Ayoub & Anor v Euphoric Pty Ltd [2005] HCATrans 746 (9 September 2005)

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Ayoub & Anor v Euphoric Pty Ltd [2005] HCATrans 746 (9 September 2005)

Last Updated: 27 September 2005

[2005] HCATrans 746

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S32 of 2005

B e t w e e n -

MONA HANNA AYOUB

First Applicant

BYCOON PTY LIMITED

Second Applicant

and

EUPHORIC PTY LIMITED TRADING AS CLAY & MICHEL

Respondent

Application for special leave to appeal

McHUGH ACJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 SEPTEMBER 2005, AT 12.11 PM

Copyright in the High Court of Australia

MR N.A. COTMAN, SC: If the Court pleases, I appear with my learned friend, MR J.R. YOUNG, for the applicants. (instructed by Simon Diab & Associates)

MR J.E. MARSHALL, SC: May it please the Court, I appear with my learned friend, MR G. LUCARELLI, for the respondent. (instructed by Blake Dawson & Waldron)

McHUGH ACJ: Yes, Mr Cotman.

MR COTMAN: Can I inquire whether your Honours received the bundle of material sent yesterday that included - - -

McHUGH ACJ: Is that the supplementary application book or - - -

MR COTMAN: No, the Applicants’ Authorities and Materials. It was an unbound - - -

McHUGH ACJ: Is this the Applicants’ Authorities and Materials? Yes.

MR COTMAN: Yes, thank you. At the end of that are the affidavits of Mr Ayoub which are referred to in both my learned friend’s submissions and our own which, for some bizarre reason, were not included in the books, the relevant affidavit being the one referred to in the Court of Appeal judgment that we advert to is at page 23 of that bundle, but I should tell your Honours that paragraph 4 of that affidavit was not read at trial.

McHUGH ACJ: Yes.

GUMMOW J: You need an extension of time, do you not?

McHUGH ACJ: Yes.

MR COTMAN: We do, if your Honours please, but there is an affidavit containing the materials on that matter. Do your Honours wish me to go to - - -

McHUGH ACJ: You were only seven days out of time, were you not?

MR COTMAN: Yes.

McHUGH ACJ: Carry on.

MR COTMAN: If your Honours please. Your Honours, at page 1 of the materials we sent yesterday we attempted to summarise the argument that separates us - - -

McHUGH ACJ: Sorry, what page?

MR COTMAN: Page 1 of the bundle that arrived – we sent up yesterday. We tried to put into bullet point form in effect what we say are the salient features of this matter. Essentially, the issue reduces to a threshold issue which was the proper definition of this matter at trial because in the Court of Appeal it was the view of the court that there was only one issue that was being litigated in the trial, which was what is described in the documents filed by each of us as the 14 invoices issue.

What we contend is that in fact there was, as the proper definition of the issue at trial, an action on a running account of which 14 invoices formed part of it, but another 13 also formed a part, and in respect of which, at the conclusion of the evidence, we say the plaintiff had failed to prove the underlying transactions as to that 13.

That is the matter that was adverted to by the Court of Appeal in the application book passages at pages 110 to 111, where Justice McClellan, delivering the judgment of the court, summarised, commencing at paragraph 45 of the judgment, the judgment of the learned trial judge as to what were the issues before him, where the learned trial judge correctly, we respectfully submit, identified that there was an issue about 13 invoices and there was an issue about 14 invoices, being two different groups of invoices.

His Honour the learned trial judge in the passage set out in paragraph 46 of the judgment at page 110 of the book disposed of the 13 invoice argument by saying that there had been effectively an admission, a concession or acceptance by the principal witness for my client that the only issue was the 14 invoices, and hence his Honour then proceeded to dispose of the case on that basis.

It was that proposition and finding by his Honour that generated the appeal, the notice of appeal being at page 89 of the book, paragraphs 13 through to 17, in which we complained that his Honour had erred in, first of all, the finding that there was any admission or concession in relation to the 13 invoices and, secondly, that his Honour had found therefore that the amounts concerned with those 13 invoices were part of the running account.

That issue, we respectfully submit, is not then engaged with by the Court of Appeal because, ironically I suppose, in paragraph 52 of the Court of Appeal judgment at page 111, after having adverted to the 13 invoice issue below and then having discussed in paragraphs 47 through to 51 the 14 invoice issue, the judgment of the Court of Appeal continues:

I am satisfied that the issue defined at the trial and to which the evidence was directed was whether the fuel recorded in the November invoices –

that is to say the 14 invoices –

was in fact delivered. This is made plain by the contents of Mr Ayoub’s affidavit of 16 August 2003, where he admits receipt of the fuel on all but the last 14 invoices. Furthermore, counsel opened the case on this basis.

Now, the affidavit to which his Honour is referring is the affidavit that I drew your Honours’ attention to, which is reproduced at pages 23 and following. What that affidavit in fact deposed to, we say, was that the deponent agreed that in relation to all the invoices, bar 14, annexed to a Ms Giblin’s affidavit, he agreed fuel had been delivered. The problem was 13 invoices were not annexed to the affidavit and that is the 13 about which we are concerned, it being some $440,000-odd worth of debit to my clients’ account.

Now, with respect, what had happened in the Court of Appeal, in our respectful submission, is while the Court of Appeal appears, because the subject has been discussed at all, to accept that this was a case about a running account, what the court has done, in our respectful submission, in paragraph 52 is to effectively not engage with the appellant’s appeal to that court in relation to the 13 invoice matter because the court apparently fell into the same error that the trial judge did, which is to say to read an affidavit that talked about the invoices that the gentleman was looking at as all being correct bar 14 as being an admission that in relation to 13 that he was not looking at because they were not there - - -

GUMMOW J: What do you say about paragraph 21 of Mr Marshall’s submissions on page 141?

MR COTMAN: Those are all, in our respectful submission, matters that if they had been raised in a notice of contention might have been alive but were never raised in a notice of contention and of course the basis on which the learned trial judge disposed of the matter is Mr Ayoub’s concession, as he puts it. The only matter that that could possibly be referring to is the affidavit because there was no other matter of concession, and I do not think any is sought to be pointed to in my learned friend Mr Marshall’s submissions.

So, with respect, at trial it was disposed of on the proposition that there was an admission and in the appeal our contention, as I say apparently accepted because the issue is being dealt with at all by the court that there was a running account issue, is then disposed of we say by effectively compounding the error rather than dealing with the matter that was the subject of the appeal.

In the draft notice of appeal it is suggested that the appropriate result is various remedies in the matter. In my respectful submission, it is in fact a new trial point because it would raise for determination as a trial issue whether or not, as the learned trial judge properly identified it, there was in fact other satisfactory evidence that the debits to the account reflected by the 13 invoices could properly have been made. That is a matter which will have to be dealt with aliunde, so to speak, because it has not really engaged either the Court of Appeal or the learned trial judge because the same error has infected both analyses of the situation.

Hence, we have put it in the document delivered yesterday that in fact one struggles to find a question of general principle, so to speak, that attaches to the way in which the matter has progressed other than the general principle that the appellate court ought to have dealt with the appeal before it but has not because it has proceeded through the same error as in fact was the subject matter of the appeal to the court in the first place.

The matter is material because, as your Honours may have seen, the judgment sum is in the order of $600,000. The amount in issue under the 13 invoices about which we complain is some $440,000-odd. So we concede that because we make no complaint about the decision of the court in relation to the 14 invoices there would be a residual judgment of some $219,000-odd. But it certainly is a material sum in the context of the judgment as a whole, which judgment of course binds both – or is a judgment both against the company, Bycoon, and also against its guarantor. If the Court pleases, those are our submissions.

McHUGH ACJ: Yes, the Court need not hear you, Mr Marshall.

This case is concerned with questions of fact. We are of the view nothing about the case would warrant the grant of special leave to appeal and we see nothing to doubt the correctness of the learned trial judge’s decision in the case.

The application for an extension of time is granted, but the application must be refused with costs.

AT 12.24 PM THE MATTER WAS CONCLUDED