Yap v Granich & Associates - [2002] WASCA 330

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: YAP -v- GRANICH & ASSOCIATES [2002] WASCA 330

CORAM: WALLWORK J
MURRAY J
PARKER J

HEARD: 14 AUGUST 2002

DELIVERED : 4 DECEMBER 2002

FILE NO/S: CIV 1865 of 2002

BETWEEN: CHENG SEE YAP
Applicant
AND
GRANICH & ASSOCIATES
Respondent

Catchwords:

Appeal for rehearing of District Court action - Whether fresh or new evidence - Whether misrepresentation at earlier hearing - Previous applications in same matter before Full Court and High Court - No fresh or new evidence established

Legislation:

Bankruptcy Act, Pt X

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Applicant: In person
Respondent: Mr B S Dodd

Solicitors:

Applicant: In person
Respondent: Mallesons Stephen Jaques

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

Yap v Granich & Associates, unreported; DCt of WA; Library No 4913; 7 May 1996
Yap v Granich & Associates, unreported; FCt SCt of WA; Library No 970487A; 21 July 1997

Case(s) also cited:

Nil

WALLWORK J: These are reasons for judgment after the hearing of an originating motion pursuant to which Mrs Yap asked for the rehearing of District Court Action No 6202/93: Yap v Granich & Associates, unreported; DCt of WA; Library No 4913; 7 May 1996. The grounds of Mrs Yap's application are that she has obtained fresh evidence which was not before the Court; also Mrs Yap relies on the respondent's alleged misrepresentation of facts at a hearing held on 10 August 1992 in District Court Action No DC1536/89 in which action the respondent acted on Mrs Yap's behalf.
In support of her application Mrs Yap presented the Court with a book of papers totalling 397 pages. Those papers included an affidavit sworn by Mrs Yap in support of her application. In her affidavit Ms Yap relates the grounds of the alleged fresh evidence upon which she relies.

District Court Action No 6202/93

It is convenient to look firstly at the reasons for judgment in Yap v Granich & Associates (supra). He dismissed Mrs Yap's claim against the respondent.
In the course of his reasons for judgment the Commissioner said that in 1989 Mrs Yap was sued by P. Vivante & Co Pty Ltd ("the company") in District Court proceedings No 1536/89. Essentially the company had claimed against Mrs Yap in respect of two amounts of money. Firstly, it was alleged that a company associated with Mrs Yap, namely Akibilt Pty Ltd, was indebted to the company in the amount of $25,000 in respect of concreting works which had been performed at Curtin University. Secondly, the company claimed an amount of $42,000 which was said to be due by Mrs Yap personally to the company in respect of loans made to her.
The Commissioner said that the company had obtained a default judgment against Mrs Yap on 10 April 1989. Subsequently, some of her property was seized. Eventually she had approached Melsom Robson & Co, chartered accountants, for assistance. On 21 December 1989…

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 Yap v Granich & Associates

Details

AGLC: Yap v Granich & Associates [2002] WASCA 330
Case: [2002] WASCA 330
Decision Date: 4 DECEMBER 2002

CaseChat Overview and Summary

The appeal was brought by Yap, the respondent in the District Court, against Granich & Associates, the appellants. The dispute centred around the validity of an appeal against a District Court decision, focusing on whether there was fresh or new evidence presented that warranted a rehearing. The appeal was heard in the Supreme Court. The legal issues before the court were whether the evidence presented constituted fresh or new evidence, and if there had been any misrepresentation at the earlier hearing. Additionally, the court had to consider the implications of previous applications in the same matter before both the Full Court and the High Court.

The court examined the evidence submitted and concluded that there was no fresh or new evidence presented that warranted a rehearing of the District Court's decision. The court found that the evidence provided was not new but had been available at the time of the original hearing. The court further found that there was no misrepresentation at the earlier hearing. The court considered the previous applications in the same matter before the Full Court and the High Court, which had already determined the matter, and concluded that these did not establish the presence of fresh or new evidence. The court's reasoning was based on the principle that fresh or new evidence must be evidence that was not available or known at the time of the original hearing.

The appeal was dismissed, and the District Court's decision was upheld. The court found that the appellants had not established that there was fresh or new evidence that warranted a rehearing. The court emphasised the importance of adhering to the principles governing appeals and the need for evidence to be genuinely fresh or new to warrant a rehearing. The court's decision was based on a careful examination of the evidence and the legal principles applicable to appeals for rehearing.

Orders