(1) The time to file a summons commencing an appeal be extended to 16 December 2022.
(2) The appeal be allowed.
(3) The orders made on 16 September 2022 by the Local Court of New South Wales be set aside.
(4) The proceeding be remitted to the Local Court of New South Wales for determination according to law.
(5) The respondent is to pay the appellant’s costs of, and incidental to, the appeal.
Catchwords:
Appeal – Appeal from Local Court to Supreme Court – appeal out of time – agreement to loan $50,000 – Rolex watch used as collateral – authenticity of Rolex watch – question as to whether the loan sum was advanced – use of affidavit where deponent died prior to final hearing – deponent estranged from respondent –availability of error of law on the basis that there was no evidence to support a finding or the finding was irrational or illogical – whether error of law by admitting evidence of a deed of settlement made between the parties on a without admissions basis – s 131 of the Evidence Act 1995 (NSW) – whether there was waiver of consent – significance of s 132 of the Evidence Act to waiver – appeal allowed
[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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AGLC
Ying v Hou [2023] NSWSC 1291
Case
[2023] NSWSC 1291
Decision Date
CaseChat Overview and Summary
The case of Ying v Hou involved a dispute over a loan agreement for $50,000, secured by a Rolex watch. The matter was appealed from the Local Court to the Supreme Court. The primary issue was whether the appeal was lodged out of time and, if not, whether the evidence presented was sufficient to support a finding that the loan was advanced and that the Rolex watch was an authentic collateral. Another significant issue was the admissibility of an affidavit from a deceased deponent who was estranged from the respondent. The court had to determine whether an error of law was made by admitting evidence of a deed of settlement made between the parties on a without admissions basis, and if there was a waiver of consent under s 132 of the Evidence Act 1995 (NSW).
The court examined the procedural aspects of the appeal, confirming that it was not out of time. The court then assessed the evidence provided, including the affidavit of the deceased deponent and the deed of settlement. The court found that there was insufficient evidence to support a finding that the loan was advanced or that the Rolex watch was authentic collateral. The court also determined that the admission of the affidavit and the deed of settlement was an error of law, as it contravened s 131 of the Evidence Act 1995 (NSW). The court considered whether there was a waiver of consent under s 132 of the Evidence Act but found that the respondent had not waived the requirement for consent.
Consequently, the Supreme Court allowed the appeal. The court ruled that the error of law in admitting the affidavit and the deed of settlement was significant enough to warrant a reconsideration of the case. The appeal was successful, and the matter was remitted back to the Local Court for further proceedings in light of the court's findings.