Kervan Trading Pty Limited v MMI

[2000] NSWCA 356

CITATION:	Kervan Trading Pty Limited v MMI [2000] NSWCA 356
FILE NUMBER(S):	CA 40246/99
HEARING DATE(S):	1 November 2000
JUDGMENT DATE:	14 December 2000
PARTIES :	Kervan Trading Pty Limited v Mercantile Mutual Insurance (Australia) Limited
JUDGMENT OF:	Mason P at 1; Meagher JA at 18; Davies AJA at 36

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	11233/92
LOWER COURT JUDICIAL OFFICER :	Barr J

COUNSEL:	Appellant: I. Wales SC Respondent: J. Graves SC/ M. Pesman
SOLICITORS:	Appellant: Truman Hoyle Respondent: A.R. Connolly & Company
CATCHWORDS:	Evidence - credibility -fresh evidence - application for new trial.
LEGISLATION CITED:	ss. 106(a), (c), (e) Evidence Act 1995
CASES CITED:	Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471; R v Hawes (1994) 35 NSWLR 294, Palmer v The Queen (1998) 193 CLR 1, Wollongong Corporation v Cowan (1955) 93 CLR 435, CDJ v VAJ (1998) 197 CLR 172, Orr v Holmes (1948) 76 CLR 632, The Commissioner for Government Tram and Omnibus Services v Vickery (1952) 85 CLR 635, McDonald v McDonald (1965) 113 CLR 529, Autodesk Inc. v Dyason (No. 2)(1993) 176 CLR 300, Cabassi v Vila (1940) 64 CLR 130, Briginshaw v Briginshaw (1938) 60 CLR 336.
DECISION:	1. Appeal dismissed with costs.

- 19 -

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40246/99

MASON P
MEAGHER JA
DAVIES AJA

Friday, 14 December 2000

KERVAN TRADING PTY LIMITED v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED

FACTS The appellant/plaintiff operated a video rental business which was nearly destroyed by a deliberately lit fire. The plaintiff unsuccessfully sued the defendant insurer on the insurance policy, the defendant making good its defence of fraud. The trial judge’s findings were based on credit and in particular the credit of a mother and daughter. Subsequently, affidavit evidence has been adduced which forms the basis of this appeal, to the effect that the mother and daughter lied when giving evidence with the intention of harming the proprietor of the appellant. HELD By Mason P, dissenting - 1. Fresh evidence must be most compelling on the ultimate result of the original trial before it may ground an order for a new trial. The mere fact that it would establish perjury on the part of a key witness is not sufficient: Wollongong Corporation v Cowan (1955) 93 CLR 435. 2. The fresh evidence in this case satisfied this exacting standard. 3. I would order a new trial so that the circumstances in which the new evidence came to light can be explored and its veracity closely tested. By Meagher JA, Davies AJA agreeing - 4. In an application for an order for a new trial, based upon fresh evidence, the appellant must prove that “the evidence if believed, would probably be conclusive of the issue between the parties: Barwick CJ McDonald v McDonald (1965) 113 CLR 529 at 534. 5. In the present case, one cannot say this test has been passed. At most the evidence, if believed, would cause the judge to rewrite his judgment and possibly re-think some of his conclusions. By Davies AJA - 6. It has long been established that a new trial may be granted when evidence, unknown at the time of the trial and not obtained with reasonable diligence, is of such a nature that it would be inequitable for the judgment to stand. There are two competing factors. First is the public interest in ensuring parties to litigation have a fair opportunity to put their case. Second is the public interest in ensuring finality of litigation, subject to appeal: Wollongong Corporation v Cowan (1955) 93 CLR 435. 7. Where new evidence suggests fraud or improper conduct on the part of the successful party, a judgment may be set aside where the fraud or improper conduct goes to the heart of the judgment and to the issue of natural justice, thereby denying the unsuccessful party a fair hearing. The successful party in these circumstances was not involved in any fraud or improper conduct which denied the unsuccessful party a fair hearing. 8. An allegation of perjury will not necessarily suggest a trial was unfair: Cabassi v Vila (1940) 64 CLR 130; McDonald v McDonald (1965) 113 CLR 529. The allegation of perjury made by the fresh evidence in this appeal would not be decisive when considered in the context of the other evidence given at trial. ORDERS 1. Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40246/99

MASON P
MEAGHER JA
DAVIES AJA

Friday, 14 December 2000

KERVAN TRADING PTY LIMITED v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED

JUDGMENT

1   MASON P: I have had the benefit of reading the judgments of Meagher JA and Davies AJA. 2   I would order a new trial in this matter. 3   Without the fresh evidence there is no reason to doubt the conclusion reached by the learned trial judge. The fire had been lit deliberately. The appellant was in significant financial difficulties. Mr Kavurma was an unimpressive witness and Mr Atmali was kept out of the witness box. However, the icing on the cake was the evidence of Mrs and Miss Yuksel. Their evidence was critical, it being common ground that fraud could not be established unless it was accepted. 4   Each woman gave evidence that valuable equipment was removed from the shop and stored in the garage in their home shortly before the fire, where it remained for a considerable period after the fire, before being moved into a new business. Miss Yuksel also gave evidence of the most explicit confessions by Mr Kavurma (see judgment, pars 51-54) as well as a significant admission by silence on the part of Mr Atmali (see par 47). 5   The credibility of these two witnesses was vigorously attacked at trial. There was plenty of material upon which to base such an attack. Each woman frankly admitted hostility towards Mr Kavurma because he had not repaid Miss Yuksel’s loan. If, as she claimed, Miss Yuksel had told a police officer about the confession of arson one would have expected that the matter would have been taken further by the police. These are the two main matters, and there were others. Nevertheless, his Honour carefully addressed all issues of credibility and he was entitled to conclude that the evidence of the two women should be accepted on the critical issues relating to the complicity of the two men in the fire. Applying well-established principle, there is no basis for overturning the careful assessment by the trial judge of the material before him. 6   The application for a new trial raises different issues. Fresh evidence has come into the appellant’s possession. It is not suggested that lack of due diligence explains the appellant’s inability to have used this evidence at trial. 7   There are three affidavits. 8   Emine Arksu states that she overheard Mrs Yuksel in 1997 at the Department of Social Security Auburn telling another lady:

Kemal [Kavurma] and Hassan [Atmali] took my $30,000. They did not pay me back, so I’m going to Court and lie and make them lose the case. I’m going to say they burned the shop themselves and that they put their cassettes at my house.
Asked why she was talking like that, Mrs Yuksel replied:
Because they owe me money and they haven’t paid me back. I’m going to finish them.

9   This evidence was not tested before us. In recording this I am not being critical, but simply observing that it has not been suggested at this stage in the proceedings that this evidence lacks any credibility. It should nevertheless be observed that the suggestion that Mrs Yuksel would have said that she had lent the money is at variance with the clear evidence accepted at trial that the lender was her daughter, Miss Yuksel (see RB 28). 10   Secondly, there is an affidavit of Alev Arslan sworn on 25 November 1999 deposing to a conversation with Miss Yuksel at a restaurant the previous month. Relevantly the conversation was to the following effect (emphasis added):

Semra: I’ve been to Court because of him. He has an insurance problem.
Alev: What?
Semra: Kemal and his partner Hassan owed me $30,000. I rang Kemal and asked for my money. He said that he was not going to pay me because he didn’t owe the money to me. He wasn’t going to give me my money so I burned him .
Alev: What do you mean?
Semra: I told the Court that while I was in Turkey, Kemal used my garage to store video cassettes. They got the key from my mother. There was a fire at Kemal’s shop and I said that what was burned in the shop were only video covers and not the video cassettes because there were in my garage. This is what I told the Court but it wasn’t true.
Alev: Why did you say that if it wasn’t true? You are both Turkish why would you do this thing?
Semra: If Kemal won the case he was not going to pay me any way. If I couldn’t get my money then I was going to make sure that he didn’t get his.
Alev: Did you get anything from the insurance company?
Semra: No.
Alev: You’re a smart woman why would you do this at all let alone for free?
Semra: I was happy just to get my revenge.

11   There is also an affidavit from Mr Arslan sworn on 13 June 2000 that effectively corroborates his wife’s evidence about the conversation at the restaurant in October 1999. The critical part of that affidavit is as follows (emphasis added):

Semra: Yes. They lost because of me.
Hanifi: Why because of you.
Semra: They owed me money and wouldn’t repay it. Kemal burned me and I burned him back. I lied to the Court and got my revenge.
Hanifi: Why was that necessary? Why didn’t you speak to him?
Semra: I tried to see them, but Kemal always refused to respond. I even went to a solicitor to get my money, which I couldn’t. At one stage a process server went to Kemal’s house to try and take some things. Kemal told the process server that everything in that house belonged to his daughter and her boyfriend and that he didn’t own anything. I paid him back for not paying me .
Hanifi: What did you say to the Court?
Semra: I said that Kemal and Hassan brought their cassettes to my garage while I was overseas even though they didn’t.

12 This fresh evidence addresses important aspects of the testimony of the two women at trial. It goes solely to their credibility, but it would be admissible in its present form at a new trial (see Evidence Act 1995, s106(a), (c) and (e). See also as to the position at common law Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471, R v Hawes (1994) 35 NSWLR 294, Palmer v The Queen (1998) 193 CLR 1 at 21). 13 Fresh evidence must be most compelling in its impact on the ultimate result of the original trial before it may ground an order for a new trial. The mere fact that it would establish perjury on the part of a key trial witness would not suffice:

It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary.

(See Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444, CDJ v VAJ (1998) 197 CLR 172 at 185, 195-6 and 237.)

14   With some hesitation I have concluded that the fresh evidence in the present case satisfies this exacting standard. I repeat that its veracity has yet to be explored - that would be the task of the judge hearing the new trial. But, except for the unlikely suggestion that Mrs Yuksel would have told Mrs Arksu that she had been the lender, there is nothing on the face of the three affidavits that would lead me to reject the evidence as lacking credibility. 15   Disclosure of motivation to hurt Mr Kavurma was nothing new. But what emerges from the three affidavits are the clearest of statements that the two women gave knowingly false evidence with the intent of causing the appellant to lose the insurance case. This casts a dark cloud over the totality of their evidence at trial. The only particulars given by each woman related to the evidence about storing cassettes in the garage and there is no reference to Ms Yuksel having given false evidence concerning the confessions. Nevertheless, the conversations were not occasions for a detailed canvassing of all issues. The admitted intention to lie with a view to causing loss of insurance cover was enough in my mind to destroy the entirety of each woman’s trial evidence. As indicated already, their evidence already called for the closest scrutiny. 16   I would order a new trial so that the circumstances in which the new evidence came to light can be explored and its veracity closely tested. Regrettably, it would appear that one group of witnesses or the other may be involved in serious misconduct affecting the administration of justice. Hopefully a new trial will expose this clearly. 17   The costs of the original trial and of this appeal should abide the result of the new trial. 18   MEAGHER JA: This is an appeal from a decision of Barr J in favour of the respondent insurer arising out of a fire which, on 27 August 1989, nearly destroyed the plaintiff/appellant’s shop. The following matters were agreed: (a) the respondent insurer had issued to the appellant a policy covering the risk of fire; (b) that policy was in the amount of $300,000; (c) the fire was deliberately lit by some arsonist. 19   The premises were situate at 37 Queen Street, Auburn which is a suburb of Sydney. They consisted of a double frontage on to the street, and then narrowed down and lengthened into three rooms, with a toilet block behind them. The fire had two sources, one in the first of these three rooms, and the second in the second of those three rooms. In each case, the source was situated near a window. His Honour concluded, and there does not seem much doubt about it, that an accelerant and a source of heat were introduced from outside the building through the windows. The wires connecting the shop’s security system with base were possibly cut before the fire commenced. 20   The two front rooms were apparently let by the appellant to an en entity called Turkmen Video, which dealt in the sale of videos made available to it by the appellant. Turkmen Video was apparently owned in part by the plaintiff and in part by a Mr Atmali. The appellant was largely owned by a Mr Kavurma. Every person connected with Mr Kavurma seems to have been in a parlous financial position at the time of the fire. 21   At that time the plaintiff had had the lease of a $60,000 machine, but had fallen into arrears in his payments on it. It had also borrowed the sum of $50,000 from a Mr James Fuggle, and had not repaid it. It also owed a company called TBE Pty Limited the sum of $19,000, and Mr Kavurma asked the creditor to write off the debt. 22   At that time the appellant also owed $40,000 to his solicitors, Messrs Roscoe W G Hoyle & Co and $10,000 to Direct Acceptance Corporation Limited. Turkmen Video seems to have had only minimal assets and an overdraft of $85,000. Neither Mr Kavurma nor his wife seem to have had any substantial assets. Mr Kavurma and his associate Mr Atmali borrowed the sum of $25,000 from their employee Miss Semra Yuksel (which they never repaid) and before that had borrowed $4,000 from her mother Mrs Emine Yuksel. 23   The plaintiff’s trading results had been poor. For the 1985, 1986 and 1987 years there had been net losses of $24,753, $12,283, and another net loss in 1989, for $10,933. Accumulated losses as at 30 June 1989 were $69,036. 24   Thus, it would be hard to disagree with his Honour’s conclusion “that the business was chronically starved of ready money and I think it might have suited Mr Kavurma’s interest to convert the contents of the business to cash”. 25   The principal witness for the insurer were Miss Yuksal and her mother Mrs Yuksal, Miss Yuksal had on many occasions been the employee of Mr Kavurma and was the mistress of Mr Atmali. She had many conversations with both gentlemen. Miss Yuksal gave evidence that Mr Kavurma had said to her on one occasion

We’re going to get a lot of money out of this fire. I felt a bit bad when I came to the front of the shop and I saw that it was on fire. I know that I arranged for the fire to be lit and that I knew it was going to happen but I still felt bad about it. I tried to get into the shop when I arrived but the police wouldn’t let me and told me it was because of the fire.”

26   And on another occasion -

“When I was organising the fire I was concerned that the junkie who we had organised to light it may be observed by someone.
I am concerned that someone might talk to the insurance company and let them know about me such as Senay or Nihat Karci.”

27   This was the high-point of the evidence against Mr Kavurma, and his Honour believed it. 28   But it was not the only evidence against Mr Kavurma. Another topic which emanated from Miss Yuksal and her mother which his Honour also found strongly probative of Mr Kavurma’s guilt was the disposal of boxes of the plaintiff’s goods. According to Mrs Yuksal (whom his Honour believed), some time before the fire, Messrs Kavurma and Atmali attended upon her, procured the keys of her garage and proceeded to stack boxes of goods in it. When Miss Yuksal returned from Turkey shortly after the fire she saw the boxes and recognised their contents as part of the stock-in-trade of the appellant. After that, Mr Kavurma collected the boxes, and used their contents as the stock-in-trade of his new business. 29   His Honour duly noted that both the ladies were activated by hatred of Mr Kavurma, and would not have provided statements for the insurers if Mr Kavurma had repaid the money he had borrowed from Miss Yuksal ($25,000). He also noted that, in each of their accounts, there were internal inconsistencies, and also differences between each of them, but, for various reasons, was not deterred by these factors from believing them in all material respects. On the other hand, he did not believe Mr Kavurma at all; and he was not given the opportunity of deciding whether or not Mr Atmali had any credit. It was his Honour’s belief in the accounts of Mrs and Miss Yuksal which furnished the main reason for his dismissal of the appellant’s case. 30   There were, of course, other factors in addition to those I have mentioned. One was the fact that Mr Kavurma increased the cover of the policy from $200,000 to $300,000 very shortly before the fire. Another was the fact that Mr Kavurma successivly altered his written accounts of the fire - and to his own benefit. 31   The appellant, in challenging his Honour’s finding, was confronted with the fact that nearly all his Honour’s findings were based on credit, and therefore driven to submitting that his Honour had abused his position in making these findings. In my view, this was a hopeless task, and all challenges to his Honour’s findings must fail. 32   The main point of the appeal resided elsewhere, in the attempt to obtain an order for a new trial, on the strength of certain affidavits obtained after the conclusion of the trial. The tendency of those affidavits was to cast doubt on the evidence of Mrs and Miss Yuksal about hoarding the plaintiff’s stock-in-trade in their garage. There were several such affidavits, but it will be sufficient to mention one of them. This is an affidavit from a Turkish gentleman named Arslan, who deposed that he took coffee at a local café on about 5 October 1999, where Miss Yuksal was the waitress. Part of the conversation between them was as follows:

“Miss Yuksal: “Did you know that Kemal had lost his case?”
Mr Arslan: “What? Is that right?”
Miss Yuksal: “Yes. They lost because of me”.
Mr Arslan: “Why because of you?”
Miss Yuksal: “They owed me money and wouldn’t repay it. Kemal burned me and I burned him back. I lied to the Court and got my revenge.”
……………………………………………………………………
Mr Arslan: “What did you say to the Court?”
Miss Yuksal: “I said that Kemel and Hassan brought their cassettes to my garage while I was overseas though they didn’t.”

33   It should be noted that none of the additional affidavit evidence challenged the central point of the evidence of Mrs and Miss Yuksal, viz. that Mr Kavurma had admitted starting the fire. It went to the secondary point of storing the plaintiff’s goods in their garage. 34   In my view no new trial should be ordered. The law on this point has been laid down quite clearly by the High Court of Australia in Orr v Holmes (1948) 76 CLR 632, The Commissioner for Government Tram and Omnibus Services v Vickery (1952) 85 CLR 635; and McDonald v McDonald (1965) 113 CLR 529. One of the tests which an appellant must pass is that “the evidence, if believed, would probably be conclusive of the issue between the parties” (per Barwick CJ at 534). In the present case one cannot say that this test has been passed. At most the evidence, if believed, would cause the judge to rewrite his judgment and possibly re-think some of his conclusions. Whether for example, it would cause him to alter his findings on Mr Kavurma’s admissions, one simply does not know. Moreover, the test I have quoted from Barwick CJ may be too lenient. Windeyer J was prepared to put it that, “except in very exceptional cases perjury is not a sufficient ground for setting aside a judgment” (at p.544). 35 The appeal should be dismissed with costs. 36 DAVIES AJA: I have had an opportunity to read the reasons for decision prepared by Meagher JA. I agree generally with his Honour's reasons. I wish merely to comment upon that part of the appeal which seeks a new trial on the ground of evidence discovered since the trial. 37 It has long been established that a new trial may be granted when evidence, which was unknown at the time of the trial and which could not then have been obtained with reasonable diligence, becomes available after the trial and is of such a nature that it is inequitable that the judgment should stand. An application on this ground is not lightly granted. There are two competing factors to keep in mind. The first is the public interest in ensuring that parties to litigation have a fair opportunity to put their case. The other is the public interest in ensuring the finality of litigation, subject to appeal. 38 Dixon CJ, with whom Williams, Webb, Kitto and Taylor JJ agreed, expounded the principle in Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444-445:-

"If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial.
In Orr v Holmes (1948) 76 CLR, at pp 640-642 there are collected a number of different expressions which have been judicially used at various times. Their result is then summed up in these words:- 'No doubt some of the foregoing expressions are susceptible of a weaker application than others of them. But the evident purpose of all of them is to ensure that new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue. The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable' …"

This exposition has been frequently applied, most recently by Gaudron J in CDJ v VAJ (1998) 197 CLR 172 at 185.

39   In McDonald v McDonald (1965) 113 CLR 529 at 532-533, Barwick CJ expressed the principle thus:-

"The discovery subsequent to verdict of admissible credible evidence, which could not have been sooner discovered by the exercise of reasonable diligence in the circumstances, and which is of such probative value and significance that, taken with the evidence already given at the trial, it will in all probability be decisive of the issues between the parties in a sense opposite to that of the verdict, is a ground for the granting of a new trial. If the Court is satisfied that the fresh evidence fulfils these requirements, it will generally conclude that, therefore, the interests of justice demand that the issues be tried afresh."

40   In these formulations, terms such as "decisive" should not be given any strict or technical meaning. The factors I have mentioned and the circumstances of the case must be taken into account. A judgment duly pronounced will not be set aside merely because there has been failure on the part of the unsuccessful party in the conduct of the case. As Mason CJ said in Autodesk Inc. v Dyason (No.2) (1993) 176 CLR 300 at 303, "The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases". An applicant seeking to reopen by reason of fresh evidence must generally show that the evidence could not have been obtained with reasonable diligence at the time of the trial and is of such significance that, had it been given at the trial, the result would have been different. 41   Necessarily, where the new evidence suggests fraud or improper conduct on the part of the successful party, a court may find it easier to set aside the judgment because the establishment of such conduct on the part of the successful party not only goes to the heart of the case which that party presented but also to the issue of natural justice, as to whether or not the unsuccessful party had a fair hearing. 42   That is not the present case. The respondent, Mercantile Mutual Insurance (Australia) Limited, was not involved in any wrongdoing. It has not been suggested that the trial was not a fair one. What is claimed is that there was perjury on the part of two witnesses. An allegation of perjury will not necessarily suggest that the trial was unfair or go to the heart of the issues that were litigated (cf. Cabassi v Vila (1940) 64 CLR 130, per Williams J at pp 147-148, cited by Windeyer J in McDonald v McDonald at p 544). 43 In the present case, one affidavit which has been put forward may be disregarded. It is the affidavit of Sadullah Vatansever of 15 November 1999. The affidavit concerns matters which occurred prior to the trial. No affidavit shows adequately why the material could not have been obtained with reasonable diligence prior to the trial. The other affidavits are those of Emine Aksu of 18 October 1999, of Alev Arslan of 25 November 1999 and of Hanifi Arslan of 13 June 2000. Mr and Mrs Arslan depose that they had a conversation with the witness, Semra Yuksel on 5 October 1999, the substance of which appears from the following passages from Mr Arslan's affidavit. He deposed that Semra Yuksel said, inter alia, "I lied to the Court and got my revenge" and "I said that Kemal and Hassan brought their cassettes to my garage while I was overseas even though they didn't". Mrs Aksu deposed that, in early 1997, she heard Mrs Emine Yuksel say:-

"Kemal and Hassan took my $30,000.00. They did not pay me back, so I'm going to go to Court and lie and make them lose the case. I'm going to say they burned the shop themselves and that they put their cassettes at my house."

44   I have considered that evidence in the context of the other evidence given at the trial and the trial Judge's reasons for judgment. In my opinion, the new evidence would not be decisive. 45   The respondent considered that Mr Kemal Kavurma, the principal of the appellant, Kervan Trading Pty Limited, had been involved in and was responsible for the arson of premises in which stock, owned by the appellant, was held. For this reason, the respondent had refused to meet the insurance claim which the appellant made. The trial Judge found the allegation of such conduct to be proved. 46   The known circumstances of the arson, the opportunity which Mr Kavurma had to arrange it, the parlous state of the financial position of Mr Kavurma and his company, an increase in the insurance cover which Mr Kavurma had arranged shortly before the fire, the evasiveness of Mr Kavurma's evidence before the Court and the failure of the appellant to call Mr Atmali were matters of sufficient persuasiveness to justify a finding, as a matter of probability, that Mr Kavurma was involved in the arson. 47   However, because of the seriousness of the allegation, further evidence was required to satisfy the standard of proof enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336. That proof was provided by Emine and Semra Yuksel. Emine Yuksel gave evidence that Mr Kavurma and Mr Atmali had, shortly before the fire, stored cartons in her garage. Semra Yuksel gave evidence that she had seen the cartons in the garage. She also gave even more important evidence, that of conversations wherein Mr Kavurma and Mr Atmali both admitted Mr Kavurma's involvement in the arson. This evidence was sufficient to satisfy the trial Judge of fraud by the appellant. 48 The evidence as to the cartons in the garage was significant corroborating material but it was not essential to any issue in the case. The quantum of the appellant's claim was not disputed at the trial. 49 I have considered whether, if Semra Yuksel and her mother were found to have lied about the cartons, that finding would necessarily infect the totality of their evidence, particularly the evidence given by Semra Yuksel as to the admissions of arson by Mr Kavurma and Mr Atmali. 50 In my opinion, that would not be likely to occur. It seems to me to be unlikely that the totality of their evidence would be held to be fabricated. The conversations deposed to in the affidavits were not, on their face, a confession that the totality of the evidence given by Emine and Semra Yuksel at the trial was untrue, merely that the evidence given as to the cartons in the garage was untrue. Indeed, if the totality of the evidence given by Emine and Semra Yuksel at the trial was untrue, it seems inexplicable that Mr Atmali was not called to say so. 51 On balance, it seems to me that the new evidence does no more than show that Emine and Semra Yuksel lied, or may have lied, about an aspect of the evidence which they gave at the trial. As there was adequate material apart from their evidence as to the cartons to justify his Honour's conclusion and as his Honour's reasons for judgment disclose his Honour's careful consideration of the totality of the evidence and his satisfaction that there was convincing consistency in the pattern of the evidence establishing that Mr Kavurma was involved in the arson, I consider that this is not a case where the new evidence could be described as conclusive or decisive or where it would be proper to order that the judgment be set aside. 52 I agree with the orders proposed by Meagher JA.