Louise McBride v Christie's Australia Pty Limited

[2015] NSWSC 231

Supreme Court

New South Wales

Medium Neutral Citation:	Louise McBride v Christie’s Australia Pty Limited [2015] NSWSC 231
Hearing dates:	3 February 2015
Date of orders:	03 February 2015
Decision date:	03 February 2015
Jurisdiction:	Equity Division
Before:	Bergin CJ in Eq
Decision:	1. Motion dismissed. 2. Fourth Defendant is to pay the Plaintiff’s costs of the Motion.
Catchwords:	[PROCEDURE] – application to vary orders pursuant to UCPR r 36.16 – whether conclusions reached preclude a finding of liability.
Legislation Cited:	Fair Trading Act 1987 (NSW) Fair Trading Act 1999 (Vic) Trade Practices Act 1974 (Cth)
Cases Cited:	Louise McBride v Christie's Australia Pty Ltd [2014] NSWSC 1729
Category:	Procedural and other rulings
Parties:	Louise McBride (Plaintiff) Christie’s Australia Pty Limited (Defendant)
Representation:	Counsel: FM Douglas QC (Plaintiff) Mr Gray SC/M Richardson (4th Defendant) Solicitors: McLachlan Thorpe Partners (Plaintiff) Ash Street Partners (4th Defendant)
File Number(s):	2013/46775
Publication restriction:	Nil

EX TEMPORE Judgment

1. This is an application brought by the fourth defendant in proceedings which were the subject of judgment on 4 December 2014: Louise McBride v Christie's Australia Pty Ltd [2014] NSWSC 1729.

2. The fourth defendant filed a Notice of Motion on 17 December 2014 in which an order is sought that pursuant to r 36.16 of the Uniform Civil Procedure Rules the judgment be amended, varied or set aside insofar as it relates to the finding that the fourth defendant contravened any one or more of s 52 of the Trade Practices Act 1974 (Cth), s 42 of the Fair Trading Act 1987 (NSW) and/or s 12 of the Fair Trading Act 1999 (Vic) in relation to the Tucker painting. An order for costs is also sought.

3. The evidence in support of the motion is that of Peter John Keel sworn 18 December 2014. That is a formal affidavit effectively outlining the claim to the plaintiff's solicitors by way of a letter from Mr Keel to the solicitors for the plaintiff.

4. Today Mr Douglas QC appears for the plaintiff, respondent to the motion, and Mr Gray SC, leading Mr M Richardson of counsel, appear for the fourth defendant. The position as outlined by the fourth defendant is succinctly put in Mr Keel's affidavit, in particular in his letter. The two misrepresentations that were identified in Mr Keel's letter are; firstly, that Ms Sharpe said that the painting was a Tucker; and secondly, that the Tucker would be a good investment (see pages 6 and 7 of annexure B to the affidavit of Mr Keel).

5. Without wishing to suggest that this is not an important matter for all parties I should say that the nub of the argument can be reduced to a short point. The short point is that at paragraph [370] of the Judgment the following was said:

370   Ms Sharpe claimed in her affidavit (paragraph [163]) that she said to the plaintiff in a conversation on the telephone whilst the plaintiff was in London that there were "similar Tuckers from this series hanging in major art museums and featured in books on Tucker". Ms Sharpe also informed the plaintiff that the Painting was "from a good period, the 1960's". Ms Sharpe also advised the plaintiff that the Painting was "probably worth $75,000". Ironically the plaintiff denied that this conversation occurred. However other aspects of the conversations she claimed did occur referred to earlier conveyed the same or similar representations. On balance I am satisfied that the conversation between the plaintiff and Ms Sharpe included the statements that Ms Sharpe claimed she made to the plaintiff.

6. Emphasis has been placed on the finding that the plaintiff denied the conversation Ms Sharpe referred to in paragraph [163] of her affidavit. Indeed, in Mr Keel's affidavit he outlined his argument that the factual findings contained therein preclude liability on the part of Ms Sharpe, the fourth defendant, with respect to any reference by her on 1 or 2 May to the painting being a Tucker.

7. As indicated in paragraph [370], it was rather ironical that the plaintiff denied the particular conversation that was claimed to have occurred by Ms Sharpe in paragraph [163] of her affidavit. However, emphasis must be placed on the sentence following the identification that the plaintiff denied the particular conversation and that is, "However other aspects of the conversation she claimed did occur referred to earlier conveyed the same or similar representations." Those conversations are found in paragraphs [47]-[49] and one can see quite clearly that the plaintiff in fact claimed that the representations were made. I should record that Mr Gray has submitted that this part of the judgment was merely a recitation of the evidence that was given by the plaintiff. However it is in my view quite clear that the findings in paragraph [370] refer back to the content of those conversations as ones that were accepted that Ms McBride had said.

8. It follows in my view that the Motion should be dismissed. The fourth defendant is to pay the plaintiff's costs of the Motion. This matter is further listed on 1 April 2015.

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