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

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

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 Howell v Weston

Details

AGLC: Howell v Weston [2003] NSWCA 235
Case: [2003] NSWCA 235
Decision Date: 31 July 2003

CaseChat Overview and Summary

The Supreme Court of Queensland, Court of Appeal, heard an appeal in *Howell v Weston*. The dispute concerned the credibility of witnesses and challenged findings of fact made by the trial judge.

The Court of Appeal was required to determine whether the trial judge's findings of fact were adequately supported by the evidence, particularly in circumstances where the evidence of one witness was preferred over another. The appeal also raised questions regarding the adequacy of the reasons provided by the trial judge.

The Court of Appeal found no error in the trial judge's findings of fact, concluding that the judge had properly assessed the credibility of the witnesses and provided sufficient reasons for preferring one account over the other. The principles applied centred on the deference owed to trial judges in making factual findings and assessing witness credibility, and the limited grounds upon which such findings can be challenged on appeal. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

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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