SHAH v BULUMA PTY LTD [1998] NSWCA 207

SHAH v BULUMA PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER JA and FITZGERALD AJA 20 October 1998, 25 November 1998

[1998] NSWCA 207

Evidence — appeal from credit based finding trial judge: Khafam Developments Pty Ltd v Zeaiter & Ors

(NSWCA, unreported, 3 October 1996) followed — balance of probabilities.

FACTS

The appellant, the unsuccessful plaintiff alleged non payment by the respondent/defendant of diamonds supplied by the appellant to the respondent pursuant to an oral agreement to sell as evidenced by the alleged invoices of the appellant, which were never denied by the respondent. The respondent claimed the arrangement was for the diamonds on consignment, claiming payments by it to the appellant were roughly proportionate to a 10% agency fee. The trial judge found against both parties on credit and for the respondent on the balance of probabilities. The appellant appeals the finding on grounds that the evidence supports a finding on the balance of probabilities in its favour.

HELD

By Mason P

It is rare for a credibility based-finding of a trial judge to be overturned and the principles are well known: Khafam Developments Pty Ltd v Zeaiter & Ors (Court of Appeal, unreported, 3 October 1996). The failure of the respondent to return the invoices and its failure to deny the amount claimed in them has evidentiary weight and the probabilities strongly favour the appellant.

By Meagher JA

Whilst not seeking to disturb his Honour's findings on credibility, it would seem that the documents render the plaintiff's story more probable than not.

By Fitzgerald AJA

In these circumstances, although the reasons for judgment of the primary judge are less than satisfactory to explain how he reached his conclusion, I am not persuaded that that conclusion was wrong or that the inadequacy of the reasons is such as to amount to error of law warranting a new trial.