Cooper v Hobbs

The appeal concerned a dispute between Cooper (the appellant) and Hobbs and others (the respondents) regarding the nature of a transaction. The appellant contended that the transaction was a loan to him, while the respondents argued it was an investment in a third-party company. The appeal was heard by McColl and Meagher JJA and Bergin CJ in Eq.

The central legal issues before the court were whether the primary judge erred in the process of fact-finding by failing to examine all material relevant to the central issue, and whether the respondents' case was contrary to a compelling inference. The court also considered whether a letter from the respondents' solicitor to a third party contained admissions adverse to the respondents' interests, and whether the primary judge was entitled to draw a *Jones v Dunkel* inference from the respondents' failure to call their solicitor as a witness, particularly in light of issues surrounding client legal privilege and whether privilege had been waived by the respondents giving evidence about the solicitor's advice.

The appellate court found that the primary judge had failed to examine all material relevant to the central issue, constituting an error in the process of fact-finding. This failure necessitated a new trial. The court allowed the appeal, set aside the orders of the District Court made on 28 July 2011, and remitted the matter to the District Court for a new trial. The respondents were ordered to pay the costs of the appeal and were to have a certificate under the *Suitors' Fund Act 1951* if qualified. The costs of the first trial were to be at the discretion of the judge hearing the second trial.