CARVER v JOYCE and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS AP, MAHONEY and CLARKE JJA 6th November 1990, 6 November 1990 [1990] NSWCA 37 Appeal from District Court — Application to adduce fresh evidence refused — Appeal not pressed — No question of principle. Mahoney JA This appeal comes before the Court in relation to a judgment given by his Honour Judge Moore in the District Court on 28 October 1986. In order to understand the nature of the issue now before the Court and the circumstances in which it is to be considered it is necessary to refer briefly to the circumstances leading to the judgment and to what has happened since. The parties were parties to a contract for the sale of land dated 23 January 1982. The contract made provision in Special Condition 17 for the vendor "at no cost to the purchaser to take all necessary steps to have electricity brought on to the subdivision"'. It is not in contest, at least not now in contest, that the vendor did not perform that obligation. He did not perform it prior to the completion of the contract by transfer on 2 July 1982. Proceedings were brought in the District Court by a statement of claim dated 1 May 1984. The argument before the Court on the hearing of the plaintiffs/purchasers' claim against the defendant/vendor was that the obligation under Special Condition 17 of the contract had merged upon the completion of the contract and that therefore the defendant was not obliged to carry out the obligation set forth in Special Condition 17. The learned judge held against the defendant in that regard and then proceeded to assess damages. In dealing with the quantum his Honour said: "As to quantum, the defendant has not sought to dispute the evidence brought by the plaintiff as to damages and Mr Khan has frankly conceded that as he did not bring such evidence, then there was no submission he could make about those figures. In any event, it seems to me that the figures are sworn to by Mr Wallace and Mr Shulkins, and are on the basis of their evidence reasonable figures, and in the case of Mr Wallace in particular, I accept his evidence that the figure which he put forward, although only an estimate, is a conservative figure." His Honour, having accepted the evidence as he had there indicated, assessed the total damages at $53,500. The damages were assessed essentially upon the basis that it would fall to the plaintiffs in the proceeding to have the electricity connected to the house, or more accurately brought to the subdivision, in compliance with the obligation of the defendant set forth in Special Condition 17. It was upon that basis that his Honour gave judgment in the proceeding for the amount of $53, 500. An appeal was brought against his Honour's judgment, the grounds of appeal being directed to the question of merger. That question had, as I have said, been answered against the defendant at the trial. When the matter came on for hearing today Mr Hilbery, who recently had come into the matter, indicated to the Court, as he previously indicated I think informally, that the defendant/appellant would not be able to support the grounds 2 UNREPORTED JUDGMENTS of appeal directed to his Honour's finding that there had been no merger. He accepted, in my opinion correctly, that the obligation under Special Condition 17 was not merged by the settlement of the transaction and the transfer of the land in 1982. He referred, I think tentatively, to a ground of appeal under which he would have sought to argue matters going to the measure of damages and the proper calculation of the amount of them but he conceded, as he had to do, that that matter had not been argued at the trial and that therefore it was not possible for him to press it effectively before this Court. The matter which in substance has occupied the Court, and the matter which ultimately has been pressed for the defendant/appellant, has related to the tender of fresh evidence. Mr Hilbery has moved upon the affidavit of Mr S G S Carver, Solicitor, the appellant, for leave under s75A of the Supreme Court Act to adduce fresh evidence: Pt51 r 13A. The provisions of s75A need not be recited. They are familiar and have been considered by the Court in a number of cases. The issue that has arisen has been whether the evidence sought to be tendered is such as ought within the terms of s75A be accepted by the Court upon the present appeal. Stated in a summary form, the evidence sought to be adduced is to the following effect. Since the hearing of the proceeding and the judgment on 28 October 1986 arrangements have been made for the bringing of electricity to the subdivision in a manner which will not involve the plaintiffs respondents in bearing alone the costs of the arrangements. The affidavit of Mr Carver annexes correspondence which generally shows that on or about 19 September 1988 a public meeting was held in Moruya at which an arrangement was, it is suggested, come to under which various persons in or about the particular subdivision would join in requesting the Illawarra County Council or other relevant local authorities to bring the electricity to, inter alia, the present subdivision. The basis of the arrangement would be, to adopt the phrase set forth in the letter of the Illawarra County Council of 5 September 1988, that "user pays" and that particular contributions would be made by all of the persons concerned to the cost of the work. The result of this would be, it was suggested, that the actual expenditure which the plaintiffs/ respondents will be required to bear in relation to the bringing of the electricity to the subdivision will be significantly less than that which at the date of the trial it was accepted they would have had to bear had they been obliged to enter into the arrangements themselves. It is submitted that this is evidence which, upon a rehearing within s75A, should be admitted. It was I think accepted - and if not fully accepted would I think be clear - that, if it were admitted, it would be open to the plaintiffs respondents to advice evidence, to cross-examine upon it, and to query the costs set forth in the evidence. This would no doubt require, at least as a matter of probability, the sending of the proceedings back for a further trial, at least on an issue such as that. However that be, Mr Hilbery submitted that the evidence was such as to require the Court to receive it to entitle his client to have the evidence before the Court upon the hearing of this appeal. The Court has the right and the duty under s75A to accept evidence which may properly be brought before it as on a rehearing. The nature of the evidence which it is proper for the Court to accept in those circumstances and the circumstances under which it may be accepted have, as I have said, been considered by the court on a number of occasions. One of the more recent considerations of the matter URJ CARVER v JOYCE and ANOR (Mahoney JA) 3 was undertaken in Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235. As was said by or on behalf of the majority of the Court in that case, the terms of s75A, and in particular the terms of subs(7), subs(8) and subs(9) of that section, give to the Court a discretion to receive further evidence upon an appeal such as the present. In Radnedge's case and in the cases referred to in that case the courts have indicated the nature of the discretion and the principles which are to guide the exercise of it. The Court in that case referred to the factors which are relevant in the exercise of the discretion: see at 251-3. Mr Hilbery in his argument submitted that the present evidence falls within the categories there referred to. In particular he referred to the statement there cited from the speech of Lord Wilberforce in Mulholland and Anor v Mitchell (1971) AC 666 at 679-80, in which his Lordship said that evidence may be admitted "if some basic assumptions common to both sides had clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant." In Radnedge's case the Court indicated the general nature of the discretion. The discretion is not of course limited to cases of that kind. But it was to that category of case that Mr Hilbery particularly directed attention. It is therefore necessary to consider the nature of the evidence tendered and whether it is such as should be allowed within s75A. I am by no means satisfied that evidence of the possibility of making the kind of arrangement which it is suggested has now been made or foreshadowed could not have been brought before the court at the trial in 1986. It does not appear from the evidence whether the possibility of such arrangements is something that has arisen only since October 1986 or whether such arrangements were possible before and at that time. There is nothing to suggest that such arrangements were not possible. If evidence had been brought of the possibility of those arrangements, that may well have affected significantly the judgment of the learned judge in assessing the damages in the manner that he did. But the proceeding was conducted before the judge in relation to the assessment of damages in the manner to which I have referred and to which his Honour referred in the passage of the judgment which I have cited. It may well then be that in one sense the evidence relates to matters which are not "evidence concerning matters occurring after the trial or hearing." However, I shall for the purpose of considering the submissions assume that the Court is now concerned with matters coming within that description. It may be accepted for this purpose that the cost to the defendants of bringing the electricity to the subdivision as contemplated by Special Condition 17 may be significantly less than the amount assessed by his Honour in October 1986. On this basis, as Mr Hilbery has pressed, it would constitute an injustice to the defendant to have the damages which he has to pay assessed upon the earlier rather than the later basis. But in one sense the new evidence does not falsify the assumptions which were made at the trial. The assumption which was made at the trial was that the plaintiffs themselves would bear the cost of carrying out the necessary work. That was the position as at that time and that assumption was at that time correct. It is an assumption which was, in a sense falsified, by the subsequent arrangement. That arrangement, which I shall assume was not in existence at the time of the trial, has now resulted in a different method of bringing the electricity to the subdivision and the cost has been affected accordingly. 4 UNREPORTED JUDGMENTS But it may be said in relation to many cases that subsequent events have shown a change in the measure of the loss which at the date of trial it was assumed the plaintiff would have suffered. Reference was made in argument to cases in which, in the context of sale of goods, damages are assessed upon the basis that the plaintiff would have to buy in goods at a particular price and where subsequently, because of a change in the market before the time at which subsequently he would in fact buy in the goods, the price adopted as at the date of trial for the assessment of damages has been falsified. Such matters would not, I think, ordinarily constitute evidence which within s75SA would warrant the Court in allowing fresh evidence. Examples of this kind can be multiplied and it is not necessary to pursue them. In my opinion, this is not a case in which, in the exercise of its discretion, the Court should allow the fresh evidence to be brought. It is proper to refer to one matter. The time which has elapsed between the date of the judgment, 28 October 1986, and the present stands unexplained. There is nothing to indicate why it has taken four years and more for the appeal to be brought to hearing. It does not appear whether that passage of time has affected the circumstances of this case and whether in particular it is because of the undue passage of time - I will forebear the use of the pejorative term "delay" - that there has arisen the change in the nature of the electricity arrangements on which the defendant/appellant now seeks to rely. But if the fresh evidence were otherwise apt to be allowed, that matter would, I think, require consideration. I do not think that the fact that subsequent-to the trial a change has taken place following the public meeting of September 1988 is a matter which would warrant the Court in allowing the present evidence to be brought. It does not appear clearly from the evidence what is the present state of the arrangements relied on. The Court has been given, attached to the affidavit of Mr Carver, a series of letters and other documents representing correspondence between various parties. The Court is left to infer what the position is or may be as a result of that correspondence. Whether a particular sum has been finally agreed upon as being the sum which has in fact been expended or will in fact be expended by the plaintiffs/respondents in carrying out the services and what the comparability of service will be between that which would have been carried out under Special Condition 17 and will be carried out under the present arrangements does not appear. These are all matters which I think go to the exercise of the Court's discretion in the circumstances. As [have said, my conclusion is that the discretion should not be exercised so as to admit this fresh evidence. Upon that basis, as the argument for the appellant has conceded, the appeal cannot succeed. I would then refuse the application on the motion. The motion should, in my opinion, be dismissed with costs. That leaves outstanding the final disposition of the appeal and the cross-appeal. The plaintiffs have filed a cross-appeal dealing with the issue of interest upon the amount of the damages to be awarded to them. The learned trial judge was pressed at the trial to award interest but his Honour felt the case not appropriate for that purpose. Mr Hilbery has conceded that if the damages are to recompense the plaintiffs for the cost which they would then have incurred for carrying out the relevant work then an appropriate award of interest should be made. The parties are presently not in a position to provide the Court with details of the interest which should be awarded. The Court would expect that the amount of the interest would be able to be calculated and placed before the Court without any significant dispute. It has therefore been suggested that the matter be stood URJ CARVER v JOYCE and ANOR (Clarke JA) 5 over for a convenient time to allow the parties to bring in short minutes of the orders which should be made to give effect to the Court's conclusions in relation to interest and otherwise. I would therefore propose that the motion be dismissed with costs; that the appeal be dismissed with costs; that the cross-appeal be upheld; and that an appropriate award be made for interest in respect of the amount of the damages which his Honour assessed and that the proceedings be stood over to a convenient date to allow the parties to bring in short minutes of the orders involved. The plaintiffs/respondents should have the carriage of the short minutes. Samuels AP I agree. I would add only this. It is of course a case in which the grounds of appeal, apart from the ground which sought the introduction of the fresh evidence, were destined to fail. Accordingly, the only viable ground might have been the fresh evidence point. In those circumstances, as Warr v Santos (1973) 1 NSWLR 432 makes clear, there is a considerable obstacle in the way of an appellant seeking to set up a case of fresh evidence within s75A of the Act. I agree that the orders proposed by Mahoney JA should be made. Clarke JA I also agree. Motion dismissed with costs. Appeal dismissed with costs. Cross-appeal allowed. Short Minutes of Orders to be brought in on Wednesday 7 November 1990. BYNE Counsel for the Appellant: MM HILBERY Counsel for the Respondent: JM JACKMAN Solicitors for the Appellant: STAR CARVER and CO. Solicitors for the Respondent: DENLEY GARGETT and BAIRD