Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Robinson v Construction & Design Australia Pty Ltd [2024] NSWCA 314 Hearing dates: 2 September 2024 Date of orders: 20 December 2024 Decision date: 20 December 2024 Before: Payne JA at [1];
McHugh JA at [2];
Griffiths AJA at [3]Decision: The amended notice of appeal filed 24 July 2024 is dismissed, with costs.
Catchwords: EVIDENCE — documentary evidence — proof of contents of documents — where parties agreed that certain specified documents would be treated as evidence of the contents, but not the truth of the matters set out in those documents — whether the primary judge erred in using those documents when making factual findings — where primary judge used those documents to corroborate or confirm other available evidence — where primary judge’s fact finding process not inconsistent with the agreement between the parties
BUILDING AND CONSTRUCTION — Australian Consumer Law — misleading or deceptive conduct
Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 18, 236, 237, 243
Cases Cited: Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60
Demagogue Pty Limited v Ramensky (1992) 39 FCR 31
Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
Harvard Nominees Pty Limited v Tiller (2020) 282 FCR 530; [2020] FCAFC 229
Texts Cited: JD Heydon, Cross on Evidence (14th Aust ed, 2024, LexisNexis)
Category: Principal judgment Parties: Nerida Robinson (First Appellant)
Mark Bowmer (Second Appellant)
Construction & Design Australia Pty Ltd (First Respondent)
Gerard Peter Turnbull (Second Respondent)
Daniel John Turnbull (Third Respondent)Representation: Counsel:
Solicitors:
S Robertson SC / A Crossland (Appellants)
M Klooster / M Waters (Respondents)
Marsdens Law Group (Appellants)
ZBA Lawyers (Respondents)
File Number(s): 2024/167290 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Common Law
- Citation:
- Date of Decision:
- 11 April 2024; 2 May 2024
- Before:
- Stevenson J
- File Number(s):
- 2020/52689
HEADNOTE
[This headnote is not to be read as part of the judgment]
Ms Nerida Robinson and Mr Mark Bowmer (Owners) purchased a vacant block of land in Kiama in September 2017. The Owners approached Construction & Design Australia Pty Ltd (Builder) to construct a residential dwelling and other amenities on the land. The Owners and the Builder met on 24 July, 3 August, 30 August and 16 November 2018 to discuss the design brief. On 19 February 2019, the parties entered into an HIA NSW Residential Building Contract for Works on a Cost-Plus Basis and construction commenced shortly thereafter. Several months into construction, a dispute between the parties arose as to the Owners’ budget and ability to finance the build. Construction ceased on or around 12 September 2019. The parties subsequently engaged in an exchange of written correspondence (including an email from…
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- Case
- [2024] NSWCA 314
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the primary judge erred in admitting and relying upon specific documents as evidence. The parties had agreed that these documents would be treated as evidence of their contents, but not necessarily as proof of the truth of the matters asserted within them. The appellant argued that the primary judge's use of these documents to corroborate or confirm other evidence was inconsistent with this agreement and therefore constituted an error.
The court held that the primary judge's approach was not inconsistent with the parties' agreement. The agreement stipulated that the documents were evidence of their contents, and the primary judge used them precisely for that purpose – to confirm or corroborate other evidence that had been presented. This did not amount to treating the documents as proof of the truth of their contents in a manner that violated the agreed terms. The primary judge's fact-finding process was therefore found to be sound.
The amended notice of appeal filed on 24 July 2024 was dismissed, with costs awarded to the respondent.
Orders
Orders of the court
The amended notice of appeal filed 24 July 2024 is dismissed, with costs.
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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