Cooper v Westpac General Insurance Ltd - [2007] ACTCA 20

STEPHANIE COOPER, SEAN COOPER, MICHAEL MORGAN v WESTPAC GENERAL INSURANCE LIMITED (ACN 003 719 319) [2007]
ACTCA 20 (14 September 2007)

TENANCY - liability for damage caused by fire to premises – whether tenant intentionally or negligently damaged the premises or permitted such damage – whether the principle of res ipsa loquitur applicable – whether Jones v Dunkel inference available – joint and several liability – covenant for landlord to maintain premises in good state of repair – scope of covenant requiring tenants leave the premises in substantially the same condition as they were in at the commencement of the lease, fair wear and tear excepted.

Residential Tenancies Act 1997 (ACT), Schedule 1, clauses 54, 55, 56, 57, 59, 63,64

Jones v Dunkel (1959) 101 CLR 298
Anchor Products Ltd v Hedges (1966) 115 CLR 493
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
Mummery v Irvings Pty Ltd (1956) 96 CLR 99
Lopes v Taylor (1970) 44 ALJR 412
Nuhic v Rail & Road Excavationsand Others [1972] 1 NSWLR 204

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 45 - 2006
No. SC 422 of 2004

Judges: Crispin P, Connolly and North JJ
Court of Appeal of the Australian Capital Territory
Date: 14 September 2007

IN THE SUPREME COURT OF THE       )          No. ACTCA 45 - 2006
  )          No. SC 422 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEPHANIE COOPER (nee HORTON)
First Appellant

AND:SEAN COOPER
Second Appellant

AND:MICHAEL MORGAN
Third Appellant

AND:WESTPAC GENERAL INSURANCE LIMITED
(ACN 003 719 319)
Respondent

ORDER

Judges:  Crispin P, Connolly and North JJ
Date:  14 September 2007
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld and the orders of Tamberlin J set aside.

In lieu thereof, the claim by the respondent against the appellants be dismissed with costs.

The respondent pay the appellants’ costs of the appeal.

IN THE SUPREME COURT OF THE       )          No. ACTCA 45 - 2006
  )          No. SC 422 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEPHANIE COOPER (nee HORTON)
First Appellant

AND:SEAN COOPER
Second Appellant

AND:MICHAEL MORGAN
Third Appellant

AND:WESTPAC GENERAL INSURANCE LIMITED
(ACN 003 719 319)
Respondent

ORDER

Judges:  Crispin P, Connolly and North JJ
Date:  14 September 2007
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

This is an appeal against the decision of Tamberlin J ordering the appellants to pay damages to the respondent in respect of damage caused by fire to a house at 2 Threlfall Street, Chifley in the Australian Capital Territory.

The premises had been owned by Mr Wah Sam Wong, but he had died prior to the hearing and the respondent, which was the insurer of the premises, became the plaintiff in…

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.

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Details

Case: [2007] ACTCA 20
Decision Date: 14 September 2007

CaseChat Overview and Summary

Cooper and others (the appellants) appealed to the Full Court of the Federal Court of Australia against a decision of Tamberlin J concerning their liability for damage caused by fire to premises leased from Westpac General Insurance Ltd (the respondent). The dispute centred on whether the appellants, as tenants, had intentionally or negligently caused the fire, or permitted it to occur, thereby breaching their lease obligations.

The Full Court was required to determine whether the principle of *res ipsa loquitur* applied to establish the appellants' liability, and whether an inference under *Jones v Dunkel* could be drawn against the appellants for failing to call certain witnesses. Further, the court had to consider the scope of the lease covenant requiring the appellants to leave the premises in substantially the same condition as at the commencement of the lease, fair wear and tear excepted, and the respondent's own covenant to maintain the premises in good repair.

The Full Court reasoned that the principle of *res ipsa loquitur* was not applicable because the cause of the fire was not exclusively within the appellants' control, and there was no evidence to suggest negligence on their part. The court also found that a *Jones v Dunkel* inference was not available as the failure to call certain witnesses did not necessarily point to an adverse inference against the appellants. The court concluded that the respondent had not discharged its onus of proving that the appellants had breached their obligations under the lease, particularly in light of the respondent's own covenant to maintain the premises.

Consequently, the Full Court upheld the appeal, setting aside the orders of Tamberlin J. The claim by the respondent against the appellants was dismissed with costs, and the respondent was ordered to pay the appellants' costs of the appeal.

Orders

Orders of the court

1. The appeal be upheld and the orders of Tamberlin J set aside.

2. In lieu thereof, the claim by the respondent against the appellants be dismissed with costs.

3. The respondent pay the appellants? costs of the appeal.

Background

Background to the litigation

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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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