BREMNER v SINCLAIR & ORS (No 3) [2000] NSWCA 252

New South Wales Court of Appeal

CITATION : BREMNER v SINCLAIR & ORS (No 3) [2000] NSWCA 252 FILE NUMBER(S) : CA 40615/95 HEARING DATE(S) : 17 March 2000 JUDGMENT DATE : 8 September 2000

PARTIES : BRIAN SEFTON BREMNER v SONDRA JEAN SINCLAIR & ORS JUDGMENT OF : Mason P at 1; Meagher JA at 28; Powell JA at 29

Appellant: B Walker SC; P Brereton COUNSEL : 1st Respondent: B Rayment QC; D Kell 2nd Respondent: J Armfield 3rd Respondent: K Smark Appellant: Corrs Chambers Westgarth SOLICITORS : 1st Respondent: John M Fitzgerald & Asociates 2nd Respondent: Gordon Cavanagh 3rd Respondent: Marsdens CATCHWORDS : Appeal - submissions against the merits of finding made in earlier hearing - alternative basis of authority - absence of authority against auctioneers - facts established at trial support inference that ultimate auction bid was actually authorised. ND DECISION : See par 27 of judgment

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40615/95

MASON P MEAGHER JA POWELL JA

Friday 8 September 2000

Brian Sefton BREMNER v Sondra Jean SINCLAIR & Ors (No 3)

JUDGMENT 1 MASON P: The Court turns to this matter, for the third time. The original judgment was given on 3 November 1998 (Bremner (No 1)). Judgment in Bremner v Sinclair (No 2) [1999] NSWCA 407 (Bremner (No 2)) was given on 29 October 1999. 2 In Bremner (No 2) I set out (at par 60) proposed orders designed to place the parties in the position in which they would have been had the orders been made at trial which, in my view, should have been made in the light of the alternative basis for actual authority argument which found favour with the majority of the Court in Bremner (No 1). I discussed costs and suggested appropriate orders as to costs in pars 62-64. Meagher JA agreed with my judgment. Powell JA did not and his Honour set out reasons why the appeal to this Court should be dismissed with costs. Those reasons related both to the powers of the Court of Appeal and to the merits. 3 The formal order of the Court in Bremner (No 2) was that the parties were directed to bring in Short Minutes to give effect to the reasons of the majority. 4 The majority of the Court in Bremner (No 1) (Mason P and Meagher JA) decided that the facts found at trial established Mr Bremner's actual authority, albeit on an alternative basis to that addressed by the learned trial judge. The proceedings in Bremner (No 2) contested the propriety of the Court in Bremner (No 1) having entertained or perceived the ultimately determinative argument as to an alternative basis for actual authority. No party in Bremner (No 2) disputed the merits of that alternative argument at that stage. 5 Faced with Short Minutes drawn to give effect to the majority reasons in Bremner (No 2), Mr Hudson and Mrs Clissold (formerly Hudson) and belatedly Mr and Mrs Sinclair now advance submissions against the merits of the finding of an alternative basis of authority that was made by Meagher JA and myself in Bremner (No 1). The reason for the parties not having done so earlier (at least as regards Mr Hudson and Mrs Clissold) is that they perceived that all that was at issue in the hearing leading up to Bremner (No 2) was the reopening of the orders in Bremner (No 1) as distinct from the orders that should flow in the event of such reopening. In light of the orders sought in the formal process that triggered the hearing in Bremner (No 2) I can understand how Mr Hudson and Mrs Clissold came to this view. But I cannot refrain from criticism that they - a fortiori the Sinclairs - said not a word about their intention (should reopening be permitted) to challenge on its merits the reasoning of the Court in Bremner (No 1). The hearing of Bremner (No 2) should have been the time when any challenge to the findings in Bremner (No 1) as to an alternative basis of actual authority should have been foreshadowed and developed. The merits of such challenge were obviously relevant to the formal application. 6 This said, I would afford those parties the opportunity which they now seek, given what actually happened during the hearing in Bremner (No 1) and the fact that those parties were under a genuine misapprehension as to what was at stake in the hearing of Bremner (No 2). If orders are made as proposed by the majority in Bremner (No 2), then Mr Hudson and Mrs Clissold will be affected adversely. They should not be sent away from this Court with a sense of grievance based upon a perception that they have not been heard. 7 What is presently at issue is whether the facts established at trial support the inference that the ultimate bid of $960,000 was actually authorised by Mr and Mrs Hudson. 8 The onus rested upon the vendors to establish authority against Mr and Mrs Hudson and absence of authority against the auctioneers. It was possible for the vendors as plaintiffs to have failed against all defendants because they had the onus of proof. 9 My reasons for concluding that the vendors established actual authority against Mr Hudson and Mrs Clissold are set out at pp15-18 of Bremner (No 1). 10 In overview, Mr Hudson and Mrs Clissold submit that this finding is based upon conjecture and not inference. The line between speculation and inference is clear in principle though at times hard to discern in practice (see generally Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 162, 168). 11 As Mrs Clissold points out in her further submission, my conclusion is based upon the cumulative effect of seven primary facts, being (a) the failure of Mrs Murphy to suggest that she anticipated problems in meeting Mr Bremner's request that the 10% deposit of $96,000 should be urgently transferred telegraphically ( Bremner (No 1) p16.3);