The Owners – Strata Plan 87265 v Saaib; Alexandrova v The Owners – Strata Plan 87265 [2022] NSWCA 63

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: The Owners – Strata Plan 87265 v Saaib; Alexandrova v The Owners – Strata Plan 87265 [2022] NSWCA 63 Hearing dates: 1 and 2 December 2021 Date of orders: 14 April 2022 Decision date: 14 April 2022 Before: Basten JA at [1]; Macfarlan JA at [105]; Gleeson JA at [211]. Decision: The Owners Corporation's appeal (2021/83984) (1) Allow the appeal. (2) Set aside the orders made in the Equity Division on 1 March 2021 as varied on 21 April 2021. (3) In place thereof, (a) give judgment for the Owners Corporation against Mr Saaib in the sum of $3,425,583.54, such judgment to take effect from 1 March 2021; (b) order that Mr Saaib pay the Owners Corporation's costs of the trial. (4) Order that Mr Saaib pay the appellant's costs in this Court. Ms Alexandrova's appeal (2021/140048) (1) Allow the appeal and set aside the orders made in the Equity Division on 1 March 2021. (2) In place thereof, (a) Dismiss the amended summons filed on 11 March 2020; (b) Order that the Owners Corporation pay Ms Alexandrova's costs of the trial as an unrepresented party. Catchwords: APPEALS – from findings of fact – primary judge assessed credibility and reliability of two witnesses – findings not expressed to be based on demeanour – applicable test for appellate intervention – whether primary judge gave sufficient weight to combined effect of relevant circumstances EVIDENCE – tendency evidence – whether evidence relating to a separate building project was significantly probative of the issue concerning the alleged builder's role in the building project the subject of the proceedings – s 97 of the Evidence Act considered EVIDENCE – whether the primary judge erroneously failed to draw a Jones v Dunkel inference CONSUMER LAW – misleading and deceptive conduct – causation – whether, absent the misleading and deceptive conduct, the property developer would have obtained a valid contract of insurance by honest means Legislation Cited: Civil Liability Act 2002 (NSW) Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 18, 236 Evidence Act 1995 (NSW), ss 97, 101, 128 Fair Trading Act 1987 (NSW), ss 42, 68 Home Building Act 1989 (NSW), ss 92, 99 Cases Cited: Abigroup Contractors Pty Ltd v Sydney Catchment Authority (No 3) (2006) 67 NSWLR 341; [2006] NSWCA 282 Anthony v Morton [2018] NSWSC 1884 ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Badenach v Calvert (2016) 257 CLR 440; [2016] HCA 18 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; [2002] HCA 4 Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Mal Owen Consulting Pty Ltd v Ashcroft (2018) 97 NSWLR 1163; [2018] NSWCA 135 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; [1998] HCA 69 Payne v Parker [1976] 1 NSWLR 191 R v Bauer (2018) 266 CLR 56; [2018] HCA 40 RHG Mortgage Ltd v Rosario Ianni [2015] NSWCA 56 Twynam Pastoral Co Pty Limited v AWB (Australia) Limited [2008] FCA 1922 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: Matter 2021/83984: The Owners – Strata Plan 87265 (Appellant) Mr Tony Saaib (Respondent)