FERGUSON V. LEVER

FERGUSON

ORDER

Appeal dismissed with costs.

FERGUS ON

BARWICK C.J.

FERGUSON

The appellant/plaintiff sued the defendant/ respondent for fraudulent misrepresentation inducing the investment by the appellant of some $12,000 in the capital of the company A. K. Lever & Co. Pty. Ltd. of which the respondent was then the Managing Director.

The representation, as alleged in paragraph 3 of the statement of claim, which is said to have been.false and to have induced the investment, is in these terms:

"The Defendant, with a view to inducing the Plaintiff to acquire shares in the said Company orally represented to the Plaintiff that the said Company was in sucha financial position that

~ moneys invested by the Plaintiff in the said Company would be available to be expended in the promotion of the sale of the Company's products."

The learned primary judge found that the plaintiff had not been induced to take up those shares by any , misrepresentation but that, on the contrary, being experienced himself in business matters and having access to the balance sheets of the company, he took up the shares because he, the

appellant, saw in the company an avenue for employment and

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an opportunity to exercise what he considered to be his skill in rescuing the company from what he knew to be a serious financial situation. His Honour also found that the representation alleged by the appellant in the statement of claim was not in fact made.

These findings were made after an oral hearing in which both parties gave evidence both in chief and in cross- examination. The judge did not accept the evidence of the appellant but preferred the evidence of the respondent, which he accepted.

'No indisputable evidence has been brought to my attention which could warrant an appellate court disregarding these basic findings of fact, nor have I heard anything from appellant's counsel which would justify such a course. That being so, the claim in fraud must fail. .