Solomon v Green

[2001] NSWCA 157

CITATION:	Solomon v Green [2001] NSWCA 157
FILE NUMBER(S):	CA 40161/01; 40764/00
HEARING DATE(S):	21/05/01
JUDGMENT DATE:	21 May 2001
PARTIES :	David Solomon v Bruce Noel Green And 1 Ors
JUDGMENT OF:	Meagher JA at 1; Giles JA at 6

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	3827/99
LOWER COURT JUDICIAL OFFICER :	Naughton DCJ

COUNSEL:	A: Litigant In Person R: G Nell
SOLICITORS:	A: Litigant In Person R: Ian B Mitchell Solicitors
CATCHWORDS:	Application for leave to appeal - assignment of patent - misrepresentation - misleading or deceptive conduct - alleged interference with a Court exhibit - application dismissed.
LEGISLATION CITED:	s 42 Fair Trading Act (1987) NSW
DECISION:	Application dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40161/01

CA 40764/00

MEAGHER JA

GILES JA

Monday, 21 May 2001

DAVID SOLOMON v BRUCE NOEL GREEN AND 1 ORS

JUDGMENT

1   MEAGHER JA: The Court is now in a position to give judgment and I will give the first judgment. This is an application for leave to appeal from Naughton DCJ who made certain orders against the appellant on 28 August 2000. Basically there was an order that the appellant pay the respondents the sum of $80,256 and there were certain ancillary orders.

2   The action arose out of the assignment of a patent from the appellant to the respondents on 20 October 1997. The respondents allege that the appellant made several representations to them about the patent which was a patent for the manufacture of a certain type of device to lift lavatory seats.

3 His Honour found that two of those representations were untrue. Those two representations were (i) that the device would be readily saleable and (ii) that it would work on all commonly used toilet bowls in Australia. His Honour also found that the representations induced the respondents to buy the patent, that they were false, that the respondent’s reliance on them caused damage to the respondents and that they were misleading or deceptive within the meaning of s 42 of the Fair Trading Act (1987) NSW. There was ample evidence to justify all these findings which were credibility based.

4   Mr Solomon spent much of the time today challenging these findings but his challenge must fail.

5   The only other matter of substance which the appellant raised concerned an alleged interference with a Court exhibit by the barrister and solicitor appearing for the respondents at the trial. In argument today this activity, according to the appellant, took place on 16 August 2000. In fact, an examination of the transcript and any other relevant material, demonstrates it could not possibly have taken place on that day; and I can see no real evidence that supports the proposition that it took place at all. In these circumstances the application should be dismissed with costs.

6   GILES JA: I agree with what has been said by Meagher JA and would add only that whatever day the interference was alleged to have taken place there is no support at all for the serious misconduct alleged by the claimant. There was nothing in any of the other matters which he raised as challenges to the Judge’s findings. I agree with the orders proposed.

7   MEAGHER JA: You want something better than that?

8   NELL: No, I was just going to remind your Honours that there’s actually two proceedings listed today. There was also a second application for leave to appeal which was the application for leave to appeal from Judge Naughton’s refusal of a stay application in March. That’s the thin folder that your Honours have.

9   MEAGHER JA: That falls by the wayside doesn’t it?

10   NELL: It does your Honour and I was going to ask whether that application should equally be dismissed with costs.

11   MEAGHER JA: It is necessarily dismissed.

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