HUGHES v ROBERT W KIRBY t/a COMBINED PETROLEUM SERVICE [1991] NSWCA 149

HUGHES v ROBERT W KIRBY t/a COMBINED PETROLEUM SERVICE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and HANDLEY JJA 25 June 1991, 27 September 1991 [1991] NSWCA 149

APPEAL and NEW TRIAL — trial judge in his reasons for judgment made unfavourable comments concerning the appellant which were not supported by evidence — whether judge's conclusions on issue of appellant's liability affected — whether appellant entitled to new trial — held: Appellant only entitled to new trial if evidence at first trial capable of supporting verdict in his favour — the appellant had no realistic chance on the evidence at the trial of securing a judgment taking the evidence at its highest in his favour — per Meagher JA and Handley JA; Mahoney JA dissenting — a new trial should be refused. Deane v The City Bank(1904) 2 CLR 198 Armstrong v Great Southern Gold Mining(1911) 12 CLR 382 Balenzuela v De Gail(1959) 101 CLR 226 Driclad Pty Ltd v FCT(1968) 121 CLR 45 Vakuata v Kelly(1989) 167 CLR 568 Commonwealth of Australia v Bank of NSW(1950) AC 235 Winters v Cross(1978) INSWLR 616 McIntosh v Williams(1979) 2 NSWLR 543 Martin v Green(1984) 1 NSWLR 14 Galea v Galea(1990) 19 NSWLR 265

Mahoney JA Between about March 1986 and December 1986 the plaintiffs, trading as Combined Petroleum Service, delivered petrol to a service station in Bourke in which the defendant Mr Hughes had some interest. For some of the petrol at least the plaintiffs were not paid. On 28 May 1987 the plaintiffs served a summons on the defendant claiming the amount in question. After some interlocutory proceedings, the claim came for trial on 30 May 1989 before his Honour Judge Conomos at Dubbo. The only issue to be tried was whether the debt sued for was contracted by Valco (Distributors) Pty Limited or Mr Hughes. The Valco company was a company in which Mr Hughes was interested.