Salena Estate Wines Pty Ltd v Devito - [2005] SASC 274

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SALENA ESTATE WINES PTY LTD v DEVITO & ANOR
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Sulan)
20 July 2005
PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - DISTRICT COURT
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - OTHER MATTERS
Dispute as to the terms of an oral agreement - appellant alleged an oral agreement with the respondents that the appellant would process grapes delivered by the respondents and sell the wine produced therefrom on behalf of the respondents - the appellant was to receive payment for storage and production costs plus a margin for profit - payment was due to the respondents upon sale of the wine - respondents alleged that the agreement was a binding contract for the sale of grapes - trial judge acknowledged an inconsistency between the evidence of the respondent Mr Devito and the respondents' pleadings - the inconsistency was not put to the respondent in cross-examination - the respondent Mrs Devito was not called as a witness - the judge concluded that there was a contract for sale of grapes - he accepted Mr Devito's evidence and rejected the evidence on behalf of the appellant.
Whether the judge erred in finding that the contract between the appellant and respondents was a contract for the sale of grapes - whether the judge erred in not finding that the respondents' pleading was evidence of an admission of a contract in terms contrary to the terms alleged by the respondent Mr Devito in his evidence - whether Rule 46A.02(e) of the District Court Rules requiring a legal practitioner to provide certification verifying the pleading has the effect of elevating the pleading to a statement verified on oath by a party - appeal dismissed.
Corporations Act 2001 s 459E (2)(e), s 459G; Wine Grapes Industry Act 1991 (SA) s 5, s 6, s6(3); District Court Rules r 46, r 46A.02, r 47, referred to.
Boileau v Rutlin (1848) 2 Ex 665; 154 ER 657; Jones v Nuske (2003) 227 LSJS 331; Pearce v Hall (1989) 52 SASR 568, considered.

SALENA ESTATE WINES PTY LTD v DEVITO & ANOR
[2005] SASC 274
Full Court: Doyle CJ, Perry and Sulan JJ

DOYLE CJ: I would dismiss the appeal against the judgment of the District Court. I agree with the reasons given by Sulan J, and those given by Perry J, for so deciding.
PERRY J: In my view the appeal should be dismissed.
I agree in substance with the reasons of Sulan J.
The case came down to a question of credit, more particularly as between the evidence of Mr Devito on the one hand and Mr Franchitto on the other.
The trial judge referred to a number of objective features of the dealings between the parties, which tended to support the account given by Mr Devito. Quite apart from those matters, he observed that Mr…

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.

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Details

Case: [2005] SASC 274
Decision Date: 20 July 2005

CaseChat Overview and Summary

The case of Salena Estate Wines Pty Ltd v Devito involved a dispute regarding the terms of an oral agreement between the parties. The appellant alleged that there was an oral agreement with the respondents whereby the appellant would process grapes delivered by the respondents and sell the wine produced from these grapes on behalf of the respondents. Under this agreement, the appellant would receive payment for storage and production costs plus a margin for profit, and payment would be due to the respondents upon the sale of the wine. The respondents, however, argued that the agreement was a binding contract for the sale of grapes. This case was heard in the South Australian District Court.

The central legal issues that the court had to decide were whether the judge erred in finding that the contract between the appellant and respondents was a contract for the sale of grapes, whether the judge erred in not finding that the respondents' pleading was evidence of an admission of a contract in terms contrary to the terms alleged by the respondent Mr Devito in his evidence, and whether Rule 46A.02(e) of the District Court Rules, which requires a legal practitioner to provide certification verifying the pleading, has the effect of elevating the pleading to a statement verified on oath by a party. The trial judge acknowledged an inconsistency between the evidence of the respondent Mr Devito and the respondents' pleadings. However, the inconsistency was not put to the respondent in cross-examination, and the respondent Mrs Devito was not called as a witness. The judge concluded that there was a contract for the sale of grapes, accepted Mr Devito's evidence, and rejected the evidence on behalf of the appellant.

The court found that there was no error in the judge's decision regarding the nature of the contract. The inconsistency between the evidence and the pleadings was not sufficiently highlighted during the trial to warrant a different outcome. The court also determined that Rule 46A.02(e) does not elevate the pleading to a statement verified on oath by a party. The appeal was dismissed, upholding the findings of the District Court.

Orders