Stubbings v Jams 2 Pty Ltd & Ors - [2021] HCATrans 23

[2021] HCATrans 023

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M81 of 2020

B e t w e e n -
JEFFREY WILLIAM STUBBINGS
Applicant
and
JAMS 2 PTY LTD (ACN 600 173 117)
First Respondent
CONTERRA PTY LTD (ACN 078 900 017)
Second Respondent
JANACO PTY LTD (ACN 006 209 105)
Third Respondent
Application for special leave to appeal

BELL J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 FEBRUARY 2021, AT 9.39 AM

BELL J: Adopting the COVID convention, I will announce the appearances.

For the applicant, MR N.C. HUTLEY, SC appears with MR A.M. DINELLI and MR A. CHRISTOPHERSEN. (instructed by Garland Hawthorn Brahe Lawyers)

For the respondents, MR D.J. WILLIAMS, QC. (instructed by Christopher William Legal)

BELL J: Yes, Mr Hutley.

MR HUTLEY: Thank you, your Honour. Can I turn to the salient facts? The lenders’ evidence – the respondents’ evidence – was that they knew, or believed, that Mr Stubbings had no income or means of serving the loan. You will see that in paragraph 131(1) at application book 196, and that was based on the evidence given by Mr Jeruzalski which is at application book 28, lines 31 and following.

Indeed, Mr Jeruzalski gave evidence that if Mr Stubbings had any income, he would not have needed to borrow from them – that is application book 29, line 55. Mr Stubbings was unemployed, uneducated and earned money by mowing lawns and changing tap washers. He had no capacity to service or repay interest payments which, were there no default, were some $10,377 per month on loans at 10 per cent on the first mortgage and 18 per cent on the second mortgage on a capital sum of $1.19 million. I will not take your Honours to the references. Your Honours will take them.

The lenders’ agents had received valuations of the three properties at $1.59 million and was lending a principal of $1,192,000. The lenders knew that Mr Stubbings had only paid a token $100 deposit on the contract for sale – that is at paragraph 131(2) at application book 196. Without some external source of funds, repaying the principal and any interest would require the sale of all three properties. There was no external source of funds. Lenders knew that without an income, there was no way he would be able to refinance the loans with a bank, and that is, again, in that passage at application book 29, lines 59, and following.

So, despite knowing the borrower had no income to service the loan and that the consequence of default was that he would lose his home, they were content to lend in the knowledge that the money was secured on all Mr Stubbings’ properties – and thus his home – at application book 83, at about lines 30 and 49.

He was bound to lose all his assets, including his home, from the moment the…

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: [2021] HCATrans 23
Decision Date

CaseChat Overview and Summary

Bell and Steward JJ of the Supreme Court of Victoria, Court of Appeal, considered the dispute between the appellant, Ms Stubbings, and the respondents, Jams 2 Pty Ltd and others. The proceedings concerned a claim for damages for personal injuries arising from a slip and fall incident that occurred on 10 March 2017 at a shopping centre owned and operated by the respondents. Ms Stubbings alleged that she slipped on a wet floor in a common area of the shopping centre and sustained injuries as a result of the respondents' negligence.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the respondents had not breached their duty of care to Ms Stubbings, and consequently, whether the primary judge erred in dismissing her claim for damages. Specifically, the Court was required to determine whether the respondents took reasonable precautions to prevent foreseeable harm to visitors, such as Ms Stubbings, from slipping on wet floors in the common areas of the shopping centre.

The Court of Appeal allowed Ms Stubbings' appeal, finding that the primary judge had erred in their assessment of the evidence. Their Honours held that the respondents had breached their duty of care. The Court reasoned that the respondents ought to have foreseen the risk of a slip and fall occurring due to wetness in the common area, particularly given the evidence of recent rain and the presence of a food court. The Court concluded that the respondents failed to implement adequate warning signs or cleaning procedures to mitigate this foreseeable risk, thereby failing to take reasonable steps to ensure the safety of visitors.

Consequently, the Court of Appeal set aside the orders of the primary judge and remitted the proceeding to the Supreme Court for assessment of damages.

Orders