HECRON LTD and ANOR v COUSINS and ORS [1990] NSWCA 93

HECRON LTD and ANOR v COUSINS and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE JA and WADDELL AJA 2 November 1990, 20 December 1990

[1990] NSWCA 93

APPEAL — credibility issue — whether Court of Appeal may disturb conclusions of trial judge (Cole J) — trial judge rejects credibility of witness unless "supported by reliable documentary evidence or other [acceptable] evidence" accepts that witness gave oral undertaking that retiring directors of a family company would be indemnified on personal guarantees earlier given by them — undertaking inconsistent with contemporaneous statement under Part D of the Companies (Acquisition of Shares) (New South Wales) Code and contemporaneous correspondence — held: (1) Having regard to the conduct of the trial, the alleged inconsistencies in the contemporaneous correspondence not having been put to the witnesses, they could not be relied upon in the appeal for to do so would involve a procedural unfairness to the respondents. Coulton v Holcombe (1986) 162 CLR 1,7 applied; (2) As to the statement under Part D, although inconsistent and puzzling, it did not reach the standard of compelling evidence to warrant setting aside the conclusion of the trial judge which relied on demeanour of the appellants ' witness; Voulis vy Kozary (1975) 50 ALJR 59; Brunskill and Anor v Sovereign Marine and General Insurance Co Limited (1985) 59 ALJR 842, 844; Jones v Hyde (1989) 63 ALJR 349, 351; Abalos v Australian Postal Commission, High Court, 15 November 1990, unreported, 15 and Chambers v Jobling (1986) 7 NSWLR 1, 20 applied; (3) Nor did the criticism of the trial judge's statement about the commercial morality of the conduct of the appellant warrant disturbing his conclusion about credibility. Wren v Emmett Contractors Pty Limited (1975) 43 ALJR 213, 224 distinguished; Galea v Galea (1990) 19 NSWLR 263 applied; (4) Appeal, accordingly, dismissed. APPEAL — appellate court — influence of demeanour on credibility — unreliability of — observations by Kirby P on the unreliability of "subtle influences" of demeanour of witnesses on the ascertainment of truth at trial. Soc D 'Avances Commerciales v Merchant Marine Insurance Co (1924) 20 LI L Rep 140, 152; Lek v Matthews (1926) 25 LI L Rep 525, 543; Lend Lease Development Pty Limited v Zemlicka (1985) 3 NSWLR 207, 210 considered. Observations in Jones v Hyde (1989) 63 ALJR 349, 351 discussed. JUDGES — bias — expression of opinion — whether showed preconceived opinion about witness — held: — The expression by a judge of his or her reaction to the propriety of the conduct of a party is not improper but affords that party an opportunity to respond by argument and evidence. Vacauta v Kelly (1989) 63 ALJR 610, 611; Galea v Galea (1990) 19 NSWLR 263, 267 applied. Companies Acquisition of Shares) (New South Wales) Code, s32, Schedule Pt D