Lawless v Mackendrick [No 3]

[2016] WASCA 208

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Negligent misrepresentation
3. › Sale of business
4. › Whether expected profit misrepresented
5. › Whether purchaser aware of profit representation before settlement
6. › Whether purchaser relied on representation
1. Tort
2. › Deceit
3. › Sale of business
4. › Whether vendor's statement as to expected profit was knowingly false or negligent
5. › Whether reasonable grounds for profit expectation
1. Appeal
2. › Appeal against findings of fact
3. › Standard of appellate review
4. › Whether findings glaringly improbable or contrary to compelling inferences
5. › Credibility findings
1. Practice and Procedure
2. › Additional evidence on appeal
3. › Whether evidence fresh
4. › Whether evidence available at trial
5. › Whether in interests of justice to admit
6. › Finality of litigation

Quick Take

An appellate court will not interfere with a trial judge's findings of fact, including credibility findings, unless demonstrated to be wrong by incontrovertible facts or uncontested testimony, or they are glaringly improbable or contrary to compelling inferences. Evidence available at trial but not adduced will generally not be admitted on appeal absent exceptional circumstances and a satisfactory explanation for the failure to rely on it below.