Perre & Anor v R.E.I Building Society

[1989] HCATrans 187

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A8 of 1989

B e t w e e n -

GUISEPPE PERRE and

ANNA MARIA PERRE

Applicants

and

R.E.I. BUILDING SOCIETY

Respondent

Application for special

leave to appeal

MASON CJ DAWSON J GAUDRON J

Perre

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1989, AT 3.57 PM

Copyright in the High Court of Australia

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MR S.W. TILMOUTH:  May it please the Court, I appear with mv

learned friend, MR C.J. KOURAKIS, for the applicant.

(instructed by Zacaroyann1s, Luppino & Eckerman)

MR B. HAYES, QC:  May it please the Court, I appear with mv

learned friend, MS B.J. GRANT, for the respondent.

(instructed by Kelly & Co)

MASON CJ:	Yes, Mr Tilmouth.
MR TILMOUTH:	May it please Your Honours, when this matter came

before the Full Court we asked the Full Court to
discharge its appellate function under the principle

in WARREN V COOMBES and what, in effect, we asked

that Court to do was to either look at findings of

fact or obiective material which was before the

trial iudge and draw its own conclusion on those

facts as it was in iust as good a position to do as

the trial iudge. Now, the essence of the argument,

of course, was this: that His Honour had found in

one discrete passage - that is His Honour the trial

iudge - that there was no concluded agreement about

buying out the second mortgage. In a next passage

and separate passage His Honour had found that the verv

same day, within hours of the circumstances giving rise

to what we said was an agreement, someone from the
the respondent had rung the applicant's bank and said,

"We are going to buy out your mortgage".

Now, our argument on that, if the Court pleases,

was that those two findings of fact were totallv
inconsistent and our submission was to the Full Court
that it ought to look at the finding that later in that

day that there was this inconsistent phone call~ it

should draw its own conclusion from that and work

bac~wards from that finding to see what light that

cast upon the earlier finding that there had been

no concluded agreement. That process in our argument

before the Full Court and this Court was not undertaken

by the trial iudge. The trial iudge found no agreement;

he then found that there was a phone call, but what

he pertinently did not do was relate the finding of

the phone call back as it cast light, and we submit

significant light, on his finding about there being

a contract.

Now, if the Court pleases, what that means, 1n

our submission here, is this: that when the Full Court

was asked to reconsider the facts for itself in the

WARREN V COOMBES sense, it should have proceeded to

draw its own inferences from the fact that the phone

call was found, from the letter and from the telephone

conversation between the two solicitors, and our

submission is this, and it is the highest we

can put it as a matter of law:  the Full Court, 1n

our respectful submission, did not discharge its

WARREN V COOMBES duty. Rather, on a fair reading,

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Perre

particularly of Justice Bollen with whom largelv

Justice White agreed, the Full Court or the

maiority virtually said that there was material

available to the trial judge on which he could ma~e

that finding. We do not think he was wrong in

doing that and that is, if the Court pleases, in our

submission, more the old EDWARDS V NOBLE approach,

whereas, in our respectful submission, given that

there was the discrete finding about the phone call,

there was clearly the letter and there was clearly

the issue about the phone call between the two
solicitors which the trial iudge did not resolve,
the Full Court should have reconsidered for itself what

either those findings meant, or what the independent

objective evidence meant.

DAWSON J:  Did the Full Court attempt to reconcile the - I

cannot recall - the telephone call?

MR TILMOUTH:	Yes, it did.
DAWSON J:	Could you point to that?

MR TILMOUTH:  Yes, I will, Your Honours. The first matter

we submit, His Honour Justice White agreed with Justice Bollen and added some of his own remarks.	I point to is page 72 of Justice Bollen and, essentially, of page 72 His Honour Justice Bollen is really
reconciling Parry's evidence for the respondent with
the finding of the phone call and what His Honour said
in that last paragraph on the bottom of page 72 is
that:

The male appellant said that he had

asked Parry to ring the National Bank

(which had made the loan to the appellants)

"telling the bank that what's going to

happen what he told me". He said,

"Parry said there's no problem".

Then His Honour said this, and this is the error of

fact: 

Parry had no memory of the request and did not believe that he had rung the

bank.

Now, what was wrong, if the Court pleases, was the

assertion that Parry had no memory of the request.

As the learned Chief Justice said at page 40 - this

is about point 3, Your Honours. I am sorry if there

are no line numbers in your appeal books - the

Chief Justice at point 3 of page 40 said this:

He agreed -

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that is Parry agreed -

that the male appellant asked him to

contact his bank to see if funds could

be released, but his evidence as to

1-iis reply was:  "Well, I said to him

that we would be loo~ing at the whole

process that was in front of us, and

that when decisions were made we would

be happy to help."

Now, with respect, on the critical issue of what this

phone call meant, His Honour Justice Bollen has begun by considering that issue on a wrong footing in fact.

In fact, to invert what His Honour Justice Bollen

said at page 72:

Parry had no memriry of the request.

In fact, Parry acknowledged having received the request from the applicant and, more than that, said, "We will ring" - the evidence is not here but this, we submit,

would be a fair reading if the appeal went under way -

on a fair reading, "We will ring when decisions were

made", and what we all ~now, if the Court pleases,

is there was a phone call that afternoon and it was

in response to the applicant's request and it implies very strongly, in our submission, that a decision was

made, a decision by the respondent.

The other matters, to go to the best of them for

our submission, if the Court pleases, attesting to the

fact that the Appeal Court did not consider for itself

the inferences, are at page 74 - - -

MASON CJ:  Whereabouts on page 74?

MR TILMOUTH:  At about point 4, Your Honours. His Honour

Justice Bollen is again referring to the phone call

issue and he said this at about point 3 to 4:

It is equally powerful when put to the

learned trial Judge. I do not think

that this Court should say that any

inference adverse to His Honour's

finding arises from it. Nor do I think

that the learned trial Judge has given

inadequate weight to the evidence of

Peacock.

Then he goes on to make a comment. Now, that, with

respect, is not making his own independent assessment

of the meaning of the evidence. That is, as I have

submitted to this Court, really an EDWARDS V NOBLE

approach. There was evidence on which His Honour could

find so and so. I do not think he was wrong. We

asked repeatedly during.our argument in the Full Court

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for that Court to draw its own inferences.

Next Your Honours, a few lines down, at about point n:

The telephone call is entirely consistent

with the intention existing at the time,

but not enduring, to buy the mortgage.

Now, all that is doing, if the Court pleases, 1s

trying to rationalize inconsistencies but not to review

the matter afresh, and on page 75, if Your Honours please,

after His Honour Justice Bollen at the bottom of page 74

discussed the issue, he said, at the top of page 75:

Be that as it may, the learned trial

Judge must have recognised the possible

significance of the call. Yet he

accepted the evidence of Parry that no

contract had been made.

In other words, "Irrespective of my own views about tl-ie

matter, it was essentially for the learned trial iudge".

Likewise, if the Court pleases, at the bottom of

page 75 on the issue of the letter which His Honour

has isolated in the middle of page 75 which, we submit,

was plain and strong in its inference:

It is the Society's intention to

purchase the second mortgage -

No qualification - His Honour said this, and this 1s

the next line after the indented part:

Again, this is a powerful point "for"

the appellants. But it was powerful

before the learned trial Judge.

His Honour makes no specific mention of

the letter. But it was before him as

an exhibit. In accepting Parry's evidence

he began his remarks thus: "Taking the

whole of the evidence into account ... ".

He cannot have ignored the letter.

And so on. Now, again, if the Court pleases, all

that is doing is saying, "The trial _~udge must have

had regard to it, even if he did not say so in so

many words", but what again we were asking the court

to do was look at that letter. It came within a few

short days after the phone call. It is unequivocal.

You, as appeal judges, exercise your duty under

WARREN V COOMBES to draw your own inferences.

DAWSON J:  But is he not really saying there, "The trial

judge believed Parry"? He must have believed him,

in the face of all of this and he was entitled to

believe and he was the one - that is the trial judge

who saw and heard Parry, and there you are?

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MR TILMOUTH:  Well, that is true to a large extent, if the

Court pleases, but implicit in our argument was if His Honour found there was a phone call to

Mr Peacock, essentially Parry's evidence was

there was no reason for Parry to ring t~e applicant's bank or no reason for him to

inconsistent with that phone call because, as the agreement,

delegate that task.

DAWSON J: Well, unless there was an intention to enter into

an agreement, but no agreement had been entered into.

MR TILMOUTH:  But that is not what the caller said, with respect.

The- caller, on the findings, said, "We intend to buy

the mortgage but there's the paper work", and that

was the finding of the learned trial judge at

pages 18 and 19 and, in truth, as His Honour

the Chief Justice found, in his dissenting iudgment,

Parry's evidence on that was totally unsatisfactory,

there was a convenient loss of memory, "I don't

remember", I have already pointed out at page 40,	in fact, that Parry ac 1znowledged the request to ring, and
I have attempted to demonstrate wliy His Honour
Justice Bollen began on the wrong footing on the
facts.

Could I add this as well, if the Court pleases.

When the trial _iudge said, "Taking the whole of the evidence into account - that is a passage from page 9 of the a pp ea 1 book - that phrase appears where

His Honour has considered the evidence to the point

of the agreement on the morning of the agreement and

before His Honour has embarked upon any discussion

at all about subsequent matters and it supports our

submission that His Honour compartmentalized the

various stages in a chronological sense without

inter-relating them at all. Finally, if the Court

pleases, at page 76, again, we submit, in thesame

vein, His Honour Justice Bollen in the last few lines

of that paragraph which ends at about point 7 - and

this is in relation to the other matters

This is four lines from the bottom of that long paragraph:

But, again. I say, the learned trial Judge

had the letter before him. He could not

have ignored it or its possible

significance.	Yet he accepted Parry's
evidence.

Over on to page 77, and this is the final reference,

may it please Your Honours, this related to our argument
that there was a phone call between two solicitors,

one who had said that there was no doubt that the

solicitor for the respondent had rung to get a pay-out

figure. That solicitor's note, incidentally, is at

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page 8 of the appeal book which, we submit, was

unmistakably in its terms. His Honour, the trial

_iudge, made no findings at all about that conflict

between the evidence of the two solicitors and all

His Honour Justice Bollen said at page 77 in the

middle:

I cannot say that His Honour was

wrong. I do not think that any of

these matters raised by Mr Tilmouth

raises any disquiet about or demonstrates

any error in the reasoning and findings

of the learned trial Judge.

Again, we submit, not making his own inferences from

the note which is at page 8, namely that there was unequivocally

a pav-out figure calculation. Hu ·Hor..otrr is s:i.rnn~y sayii7.g

with J respect to hi:n, at page 77:: "there was material before

the judge. I do not think he was wrong". So, if the Court pleases, in the end result what we urge

on this Court is this:  we acknowledge, as the

application papers alearly say, that substantially

the argument is one of fact but we do say that the

case is not bereft of any legal principle. We submit

that the Full Court has not discharged its function

under WARREN V COOMBES to consider for itself the

inferences which arise from the finding about the

telephone call and about the issue of the letter and
of the phone call between the two solicitors and,

in any event, we submit that the attempt to

reconcile what were essentially irreconcilable
findings that there was a contract and there was the

phone call proceeded on a wrong footing of fact at page 72 in the passage I have already drawn to the

Court's attention.

Finally, if the Court pleases, apart from the

question of whether there is a point of law of special importance, we would submit that the case, as a matter

of fact, has substantial merit, principally for the

reasons demonstrated by His Honour the Chief Justice

in his very forceful dissenting iudgment. If the

Court pleases, despite the fact that in the end result

the argument would be essentially about facts, we

submit this case is an appropriate case for the grant

of special leave. May it please Your Honour.

MASON CJ:  Thank you, Mr Tilmouth. The Court need not

trouble you, Mr Hayes. The outcome of this case depended

on findings of fact, and those findings of fact, in

turn, depended upon an assessment made by the trial

judge of the reliability of oral evidence. As such,

the case is an inappropriate case for the grant of

special leave to appeal and the application is refused.

MR HAYES:  I apply for costs, Your Honour.

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MASON CJ:	Yes.	You cannot resist that, can you,

Mr Tilmouth?

MR TILMOUTH:	No, I can not, if the Court pleases.
MASON CJ:	1he application is refused with costs.

AT 4.13 PM THE MATTER WAS ADJOURNED SINE DIE

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