Brendas v Genter - [2018] NSWCA 8

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Brendas v Genter [2018] NSWCA 8
Hearing dates: 8 February 2018
Date of orders: 08 February 2018
Decision date: 08 February 2018
Before: Basten JA; Payne JA; Sackville AJA
Decision:
(1) Appeal dismissed;
(2) Appellants to pay the respondent’s costs of the appeal as agreed or assessed.
Catchwords:
EVIDENCE – whether respondent had made admission as to appellants’ right to immediate possession – probative value of admission made– whether inference should be drawn from respondent’s failure to give evidence at trial
PERSONAL PROPERTY – machinery owned by company in administration – machinery left with defendant – former director and guarantor of company’s debts claims entitlement to machinery – whether basis of entitlement established
Legislation Cited: Evidence Act 1995 (NSW), Pt 3.4
Cases Cited: Gollan v Nugent (1988) 166 CLR 18; [1988] HCA 59
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kuhl v Zurich Financial Services Australia Limited (2011) 243 CLR 361; [2011] HCA 11
Lustre Hosiery Ltd v York (1935) 54 CLR 134; [1935] HCA 71
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204; [1946] HCA 46
West v Government Insurance Office of New South Wales (1981) 148 CLR 62; [1981] HCA 38
Texts Cited: Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) vol 1
Category: Principal judgment
Parties:
Spiros Brendas (First Appellant)
Beverly Brendas (Second Appellant)
Craig Genter (Respondent)
Representation:
Counsel:
M Cashion SC / D Raphael
P Greenwood SC / G Babe
Solicitors:
Bevan & Co Lawyers (Appellants)
Aulich Civil Law Pty Ltd (Respondent)

File Number(s): 2017/220894
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2017] NSWDC 167

Date of Decision:

04 July 2017

Before:

Mahony SC DCJ

File Number(s):

15/178999

Judgment

THE COURT: The Court heard argument in this matter on 8 February 2018 and at the conclusion of the hearing made the following orders:

Appeal dismissed;

Appellants to pay the respondent’s costs of the appeal as agreed or assessed;

Reasons reserved.

These are our reasons for making those orders.
The issues raised by this appeal are in a narrow compass. Essentially, determination of the appeal turns upon the effect of two short passages of oral evidence. Although the primary judge did not give close consideration to these passages of evidence (they not being at the forefront of the appellants’ submissions at trial), his Honour’s ultimate conclusion that the appellants had failed to prove an essential element of their claim was correct.

The pleaded case

In the Second Amended Statement of Claim, the appellants, Spiros and Beverly Brendas, pleaded that:

a corporation, Kenoss Pty Ltd (Kenoss), was the owner of a Caterpillar 330B excavator and a Caterpillar 815B compactor (“the Caterpillar machines”) with a combined value of $350,000, together with a hammer and bucket apparently used in the operation of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brendas v Genter

Details

AGLC: Brendas v Genter [2018] NSWCA 8
Case: [2018] NSWCA 8
Decision Date: 08 February 2018

CaseChat Overview and Summary

Brendas v Genter concerned a dispute over the ownership of machinery. The appellants, Ms. Brendas and Mr. Genter, claimed entitlement to the machinery, which was owned by a company that had gone into administration. The respondent, Mr. Genter, asserted a right to the machinery, which had been left with him. The case was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the respondent had made an admission regarding the appellants’ right to immediate possession of the machinery, the probative value of any such admission, and whether an inference could be drawn from the respondent’s failure to give evidence at the trial. Additionally, the court had to determine whether the basis of the respondent’s claimed entitlement to the machinery had been established.

The Court of Appeal considered the evidence presented, including the alleged admissions made by the respondent. The court analysed the circumstances surrounding these admissions and their significance in establishing the appellants' claim to immediate possession. Furthermore, the court examined the legal implications of the respondent’s decision not to testify at the trial, considering whether this omission allowed for an adverse inference to be drawn against him. The court ultimately found that the respondent had not established a sufficient basis for his claimed entitlement to the machinery.

The appeal was dismissed, and the appellants were ordered to pay the respondent’s costs of the appeal.

Orders

Orders of the court

(1) Appeal dismissed;

(2) Appellants to pay the respondent’s costs of the appeal as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Brendas v Genter [2018] NSWCA 8
Hearing dates:	8 February 2018
Date of orders:	08 February 2018
Decision date:	08 February 2018
Before:	Basten JA; Payne JA; Sackville AJA
Decision:	(1) Appeal dismissed; (2) Appellants to pay the respondent’s costs of the appeal as agreed or assessed.
Catchwords:	EVIDENCE – whether respondent had made admission as to appellants’ right to immediate possession – probative value of admission made– whether inference should be drawn from respondent’s failure to give evidence at trial PERSONAL PROPERTY – machinery owned by company in administration – machinery left with defendant – former director and guarantor of company’s debts claims entitlement to machinery – whether basis of entitlement established
Legislation Cited:	Evidence Act 1995 (NSW), Pt 3.4
Cases Cited:	Gollan v Nugent (1988) 166 CLR 18; [1988] HCA 59 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kuhl v Zurich Financial Services Australia Limited (2011) 243 CLR 361; [2011] HCA 11 Lustre Hosiery Ltd v York (1935) 54 CLR 134; [1935] HCA 71 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204; [1946] HCA 46 West v Government Insurance Office of New South Wales (1981) 148 CLR 62; [1981] HCA 38
Texts Cited:	Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985) vol 1
Category:	Principal judgment
Parties:	Spiros Brendas (First Appellant) Beverly Brendas (Second Appellant) Craig Genter (Respondent)
Representation:	Counsel: M Cashion SC / D Raphael P Greenwood SC / G Babe Solicitors: Bevan & Co Lawyers (Appellants) Aulich Civil Law Pty Ltd (Respondent)
File Number(s):	2017/220894
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2017] NSWDC 167 Date of Decision: 04 July 2017 Before: Mahony SC DCJ File Number(s): 15/178999