R a BATTINO Pty Ltd v William Nairn Pty Ltd - [2001] WADC 196

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: R A BATTINO PTY LTD -v- WILLIAM NAIRN PTY LTD & ANOR [2001] WADC 196

CORAM: MULLER DCJ

HEARD: 10 AUGUST 2001

DELIVERED : 21 AUGUST 2001

FILE NO/S: CIV 741 of 1995

BETWEEN: R A BATTINO PTY LTD
Plaintiff
AND
WILLIAM NAIRN PTY LTD
First Defendant
WILLIAM NAIRN
Second Defendant

Catchwords:

Appeal from decision of Registrar dismissing application for further and better discovery of documents - Sale of radiological practice - Alleged representation as to future performance of the practice made by vendor in breach of s 52 Trade Practices Act - Valuation of practice at date of sale - Limitation of purchaser's claim for damages to period of 2 years following date of sale - Non disclosure by purchaser of financial records of practice outside 2 year period - Whether such records discoverable

Legislation:

Trade Practices Act, s 52 and s 82

Rules of the Supreme Court of Western Australia, O 26, r 7

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff:     Mr M R M George
First Defendant             :     Mr G J O'Hara
Second Defendant         :     Mr G J O'Hara

Solicitors:

Plaintiff:     Freehills
First Defendant             :     Kott Gunning
Second Defendant         :     Kott Gunning

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

Compagnie Financiere Du Pacifique v Peruvrian Guano Co [1882] 11 QBE 55
Kizbeau Pty Ltd v WG & B Pty Ltd & Anor (1995) 184 CLR 281
Mulley v Manifold (1959) 103 CLR 341

Case(s) also cited:

Phillips v Phillips (1879) 40 LT 815

MULLER DCJ: This is an appeal against a decision of a registrar dismissing an application by the first and second defendants for further and better discovery by the plaintiff. The first defendant was the proprietor of a radiological practice in Booragoon and the second defendant a director of the first defendant. On 21 June 1994 the first defendant agreed to sell the radiological practice, together with all plant and equipment, furniture, fixtures, fittings and chattels, to the plaintiff. According to his amended statement of claim the plaintiff asserted that before entering into the contract of sale he was shown the profit and loss statements of the practice for the years 1990‑1993 together with monthly profit and loss statements for the months July 1993‑December 1993. According to these documents the average monthly turnover of the practice for the six months ending 31 December 1993 was $35,159. In April 1994, before the agreement of sale was signed by the parties, the second defendant allegedly made a statement along the following lines to the plaintiff:
"The practice was quiet, but things do pick up."
In his statement of claim the plaintiff has asserted that it was implied in this representation that things would pick up within a reasonable period of time, such period of time being by 30 June 1996. It was further alleged in the statement of claim that at the time the representation was made the second defendant knew the monthly turnover of…

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 R a BATTINO Pty Ltd v William Nairn Pty Ltd

Details

AGLC: R a BATTINO Pty Ltd v William Nairn Pty Ltd [2001] WADC 196
Case: [2001] WADC 196
Decision Date

CaseChat Overview and Summary

In this case, R A Battino Pty Ltd initiated proceedings against William Nairn Pty Ltd and another defendant, seeking damages for an alleged misleading or deceptive conduct under section 52 of the Trade Practices Act. The plaintiff claimed that the defendants made a representation regarding the future performance of a radiological practice, which induced the plaintiff to purchase the practice at a higher price than its true value. The defendants denied the allegations and sought further and better discovery of financial records of the practice beyond a specified period. The appeal before the court was against the decision of a registrar dismissing the defendants' application for further and better discovery of documents.

The legal issues before the court were whether the financial records of the practice after a specified date were discoverable and relevant to the matters in question in the action. The court needed to determine whether the amendment to the statement of claim, which limited the period of the alleged loss, affected the relevance of the financial records after the specified date. Additionally, the court had to consider whether the financial performance of the practice after the specified date was relevant to the assessment of its value at the time of sale.

The court found that the amendment to the statement of claim, which limited the period of the alleged loss, rendered the financial records of the practice after the specified date irrelevant to the issue of the effect of the alleged representation. The court acknowledged that the financial performance of the practice after the specified date could be relevant to the assessment of its value at the time of sale. However, the court concluded that a full disclosure of the trading records of the practice up to the specified date was sufficient to assess its value at the time of sale. The court further noted that the plaintiff had provided information on the income earned by the practice after the specified date, which, when considered alongside the financial documents up to that date, was sufficient to assess the value of the practice at the time of sale.

Based on the court's reasoning, the appeal was dismissed. The court held that the financial records of the practice after the specified date were not discoverable as they were not relevant to the matters in question in the action. The court found that the amendment to the statement of claim limited the period of the alleged loss, and therefore, the financial performance of the practice after the specified date was not relevant to the effect, if any, of the alleged representation. The court also determined that a full disclosure of the trading records of the practice up to the specified date was sufficient to assess its value at the time of sale.

Orders