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Williams v Sutera

Williams v Sutera

Case [2012] NSWDC 163 28 September 2012

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District Court

New South Wales

Medium Neutral Citation: Williams v Sutera [2012] NSWDC 163
Hearing dates: 17, 18 and 26 September 2012
Decision date: 28 September 2012
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Judgment for the defendants.
(2) Judgment for the cross-claimants in the sum of $28,800.68.
(3) The parties to bring in Short Minutes of Order setting out the mathematically agreed total of interest on the judgment in the cross-claim.
(4) Plaintiff/cross-defendant pay the defendants/cross-claimants costs of these proceedings.
(5) Liberty to restore in relation to interest and costs.
(6) Exhibits retained for 28 days.

Catchwords: TORT - deceit - plaintiff leases service station from defendants - representations made as to age of underground petrol tanks - whether representations, if made, were relied upon - whether loss flowing from representations capable of being established - cross-claim by defendants for mesne profit, non-payment of outgoings and repairs
Legislation Cited: -
Cases Cited: Australian Securities and Investments Commission (ASIC) v Rich (2005) 218 ALR 764
Auyeung v Chan [1999] NSWCA 417
Bassett v Host [1982] 1 NSWLR 206
Chouman v Margules (1993) 17 MVR 144
Civil Service Co-Operative Society of Vic Ltd v Blyth (1914) 17 CLR 601
Derry v Peek [1886-90] All ER Rep 1
ET Petroleum Holdings Pty Ltd v Clarenden Pty Ltd [2005] NSWSC 435
Ford v Nagle [2004] NSWCA 33
Frankenberg v Famous Lasky Film Service Ltd [1931] 1 Ch 428
Ingot Capital Investments & Ors v Macquarie Equity Capital Markets (No 6) [2007] NSWSC 124
Jones v Dunkel (1959) 101 CLR 298
Jones v National Coal Board [1957] QB 55
LVMH Watch & Jewellery Australia Pty Ltd v Lassanah (New South Wales Court of appeal, Tobias and Young JJA, 4 March 2011, unreported)
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Mercland Investment Group Pty Ltd v Duncalm Pty Ltd [2012] FCA 183
National Australia Bank v Pollak [2001] FCA 1408
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
R v Apostilides (1984) 154 CLR 563
RA & K Becker Pty Ltd v Cariste Pty Ltd (2001) 11 BPR 20,111
Re Gibson's Settlement Trusts [1981] Ch 179
Sharp v Rangott (2008) 246 ALR 84
Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324
Watson v Foxman (1995) 49 NSWLR 315
Whalan v Kogarah Municipal Council [2007] NSWCA 5
Wood v Balfour [2011] NSWCA 382
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff/Cross-Defendant: Paul Williams
First Defendant/First Cross-Claimant: Salvatore Sutera
Second Defendant/Second Cross-Claimant: Dora Sutera
Representation: Plaintiff/Cross-Defendant: Mr R D Marshall
Defendants/Cross-Claimants: Mr A Autore (solicitor)
Plaintiff/Cross-Defendant: Autore & Associates
Defendants/Cross-Claimants: Colbron & Associates

File Number(s): 2011/124999
Publication restriction: None

Judgment

The defendants are the registered proprietors of land at 62 Allowrie Street, Jamberoo which, until 12 October 2004, was leased by a Mr John William Davis ("Mr Davis"). He ran an Ampol petrol station from these premises. In or about August 2004, Mr Williams, the plaintiff had discussions with Mr Davis about taking over the lease. This…

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 Williams v Sutera

Details

AGLC: Williams v Sutera [2012] NSWDC 163
Case: [2012] NSWDC 163
Decision Date: 28 September 2012

CaseChat Overview and Summary

Williams was the plaintiff in the Federal Court, suing Sutera, the defendants, over a dispute relating to the lease of a service station. The plaintiff claimed damages for deceit based on alleged misrepresentations regarding the age of the underground petrol tanks at the premises. The defendants denied the claims and raised a cross-claim for mesne profit, non-payment of outgoings, and repairs. The court had to determine whether the alleged misrepresentations were made, whether they were relied upon by the plaintiff, and if the loss claimed by the plaintiff could be established as flowing from those representations. Additionally, the court needed to assess the validity and quantum of the defendants' cross-claim.

In addressing these issues, the court found that the plaintiff did not establish that the alleged representations were made or that they were relied upon. The court concluded that the loss claimed by the plaintiff could not be shown to have flowed from any such misrepresentations. Regarding the cross-claim, the court found in favour of the defendants, awarding them $28,800.68 in damages for mesne profit, non-payment of outgoings, and repairs. The court also ordered that the parties were to bring in Short Minutes of Order detailing the agreed total of interest on the judgment for the cross-claim and that the plaintiff was to pay the defendants' costs of the proceedings. Finally, the court granted liberty to restore in relation to interest and costs, and ordered that exhibits be retained for 28 days.

Orders

Orders of the court

(1) Judgment for the defendants.

(2) Judgment for the cross-claimants in the sum of $28,800.68.

(3) The parties to bring in Short Minutes of Order setting out the mathematically agreed total of interest on the judgment in the cross-claim.

(4) Plaintiff/cross-defendant pay the defendants/cross-claimants costs of these proceedings.

(5) Liberty to restore in relation to interest and costs.

(6) Exhibits retained for 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Williams v Sutera [2012] NSWDC 163

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 23 of 23 shown

Re Baini and Commissioner of Taxation
[2012] AATA 440 Para 161

…he tanks being more than five or six years old. Anecdotal evidence is no substitute for business records: Re Samir Baini and Commissioner of Taxation [2012] AATA 440 at [161];…
Mercland Investment Group Pty Ltd v Duncalm Pty Ltd
[2012] FCA 183 Para 1

…e plaintiff had the opportunity to inspect the premises and discuss these matters with Mr Davis ( Mercland Investment Group Pty Ltd v Duncalm Pty Ltd [2012] FCA 183 (" Mercland ")).…
Wood v Balfour
[2011] NSWCA 382 Para 1

…hould first be noted that the plaintiff puts his case on the basis that there were misleading statements made, and not upon omissions: Wood v Balfour [2011] NSWCA 382.…
Teoh v Hunters Hill Council (No 4)
[2011] NSWCA 324 Para 1

…576, although oversight in criminal proceedings may, unlike civil proceedings, constitute grounds for a new trial: Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324 at [23] (but cf LVMH Watch & Jewellery Australia Pty Ltd v Lassanah (New South Wales Court of appeal, Tobias and Young JJA, 4 March 2011, unreported)…
Sharp v Rangott
[2008] FCAFC 45 Para 1

…w proceedings places the obligation of investigation and presentation of proceedings on the parties, in contrast to "inquisitorial" ( Sharp v Rangott (2008) 246 ALR 84 at [3]) systems of enquiry by the judge used in civil code systems. If there is an error or oversight in the evidence, such as the mathematical error…
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6)
[2007] NSWSC 124 Para 1

…In Ingot Capital Investments & Ors v Macquarie Equity Capital Markets (No 6) [2007] NSWSC 124, McDougall J (under the heading "Attention to detail is required") set out McLelland CJ in Eq's statement of what must be proved where representations had been made orally, noting that it is necessary to prove "with some p…
Whalan v Kogarah Municipal Council
[2007] NSWCA 5 Para 1

…Similarly, in Whalan v Kogarah Municipal Council [2007] NSWCA 5 an appeal was allowed on the basis that the trial judge failed to consider relevant evidence. There was no suggestion that submissions had been made on this evidence, but ignored by the trial judge; the failure to address this evidence was a failure…
Australian Securities and Investments Commission v Rich
[2005] NSWCA 152

…r mesne profit, non-payment of outgoings and repairs Legislation Cited: - Cases Cited: Australian Securities and Investments Commission (ASIC) v Rich (2005) 218 ALR 764 Auyeung v Chan [1999] NSWCA 417 Bassett v Host [1982] 1 NSWLR 206 Chouman v Margules (1993) 17 MVR 144 Civil Service Co-Operative Society of Vic Ltd…
Et Petroleum Holdings P/L v Clarenden P/L
[2005] NSWSC 435 Para 1

…gave truthful evidence. The real problem seems to be, to borrow the description used by White J in ET Petroleum Holdings Pty Ltd v Clarenden Pty Ltd [2005] NSWSC 435 at [132], that there has been "unreasonable and provocative conduct" on both sides for some years. An angry witness is not necessarily an untruthful…
Ford v Nagle
[2004] NSWCA 33 Para 1

…isions in the lease. I therefore relisted the matter to invite further submissions, in the manner adopted by the first instance judge in Ford v Nagle [2004] NSWCA 33. There are still some minor mathematical discrepancies (see comments in version 2 of the cross-claimants' schedule of damages above), but I propose t…
Baloglow v Konstantinidis
[2001] NSWCA 451 Para 1

…t repairs to underground tanks and pipes for pumping petrol is helpfully set out in a decision of Austin J in RA & K Becker Pty Ltd v Cariste Pty Ltd (2001) 11 BPR 20,111. The facts in that case were similar to the present, namely that underground tanks and pipes installed before the plaintiff entered into possessi…
National Australia Bank Ltd v Pollak
[2001] FCA 1408 Para 1

…efendant. This is not Anshun estoppel, but accord and satisfaction: see the discussion of the relevant principles in National Australia Bank v Pollak [2001] FCA 1408. More importantly, the settlement related to land tax payments only, and for periods prior to the land tax and other outgoings sought by the cross cl…
Auyeung v Chan
[1999] NSWCA 417 Para 1

…The manner in which damages for deceit should be assessed has been helpfully summarised by the New South Wales Court of Appeal in Auyeung v Chan [1999] NSWCA 417 (" Auyeung "). There should be evidence in relation to causation ( Auyeung at [32]-[33]) as well as a careful analysis of financial records demonstrating…
Watson v Foxman
[1995] NSWCA 497 Para 1

…In Watson v Foxman (1995) 49 NSWLR 315 at 318-319, McLelland CJ in Eq stated:…
DeVries v Australian National Railways Commission
[1993] HCA 78

…hich binds parties to the way in which their cases are conducted by their legal representatives: cf Devries v Australian National Railways Commission (1993) 67 ALJR 528 at 531; 112 ALR 641 (HC).…
R v Apostilides
[1984] HCA 38 Para 1

…counterparts" in relation to the calling of witnesses and the presentation of evidence. This applies to criminal proceedings as well: R v Apostilides (1984) 154 CLR 563 at 576, although oversight in criminal proceedings may, unlike civil proceedings, constitute grounds for a new trial: Teoh v Hunters Hill Council (No…
Port of Melbourne Authority v Anshun Pty Ltd
[1981] HCA 45 Para 1

…including an order that the plaintiff should provide particulars of the nature of the Anshun estoppel ( Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) which was alleged to apply to claims for outgoings in the cross-claim.…
Jones v Dunkel
[1959] HCA 9

…rankenberg v Famous Lasky Film Service Ltd [1931] 1 Ch 428 Ingot Capital Investments & Ors v Macquarie Equity Capital Markets (No 6) [2007] NSWSC 124 Jones v Dunkel (1959) 101 CLR 298 Jones v National Coal Board [1957] QB 55 LVMH Watch & Jewellery Australia Pty Ltd v Lassanah (New South Wales Court of appeal, Tobias and…
Jones v Dunkel
[1959] HCA 8 Para 1

…satisfied the defendants did not do so either. The plaintiff has elected not to give evidence, and I draw a Jones v Dunkel inference ( Jones v Dunkel (1959) 101 CLR 298).…
Helton v Allen
[1940] HCA 20

…inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712.…
Civil Service Co-Operative Society of Victoria Limited v Blyth
[1914] HCA 17 Para 1

…ek , supra , have been approved in a number of decisions over the past century, commencing with Civil Service Co-Operative Society of Vic Ltd v Blyth (1914) 17 CLR 601 at 609 and most recently by the Court of Appeal in Wood v Balfour , supra . Actionable statements may include those where a representor lacked belief…
Pty Ltd v Sprowles
636 F Supp 1419

…5 LVMH Watch & Jewellery Australia Pty Ltd v Lassanah (New South Wales Court of appeal, Tobias and Young JJA, 4 March 2011, unreported) Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mercland Investment Group Pty Ltd v Duncalm Pty Ltd [2012] FCA 183 National Australia Bank v Pollak [2001] FCA 1408 Port of Melbourne Au…
[1957] QB 55
[1957] QB 55 Para 1

…asy resolution. Appellate courts have noted that the focus of common law courts in ascertaining the truth is increasing ( Jones v National Coal Board [1957] QB 55 at 63; Sharp v Rangott at [3]; Bassett v Host [1982] 1 NSWLR 206 at 243). However, in Sharp the Full Court stated at [47] that "a strictly adjudicati…

Legislation cited in this decision · 3

Fair Trading Act 1987 (WA)
1 mention (from Para 1)
Limitation Act 1969 (NSW)
1 mention (from Para 1)
Trade Practices Act 1974 (Cth)
1 mention

Medium Neutral Citation:	Williams v Sutera [2012] NSWDC 163
Hearing dates:	17, 18 and 26 September 2012
Decision date:	28 September 2012
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendants. (2) Judgment for the cross-claimants in the sum of $28,800.68. (3) The parties to bring in Short Minutes of Order setting out the mathematically agreed total of interest on the judgment in the cross-claim. (4) Plaintiff/cross-defendant pay the defendants/cross-claimants costs of these proceedings. (5) Liberty to restore in relation to interest and costs. (6) Exhibits retained for 28 days.
Catchwords:	TORT - deceit - plaintiff leases service station from defendants - representations made as to age of underground petrol tanks - whether representations, if made, were relied upon - whether loss flowing from representations capable of being established - cross-claim by defendants for mesne profit, non-payment of outgoings and repairs
Legislation Cited:	-
Cases Cited:	Australian Securities and Investments Commission (ASIC) v Rich (2005) 218 ALR 764 Auyeung v Chan [1999] NSWCA 417 Bassett v Host [1982] 1 NSWLR 206 Chouman v Margules (1993) 17 MVR 144 Civil Service Co-Operative Society of Vic Ltd v Blyth (1914) 17 CLR 601 Derry v Peek [1886-90] All ER Rep 1 ET Petroleum Holdings Pty Ltd v Clarenden Pty Ltd [2005] NSWSC 435 Ford v Nagle [2004] NSWCA 33 Frankenberg v Famous Lasky Film Service Ltd [1931] 1 Ch 428 Ingot Capital Investments & Ors v Macquarie Equity Capital Markets (No 6) [2007] NSWSC 124 Jones v Dunkel (1959) 101 CLR 298 Jones v National Coal Board [1957] QB 55 LVMH Watch & Jewellery Australia Pty Ltd v Lassanah (New South Wales Court of appeal, Tobias and Young JJA, 4 March 2011, unreported) Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mercland Investment Group Pty Ltd v Duncalm Pty Ltd [2012] FCA 183 National Australia Bank v Pollak [2001] FCA 1408 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 R v Apostilides (1984) 154 CLR 563 RA & K Becker Pty Ltd v Cariste Pty Ltd (2001) 11 BPR 20,111 Re Gibson's Settlement Trusts [1981] Ch 179 Sharp v Rangott (2008) 246 ALR 84 Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324 Watson v Foxman (1995) 49 NSWLR 315 Whalan v Kogarah Municipal Council [2007] NSWCA 5 Wood v Balfour [2011] NSWCA 382
Texts Cited:	-
Category:	Principal judgment
Parties:	Plaintiff/Cross-Defendant: Paul Williams First Defendant/First Cross-Claimant: Salvatore Sutera Second Defendant/Second Cross-Claimant: Dora Sutera
Representation:	Plaintiff/Cross-Defendant: Mr R D Marshall Defendants/Cross-Claimants: Mr A Autore (solicitor) Plaintiff/Cross-Defendant: Autore & Associates Defendants/Cross-Claimants: Colbron & Associates
File Number(s):	2011/124999
Publication restriction:	None