Pickham v Binary Engineering Pty Ltd (formerly Hyper Engineering Pty Ltd) - [2018] NSWCA 105

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Pickham v Binary Engineering Pty Ltd (formerly Hyper Engineering Pty Ltd) [2018] NSWCA 105
Hearing dates: 27 April 2018
Decision date: 22 May 2018
Before: Macfarlan JA at [1];
Ward JA at [2];
Barrett AJA at [3]
Decision:
1. Appeal dismissed
2. That the appellant pay the respondent’s costs of the appeal

Catchwords: APPEAL – challenge to findings of fact – credibility findings – no matter of principle.
Legislation Cited: District Court Act 1973 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Szeto v Situ [2017] NSWCA 136
Category: Principal judgment
Parties: Anthony Geoffrey Pickham (Appellant)
Binary Engineering Pty Ltd (formerly Hyper Engineering Pty Ltd) (Respondent)
Representation:
Counsel:
Mr A Moutasallem (Appellant)
Mr NJ Simpson (Respondent)
Solicitors:
Lancaster Law & Mediation (Appellant)
Hansons Lawyers (Respondent)

File Number(s): 2017/213589
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

19 June 2017

Before:

Olsson DCJ

File Number(s):

2016/165558

Judgment

MACFARLAN JA: I agree with Barrett AJA.
WARD JA: I agree with Barrett AJA.
BARRETT AJA: This appeal concerns a loan of $400,000 made on 30 December 2010. It was not (and is not) in dispute that the loan was made at that time to AJBCA Pty Ltd (“AJBCA”).
In proceedings commenced in 2016, the District Court was called upon to determine the identity of the lender and the liability of an alleged guarantor. Her Honour Judge Olsson held that the lender was the present respondent (Binary Engineering Pty Ltd) and that the appellant (Anthony Geoffrey Pickham) had guaranteed due and punctual payment of principal and interest. The District Court proceedings were maintained against the alleged guarantor alone after all of AJBCA and two companies for which it had purported to act as agent in making the borrowing (Pickham Services Pty Ltd and TMA Corporate Enterprises Pty Ltd) had become subject to winding up.
On 19 June 2017, the primary judge ordered judgment in favour of the respondent against the appellant, as guarantor, in the sum of $400,000 plus interest of $189,000 up to the date of judgment.
The background facts may be briefly stated. The appellant was, at material times, a chartered accountant in private practice. In late 2010, he and Troy Apps were partners in an accountancy firm based in the Wollongong area and held, through trusts, interests of 70 per cent and 30 per cent respectively in that firm. They had agreed to buy out two departing partners (Bartlett and Cachia) as of 31 December 2010 and needed to raise cash quickly to make payments on that date. John Reay, a client of the appellant’s of some ten years standing, was a successful businessman with whose financial affairs the…

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: Pickham v Binary Engineering Pty Ltd (formerly Hyper Engineering Pty Ltd) [2018] NSWCA 105
Case: [2018] NSWCA 105
Decision Date: 22 May 2018

CaseChat Overview and Summary

The appeal in *Pickham v Binary Engineering Pty Ltd (formerly Hyper Engineering Pty Ltd)* concerned a challenge to findings of fact made by the primary judge. The appellant, Pickham, sought to overturn these findings, which were adverse to his interests in the dispute with the respondent, Binary Engineering Pty Ltd. The appeal was heard by Macfarlan and Ward JJA, and Barrett AJA.

The central legal issue before the appellate court was whether the findings of fact made at first instance were demonstrably wrong, particularly in relation to credibility assessments. The appeal did not raise any novel or significant matters of legal principle, but rather focused on the application of established principles governing appeals against factual findings.

The Court of Appeal dismissed the appeal, finding no error in the primary judge's factual findings. The judges applied the well-established principle that appellate courts are reluctant to interfere with findings of fact made by a trial judge, especially where those findings depend on the assessment of witness credibility. Such findings are presumed to be correct unless the appellant can demonstrate a clear and compelling reason to depart from them, which was not established in this instance. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed

2. That the appellant pay the respondent’s costs of the appeal

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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Medium Neutral Citation:	Pickham v Binary Engineering Pty Ltd (formerly Hyper Engineering Pty Ltd) [2018] NSWCA 105
Hearing dates:	27 April 2018
Decision date:	22 May 2018
Before:	Macfarlan JA at [1]; Ward JA at [2]; Barrett AJA at [3]
Decision:	1. Appeal dismissed 2. That the appellant pay the respondent’s costs of the appeal
Catchwords:	APPEAL – challenge to findings of fact – credibility findings – no matter of principle.
Legislation Cited:	District Court Act 1973 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679 Szeto v Situ [2017] NSWCA 136
Category:	Principal judgment
Parties:	Anthony Geoffrey Pickham (Appellant) Binary Engineering Pty Ltd (formerly Hyper Engineering Pty Ltd) (Respondent)
Representation:	Counsel: Mr A Moutasallem (Appellant) Mr NJ Simpson (Respondent) Solicitors: Lancaster Law & Mediation (Appellant) Hansons Lawyers (Respondent)
File Number(s):	2017/213589
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 19 June 2017 Before: Olsson DCJ File Number(s): 2016/165558