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. At the commencement of this morning's application, senior counsel for the appellants, the claimants in this motion, agreed that, according to his clients, the true position established by the evidence in relation to the matter of the payment of the cheques, was as follows: (1) Each investor was required to subscribe $8,100 in two instalments, the first of $4,400 and the second of $3,700. (2) Ten of the investors were told to make their cheques for the first instalment ($4,400) payable to PW, and they did so. (3) The bulk of the investors subscribed in response to promotional material sent out by the 'Business Newsletter Group'. That promotional material stated that accounts would be audited and funds controlled by one of Australia's best known accountancy firms. Material sent by the Business Newsletter Group to those investors, enclosing forms of application for investment, identified PW as the auditors. (4) Investors who subscribed in the manner referred to in (3) above made their cheques for the first instalment payable to Business Newsletter Group. Subsequently, Business Newsletter Group drew cheques in favour of PW, and those cheques were paid to the credit of a PW trust account. (5) All of the investors were told to make their cheques for the second instalment ($3,700) payable to PW.'*'The difference between the facts as stated above 2 UNREPORTED JUDGMENTS and the fact as stated in the reasons for judgment is not a difference that I regard as material to the outcome of the case. For that reason the application should be dismissed with costs. 5 Kirby P. I agree. Sheller JA. I also agree. Gleeson CJ. The order of the Court will be as I have proposed. 10 Orders accordingly.