HECRON LTD and ANOR v COUSINS and ORS [1990] NSWCA 93

HECRON LTD and ANOR v COUSINS and ORS [1990] NSWCA 93

The appeal was dismissed as the trial judge’s reliance on the demeanour and oral evidence of the respondents was not inconsistent with any incontrovertible facts. No procedural unfairness or bias was found, as documentary inconsistencies were not put in issue at trial and the trial judge’s views on commercial morality were within proper judicial conduct. The established principles governing appellate restraint in disturbing credibility findings, absent compelling evidence, applied.

Parties
Appellant: Hecron Ltd; Appellant: Sebastiano Lo Guidice; Respondent: Glenn Cousins; Respondent: Weeden Jorgensen; Respondent: Richard Jorgensen; Respondent: Australian Bridal Centre Pty Ltd
Jurisdiction
Australia
Judgment Date
20 December 1990
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
Appeal—factual Findings, Credibility of Witnesses, Appellate Review—demeanour, Statutory Interpretation—companies (acquisition of Shares) (nsw) Code, Trade Practices Act—misrepresentation, Directors' Obligations—guarantees and Indemnities
Civil Procedure Contract Law Corporations Law Appeal—factual Findings Credibility of Witnesses Appellate Review—demeanour Statutory Interpretation—companies (acquisition of Shares) (nsw) Code Trade Practices Act—misrepresentation +1 more

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Parties

Hecron Ltd

Appellant

Sebastiano Lo Guidice

Appellant

Glenn Cousins

Respondent

Weeden Jorgensen

Respondent

Richard Jorgensen

Respondent

Australian Bridal Centre Pty Ltd

Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the Court of Appeal may disturb a trial judge’s credibility findings when such findings are based on demeanour and oral evidence
  2. 2 Whether contemporaneous documentary evidence or correspondence was inconsistent with the making of alleged representations/undertakings to indemnify former directors on personal guarantees
  3. 3 Whether the trial judge’s statements regarding commercial morality or asset stripping amounted to bias or improper reasoning

Ratio Decidendi

The appeal was dismissed as the trial judge’s reliance on the demeanour and oral evidence of the respondents was not inconsistent with any incontrovertible facts. No procedural unfairness or bias was found, as documentary inconsistencies were not put in issue at trial and the trial judge’s views on commercial morality were within proper judicial conduct. The established principles governing appellate restraint in disturbing credibility findings, absent compelling evidence, applied.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.