Anjoul v Westpac Banking Corporation & Antunes; Koura v Westpac Banking Corporation & Antunes; Koura v Westpac Corporation & Antunes. [2000] NSWCA 355

New South Wales Court of Appeal

CITATION : Anjoul v Westpac Banking Corporation & Antunes; Koura v Westpac Banking Corporation & Antunes; Koura v Westpac Corporation & Antunes. [2000] NSWCA 355 FILE NUMBER(S) : CA 40712/98, 40713/98, 40714/98 HEARING DATE(S) : 22, 23 August 2000 JUDGMENT DATE : 14 December 2000

PARTIES : Barkhos Anjoul and Sadie Anjoul v Westpac Banking Corporation and Margaret Cavaco Antunes; Sadik Koura and Sadie Koura v Westpac Banking Corporation and Margaret Cavaco Antunes; William Koura and Nouhad Koura v Westpac Banking Corporation and Margaret Cavaco Antunes. JUDGMENT OF : Meagher JA at 1; Sheller JA at 24; Brownie AJA at 25

LOWER COURT JURISDICTION : Supreme Court LOWER COURT 10826/92; FILE NUMBER(S) : LOWER COURT Bainton J JUDICIAL OFFICER :

Appellant: G. McVay/ Quinn COUNSEL : First respondent: R J Weber Second Respondent: P. Garling SC/Habib Appellants: Richard Booker SOLICITORS : First respondent (Westpac): Henry Davis York Second respondent (Antunes): Mallesons Stephen Jaques CATCHWORDS : Appellable error - error of fact by trial judge - agreement between parties as to error - consequences of error - "no harm" to parties. DECISION : 1. Appeals dismissed; 2. Parties to bring in appropriate orders for the Court's approval within seven days.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA: 40712/98 40713/98 40714/98

MEAGHER JA SHELLER JA BROWNIE AJA

Friday 14 December 2000 ANJOUL & ORS v WESTPAC BANKING CORPORATION & ANOR

FACTS In proceedings brought by the first respondent Bank as mortgagee for writs of possession against the appellant mortgagors and cross-claims against the second respondent solicitor in tort, the trial judge made mistakes of fact in his findings. All parties agree as to the findings of fact. The appellants appeal on grounds that the mistakes undermine the findings of credibility made by the trial judge favourable to the first and second respondents. HELD By Meagher JA; Sheller JA and Brownie AJA agreeing. 1. It is clear law that where a trial judges makes a finding on credit and also a mistaken finding on fact, the finding on credit cannot prevail if it is infected by the mistaken finding on fact. 2. In the circumstances of this case, the mistaken findings of fact were one of several findings supporting the findings of credit and in this instance do not warrant the setting aside of the findings on credit. 3. Learned counsel for the Bank has made clear the findings of fact as to the amount secured by mortgage can be rectified if necessary and in this circumstance the mistake has not caused harm. 4. The finding by the trial judge as to the credit of the second respondent was open to the trial judge. ORDERS