WYVILL V. GREGORINI 17/1957

17 OF 1987 Re. ORIGINAL. Cg |

IN THE HIGH COURT OF AUSTRALIA |

REASONS FOR JUDGMENT

Judgment delivered at... Sydney... W. M. Houstox, Govt. Print, Me, on Tuesday, 27th August. 1957

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Appeal dismissed with costs.

JUDGMENT.

WYVILL

GREGORINI

DIXON C.J.

WYVILL

ve

GREGORINI

I have had the advantage of reading the judgment of Kitto J. and agree in it completely.

Be

WYVILL ve... GREGORINI.

JUDGMENT. WEBB, Je

WYVILL GREGORINI.

This is an appeal against a judgment of the Supreme Court of Western Australia (Dwyer, C.J.) entered for the respondent defendant in an action by the appellant plaintiff for the rescission of a contract made in January, 1955, for the sale of a mixed business in East Perth for £2,500 om the ground of fraudulent misrepresentation, or alternatively for damages.

Clause 13 of the contract purports to prevent any representation from being relied upon as an inducement to enter into the contract except the representation that the takings of the business were £160 weekly. This, however, dia not prevent 2 fraudulent misrepresentation inducing the contract from being relied upon as a ground for rescission or damages. See Pearson v. Dublin, 1907 A.C. 351 and Suburban Homes Limited v. Topper, (1929) 35 A.L.R. 294 and Summarized the grounds of appeal are that the respondent represented to the appellant that the profits of the business were £25 weekly; that this was fraudulent; and that it induced the appellant to enter into the contract.

The appellant did not rely on this representation as to profits in her first statement of claim nor in her second statement of claim as originally delivered: she relied upon it for the first time in an amendment of the second statement of claim made in May 1956, that is to say, nine months after the action was commenced and 16 months after the contract was entered into. However, the respon- dent admitted in his further amended defence that he had