TAUBENSCHLAG v AMERICAN EXPRESS INTERNATIONAL INC [1993] NSWCA 262

TAUBENSCHLAG v AMERICAN EXPRESS INTERNATIONAL INC

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and MEAGHER JJA

7 APRIL 1993, 7 May 1993

[1993] NSWCA 262

ALLEGED AGREEMENT FOR FUNDING OF CONFERENCE BY DEFENDANT — LETTER WRITTEN CONFIRMATORY OF AGREEMENT — JUDGE REJECTED LETTER AND FOUND NO AGREEMENT — ERRONEOUS REASON FOR REJECTING LETTER — WHETHER NEW TRIAL SHOULD BE ORDERED APPEAL from District Court — Alleged agreement for funding of conference by defendant (American Express International Inc) — Letter written confirmatory of agreement — Judge rejected letter and found no agreement — Erroneous reason for rejecting letter — Whether new trial should be ordered — Held (Meagher JA dissenting): New trial should be held.

Mahoney JA I have had the advantage of reading the judgment of Meagher JA. HisHonour's judgment enables me to go directly to what, in my opinion, is the matter upon which principally the appeal turns.

The issue in the proceeding was whether, as the defendant's alleged, an oral agreement was made whereby the defendants were authorised to use American Express cards to be issued to them to incur expenses of $50,000 in connection with a conference they proposed should be organised. There were two people present when, as the defendants allege, the agreement was made: Mr Glaser representing the American Express company and Mr Taubenschlag. Their accounts in evidence of the conversation differed as to whether such an agreement was made. The learned trial judge had to choose between them. It is possible, in some cases, for a trial judge to accept as what happened something to which neither party or any witness has given evidence: for a practical example, see Walter T Heazlewood and Sons PtY Ltd v Fisk (Court of Appeal, 9 June 1981, unreported). But, in a practical sense, the problem posed by the evidence in this case involved a choice as to whether Mr Taubenschlag's account was correct or not.