LE TAN THANH and ANOR v VAN TRI HUYNH and ANOR [1998] NSWCA 225

LE TAN THANH vy VAN TRI HUYNH

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, BEAZLEY and STEIN JJA 19 August, 10 and 11 November 1998, 17 December 1998

[1998] NSWCA 225

APPEAL — evidence — discretion of trial Judge to prefer one witness's evidence over another's — procedural fairness

The appellants sued the respondents for fraud, alleging various misrepresentations by the respondent which had induced the appellants to purchase a half share in a plastics company. The substance of the alleged representations was that the company was profitable and successful. The respondent filed cross-claims alleging that he was owed monies for services rendered as a consultant. Young J entered judgment for the respondents on the claims and for the first respondent on the cross-claims. His Honour preferred the respondents' evidence although he had some reservations. On appeal the appellants sought to establish their case on fraud and challenged the trial Judge's decision on the cross-claims on both procedural and substantive grounds.

HELD: dismissing the appeal: (1) The trial Judge's findings should not be disturbed. The appellants' case on fraud failed as it was supported only by "inexact proofs, indefinite testimony, or indirect inferences". Briginshaw v Briginshaw (1938) 60 CLR 336, Rejfek v McElroy (1965) 112 CLR 517, Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 applied. (2) While the trial Judge made some errors in his judgment, they did not vitiate his findings concerning the rate claimed by the respondent for his services. (3) The allegations of procedural unfairness failed - the trial Judge's decision to refuse the appellants leave to re-open was open to him, especially since leave was sought after judgment had been given. Smith v New South Wales Bar Association (1992) 176 CLR 256 applied.