(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby)
9 December 2022
REAL PROPERTY - BOUNDARIES OF LAND AND FENCING - ENCROACHMENT OF BUILDINGS AND PARTY WALLS
TORTS - MISCELLANEOUS TORTS - DECEIT - GENERAL PRINCIPLES
TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS - PARTICULAR CASES - REAL ESTATE TRANSACTIONS
TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS - CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION - RELIANCE, INDUCEMENT AND CAUSATION
TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS - CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION - FAILURE TO TAKE REASONABLE CARE OF OWN INTERESTS
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - APPLICATION OF APPORTIONMENT LEGISLATION IN CASES OF CONTRIBUTORY NEGLIGENCE
Appeal against a decision of a judge of the District Court.
The first appellant conducts a real estate business, with the second appellant as its sole director. In early 2017, the appellants assisted the vendors with marketing their property in Woodside for sale.
In March 2017, an agent of the respondents entered into a sale contract of the Woodside property on the respondents’ behalf. After completion of the contract, the respondents were made aware of an issue relating to a misalignment and house encroachment, and a further issue relating to a studio separately constructed on the property.
At trial, the respondents were successful in establishing a case against the appellants in a number of causes of action, including deceit and fraudulent misrepresentation, misleading and deceptive conduct, and a breach of duty of care.
On appeal, the appellants complained that in finding for the respondents, the trial judge had erred in both fact and law. Broadly, the appellants contended that:
•the judge erred in his application of the principles of proof applicable to findings of knowledge necessary to prove fraud and deceit. The appellants complained that the judge:
• consequently erred in his findings of Ms Berry’s knowledge about the Encroachment Issues; and
• misused his advantage as trial judge;
•the judge erred in his findings of reliance and inducement with respect to facts that the judge should have found but did not, and conclusions of law that he should have drawn but did not;
•the judge erred in his findings with respect to the representations claimed to have been made by the second appellant, again with respect to facts he found that he should not have found, facts that he should have found…
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.
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Details
AGLC
SJ Berry Pty Ltd v McEntee [2022] SASCA 133
Case
[2022] SASCA 133
Decision Date
CaseChat Overview and Summary
The case of McEntee v SJ Berry involved an appeal to an appellate court concerning findings of deceit made by a primary judge. The appellants challenged these findings, arguing that the primary judge had erred in his assessment of the evidence.
The central legal issue before the appellate court was whether the primary judge's findings of deceit were demonstrably wrong, notwithstanding the advantage the primary judge had as the trier of fact. This required the appellate court to consider the principles governing appeals against findings of fact, particularly when those findings are based on credibility assessments. The court also had to consider the standard of proof required in civil matters, as informed by the principles in *Briginshaw v Briginshaw*.
The appellate court rejected the appellants' challenge. It found that the primary judge's findings were clear, detailed, and compelling, and that no error had been demonstrated in his treatment of the evidence. The court affirmed that while appellate courts must give due allowance for the advantages of the trial judge, they are not precluded from overturning findings if the evidence demonstrates them to be "glaringly improbable" or "contrary to compelling inferences." In this instance, the appellate court found no such compelling reasons to depart from the primary judge's conclusions.
The appeal was dismissed, with the appellate court affirming the primary judge's findings of deceit and the consequent liability of the appellants to the respondents.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
It has not been demonstrated that the primary judge made any error in his treatment of the evidence, still less that he misused his undoubted advantage as the trier of fact. His findings were clear, detailed and compelling.Conclusion In my opinion, the appellants’ challenge to the findings which supported the conclusion that the appellants were liable to the respondents in deceit must be rejected. For these reasons and the reasons given by Bleby JA, appeal ground 1 should be dismissed. I otherwise agree with Bleby JA, for the reasons that he gives, that all other grounds of appeal must be dismissed. Accordingly, I too would dismiss the appeal. LOVELL JA: I agree generally with the reasons of Bleby JA and the order he proposes. I add the following remarks in relation to Ms Berry’s challenge to the trial judge’s finding of deceit. Dr Rochow KC, counsel for the appellants, accepted that when challenging findings on appeal, the principles discussed in Fox v Percy are applicable:[81]However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.(Footnotes omitted)[81] (2003) 214 CLR 118 at [28]–[29] (Gleeson CJ, Gummow and Kirby JJ). Dr Rochow underpinned his challenge to the various findings by relying on the principles enunciated in the well-known case of Briginshaw v Briginshaw.[82][82] (1938) 60 CLR 336. Briginshaw considered the assessment of evidence in the context of the civil onus of proof. Justice Dixon stated:The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. [83](Emphasis added)[83] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361–2.