Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Vieira v O'Shea [2012] NSWCA 21 Hearing dates: 24 October 2011 Decision date: 05 March 2012 Before: Basten JA at 1;
Meagher JA at 1;
Handley AJA at 51Decision: (1) Allow the appeal.
(2) Set aside order (1) made by the trial judge on 8 December 2010.
(3) Judgment for the appellant against the first respondent for $255,248 plus interest at the prescribed rates from 31 March 2009 to the date of judgment.
(4) Order that the first respondent pay the appellant's costs of the trial in respect of the claim against the first respondent.
(5) Order that the first respondent pay the appellant's costs in this Court.
(6) Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the appeal by the appellant.
(7) Grant leave to the cross-appellant and cross-respondents to approach the Registrar to obtain a date for hearing of the cross-appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court146s computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: APPEAL - civil - evidence - construction of contract - whether evidence supports primary judge's findings as to contract terms - whether open to appellate court to reject findings based on credibility of witnesses - whether open to appellate court to reassess construction of contract based on findings of fact made by trial judge
CONTRACT - construction - identifying contract terms - contract for advice prior to purchase - use of language of the contracting parties
DAMAGES - contract - time for assessment - whether assessed at the time of breach or at some other date - circumstances in which it is appropriate to measure damages at some other date - circumstances in which plaintiff is considered to be locked in to holding the assetLegislation Cited: Civil Liability Act 2002 (NSW), ss 5A, 5D
Fair Trading Act 1987 (NSW), s 42Cases Cited: Downs v Chappell [1997] 1 WLR 426
Fox v Percy [2003] HCA 22; 214 CLR 118
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; 217 CLR 640
Johnson v Perez [1988] HCA 64;166 CLR 351
Potts v Miller [1940] HCA 43; 64 CLR 282
Robinson v Harman (1848) 1 Ex 850
Smith New Court Securities Ltd v Citibank NA [1997] AC 254
The Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; 174 CLR 64Texts Cited: E Peel, Treitel, The Law of Contract (12th ed, 2007) at 20-064 Category: Principal judgment Parties: Humberto Vieira - Appellant
John O'Shea - First Respondent and Cross-Appellant
Shooting Star Films Pty Ltd - Second Respondent
Treve…
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- AGLC
- Vieira v O'Shea [2012] NSWCA 21
- Case
- [2012] NSWCA 21
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the evidence supported the primary judge's findings regarding the terms of the contract, whether the appellate court was entitled to reject findings based on witness credibility, and whether the construction of the contract could be reassessed based on the trial judge's factual findings. Additionally, the court examined the appropriate time for assessing damages in contract, specifically in circumstances where a plaintiff might be considered "locked in" to holding an asset.
The Court of Appeal allowed the appeal, setting aside the trial judge's original order. The court found that the evidence did not support the primary judge's findings as to the contract terms and that it was open to the appellate court to reassess the construction of the contract. The court determined that damages should be assessed at the time of breach, applying the language of the contracting parties to identify the contract terms. Consequently, judgment was entered for the appellant against the first respondent for a specified sum plus interest, with orders regarding costs and a certificate under the Suitors' Fund Act 1951 (NSW). Leave was also granted for a cross-appeal to be heard.
Orders
Orders of the court
(1) Allow the appeal.
(2) Set aside order (1) made by the trial judge on 8 December 2010.
(3) Judgment for the appellant against the first respondent for $255,248 plus interest at the prescribed rates from 31 March 2009 to the date of judgment.
(4) Order that the first respondent pay the appellant's costs of the trial in respect of the claim against the first respondent.
(5) Order that the first respondent pay the appellant's costs in this Court.
(6) Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the appeal by the appellant.
(7) Grant leave to the cross-appellant and cross-respondents to approach the Registrar to obtain a date for hearing of the cross-appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court146s computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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