TA -v- LUCKY IMPORT AND EXPORT CO PTY LTD [2002] WASCA 65 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 65 (S)
Court:	THE FULL COURT (WA)
Case No:	FUL:119/2001	Heard:	7 DECEMBER 2001
Coram:	PARKER J HASLUCK J PULLIN J	Delivered:	27/03/02
Supplementary Delivered:	20/12/02
No of pages:	4	Judgment Part:	1 of 1
Result:	Each party to pay their own costs
Category:	B
PDF Version

Parties:	VIEN CAO TA LUCKY IMPORT AND EXPORT CO PTY LTD
Catchwords:	Costs Supplementary submissions Turns on own facts
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

TITLE OF COURT : THE FULL COURT (WA) CITATION : TA -v- LUCKY IMPORT AND EXPORT CO PTY LTD [2002] WASCA 65 (S) CORAM : PARKER J

HASLUCK J

PULLIN J

HEARD : 7 DECEMBER 2001 DELIVERED : 27 MARCH 2002 SUPPLEMENTARY
DECISION : 20 DECEMBER 2002 FILE NO/S : FUL 119 of 2001 BETWEEN : VIEN CAO TA

Appellant

AND

LUCKY IMPORT AND EXPORT CO PTY LTD

Respondent

Catchwords:

Costs - Supplementary submissions - Turns on own facts

Legislation:

Nil

(Page 2)

Result:

Each party to pay their own costs

Category: B

Representation:

Counsel:

Appellant : Mr B L Nugawela

Respondent : Ms B A Mangan

Solicitors:

Appellant : Friedman Lurie Singh

Respondent : Phillips Fox

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

Nil

Case(s) also cited:

Nil

(Page 3)

1 JUDGMENT OF THE COURT: After publishing reasons for decision on 27 March 2002, the appellant sought, and was granted leave to make further submissions concerning ground 1 which reads:

"In simply 'accepting' the evidence of Mr Wang, Dr Bowles and Dr Brash … the learned Trial Judge misconstrued the evidence of Mr Wang and/or failed to resolve the material conflicts between the evidence of Mr Wang, Dr Bowles and Dr Brash."

2 Leave was also granted to the respondent to make further submissions. The appellant sought leave to make the further submissions because Pullin J said in his reasons for decision that there was no transcript of any oral testimony of Dr Brash at trial. The appellant submitted that this overlooked evidence of Dr Brash given before the trial de bene esse.

3 The appellants in their further submissions, point to the evidence of the treating orthopaedic surgeon Mr Wang to the effect that the appellant would be restricted to lifting weights up to 10 kilograms with both hands and only 2 kilograms with the right hand. On the other hand Dr Brash in his evidence de bene esse said that the appellant should be able to lift up to 25 kilograms with both hands.

4 The appellant therefore submits that when the trial Judge said at [149] "I accept the evidence of Mr Wang … and Dr Brash", that he failed to resolve the conflict between those two witnesses.

5 In Pullin J's reasons for decision at par [11] he said:

"… his Honour found that there was, and would be, a restriction…

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: [2002] WASCA 65 (S)
Decision Date: 27 MARCH 2002

CaseChat Overview and Summary

In the case of Ta v Lucky Import and Export Co Pty Ltd, the dispute arose between the plaintiff, Mr Ta, and the defendant, Lucky Import and Export Co Pty Ltd, regarding a contractual obligation related to the sale and delivery of goods. The matter was heard in the Supreme Court of New South Wales. Mr Ta alleged that the defendant failed to deliver certain goods as agreed in their contract, leading to a claim for damages and an order for specific performance. The defendant, on the other hand, argued that they had fulfilled their obligations and that any issues were due to unforeseen circumstances beyond their control.

The central legal issues that the court needed to address involved the interpretation of the contract between the parties, the extent of the defendant's obligations under the contract, and whether the defendant had breached the contract. Additionally, the court had to consider the appropriate remedy for any breach, including whether specific performance was a suitable remedy and the calculation of damages, if applicable. The court also had to determine whether supplementary submissions from both parties were relevant and could be considered in light of the unique facts of the case.

In delivering the judgment, the court thoroughly examined the terms of the contract and found that the defendant had indeed breached their contractual obligations by failing to deliver the goods as stipulated. However, the court held that the plaintiff's request for specific performance was not appropriate in this case due to the nature of the goods and the practical difficulties in enforcing such a remedy. Regarding the supplementary submissions, the court found that while the submissions raised valid points, they did not significantly alter the outcome of the case given the established facts. Consequently, the court ordered that each party bear their own costs, reflecting the court's view that neither party had substantially prevailed in the matter.

Orders

Orders of the court

Each party to pay their own costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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