AUSTRALIAN GRANODIORITE LTD v DEVEX LTD [1991] NSWCA 7

AUSTRALIAN GRANODIORITE LTD v DEVEX LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and MEAGHER JJA 28 November 1991, 10 December 1991

[1991] NSWCA 7

APPEAL — EVIDENCE — CREDIBILITY — ABALOS v AUSTRALIAN POSTAL COMMISSION, (1990) 171 CLR 167, AT 178, APPLIED — ESTOPPEL EQUITABLE ESTOPPEL — ASSUMPTION — REPRESENTATION UNCONSCIONABILITY — DETRIMENT

Mahoney JA I agree with the judgment of Clarke JA and the orders he proposes.

Mr Wheelhouse submitted that this Court should reverse the findings of the learned trial judge as to the credibility of the witnesses and should reinstate the evidence of the Messrs Cullen. I do not think that that submission should be accepted. The learned trial judge was conscious of the considerations referred to in Abalos v Australian Postal Commission (1990) 171 CLR 167 and was careful in his findings in that regard. I do not think that the fact that there were, as between the witnesses, the conflicts of evidence to which Mr Wheelhouse referred enables this Court to put aside the learned judge's findings. The fact, if it be such, that in certain respects the evidence of Mr Torpey or of Mr Hughes was unacceptable does not mean that, in the respects which his Honour found relevant, his finding that their account of what took place should be accepted should be put aside. The reconciliation of the evidence of witnesses of incomplete accuracy is a not unusual aspect of the function of a trial judge.

Mr Wheelhouse also submitted that the respondent was estopped from denying the existence of a concluded joint venture agreement. His submission was, in general terms, that whilst negotiations were going on, the parties each acted on the assumption that a joint venture agreement would in fact be made. It would, he submitted, be unconscionable for Devex Limited to depart from that common assumption: see, Commonwealth v Verwevan (1990) 170 CLR 394.