LIBERTY INVESTMENTS PTY LTD v SAKATIK PTY LTD [1996] NSWCA 326

LIBERTY INVESTMENTS PTY LTD v SAKATIK PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY ACJ, PRIESTLEY AP and BEAZLEY JA 30 August 1996, 30 August 1996

[1996] NSWCA 326

PRACTICE AND PROCEDURE — CONTRACT — LANDLORD AND TENANT — GUARANTEES — COSTS

SUPREME COURT (NSW) PRACTICE AND PROCEDURE — ability of appellate court to overturn trial judge's findings of fact relating to credibility — whether trial judge had sufficiently disclosed reasons — trial judge had to decide the substance of conversations between plaintiff and second defendant — plaintiff's claim dismissed.

CONTRACT — frustration — agreement for commercial lease.

LANDLORD AND TENANT — agreement by deed for commercial lease of premises — outgoing tenant demolishes internal rooms — repudiation of agreement by defendant — claim that rooms were fundamental to agreement and were to be part of leased premises — inability of plaintiff to give vacant possession with rooms intact — premises subsequently leased at a lesser rental.

GUARANTEES — second and third defendants were directors of the first defendant — claim based on guarantees for the shortfall in rent.

COSTS — indemnity costs — whether Court of Appeal should exercise discretionary power as distinct from powers under the rules.

Appeal from Robson DCAJ. Held: (Priestley AP with Mahoney ACJ and Beazley JA agreeing) -

1. On the question of whether trial judge's findings of fact on credibility of witnesses should be overturned:

(a) The trial judge had adequate materials before him and it was appropriate for him to come to the conclusions he made, therefore the attack upon judge's factual findings must fail. Abalos v Australian Postal Commission (1990) 171 CLR 167: Devries v Australian National Railways Commission (1992-1993) 177 CLR 472, applied.

(b) (per Mahoney ACJ) The trial judge should be seen as doing no more than preferring the evidence of one witness to another for the purposes of the case. Smith v The New South Wales Bar Association (1992) 176 CLR 256, considered.