Rawson Homes Pty. Ltd. v Donnelly - [2005] NSWCA 211

CITATION:
Rawson Homes Pty. Ltd. v. Donnelly & Anor. [2005] NSWCA 211

HEARING DATE(S):
7 June 2005

JUDGMENT DATE:

23 June 2005

JUDGMENT OF:
Hodgson JA at 1; Tobias JA at 61; McColl JA at 62

DECISION:
1. Appeal as against the plaintiff allowed. 2. Appeal as against CSR dismissed with costs. 3. Judgment below in favour of the plaintiff and in relation to the costs of the plaintiff set aside. 4. Matter remitted to the District Court for re-trial of the issue of liability for common law negligence only, costs of the first hearing to be in the discretion of the judge hearing the re-trial. 5. Plaintiff to pay the costs of Rawson Homes of the appeal as against the plaintiff, and to have a certificate under the Suitors' Fund Act if otherwise entitled.

CATCHWORDS:
APPEAL - Challenge to factual findings of primary judge - Whether glaringly improbable - Whether vitiated by error

CASES CITED:
Australian Air Express Pty. Ltd. v. Langford [2005] NSWCA 96
Bial v. Housing Commission of NSW [1976] 1 NSWLR 388
Boylan Nominees Pty. Ltd. v. Sweeney [2005] NSWCA 8
Hollis v. Vabu Pty. Ltd. (2001) 207 CLR 21
Jacob v. Utah Constructions & Engineering Pty. Ltd. (1966) 116 CLR 200
Laundess v. Laundess (1994) 20 MVR 156
McDonald v. Girkaid Pty. Ltd. [2004] Aust Tort Reports 81-768, [2004] NSWCA 297
Pack-Tainers Pty. Ltd. v. Moore [2005] NSWCA 43
Starks v. RSM Security Pty. Ltd. [2004] Aust Torts Reports 81-763 [2004] NSWCA 351
Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 CLR 16
Todorovic v. Moussa [2005] NSWCA 100

PARTIES:
Rawson Homes Pty. Limited - appellant
Joshua Steven Donnelly - 1st respondent
CSR Limited - 2nd respondent

FILE NUMBER(S):
CA 40563/04

COUNSEL:
Mr. S. Campbell SC with P.L. Perry for appellant
Mr. R. McIlwaine SC with R.E. Quickenden
Mr. M. Cranitch SC with A. Casselden

SOLICITORS:
Moray & Agnew, Sydney for appellant
Tony Kemp Lawyers, Gosford for 1st appellant
Wotton & Kearney, Sydney for 2nd appellant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC282/01

LOWER COURT JUDICIAL OFFICER:
J.C. Gibson DCJ

CA 40563/04
DC 282/01

HODGSON JA
TOBIAS JA
McCOLL JA
Thursday 23 June 2005

RAWSON HOMES PTY. LIMITED V. DONNELLY & ANOR.

Judgment

1 HODGSON JA: On 18 June 2004, Gibson DCJ gave a decision in proceedings in which the first respondent (the plaintiff) had sued the appellant (Rawson Homes) for damages for personal injuries, and in which Rawson Homes had put on a cross-claim against the second respondent (CSR). The primary judge gave judgment for the plaintiff in the sum of $453,183.73, and for CSR on the cross-claim, and ordered Rawson Homes to pay the costs of the plaintiff and CSR.

2 Rawson Homes has appealed from those orders, although it has not challenged the quantum of damages.

CIRCUMSTANCES

3 In 1998, the plaintiff commenced working as a self-employed carpenter, generally working with another more experienced self-employed carpenter Murray Swane. During 1998 and 1999, the plaintiff did some carpentry work…

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

Case: [2005] NSWCA 211
Decision Date: 23 June 2005

CaseChat Overview and Summary

Rawson Homes Pty. Ltd. and CSR Ltd. (the defendants) appealed to the New South Wales Court of Appeal against a judgment of the District Court in favour of the plaintiff, Mr. Donnelly. The dispute concerned Mr. Donnelly's claim for damages arising from alleged negligence.

The Court of Appeal was required to determine whether the primary judge's factual findings were so glaringly improbable or affected by error as to warrant appellate intervention. Specifically, the court considered whether the findings regarding liability for common law negligence were sustainable.

The Court of Appeal found that the primary judge's findings of fact were indeed glaringly improbable and vitiated by error, particularly in relation to the issue of liability for common law negligence. The court reasoned that the evidence did not support the conclusions reached by the primary judge on this crucial aspect of the case.

Consequently, the appeal against Rawson Homes Pty. Ltd. was allowed, and the judgment in favour of the plaintiff was set aside. The matter was remitted to the District Court for a re-trial solely on the issue of liability for common law negligence. The appeal against CSR Ltd. was dismissed.

Orders

Orders of the court

1. Appeal as against the plaintiff allowed. 2. Appeal as against CSR dismissed with costs. 3. Judgment below in favour of the plaintiff and in relation to the costs of the plaintiff set aside. 4. Matter remitted to the District Court for re-trial of the issue of liability for common law negligence only, costs of the first hearing to be in the discretion of the judge hearing the re-trial. 5. Plaintiff to pay the costs of Rawson Homes of the appeal as against the plaintiff, and to have a certificate under the Suitors' Fund Act if otherwise entitled.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Rawson Homes Pty. Ltd. v. Donnelly & Anor. [2005] NSWCA 211
HEARING DATE(S):	7 June 2005
JUDGMENT DATE:	23 June 2005
JUDGMENT OF:	Hodgson JA at 1; Tobias JA at 61; McColl JA at 62
DECISION:	1. Appeal as against the plaintiff allowed. 2. Appeal as against CSR dismissed with costs. 3. Judgment below in favour of the plaintiff and in relation to the costs of the plaintiff set aside. 4. Matter remitted to the District Court for re-trial of the issue of liability for common law negligence only, costs of the first hearing to be in the discretion of the judge hearing the re-trial. 5. Plaintiff to pay the costs of Rawson Homes of the appeal as against the plaintiff, and to have a certificate under the Suitors' Fund Act if otherwise entitled.

CATCHWORDS:	APPEAL - Challenge to factual findings of primary judge - Whether glaringly improbable - Whether vitiated by error
CASES CITED:	Australian Air Express Pty. Ltd. v. Langford [2005] NSWCA 96 Bial v. Housing Commission of NSW [1976] 1 NSWLR 388 Boylan Nominees Pty. Ltd. v. Sweeney [2005] NSWCA 8 Hollis v. Vabu Pty. Ltd. (2001) 207 CLR 21 Jacob v. Utah Constructions & Engineering Pty. Ltd. (1966) 116 CLR 200 Laundess v. Laundess (1994) 20 MVR 156 McDonald v. Girkaid Pty. Ltd. [2004] Aust Tort Reports 81-768, [2004] NSWCA 297 Pack-Tainers Pty. Ltd. v. Moore [2005] NSWCA 43 Starks v. RSM Security Pty. Ltd. [2004] Aust Torts Reports 81-763 [2004] NSWCA 351 Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 CLR 16 Todorovic v. Moussa [2005] NSWCA 100
PARTIES:	Rawson Homes Pty. Limited - appellant Joshua Steven Donnelly - 1st respondent CSR Limited - 2nd respondent
FILE NUMBER(S):	CA 40563/04
COUNSEL:	Mr. S. Campbell SC with P.L. Perry for appellant Mr. R. McIlwaine SC with R.E. Quickenden Mr. M. Cranitch SC with A. Casselden
SOLICITORS:	Moray & Agnew, Sydney for appellant Tony Kemp Lawyers, Gosford for 1st appellant Wotton & Kearney, Sydney for 2nd appellant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC282/01
LOWER COURT JUDICIAL OFFICER:	J.C. Gibson DCJ