Hadid v Redpath

[2002] NSWCA 16

CITATION:	Bylander v Multilink [2002] NSWCA 16
FILE NUMBER(S):	CA 40741/00
HEARING DATE(S):	11/02/02
JUDGMENT DATE:	11 February 2002
PARTIES :	Bylander International Consortium (Australia) Pty Limited ACN 079 739 736 (First Appellant) Thambiappah Satchithanantham (Second Appellant) Hemalathasothy Ranjini Satchithanantham (Third Appellant) Multilink Investments Pty Limited ACN 060 200 526 (First Respondent) Devjani Mohanty as representative of Arvind Mohanty (Second Respondent)
JUDGMENT OF:	Mason P; Santow JA; Ipp AJA

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 9139/98
LOWER COURT JUDICIAL OFFICER :	Boyd-Boland ADCJ

COUNSEL:	J Patel (Appellant) J A Trebeck (Respondents)
SOLICITORS:	-- (Appellant) Bush Burke & Co (Respondents)
CATCHWORDS:	PROCEDURE - Decision in short form under s45(4) of Supreme Court Act - No appealable error - Principles applicable where findings of trial judge in substantial part based on credibility - Oral submissions of further grounds not properly pleaded or properly articulated in grounds of appeal. D
LEGISLATION CITED:	Supreme Court Act s45(4)
CASES CITED:	Damberg v Damberg [2001] NSWCA 87
DECISION:	Appeal dismissed with costs

- 4 -IN THE SUPREME COURT

CA 40741/00
DC 9139/98
MASON P
SANTOW JA
IPP AJA


11 February 2002

BYLANDER INTERNATIONAL CONSORTIUM (AUSTRALIA) & ORS v MULTILINK INVESTMENTS PTY LTD & ORS

SHORT REASONS FOR DECISION

1 The appeal is dismissed with costs and the Court is of the unanimous opinion that the appeal does not raise any question of general principle. Pursuant to s45(4) of the Supreme Court Act 1970, the Court’s reasons for decision in short form are as follows.

2 This appeal either re-agitates issues dealt with by Boyd-Boland ADCJ or attempts to introduce new issues not the subject of the grounds of appeal by the Second Appellant, nor the Notice of Grounds of Defence filed by the Second Appellant in the District Court as Second Defendant.

3 As to the first category of issues and the Grounds of Appeal pertaining to them, the Court sees no error in His Honour’s reasons.

4 Those issues principally relate to an appeal on the ground that the trial Judge erred in his assessment and evaluation of the evidence. The Second Appellant does not identify any appealable error under the principles for setting aside or ordering a new trial, as usefully summarised by Heydon JA in Damberg v Damberg [2001] NSWCA 87 at 89, quoted below, more especially when the findings of the trial judge are in substantial part based on credibility:

“89. It would be unusual to set aside, or order a new trial on the ground of, the trial judge’s findings based on the husband’s credibility unless it could be concluded that the trial judge failed to use or palpably misused the advantage he had of seeing and hearing the witnesses, or that the trial judge relied on evidence which was inconsistent with facts incontrovertibly established by the evidence, or that the trial judge acted on evidence which was glaringly improbable, or that the trial judge fell into some error of principle, or that the trial judge mistook or misapprehended the facts, or if the effect of the overall evidence was such that it was not reasonably open to make the findings he did: Abalos v Australia Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; Rosenberg v Percival [2001] HCA 18 at [37]-[42] and [92] per McHugh J and Gummow J. However, it is possible to set aside, or order a new trial on the ground of, credibility-based findings in other circumstances, because “no short exhaustive formula” of the above kinds can meet every case: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at [3] per Gaudron, Gummow and Hayne JJ, quoting Devries v Australian National Railways Commission (1993) 177 CLR 472 at 480 per Deane and Dawson JJ. Another instance where this appellate intervention can take place is “where in a complex pattern of events incontrovertible evidence can only be fitted into the pattern if a different view of the credibility of a witness is taken by the court on appeal”: Agbaba v Witter (1977) 51 ALJR 503 at 508 per Jacobs J, approved in State Rail Authority of New South Wales v Earthline Constructions Pty ltd (in liq) (1999) 160 ALR 588 at [4] by Gaudron, Gummow and Hayne JJ.”

5 The trial Judge had ample basis for reaching the conclusions he did as to issues of undue influence, unconscionable conduct, false and misleading conduct and Contract Review Act insofar as these were before him. We note also the further express basis for the trial Judge’s conclusion, in particular the admission in the letter from Chapman Partners solicitors (Red Book, 90 O to 91 D) which was not mentioned in the Respondent’s written submissions of 17 January 2002.

6 As to the grounds of appeal concerning the point of construction of the Loan Agreement (ground 2) to the effect that the A$272,000 was not remitted to Bylander Memhardt Partnership (B) Sdn Bhd as required by the loan agreement, that ground is wholly at odds with the arrangements between Mr Mohanty and Mr Satchi documented in Light Blue Book, 211 and 212 and referred to in the judgment at Red Book, 75-6, 80 and 86 and particularly 91-2.

7 As to issues in the second category, these were:

(a) that the loan and guarantee documentation were understood by the Second Appellant as a sham; and

(b) that Mr Mohanty occupied a fiduciary position vis a vis Mr Satchi.

8 Neither matters were properly pleaded, nor were they properly articulated by the grounds of appeal. Indeed the first of these appears inconsistent with the 11th ground of appeal, namely that “Mr Satchi had not read or understood the documents he came to execute”. This is more especially in view of the straightforward letter of 29 September 1997 signed by Mr Satchi (Light Blue Book, 211) describing the transaction as one of loan and the copy of the Minutes of directors’ meeting of the First Appellant with the Second Appellant’s express handwritten reference to his guarantee holding good.

9 The second issue in the above could not be agitated when it was no part of the Second Appellant’s original defences or of the grounds of appeal. Insofar as the Second Appellant’s grounds of appeal cover any other matters, we find no appealable error.

10 The complaint that the trial Judge ignored certain submissions put to him lacks foundation. A judge does not have to address each and every document put before him, especially when they bear no relevance to the issues.

………………………………………
MASON P

………………………………………
SANTOW JA

………………………………………
IPP AJA

**********