RHG Mortgage Limited v Rosario Ianni

The appeal concerned proceedings brought by the respondents, Mr and Mrs Ianni, seeking to set aside a deed of loan and mortgage as unjust and unconscionable. The appellant, RHG Mortgage Limited, appealed a decision of Justice Davies. A key issue on appeal was whether the trial judge had denied the respondents procedural fairness by taking into account material not in evidence without notice to the parties, and whether this constituted a substantial wrong or miscarriage of justice requiring a new trial.

The court was required to determine whether the trial judge’s consideration of extraneous material amounted to a denial of procedural fairness, necessitating a new trial. Furthermore, the court had to consider the application of the rule in *Jones v Dunkel*, specifically whether the appellant had established the necessary conditions for its application, and which party bore the onus of calling the respondents’ son, for whose benefit the monies were advanced, as a witness. The scope of any retrial and the conditions to be imposed were also matters for determination.

The Court of Appeal found that the trial judge had indeed denied the respondents procedural fairness by considering material not in evidence without notice. Consequently, the court set aside the judgment of Justice Davies insofar as it concerned the Iannis and ordered a retrial of the proceedings between RHG and the Iannis. The retrial was to proceed on the existing evidence, without further examination or tender of new documents, and the trial judge was to determine the matter without reference to the evidence of Joe Ianni, subject to limited further submissions. The parties were to be given an opportunity to make submissions regarding the impact of the exclusion of Joe Ianni's evidence and the potential for drawing *Jones v Dunkel* inferences. Costs were to be at the discretion of the trial judge for the second trial, with specific orders regarding the costs of the appeal and the application to amend the notice of appeal.