTY LTD

Third respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : KENNETH MARTIN J

Citation : LAWLESS -v- MACKENDRICK [No 4] [2013] WASC 272

File No : CIV 1146 of 2006

Catchwords:

Tort - Negligent misrepresentation - Deceit - Sale of hotel - Whether expected profit misrepresented - Whether appellant/purchaser aware of expected profit figure before settlement - Whether first respondents/vendors were negligent in their statement as to expected profit - Whether additional evidence should be admitted on appeal - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person

First respondents : Mr G A Rabe

Second respondent : Ms P Cahill SC & Mr A D Bereyne

Third respondent : Mr P G McGowan

Solicitors:

Appellant : In person

First respondents : Graham Rabe, Barrister & Solicitor

Second respondent : Jackson McDonald

Third respondent : DLA Piper Australia

Case(s) referred to in judgment(s):

Leeder v The State of Western Australia [2008] WASCA 192
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Saunders v The Public Trustee [2015] WASCA 203

1 JUDGMENT OF THE COURT: This is an appeal from a decision of Kenneth Martin J, who dismissed the appellant's claims against the respondents for damages for misrepresentation. The claims arose out of the purchase of the Imperial Inn (the Inn) at York by Curtin Hotels Pty Ltd (Curtin), of which the…

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.

Continue reading Lawless v Mackendrick [No 3]

Details

AGLC: Lawless v Mackendrick [No 3] [2016] WASCA 208
Case: [2016] WASCA 208
Decision Date: 1 DECEMBER 2016

CaseChat Overview and Summary

The parties involved in this appeal were Lawless, the appellant and purchaser, and Mackendrick, the first respondents and vendors. The dispute centred on the sale of a hotel, with Lawless alleging that the respondents negligently misrepresented the expected profit from the hotel. Lawless further claimed deceit on the part of the vendors, arguing that they knew the expected profit figure was misleading. The case was heard in the Supreme Court of South Australia and subsequently appealed to the Full Court of the Supreme Court of South Australia.

The legal issues before the court involved whether the expected profit from the hotel was misrepresented, whether Lawless was aware of the expected profit figure before settlement, and if the respondents were negligent in their statement regarding the expected profit. The court was also required to decide if additional evidence should be admitted on appeal. These issues turned on the specific facts of the case.

The Full Court of the Supreme Court of South Australia found that the evidence did not support Lawless's claims. The court held that Lawless was aware of the expected profit figure before settlement, which undermined the claim of negligent misrepresentation. Furthermore, the court found that the respondents were not negligent in their statement regarding the expected profit. The Full Court also determined that the additional evidence proposed by Lawless was not relevant or necessary to resolve the issues at hand. As a result, the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

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

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