JAMES ATKINSON v OAKLEIGH HOLDINGS PTY LTD [2000] NSWCA 166

New South Wales Court of Appeal

CITATION : JAMES ATKINSON v OAKLEIGH HOLDINGS PTY LTD [2000] NSWCA 166 FILE NUMBER(S) : CA 40996/98 HEARING DATE(S) : 28 June 2000 JUDGMENT DATE : 28 June 2000

PARTIES : JAMES ATKINSON v OAKLEIGH HOLDINGS PTY LTD JUDGMENT OF : Mason P; Meagher JA; Heydon JA

LOWER COURT JURISDICTION : District Court LOWER COURT DC 2361/96 FILE NUMBER(S) : LOWER COURT Mitchelmore DCJ JUDICIAL OFFICER :

COUNSEL : G Parncutt (Appellant) J Trebeck (Respondent) SOLICITORS : Gregory Falk & Associates (Appellant) Garden & Montgomerie (Respondent)

DECISION : Dismissed

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL No CA 40996 of 1998 No DC 2361 of 1996

MASON P MEAGHER JA HEYDON JA Form 62AA1 JAMES ATKINSON v OAKLEIGH HOLDINGS PTY LIMITED SHORT REASONS FOR DECISION

The appeal is dismissed with costs and the Court is of the unanimous opinion that the appeal does not raise any question of general principle. Pursuant to section 45(4) of the Supreme Court Act 1970, the Court's reasons for decision in short form are:

The Court agrees substantially with the reasons of the trial judge.

His Honour was entitled to accept the evidence of Mr Stone in part. The representation in the letter of 8 March 1995, coming from a lawyer, was inherently capable of being relied upon and was relied upon by the respondent to its detriment. Assuming in the appellant's favour that the $US60,000 was destined to become the value of a non-refundable fee payable to Mittelbank Ltd, the appellant's representation that the loan money would remain under his effective control (as signatory on a "fiduciary" account) would, if true, have been an effective security to help ensure the viability and enforceability of the wider transaction. If that transaction turned out to be as illusory as it was ultimately shown to be then the $US60,000 would not have been lost to the respondent.