Murray v Duddy

[2005] NSWCA 55

CITATION:	MURRAY v. DUDDY [2005] NSWCA 55
HEARING DATE(S):	17.02/2005
JUDGMENT DATE:	17 February 2005
JUDGMENT OF:	Beazley JA at 1,12; Hodgson JA at 2; Ipp JA at 11
DECISION:	(1) Appeal allowed.; (2) Set aside the judgment, orders and verdict of the trial judge.; (3) Order that the matter be remitted to the Supreme Court for a new hearing.; (4) Order the respondent to pay the appellant's costs of the appeal on the basis of an appeal lasting one day but to have a certificate under the Suitors Fund Act 1951, if so entitled.; (5) Order that the costs of the first trial abide the result of the second trial.

CATCHWORDS:	REASONS - duty of trial judge to provide sufficient reasons
CASES CITED:	Beale v. GIO of New South Wales (1997) 48 NSWLR 430
PARTIES:	Wendy Jill Murray (Appellant) Eric Keith Duddy (Respondent)
FILE NUMBER(S):	CA CA 40532/04; CD 12555/01
COUNSEL:	D. Conti SC/P. Bolster (Appellant) P. Hamill SC/M. Avenell (Respondent)
SOLICITORS:	McKells (Appellant) Duncan Maclean (Respondent)

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	CLD 12184/01
LOWER COURT JUDICIAL OFFICER:	Shaw J

CA 40532/04

BEAZLEY JA
HODGSON JA
IPP JA

17 February 2005

WENDY JILL MURRAY v. ERIC KEITH DUDDY

Judgment

1 BEAZLEY JA: The court is in a position to give judgment in each of these matters. I will deal with this appeal first, noting that there was a concession by the respondent that the judgment of Shaw J could not stand in its terms and the matter ought to be remitted for re-hearing. In light of that concession I propose to make short comments only.

2 Mrs Murray brought proceedings against Eric Duddy arising out of her purchase, on his behalf, of two properties, “West Garawan” and “Square Bush”. The properties, which Mr. Duddy had owned, were purchased from Westpac at a mortgagee sale following default by Mr. Duddy of his loan obligation to Westpac. Mrs Murray borrowed moneys to complete the purchase. There have been related proceedings in the Court in relation to those borrowings, which have been dealt with and heard concurrently with this appeal.

3 Mrs Murray claimed Mr Duddy breached his agreement with her to provide the moneys for the purchase of the properties (the contract claim) or that he falsely represented to her that he had the money for the purchase but he did not, in fact, have the money (the deceit claim). The trial judge dealt with Mrs Murray’s claim in ten paragraphs. In doing so he considered that the basic questions he had to resolve were ones of fact [50]. In determining those questions he preferred the evidence of Mr Duddy over Mrs Murray, although he said at [57] that in doing so he was not making findings based on credibility.

4 Senior counsel for Mrs Murray submitted that she was entitled to succeed on her claims given a finding of the trial judge earlier in his judgment, at [33], that Mr. Duddy was…