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Greenslade v Hiew

Greenslade v Hiew

Case [2022] WASCA 47 4 May 2022

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   GREENSLADE -v- HIEW [2022] WASCA 47
CORAM:   MURPHY JA
BEECH JA
VAUGHAN JA

HEARD:   3 MARCH 2022
DELIVERED          :   4 MAY 2022
FILE NO/S:   CACV 106 of 2020
BETWEEN:   PHILIP EDWARD GREENSLADE
Appellant
AND
LEE KIM HIEW
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STAUDE DCJ
Citation: GREENSLADE -v- HIEW [2020] WADC 120
File Number            :   CIV 285 of 2017

Catchwords:

Torts - Negligence - Injury to tenant caused by ceiling collapse - Whether trial judge erred in failing to provide any or any adequate reasons for concluding lessor had no notice of defects such as to require inspection of roof - Whether trial judge erred in failing to provide any or any adequate reasons for resolving material conflicts of expert opinion - No challenge to trial judge's findings of fact

Legislation:

Residential Tenancies Act 1987 (WA), s 27C

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	B L Nugawela & R Hinchliffe
Respondent	:	C C Rimmer

Solicitors:

Appellant	:	Soul Legal (Perth)
Respondent	:	Sparke Helmore Lawyers

Case(s) referred to in decision(s):

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222
Child and Adolescent Health Service v Mabior [2019] WASCA 151; (2019) 55 WAR 208
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gordon v Ross [2006] NSWCA 157
Greenslade v Hiew [2020] WADC 120
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550
Shellharbour City Council v Rigby [2006] NSWCA 308; (2006) Aust Torts Reps 81‑864
SNF (Australia) Pty Ltd v Jones [2008] WASCA 121
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Tradesman Technologies Pty Ltd v Ameduri [No 2] [2013] WASCA 252
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816

JUDGMENT OF THE COURT:

This is an appeal against orders of Staude DCJ dismissing an action by the appellant (Mr Greenslade) against the respondent (Mrs Hiew) in relation to a claim in negligence. The learned primary judge published reasons on 1 September 2020.[1]
[1] Greenslade v Hiew [2020] WADC 120 (primary decision).
In the primary proceedings, Mr Greenslade, a tenant of residential property owned by Mrs Hiew, alleged that Mrs Hiew was negligent in relation to injuries he received when the ceiling in the family room of the leased premises…

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 Greenslade v Hiew

Details

AGLC: Greenslade v Hiew [2022] WASCA 47
Case: [2022] WASCA 47
Decision Date

CaseChat Overview and Summary

In Greenslade v Hiew, Mr Greenslade, a tenant of premises owned by Mrs Hiew, alleged that Mrs Hiew was negligent in relation to injuries he received when the ceiling in the family room of the leased premises collapsed. Mr Greenslade's claim was that Mrs Hiew knew or ought to have known that the family room ceiling was defective and failed to have it properly repaired. The judge in the District Court found, in effect, that Mr Greenslade's evidence regarding communications with Mrs Hiew concerning the ceiling was unreliable and dishonest. The judge concluded that the collapse of the family room ceiling was precipitated by the ingress of water from extreme weather events in October and December 2014; the collapse was due to water damage likely to have been initiated or exacerbated by those weather events. The judge also found that there was no evidence that it was common or customary for ceilings to be inspected by suitably qualified persons prior to the commencement of a residential tenancy. The Supreme Court of Western Australia considered the appeal against the District Court's decision. The Supreme Court found that the reasons provided by the District Court were adequate, and dismissed the appeal. The appeal court found that the judge's reasons were clear enough, and that the judge had addressed the key issues and evidence in the case. The appeal court also found that the judge had properly considered the expert evidence and the conflicting opinions on causation, and had provided adequate reasons for preferring one expert's evidence over the other. The appeal court concluded that the adequacy of the reasons was not a ground for appeal, and that there was no error of fact or law in the District Court's decision. The appeal was dismissed, and the parties were heard on the question of the costs of the appeal.

Orders