RYLEGROVE PTY LIMITED v FATIMI PTY LIMITED [1995] NSWCA 408

RYLEGROVE PTY LIMITED v FATIMI PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 17 July 1995

[1995] NSWCA 408

Clarke JA. Fatimi Pty Limited sued Rylegrove Pty Limited seeking to recover an amount owing on a construction job. The issue raised before Master Macready by Rylegrove Pty Ltd was that the moneys were not owed by the defendant but by another company which had since gone into liquidation. Master Macready found in favour of Fatimi. The amount involved was just under $70,000 and the case seems to have extended for six part or full days.

Rylegrove appealed and its appeal was heard by Young J who, having heard the submissions upon the sole issue to which I earlier referred, dismissed the appeal. It was never suggested before Master Macready or Young J that the wrong amount was sued for or that the debt had been paid in full.

An appeal to this Court has now been filed and although a number of parties were removed, and a number of grounds struck out, by the court in an earlier application it would seem that the appeal is proceeding.

Today Rylegrove has sought a stay of execution of the original judgment which was, of course, upheld by Young J.

The bulk of the evidence put before me has gone to show that some documents have been found, which despite earlier reasonable searches had not previously been discovered, and demonstrated or went some way towards demonstrating that all moneys owing to Fatimi had been paid. As I earlier pointed out it was never suggested at the trial or the appeal that that was the situation.

Nonetheless Rylegrove wishes to adduce fresh evidence on the appeal and will seek to persuade this Court that despite its failure to raise the issues earlier it should be entitled to a verdict on the grounds of payment, an issue on which, as I recall the law, the onus lies upon Rylegrove.