Louise McBride v Christie’s Australia Pty Limited

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.

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.

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.

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).

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:

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.

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.

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.