Pierrot Song Pty. Limited & Ors. v. Lee & Anor. [1999] NSWCA 474

New South Wales Court of Appeal CITATION : Pierrot Song Pty. Limited & Ors. v. Lee & Anor. [1999] NSWCA 474 FILE NUMBER(S) : CA 40189/98 HEARING DATE(S) : 24 November 1999 JUDGMENT DATE : 20 December 1999

PARTIES : Pierrot Song Pty. Limited, Hun-Guk Jung and Suk Ja Jung - Appellants Jong Sang Lee and Young Soon Lee - Respondents JUDGMENT OF : Priestley JA at 1; Giles JA at 2; Hodgson CJinEq at 3

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 1219/97 LOWER COURT JUDICIAL OFFICER : Hamilton, J.

COUNSEL : Dr. C. Birch SC for appellants Mr. P. Callaghan SC for respondents SOLICITORS : David Geddes, Sydney Michael Rogers & Co., Woollahra CATCHWORDS : Appeal - Admission of fresh evidence - Matters occurring after trial - Subsequent statements by witnesses said to be inconsistent with their evidence relied on by trial judge DECISION : Appeal dismissed with costs.

SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40189/98 SC 1219/97

PRIESTLEY, JA GILES, JA HODGSON, CJ in Eq.

Monday 20 December 1999 PIERROT SONG PTY. LIMITED & ORS. V. LEE & ANOR. JUDGMENT

1 PRIESTLEY, JA: I agree with Hodgson, CJ in Eq. 2 GILES, JA: I agree with Hodgson, CJ in Eq. 3 HODGSON, CJ in Eq.: By their Amended Statement of Claim in these proceedings, the respondents Mr. and Mrs. Lee claimed that they had been induced to enter into a contract to purchase from the second and third appellants Mr. and Mrs. Jung a house property at West Chatswood for $650,000.00, and to enter into other contracts and incur certain expenditure, by fraudulent representations made by Mr. Jung to the effect that he had paid $650,000.00 for that property; they claimed that they had rescinded these contracts; and they sought declarations and orders including orders for the recovery of moneys paid and damages. 4 Hamilton, J. found that Mr. and Mrs. Lee's claims were made out, and he made orders in their favour, including a declaration that they had validly rescinded the contracts, and judgments for about $206,000.00 against the first appellant Pierrot Song and for about $348,000.00 against Mr. and Mrs. Jung. 5 The appellants appealed from that decision. At the hearing of the appeal, Dr. Birch SC announced his appearance for Mr. and Mrs. Jung and advised the Court that his solicitor no longer had instructions to act for Pierrot Song. There was evidence that Mr. and Mrs. Jung had sold their shares in this company after the appeal was lodged, and that the purchaser had sold them on to a further purchaser. Pierrot Song was notified of the upcoming hearing of the appeal by letter sent to its registered office, being an accountant's office, and attempts were made to notify the person now in control of the company, although the accountant's office advised that they had lost contact with that person. In those circumstances, the Court made orders allowing the appellants' solicitor to file a Notice of Ceasing to Act for Pierrot Song, with effect from the commencement of the hearing, and the hearing proceeded in the absence of Pierrot Song. 6 Also at the hearing, there was filed on behalf of Mr. and Mrs. Jung a Notice of Motion seeking orders that the Court receive evidence additional to that in the Court below, and that the Notice of Appeal be amended to add a ground of appeal that the trial judge's order should be set aside on the ground that fresh evidence showed that the representations found by the trial judge were not made. The hearing proceeded on the basis that the Court would receive the fresh evidence in support of this Notice of Motion, and would decide whether or not to receive it in the appeal in the final decision of the appeal. Accordingly, evidence was read by both sides in the Notice of Motion. 7 In argument before us, only two matters were relied on in support of the appeal: