Tarar v Denwol Pty Limited

[2014] NSWCA 301

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Tarar v Denwol Pty Limited [2014] NSWCA 301

Hearing dates:

13 August 2014

Decision date:

13 August 2014

Before:

Emmett JA at [1] and [14]; Tobias AJA at [2]

Decision:

Summons seeking leave to 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 - application for leave to appeal - appellate intervention not justified

Category:

Principal judgment

Parties:

Halil Tarar (Applicant)
Denwol Pty Ltd (First Respondent)
George Hay Pty Ltd (Second Respondent)
Cranbrook Holdings Pty Ltd (Third Respondent)
Alri Pty Ltd (Fifth Respondent)

Representation:

Counsel:
In person (Applicant)
B Hull (First, Second, Third, Fifth Respondents)
Solicitors:
Holman Webb Lawyers (First, Second, Third, Fifth Respondents)

File Number(s):

2013/371821

Publication restriction:

None

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-11-15 00:00:00

Before:

Gibb DCJ

File Number(s):

2010/414183

Judgment

1. EMMETT JA: Justice Tobias will deal with the matter in the first instance.

1. TOBIAS AJA: On 17 December 2007 the kitchen ceiling of the ground floor of a building located in Campbell Parade, Bondi Beach, collapsed injuring the applicant. On 14 December 2010 he instituted proceedings in the District Court seeking damages. He joined the first defendant who was the managing agent of the building, as well as the second and third defendants who owned the building and the fourth defendant, who was the head lessee from whom the applicant had a sub-lease of the ground floor of the building in which he had, prior to this incident, conducted a restaurant.

1. The proceedings came before her Honour Judge Gibb in the District Court in a hearing that commenced on 15 July and concluded on 14 October, having extended over eight days. On 15 November her Honour delivered judgment in which she entered a verdict in favour of the defendants, thus rejecting the applicant's claim.

1. It is important to observe that at all material times the applicant was represented by a highly experienced firm of personal injury lawyers and also by two experienced counsel, one of whom took silk during the course of the hearing.

1. On 10 March 2014 the applicant filed a summons seeking leave to appeal from the orders made by the primary judge. Accompanying that application was a summary of argument which basically raised three issues. The first related to the assertion by the applicant, whose native language is Turkish but who has lived in Australia since 1999, that he had needed an interpreter during the trial but that no interpreter was used, nor apparently sought. As a consequence his alleged incompetence in the English language caused him in many respects not to be believed by the primary judge. In this respect her Honour made findings as to the credibility of the applicant, which were adverse to him.

1. The difficulty with this particular complaint is that, as I have indicated, the applicant was at all material times represented by experienced counsel and solicitors and it is not suggested that any application was made to the primary judge for an interpreter to be used. One can readily infer from the experience of the legal representatives of the applicant that they did not consider that his English was so poor as to justify the use of an interpreter. Given those circumstances it seems to me that this complaint has no substance.

1. The second issue referred to in the written argument of the applicant concerns the credibility assessment of the applicant by the primary judge. Her Honour dealt with this in some detail and in my view nothing has been said or written that would justify a finding that her Honour misused her position as trial judge in assessing the credibility of the applicant's evidence. This is of some importance because as I understand it, the critical issue in the case was when the applicant and, in particular, the first defendant, being the managing agent of the subject building, first became aware that there was a problem with water escaping from the restaurant immediately above that of the applicant into the ceiling space of the applicant's kitchen.

1. The evidence of the applicant, which her Honour rejected, was that he first became aware of the leak on or about 2, 4, 6 or 8 December and that he told the representative of the managing agent, a Mr DuBery and/or a Mr Lewinsky, about the leak on or about 4 December. Mr DuBery denied that he was informed by the applicant or otherwise found out about the leak prior to Friday, 14 December 2007.

1. Her Honour also rejected the applicant's evidence that he had told Mr Lewinksy prior to 14 December 2007 about the leak. She found that the first defendant first learned of the risk of water leaking into the ceiling space of the applicant's restaurant and thereby affecting its stability, on 14 December 2007 when Mr DuBery first observed it.

1. The third issue relates to the evidence as to whether the applicant was then informed that there was a danger of the kitchen ceiling collapsing. He denied that he was so informed but the primary judge, given her findings on the credit of the applicant, found that Mr DuBery had informed the applicant that the ceiling was dangerous and was likely to collapse. On Monday 17 December, being the first working day after the Friday on which the first defendant first became aware of the problem, the ceiling did collapse thereby causing the applicant's injuries.

1. In his oral submissions the applicant, with the assistance of his wife, attempted to assert that there were a number of factual errors made by the primary judge which would justify a grant of leave to appeal. Regrettably none of the matters which have been identified by the applicant either in written or oral argument go to the heart of the matter, which, as I have indicated, was when the first defendant, the managing agent of the building, first became aware of the problem of the leak from the upstairs restaurant which would affect the stability of the ceiling of the kitchen of the premises sub-leased to the applicant.

1. A deal of time was spent by the applicant in oral argument in relation to when the ceiling was actually fixed after it had collapsed on 17 December and whether it was in January 2008 or later. In this respect he sought to rely on a document dated 6 May 2008 that appears to have come from the GIO which was sought to be tendered at the end of the hearing on behalf of the applicant but which her Honour rejected. There is no basis upon which it could be said that her Honour's rejection of that document at that time involved a miscarriage of her discretion. In any event the proper way to have proved the matters referred to in that document would have been to call its author, which was not done.

1. Accordingly in my view none of the matters upon which the applicant has relied are such as would cast sufficient doubt upon the correctness of the primary judge's decision which would in any way justify appellate intervention. Accordingly, for those reasons in my view leave to appeal should be refused and the summons for leave should be dismissed with costs.

1. EMMETT JA: I agree, for the reasons given by Tobias AJA, that the application for leave should be refused. It is telling that the trial judge found that the applicant's case rested upon his personal credibility. Her Honour said that quite apart from his "episodically curious demeanour" in cross-examination, the applicant's oral evidence was "contradictory, inconsistent with versions he had given in earlier statements, internally contradictory and contradicted by almost every contemporaneous record".

1. The order of the Court will be that the summons seeking leave to appeal be dismissed with costs.

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Decision last updated: 02 September 2014