DIFFERENTIALS PTY LTD v GREENCARE INDUSTRIES PTY LTD [1994] NSWCA 83

DIFFERENTIALS PTY LTD v GREENCARE INDUSTRIES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, HANDLEY and SHELLER JJA 25 November 1993, 11 August 1994 [1994] NSWCA 83

CONTRACT — ORAL- DISPUTED — NO QUESTION OF PRINCIPLE. CONTRACT — disputed contract for sale of goods — contract allegedly made during telephone call — trial judge holds that plaintiff failed to discharge civil onus — demeanour not decisive either way — On appeal — held: Appeal dismissed — Court unable to find appellant had discharged onus.

ORDER Appeal dismissed with costs.

Mahoney JA I have the benefit of reading the judgment of Sheller JA. I agree with his Honour's conclusions and with the orders he proposes.

In a case such as this, it is difficult to arrive at a decision which one can be satisfied is certainly correct. The learned trial judge saw no ground for choosing between the two main witnesses, Mr Liprini and Mr Livingstone, as witnesses who were attempting to tell the truth. Having considered the evidence anew, I agree with Sheller JA that it is not possible to point to anything in the manner in which they gave evidence which enables one to choose between them.

Therefore, the appeal must be decided, in substance, upon the basis of what, on the text of the evidence and the other material, emerges as the most probable conclusion. I agree with Sheller JA that, so considered, the appellant has failed to prove its case to the degree of satisfaction which the law requires.

The appeal should be dismissed with costs.

Handley JA I agree with Sheller JA.

Sheller JA

INTRODUCTION

The appellant, Differentials Pty Ltd, sued the respondent, Greencare Industries Pty Ltd, in the District Court to recover a debt of $6,137.70 said to have arisen from an oral contract pursuant to which the appellant agreed to supply on the respondent's order ten differentials numbered in the appellant's records as 258-267 inclusive for a price of $613.77 each. The proceedings were heard by his Honour Judge Walsh at the District Court at Wollongong. Judgment was delivered on 1 August 1991. His Honour found a verdict for the respondent. The appellant appeals from that decision.