Truong v Lam - [2009] WASCA 217

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TRUONG -v- LAM [2009] WASCA 217

CORAM: OWEN JA
PULLIN JA
NEWNES JA

HEARD: 10 NOVEMBER 2009

DELIVERED : 9 DECEMBER 2009

FILE NO/S: CACV 108 of 2008

BETWEEN: HOANG THO TRUONG
Appellant
AND
THANH VAN LAM
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MCCANN DCJ
Citation  :LAM -v- TRUONG [2008] WADC 156
File No  :CIV 1820 of 2005

Catchwords:

Partnership - Retirement of partner - Distinction between retirement and dissolution - Retirement of one partner in two person partnership

Legislation:

Nil

Result:

Leave to appeal granted
Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr B H Taylor
Respondent: No appearance

Solicitors:

Appellant: Talbot Olivier
Respondent: No appearance

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

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

OWEN JA: I agree with Pullin JA.
PULLIN JA: This is an appeal against the judgment of Judge McCann in the District Court. As will appear, the judgment was an interlocutory judgment and leave to appeal is therefore necessary. The orders made will affect the subsequent inquiries and if errors were made then justice requires that the errors be remedied now to avoid the wastage of costs. For that reason I would grant leave. The appeal was instituted on 7 November 2008 after delivery of reasons but before any judgment was extracted. That irregularity should be cured pursuant to O 2 r 1 by ordering that the appeal be treated as though it were instituted on 5 December 2008 when the judgment was sealed.
The case concerned a partnership between the parties formed for the purpose of growing strawberries on the appellant's land. The trial had its difficulties. As the trial judge records in his reasons:
The trial occupied seven days in three hearings over eight months. Further, both the plaintiff and defendant speak very little English and testified through a succession of different interpreters. Accordingly, there were real difficulties with the flow of the evidence, especially that of the plaintiff, whose inter-communication with his interpreters, and hence testimony, was markedly less fluent than appears from the transcript. (I have mentioned some examples in these reasons.) There are numerous factual issues and, as will be seen, both parties were unreliable witnesses. For all of these reasons the task of reviewing the evidence and making factual findings has been painstaking and time-consuming. Regrettably, this has resulted in a lengthy delay in the delivery of this judgment [3].
Unfortunately the difficulties continued after the conclusion of the three hearings as will appear below.
The plaintiff's prayer for relief in the statement of claim sought an order that the partnership had been dissolved on 6 June 2005 with damages for breach of contract, conversion, damages pursuant to the Fair Trading Act 1987 (WA) based on alleged misrepresentations inducing the plaintiff to enter into the partnership agreement, or alternatively a declaration that the terms of…

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.

Continue reading Truong v Lam

Details

AGLC: Truong v Lam [2009] WASCA 217
Case: [2009] WASCA 217
Decision Date: 9 DECEMBER 2009

CaseChat Overview and Summary

In the matter of Truong v Lam, the respondent sought a certificate under section 10(1) of the Suitors' Fund Act 1964 (WA) to cover the costs of an appeal. The dispute centered around the retirement of a partner in a two-person partnership and the distinction between partnership retirement and dissolution. The appeal was heard in the Supreme Court.

The primary legal issues the court had to decide were whether the appellant had successfully demonstrated a question of law in their appeal and if the respondent had grounds that justified the exercise of the court's discretion to grant the indemnity certificate. The court had to determine if the error made in the lower court was of general application or case-specific, and whether the parties had appropriately assisted the court in reaching its decision.

The court found that while the appellant was successful on a question of law, the error made in the lower court was case-specific rather than involving a point of general application. This distinction is crucial because the Act is intended to relieve litigants from the burden of costs when a court below has erred on a question of law but is not meant to promote litigation or provide legal aid. Furthermore, the court considered the conduct of the parties, including the respondent, who did not adequately consider the relevant law and provided insufficient assistance to the court. The court also noted that the respondent's solicitor did not appear at the hearing of the appeal and did not submit any written arguments. These factors collectively led the court to conclude that the application for the indemnity certificate should be refused.

The court's final orders were that the application for an indemnity certificate under section 10(1) of the Suitors' Fund Act 1964 (WA) was to be refused. This decision highlights the importance of both the nature of the legal error and the conduct of the parties in exercising the court's discretion under the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: The respondent has sought a certificate pursuant to s 10(1) of the Suitors' Fund Act 1964 (WA) (the Act) in relation to the costs of the appeal. Section 10(1) relevantly reads :Where an appeal against the decision of a Court in any proceedings - (a)to the Supreme Court;…on a question of law succeeds, the Supreme Court may, … grant to the respondent to the appeal … an indemnity certificate in respect of that appeal. We accept that the appellant was successful on a question of law, that being that a finding of fact was made without any evidence to support it. That establishes the pre‑condition to the grant of an indemnity certificate. However, the question which then arises is whether the discretion should be exercised in favour of the respondent. The discretion is a discretion to grant, rather than a discretion to refuse, which casts an onus on the respondent to show some ground for the exercise of the discretion. See Richards v Faulls Pty Ltd [1971] WAR 129. The court in Richards v Faulls also pointed out that while the intention of the Act is to relieve a litigant from the burden of costs in an appeal which has been lost because the court below erred on a question of law, the purpose of the Act is neither to promote litigation nor to provide legal aid. A relevant factor is the degree to which the question of law involves some point of general application. See Richards v Faulls (138); Jones v Dalcon Construction Pty Ltd [2006] WASCA 205(S). In this case, although it was necessary to discuss the distinction between dissolution of a partnership and retirement of a party from the partnership, the appellant ultimately succeeded on the point mentioned above, namely that a finding was made without evidence to support it. The error was therefore case specific. Furthermore, it appears that the parties (including the respondent) conducted the case without considering the law relating to the distinction between dissolution of a partnership and the retirement of a partner. That meant that the decision was reached without the parties, including the respondent, providing appropriate assistance to the court. That conduct is relevant to the exercise of the discretion: see Richards v Faulls (138); Jones v Dalcon Construction [6]. The final factor is that although the respondent's solicitor (who appeared as counsel at trial) did appear at one directions hearing, she did not appear at the hearing of the appeal and did not prepare any written submissions. The factors referred to above lead us to the conclusion that the application should be refused.

Ratio Decidendi

Legal Principle Established

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