Howell v Weston

[2003] NSWCA 235

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Howell v Weston [2003]  NSWCA 235

FILE NUMBER(S):
40610 of 2002

HEARING DATE(S):            31/07/03

JUDGMENT DATE: 31/07/2003

PARTIES:
Paul Roch Howell
v
William Weston

JUDGMENT OF:      Mason P Meagher JA Sheller JA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        DC 7667 of 1997

LOWER COURT JUDICIAL OFFICER:     Rolfe DCJ

COUNSEL:
A: C Stewart
R: G P McNally

SOLICITORS:
A: Dennis & Company
R: Hunt & Hunt

CATCHWORDS:
EVIDENCE - Credibility - Word of one witness against another - challenge to judicial findings of fact - Adequacy of reasons.

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40610 of 2002

MASON P
MEAGHER JA
SHELLER JA

Thursday, 31 July 2003

PAUL ROCH HOWELL v WILLIAM WESTON

Judgment

1. MASON P:  I invite Meagher JA to give the first judgment.

2. MEAGHER JA:  This is an appeal by an unsuccessful plaintiff from a verdict and judgment given in favour of the defendant in District Court litigation before his Honour Judge Rolfe.

3. The plaintiff was a property developer who sued the defendant, his then solicitor, for alleged negligence in a conveyancing transaction concerning the sale of a block of land at Albury.  The plaintiff alleged that the defendant committed breaches of an agreement between him and the defendant.

4. His Honour found in favour of the defendant and found adversely to the plaintiff on the existence of the alleged agreement and to every fact alleged by the plaintiff.

5. In this regard, of critical importance, his Honour found that the defendant had never been asked to provide a “capping letter” as at the date of the settlement of the sale, as alleged by the plaintiff.  His Honour’s findings are of particular importance in the present case because basically, due to defective documentation, his Honour was asked to adjudicate a case of word against word.  His Honour’s findings on the plaintiff’s credibility in this regard were distinctly unflattering.

6. In my view, no successful attack has been made on his Honour’s findings.  I, therefore, think that the appeal should be dismissed with costs.

7. MASON P:  I agree.  This was a case in which the judgment below was not based solely upon generalised statements about accepting the defendant as a witness and rejecting the plaintiff as a witness.  His Honour gave a number of specific reasons why he could not accept the plaintiff’s evidence.

8. Contrary to the submissions that were put to us today, there was evidence (some of it documentary, some of it from the defendant) that supported the conclusions of his Honour, including his conclusions on the critical issue of whom to believe on the key matter in dispute.

9. The defendant (the respondent in this Court) gave explicit evidence to the effect that on one occasion, in general terms, and on a later occasion, in specific terms, he was instructed that a capping letter should not be sought from AGC because of the possibility that further advances would be sought.

10. His Honour was clearly entitled to accept that evidence, having accepted the defendant as a witness of credit and reliability.

11. I agree with the orders proposed.

12. SHELLER JA:  For the reasons given by the other members of the Court, I also agree with the orders proposed.

13. MASON P:  The appeal is dismissed with costs.

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LAST UPDATED:            20/08/2003