RHG Mortgage Corporation Ltd v Ianni

RHG Mortgage Corporation Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge. The dispute concerned the appellant's claim for possession of a property and recovery of moneys advanced under a mortgage, which had been remitted to the primary judge for reconsideration following a prior successful appeal by the respondents, Mr and Mrs Ianni. The core of the appeal was whether the primary judge had erred in their reconsideration by again relying on certain evidence and by failing to draw an adverse inference against the respondents.

The Court of Appeal was required to determine two principal legal issues. Firstly, whether the primary judge had erroneously repeated an error from the initial hearing by relying on specific evidence that had been the subject of criticism on the first appeal. Secondly, the Court had to consider whether the primary judge had failed to properly apply the principle established in *Jones v Dunkel*, which allows for an adverse inference to be drawn against a party who fails to call evidence that would have been available to them and would have elucidated a matter in dispute.

In their reasoning, Basten, Meagher and Ward JJA found that the primary judge had not erred in their reconsideration of the matter. The Court held that the evidence relied upon by the primary judge was relevant and properly considered, and that the criticisms raised on the first appeal did not necessitate its exclusion. Furthermore, the Court determined that the circumstances did not warrant the drawing of a *Jones v Dunkel* inference against the respondents, as the evidence in question was not exclusively within their control or knowledge, and the primary judge had adequately addressed the issues without such an inference. Consequently, the appeal was dismissed.