Riley v The Owners - Strata Plan 73817 - [2012] NSWCA 410

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Riley v The Owners - Strata Plan 73817 [2012] NSWCA 410
Hearing dates: 12 November 2012
Decision date: 12 December 2012
Before: Macfarlan JA at [1]
Barrett JA at [2]
Ward JA at [4]
Decision:
Appeal dismissed with costs
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
APPEAL - appellant gave inconsistent evidence at trial as to whether the part of the ramp on which she slipped was wet or dry - trial judge accepted evidence that the area where the appellant slipped was dry - whether finding of the trial judge was improbable
APPEAL - trial judge made adverse credit findings - whether adverse credit findings were unwarranted - whether adverse findings infected the trial judge's finding as to the wet/dry issue or as to damages - whether failure by the trial judge to give proper consideration to the evidence at trial or a substantial miscarriage of justice
Legislation Cited: Civil Liability Act 2002 (NSW)
District Court Act 1973 (NSW)
Strata Schemes Management Act 1996 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514
Bathurst Regional Council v Thompson [2012] NSWCA 340
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Ellis v Wallsend Hospital (1989) 17 NSWLR 553,587
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239
Mason v Demasi [2009] NSWCA 227
McGlen-McLeod v Galloway [2012] NSWCA 368
Nominal Defendant v McLennan [2012] NSWCA 148
Ridis v Strata Plan 10308 (2005) 63 NSWLR 449
Seiwa Australia Pty Limited v Owners SP 35042 [2006] NSWSC 157
Smith v New South Wales Bar Association (1992) 108 ALR 55
Vella v Permanent Mortgagee Pty Ltd [2008] NSWSC 505
Whalan v Kogarah Municipal Council [2007] NSWCA 5
Texts Cited: J D Heydon, Cross on Evidence (7th ed, 2004, LexisNexis Butterworths)
Category: Principal judgment
Parties: Pelagia Riley (Appellant)
The Owners - Strata Plan 73817 (First Respondent)
Abigroup Contractors Pty Ltd (Second Respondent)
Representation: Counsel
G Curtin SC with A P Quinlivan (Appellant)
N J Polin (First Respondent)
D S Weinberger (Second Respondent)
Solicitors
CMC Lawyers (Appellant)
McCullough & Buggy Lawyers (First Respondent)
McCabe Terrill Lawyers (Second Respondent)

File Number(s): CA 12/018553
Decision under appeal

Date of Decision:

2012-10-18 00:00:00

Before:

Gibb DCJ

File Number(s):

10/124661

Judgment

MACFARLAN JA: I agree with Ward JA.

BARRETT JA: I agree that the orders proposed by Ward JA should be made. I also agree with her Honour's reasons.

As Ward JA makes clear…

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: [2012] NSWCA 410
Decision Date: 12 December 2012

CaseChat Overview and Summary

The appeal in *Riley v The Owners - Strata Plan 73817* concerned an appellant who had slipped on a ramp. The central dispute revolved around whether the area where the appellant fell was wet or dry, a fact crucial to the determination of liability. The appeal was heard by Macfarlan, Barrett and Ward JJA in the Court of Appeal of New South Wales.

The court was required to determine whether the trial judge's finding that the ramp was dry at the time of the incident was improbable, given the appellant's inconsistent evidence. Furthermore, the appeal raised questions as to whether the trial judge's adverse credit findings against the appellant were unwarranted and, if so, whether these findings improperly influenced the conclusion on the wet/dry issue or the assessment of damages. The court also considered whether the trial judge failed to give proper consideration to the evidence, leading to a substantial miscarriage of justice.

The appellate judges found no error in the trial judge's findings. They reasoned that the trial judge was entitled to make adverse credit findings based on the inconsistencies in the appellant's evidence. The court concluded that these findings did not infect the trial judge's determination of the factual issue regarding the condition of the ramp or the assessment of damages. The appeal was therefore dismissed.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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.

Medium Neutral Citation:	Riley v The Owners - Strata Plan 73817 [2012] NSWCA 410
Hearing dates:	12 November 2012
Decision date:	12 December 2012
Before:	Macfarlan JA at [1] Barrett JA at [2] Ward JA at [4]
Decision:	Appeal dismissed with costs [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - appellant gave inconsistent evidence at trial as to whether the part of the ramp on which she slipped was wet or dry - trial judge accepted evidence that the area where the appellant slipped was dry - whether finding of the trial judge was improbable APPEAL - trial judge made adverse credit findings - whether adverse credit findings were unwarranted - whether adverse findings infected the trial judge's finding as to the wet/dry issue or as to damages - whether failure by the trial judge to give proper consideration to the evidence at trial or a substantial miscarriage of justice
Legislation Cited:	Civil Liability Act 2002 (NSW) District Court Act 1973 (NSW) Strata Schemes Management Act 1996 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 Bathurst Regional Council v Thompson [2012] NSWCA 340 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Ellis v Wallsend Hospital (1989) 17 NSWLR 553,587 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239 Mason v Demasi [2009] NSWCA 227 McGlen-McLeod v Galloway [2012] NSWCA 368 Nominal Defendant v McLennan [2012] NSWCA 148 Ridis v Strata Plan 10308 (2005) 63 NSWLR 449 Seiwa Australia Pty Limited v Owners SP 35042 [2006] NSWSC 157 Smith v New South Wales Bar Association (1992) 108 ALR 55 Vella v Permanent Mortgagee Pty Ltd [2008] NSWSC 505 Whalan v Kogarah Municipal Council [2007] NSWCA 5
Texts Cited:	J D Heydon, Cross on Evidence (7th ed, 2004, LexisNexis Butterworths)
Category:	Principal judgment
Parties:	Pelagia Riley (Appellant) The Owners - Strata Plan 73817 (First Respondent) Abigroup Contractors Pty Ltd (Second Respondent)
Representation:	Counsel G Curtin SC with A P Quinlivan (Appellant) N J Polin (First Respondent) D S Weinberger (Second Respondent) Solicitors CMC Lawyers (Appellant) McCullough & Buggy Lawyers (First Respondent) McCabe Terrill Lawyers (Second Respondent)
File Number(s):	CA 12/018553
Decision under appeal	Date of Decision: 2012-10-18 00:00:00 Before: Gibb DCJ File Number(s): 10/124661