Lin v Solomon

Case [2017] NSWCA 328


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Lin v Solomon [2017] NSWCA 328
Hearing dates:22 September 2017
Date of orders: 15 December 2017
Decision date: 15 December 2017
Before: Meagher JA at [1]
Payne JA at [2]
White JA at [126]
Decision:

(1) Appeal allowed in part.

 

(2) Set aside order 2 entered on 16 December 2016 and in lieu thereof order:

(a) The appellant pay the respondents the sum of $602,178.35 plus interest from 16 December 2016.

(3) The appellant to pay the costs of the respondents in this Court as agreed or assessed.

Registrar of this Court is directed to remove the erroneous entry made on 7 December 2016 and recorded in JusticeLink by the District Court Registry staff.
Catchwords:

ADMINISTRATIVE LAW – procedural fairness – bias – apprehended bias – whether primary judge should have recused herself

 

EVIDENCE – whether primary judge erred in admitting evidence about unpaid rent and outgoings – letter of demand tendered by appellant for non-hearsay purpose – effect of s 60 of the Evidence Act – business record – s 69 of the Evidence Act

  CONTRACTS — guarantee - misleading or deceptive conduct – whether representations made – whether reliance on representations
Legislation Cited: Evidence Act 1995 (NSW)
Fair Trading Act 1987 (NSW)
Cases Cited: Browne v Dunn (1893) 6 R 67 (HL)
Dee-Tech Pty Ltd & Anor v Neddam Holdings Pty Limited [2010] NSWCA 374
Demagogue Pty Ltd v Ramensky [1992] FCA 851
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Ellis v R [2015] NSWCCA 262
Galea v Galea (1990) 19 NSWLR 263
Gigi Entertainment Pty Ltd v Schmidt [2013] NSWCA 287
Gould v Vaggelas (1985) 157 CLR 215; [1984] HCA 68
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313
Limited v GWA Limited (1983) 78 FCR 1717 at 179; [1983] FCA 269
Luxer Holdings Pty Ltd v Glentham Pty Ltd [2007] WASCA 209
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48
R v T, WA [2014] SASCFC 3; (2014) 118 SASR 382
Re Bill Acceptance Corporation Limited v GWA Limited (1983) 78 FLR 171 at 179; [1983] FCA 269
Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88
Texts Cited: None
Category:Principal judgment
Parties:

Xi Yue Lin (Appellant)

  Isaac Solomon (First Respondent)
Sara Cooper (Second Respondent)
Elizabeth Oxman (Third Respondent)
Representation:

Counsel:
R Angyal SC (Appellant)
M Galvin (Respondents)

  Solicitors:
Youngs Attorneys (Appellant)
Dentons (Respondents)
File Number(s):2017/12414
Publication restriction:None
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Date of Decision:
16 December 2016
Before:
Gibb DCJ
File Number(s):
2014/328919

headnote

[This headnote is not to be read as part of the judgment]

The respondents were the landlords of…

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AGLC
Lin v Solomon [2017] NSWCA 328
Case
[2017] NSWCA 328
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between the appellant, Lin, and the respondents, Solomon and others, concerning a guarantee. The primary judge had made orders against the appellant. The appeal was heard in the Court of Appeal of New South Wales by Meagher, Payne and White JJA.

The Court of Appeal was required to determine whether the primary judge had erred in admitting evidence relating to unpaid rent and outgoings, specifically considering the effect of section 60 of the *Evidence Act 1995* (NSW) and whether the evidence constituted a business record under section 69 of that Act. Additionally, the Court had to consider whether representations were made by the appellant that constituted misleading or deceptive conduct, and if so, whether the respondents relied on those representations. A further issue was whether the primary judge should have recused herself due to apprehended bias.

The Court found that the primary judge had not erred in admitting the evidence of unpaid rent and outgoings, nor in her findings regarding misleading or deceptive conduct. The letter of demand was admitted for a non-hearsay purpose, and the evidence satisfied the requirements of a business record. However, the Court found that the primary judge had erred in relation to the issue of apprehended bias, and that this error required intervention.

Consequently, the appeal was allowed in part. The order of the primary judge was set aside and replaced with an order that the appellant pay the respondents the sum of $602,178.35 plus interest from 16 December 2016. The appellant was also ordered to pay the costs of the respondents in the Court of Appeal. The Registrar was directed to correct an erroneous entry in the District Court Registry.

Orders

Orders of the court

(1) Appeal allowed in part.

(2) Set aside order 2 entered on 16 December 2016 and in lieu thereof order:

(a) The appellant pay the respondents the sum of $602,178.35 plus interest from 16 December 2016.

(3) The appellant to pay the costs of the respondents in this Court as agreed or assessed.

Registrar of this Court is directed to remove the erroneous entry made on 7 December 2016 and recorded in JusticeLink by the District Court Registry staff.

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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