ADAMS v ALEMITE LUBREQUIT PTY LIMITED [1995] NSWCA 7

ADAMS v ALEMITE LUBREQUIT PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GLEESON CJ, KIRBY P and SHELLER JA 15 May 1995

[1995] NSWCA 7

Gleeson CJ. This is an application made by the unsuccessful appellants for the Court to reconsider its decision which was handed down on 30 September 1994. No formal order has been taken out in the appeal. Interesting questions of jurisdiction and discretion can sometimes arise in relation to applications such as this, but it is unnecessary to deal with any of those questions for present purposes.

The basis of the application is that in the reasons for judgment, which I gave, and which were agreed in by the other members of the Court, there was, it is said, an erroneous statement of fact. That statement of fact was to the effect that the investors had been told to make their cheques payable to Price Waterhouse.

The statement was made in the context of considering the evidence bearing upon the intention of the investors when they subscribed money pursuant to the investment scheme referred to in the judgment. One of the matters which occupied a central place in the argument for the appellants on the hearing of the appeal was that, whatever might havebeen the understanding or intention of the investors, there was no intention on the part of Price Waterhouse that they should be trustees. In that connection it was pointed out, correctly, that on the evidence, some of the information and representations given and made to investors was given and made without the knowledge of Price Waterhouse. That meant that there were separate questions that had to be considered. One was the intention of the investors, and the second was the intention of Price Waterhouse. It was to the former of those questions that this particular matter, along with other matters referred to in the judgment, was relevant.