NSW Caselaw
New South Wales Court of Appeal
CITATION: MacMillan v Mumby & Anor [2006] NSWCA 74 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 29 March 2006
JUDGMENT DATE: 10 April 2006
JUDGMENT OF: Tobias JA at 1; McColl JA at 59; Bryson JA at 60
DECISION: Appeal dismissed with costs
CATCHWORDS: CONTRACT OF LOAN - no written loan agreement - contracting parties - mistake as to identity - whether monies paid to a company or its owners personally - intention of parties - whether mistake fundamental - whether negligent misrepresentation - whether breach of warranty - claim for monies had and received - appeal dismissed
LEGISLATION CITED: Business Names Act 1962
Black v Smallwood (1966) 117 CLR 52 CASES CITED: Prince v Oriental Bank Corporation (1978) 3 App Cas 325 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
John MacMillan PARTIES: Wayne Paul Mumby Wendy Mumby
FILE NUMBER(S): CA 41208/04
COUNSEL: A: S J McMillan R: R Gruzman
SOLICITORS: A: Penhall & Co, Lawyers, Burwood R: Atkinson Vinden Lawyers, Chatswood
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 6363/02
LOWER COURT JUDICIAL OFFICER: Rein DCJ
LOWER COURT DATE OF DECISION: 29/03/2006
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 041208/04 DC 6363/02
TOBIAS JA McCOLL JA BRYSON JA
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