Votraint No 708 Pty Limited v Davano Pty Limited and 2 Ors

[2000] NSWCA 40

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Votraint No. 708 Pty Limited and Anor v Davano Pty Limited and 2 Ors [2000]  NSWCA 40

FILE NUMBER(S):
40911/99

HEARING DATE(S):           10 March 2000

JUDGMENT DATE:            10/03/2000

PARTIES:
Votraint No. 708 Pty Limited (First Appellant)
Andrew Peter Dimitropoulos (Second Appellant)
v
Davano Pty Limited (First Respondent)
David Christopher Biviano (Second Respondent)
Stefano Spesaro (Third Respondent)

JUDGMENT OF:      Stein JA Meagher JA Giles JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        DC 8562/98

LOWER COURT JUDICIAL OFFICER:     Balla ADCJ

COUNSEL:
C R Newlinds (Appellants)
R W Tregenza (Respondents)

SOLICITORS:
The Law Partnership (Appellants)
Emmerson & Emmerson (Respondents)

CATCHWORDS:
CONTRACT - representation as to takings - misleading and deceptive conduct - reliance

LEGISLATION CITED:
n/a

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA     40911/99

MEAGHER JA

STEIN JA
GILES JA

Friday, 10 March 2000

VOTRAINT NO. 708 PTY LIMITED AND ANOR v DAVANO PTY LIMITED AND 2 ORS

JUDGMENT

1. STEIN JA:                This is an appeal from a decision of her Honour Acting District Court Judge Balla given on 12 November 1999.  It concerns the purchase of a coffee bar business in Margaret Street, Sydney.  There are essentially three points taken on the appeal by the first appellant, Votraint No. 708 Pty Limited and Mr Dimitropoulos, the second appellant.

2. The issues raised are:

   1.Did Mr Dimitropoulos make any representation about the average takings of the subject business?  This refers to grounds 1 and 2 of the Notice of Appeal.

   2.Did the statements, as found by her Honour, amount to misleading and deceptive conduct?  This is ground 3 of the Notice of Appeal.  In this respect, I think it is fair to say that Mr Newlinds, on behalf of the appellant, did not separately address the issue.  Rather, it can probably be seen to merge into the third question raised on the appeal.

   3.Whether her Honour was justified in finding that the respondents relied on the representations?  This is ground 4 in the Notice of Appeal.

3. As to the first matter raised, it seems to me that there was ample evidence that the representation alleged was made.

4. Her Honour was entitled to so find, especially in the light of the credit findings which she made in relation to the evidence of Mr Biviano (the second respondent) and Mr Spesaro (the third respondent) as opposed to the unfavourable credit findings, well open to her Honour, in relation to the second appellant, Mr Dimitropoulos.  Clearly her Honour was entitled to find that the representations were made by Mr Dimitropoulos to Mr Biviano.  In the circumstances of the evidence, if the representation was not made to Mr Spesaro, it matters not in the end result.  Nevertheless, there was evidence of the way in which such representations as were made to Mr Spesaro by Mr Dimitropoulos were understood by the former.

5. As to the issue of reliance, Mr Newlinds has carefully taken us to the various matters that could be said to be objective facts to be considered on the issue and to the relevant evidence before her Honour.  During his address, one of the matters raised in support of the appellant was her Honour’s finding that Mr Biviano would have to seriously think about buying the business if he had not been told that the average weekly takings were $17,000.  We were taken to the relevant evidence in the black appeal book at page 48D to see the exact evidence of the conversation, which included the words ‘even further’.  It was put that this was the high point of her Honour’s finding in relation to Mr Biviano’s evidence of reliance.

6. I do not accept that.  The evidence before her Honour includes the material in Mr Biviano’s first of many affidavits [to be found at blue appeal book, page 2 para 8] in particular where Mr Biviano deposes ‘I would not have entered into the option or caused the first plaintiff to enter into the contract of sale if I had not been given these figures’.  ‘These figures’ refer to an average gross taking of $17,000 over 52 weeks of the year [see para 7 of the same affidavit].  Her Honour clearly accepted that evidence.  This was no doubt one of the matters which led to her ultimate conclusion on reliance, to be found in the judgment at red appeal book, 12U.

7. In my opinion, when one examines all of the relevant objective evidence; when it is properly considered and balanced; it was open to her Honour to find for the respondent on the issue of reliance.  Indeed, if I was to look at the evidence myself, as I have done (although I say that it is unnecessary to do so in light of my finding) the balancing of the objective facts leads to the same conclusion as her Honour found.

8. No issues are raised as to damages. Accordingly, it is unnecessary to go into these matters.  I would propose that the appeal be dismissed with costs.

9. MEAGHER JA:       I also agree.

10   GILES JA:  I also agree.

11   MEAGHER JA: The order of the Court therefore is the appeal is dismissed with costs.

OoO

LAST UPDATED:    17/03/2000