Tritech Technology Pty Ltd and Wiggins v Frelan Enterprises Pty Ltd

[2002] VSCA 147

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7075 of 2000

TRITECH TECHNOLOGY PTY LTD and RENARD JONAS WIGGINS
	Appellants
v.
FRELAN ENTERPRISES PTY LTD	Respondent

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JUDGES:	ORMISTON, CHERNOV and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 September 2002
DATE OF JUDGMENT:	4 September 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 147

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Judgments - Failure to give reasons for decision - Decision set aside - Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the 2nd Appellant	Mr M.T. Flynn	Corrs Chambers Westgarth
For the Respondent	Mr M. Thompson	FLA Partners
No appearance for the   1st Appellant

ORMISTON, J.A.: 

1. I will ask Chernov, J.A. to deliver the first judgment.

CHERNOV, J.A.: 

1. This appeal arises out of the decision of a County Court judge whereby he ordered on 22 September 2000 that there be judgment in favour of Frelan Enterprises Pty Ltd ("Frelan") against Tritech Technology Pty Ltd, now in liquidation ("Tritech") and Renard Wiggins ("Wiggins") for $50,000.

1. Frelan had brought the proceeding against Tritech to recover from it an alleged debt of $50,000 or, alternatively, damages in that sum for, inter alia, misleading and deceptive conduct.  It claimed in the alternative damages against Wiggins for aiding and abetting the company in the alleged misleading and deceptive conduct. 

1. The unsuccessful defendants served and filed a notice of appeal which was amended by order of this Court on 28 August 2002.  Tritech was placed in liquidation after his Honour's orders.  It did not appear when the appeal was called on for hearing this morning and, in the circumstances, its appeal was dismissed with costs.  The appeal by Wiggins, however, proceeded.

1. The essential background facts are these.  Frelan paid $75,000 to Tritech in about May 1997, and in exchange, received 20 shares in the company which represented five percent of its capital.  It was claimed by Frelan in the proceeding that this money was paid on the basis that it would be repaid in certain events agreed upon by the parties and that Tritech had wrongfully prevented those circumstances from coming into existence.  Frelan also claimed that it was induced to pay the money to Tritech by the misrepresentations made to it by Wiggins on its behalf at a meeting on 14 May 1997 and by its business plan.  The alleged misrepresentations, it was said, related to the extent to which Tritech had completed its negotiations with Mitsui & Co. (Aust.) Ltd., a prospective distributor of the product which Tritech was then developing.  As I have said, Frelan also claimed damages against Wiggins, alleging that he made material misrepresentations to its representative at the meeting of 14 May 1997 and that it was induced by those misrepresentations to pay the money to Tritech.

1. The trial judge upheld Frelan's claims against Tritech for breach of contract and gave judgment against it, as has already been mentioned.

1. The judge's only findings in relation to Wiggins were that his representation to Frelan on 14 May 1997 that the "deal with Mitsui which would secure the situation for Tritech was close to completion" was untrue and that the representation induced Frelan to pay the money to Tritech.

1. In his reasons for judgment, after dealing with the circumstances relevant to Frelan's contractual claim against Tritech, his Honour concluded, as I have said, that there be judgment for the plaintiff.  After being asked by counsel if the judgment was against both defendants, his Honour said it was, and made the orders referred to earlier, including the order that there be judgment against Wiggins in the sum of $50,000.

1. Wiggins now complains that the judge had failed to give sufficient reasons for his decision to award damages against him. In my view, it is plain that his Honour gave no reasons for his conclusion that Frelan suffered damage of $50,000 by the conduct of Wiggins, as is required by s.82 of the Trade Practices Act 1974 (Cth) and s.11 of the Fair Trading Act 1985. Similarly, there was no explanation by the judge as to the basis on which he seems to have concluded that the shares which Frelan received in Tritech were valueless. Counsel for Frelan had submitted below that a reason why the shares were valueless was that Tritech had wrongfully assigned its patents to a Chinese group called Holonomic. But the company and Wiggins contended at trial that this had occurred with Frelan's consent, if not encouragement and if that were so, that would or might have had a bearing on the value of the shares in question. But his Honour's reasons are silent on these issues.

1. It is trite that in a case such as this the trial judge must give reasons for his or her decision, at least to the extent of enabling the parties and the appeal court to understand by what process of reasoning he or she arrived at the decision.  In my view, for the reasons I have given, the judge here did not discharge that obligation at least in respect of the case involving Wiggins.

1. Mr Thompson, who appeared before us for Frelan, strongly argued that, if this Court set aside his Honour's judgment, it should not send the matter back for retrial but should make the findings that his Honour failed to make and thus, effectively preserve Frelan's judgment against Wiggins.  Counsel submitted that the evidence in the transcript which was before the Court was uncontroversial so that it was in a position to resolve the case in the manner suggested.  In my view, however, the evidence which this Court would have to examine, if it were to proceed as Mr Thompson proposed, would be considerable and it would be necessary for it effectively to hear the case afresh.  It is clear that this would not be an appropriate task for this Court to undertake.

1. Consequently, I would set aside his Honour's judgment in so far as it relates to Wiggins and order a new trial on that claim.

ORMISTON, J.A.: 

1. I agree.  I sincerely hope the circumstances revealed by this case will not be repeated.

EAMES, J.A.:

1. I agree with the reasons given by Chernov, J.A. and the orders proposed.

ORMISTON, J.A.: 

1. We will remit the matter by appropriate orders.  I think it is appropriate, unless the parties wish it otherwise, to remit it for trial to a judge other than the judge who tried it originally.

(Discussion ensued.)

ORMISTON, J.A.: 

1. In the circumstances the orders of the Court are that -

1.     The appeal of the second-named appellant be allowed. 

2.The judgment given and orders made by the judge in the County Court on 22 September 2000 be set aside in so far as there was judgment for and orders made in favour of the plaintiff against the second defendant

3.It is directed that the claim brought by the respondent as plaintiff against the second appellant as second defendant be remitted to the County Court for re-trial. 

4.The respondent pay the second appellant its costs in respect of its appeal.

1. We will grant an indemnity certificate in the usual form under the Appeal Costs Act.

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