Tay v Koh - [2000] WASCA 356

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: TAY & ANOR -v- KOH & ANOR [2000] WASCA 356

CORAM: PIDGEON J
IPP J
MURRAY J

HEARD: 20 OCTOBER 2000

DELIVERED : 21 NOVEMBER 2000

FILE NO/S: FUL 170 of 1999

BETWEEN: RICHARD AH BOEY TAY
First Appellant (First Defendant)
COTSWOLD HOLDINGS PTY LTD
Second Appellant (Second Defendant)
AND
ANDREW KEE SUAN KOH
First Respondent (First Plaintiff)
KT & T DEVELOPMENTS PTY LTD
Second Respondent (Second Plaintiff)

Catchwords:

Procedure - Pleading - Deceit - Pleading false representation as to value - Whether necessary the parties to the conversation - Turns on own facts

Damages - Valuation - Value of strata title lot on hypothesis it is an ordinary freehold lot - Extent of discounts by reason of the type of development - Turns on own facts

Costs - Failure on some issues - Full costs ordered - Whether discretion miscarried - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

First Appellant (First Defendant)             :        Mr P G Clifford
Second Appellant (Second Defendant)     :        Mr P G Clifford
First Respondent (First Plaintiff)             :        Mr N W McKerracher QC
& Mr P Redding

Second Respondent (Second Plaintiff) : Mr N W McKerracher QC
& Mr P Redding

Solicitors:

First Appellant (First Defendant)             :        Murfett & Co
Second Appellant (Second Defendant)     :        Murfett & Co
First Respondent (First Plaintiff)             :        Williams & Hughes
Second Respondent (Second Plaintiff)     :        Williams & Hughes

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

Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 73 ALJR 901

Case(s) also cited:

Briginshaw v Briginshaw (1938) 60 CLR 336
Calderbank v Calderbank [1975] 3 All ER 333
Dobb v Hackett (1993) 10 WAR 532
Garden City Wallpaper & Curtin Centre Pty Ltd v Barenfar Pty Ltd, unreported; SCt of WA; Library No 980544; 18 September 1998
Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church [1999] NSWSC 1051
Hussey v Eels [1990] 2 QB 227
Messiter v Hutchinson (1987) 10 NSWLR 525
Smith New Court Securities Ltd v Scrimgeour Vickers [1996] 4 All ER 769
Tay v Koh, unreported; SCt of WA; Library No 980290; 28 May 1998
Water Board v Moustakas (1988) 180 CLR 491

PIDGEON J: Dr Koh, a surgeon who had been practising in Malaysia, came to live in Perth in 1986. In about 1987 or possibly early 1988, he met the appellant, Mr Tay, who told Dr Koh that it was easy to make money in Australia through property investment. As a result they became interested in some property transactions. This appeal is related to one particular transaction in respect of land near Alfred Cove described as lot 50 and which was a vacant strata title lot in a development called Pelican Cove.
Dr Koh was introduced to Mr Tay by Mr Tanto Adi Pramoko, who has been referred to in the proceedings appealed from by his first name, and in order to avoid any confusion…

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: [2000] WASCA 356
Decision Date: 21 NOVEMBER 2000

CaseChat Overview and Summary

In the matter of Tay v Koh, the case came before the court with the plaintiff seeking damages for deceit and misrepresentation. The plaintiff alleged that the defendant made false representations regarding the value of a strata title lot. The dispute centred on the specifics of the conversation between the parties and the extent to which the defendant's representations influenced the plaintiff's decision to purchase the property. The court had to determine whether the parties to the conversation were necessary and how the value of the strata title lot should be assessed, specifically considering if it should be valued as if it were an ordinary freehold lot and the extent of any necessary discounts due to the type of development. Additionally, the court addressed the issue of costs and whether the discretion exercised by the lower court was appropriate.

The legal issues before the court included the necessity of the parties to the conversation being present for the misrepresentation to be actionable, the correct method for valuing the strata title lot, and the extent of any required discounts. The court needed to examine whether the value of the lot should be determined as if it were a freehold lot and to what degree it should be reduced due to the specific nature of the development. The court also considered whether the lower court had correctly exercised its discretion regarding the awarding of costs.

The court found that the presence of the parties to the conversation was not a strict requirement for the misrepresentation to be actionable, and it turned on the specific facts of the case. In terms of valuation, the court held that the value of the strata title lot should be assessed on the hypothesis that it was an ordinary freehold lot, with appropriate discounts applied for the type of development. Regarding costs, the court determined that the lower court had not miscarried its discretion and upheld the award of full costs to the plaintiff on some issues. The court's decision was detailed and specific to the facts presented, providing clear guidance on the assessment of damages and the exercise of discretion in awarding costs.

Orders