New South Wales Supreme Court CITATION : Sinn-v-Rennie [1999] NSWSC 646 CURRENT JURISDICTION : Civil FILE NUMBER(S) : 12102 of 1998 HEARING DATE(S) : 07/06/99 JUDGMENT DATE : 6 July 1999 PARTIES : Leo Chun Leung Sinn & Wendy Sau Chun Sinn -v- David Rennie & Sandra Rennie t/a Lockwoods Pest Control JUDGMENT OF : McInerney J at 1 LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Magistrate Barnett,SM COUNSEL : For the Plaintiff: Mr. Kerr For the Defendant: Mr. Gruzman SOLICITORS : For the Plaintiff: Rosier Associates For the Defendant: George Bassil CATCHWORDS : CASES CITED : Jones -v- Dunkel (1959)101 CLR 298 DECISION : In all the circumstances here I am not satisfied the learned Magistrate's failure to make specific reference to this question is such that I should uphold the Plaintiffs' application and I dismiss the stated case. - 8 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Tuesday 6 July 1999 McINERNEY AJ 12102/1998: LEO CHUN LEUNG SINN &WENDY SAU CHUN SINN-v-DAVID RENNIE &SANDRA RENNIE t/a LOCKWOODS PEST CONTROL. JUDGMENT 1 HIS HONOUR: In this matter the Plaintiffs, Leo Chun Leung Sinn and Wendy Sau Chun Sinn seek relief by way of stated case from a decision by Local Court Magistrate Mr. Barnett, SM, on 30th June 1997, when he found a verdict against the Plaintiffs and in favour of the Defendants. 2 This matter arose out of the Plaintiffs' having initially intended to purchase a property, which they ultimately purchased, from a Mr. & Mrs. Weatherstone, situated at 68 Townsend Street Blakehurst. Before purchase they retained a G.H. Wardman and Co. to undertake a pre-purchase building inspection on 8th March 1994. On or about 9th March 1994 the Plaintiff retained the Defendant company to inspect the property in order to locate any past or active infestation of timber by termites, the Defendants carried out the inspection and prepared a report and made no mention of any relevant termite activity. 3 The Plaintiffs' purchased the property and in November or early December they retained the services of a Mr. Doaud, a builder, to carry out certain renovations on the property for them. He commenced this work on 11th January 1995, the second Plaintiff asked him to fix loose floor boards in the lounge room, Mr. Doaud on commencing to do so, discovered the floor boards were infested with termites. An inspection disclosed a termite nest on the underside of the front steps leading to the property. The Plaintiffs' then commenced these proceedings against the Defendants' for damages in the Local Court and the matter came before the learned Magistrate. 4 Mr. King, a builder and building consultant who gave expert evidence for the Plaintiffs' stated because it was a big infestation of termites it may have been in place for one to five years. His Worship appears to have accepted that the termite nest would have been in existence at the time of the inspection by the Defendants. 5 The issue, debated in the case between the parties, was whether at the time of the inspection by the Defendants' the termites nest was visible. This depended on whether an opening in the brickwork which enabled the nest to be seen was in existence at the time of the Defendants' inspection of the premises. It was there when the termite nest was found, ten months after the inspection by the Defendants', but the Defendants' denied its existence at the time of the inspection. His Worship was alive to the issue when he said in the course of his judgment that if the Plaintiffs' could show the nest was visible at the time, the Plaintiffs' must surely win their case, he added: "What the position was with this termites nest, and its accessibility at the time of the Lockwoods report on matters that are extremely important in the Plaintiffs case." 6 The second Plaintiff took photographs of the termites nest and it was said to be clearly visible through the opening in the brickwork said to be shown in Exhibit 11, I have not seen that exhibit. Mr. King gave evidence in cross-examination as to the most likely construction method of houses of that type in the particular area at the time it was built and the method of construction was to build a house with continuos walls and then add on the final front entrance, porch, or patio with steps going down to the garden, His Worship then said: "This evidence leaves open a possibility that there was never a permanent opening in the area, such as shown in Exhibits 8 and 11." 7 Mr. Doaud, the Plaintiffs' builder said that he did not make the opening in the wall, as shown in Exhibits 8 and 11, but that opening was present when he went under the house with the person from Pacific Pest Control Ltd. 8 As to the Defence case, His Worship noted that Mr. Rennie had given evidence of inspecting all accessible areas under the house, denying that the opening in Exhibits 8 and 11 was in existence at the time of his inspection, His Worship then went on to say: "It is difficult to say from the evidence exactly when the opening was made. The Defence asked that I draw inferences adverse to the Plaintiff from the photographs in 8 and 11 in so far as what appears to be form work, I am not sure that I can draw any such adverse inference, but the issue of whether the opening was there when Mr. Rennie inspected the premises must remain in some doubt in view of the state of the evidence the time elapse between the Lockwoods report and the discovery of the termites, and a number of people that may have had access to the area after settlement while plans etc. were being drawn up." 9 The issue now before me was the correctness of His Worship's decision and in particular the failure of the Defendants' to call Mr. Weatherstone should have led the learned Magistrate to draw an inference that there was a hole in the wall at the time of the Defendants' inspection. The question of what should have resulted from the alleged failure of the Defendants' to call Mr. Weatherstone arose out of a question asked by Mrs. Weatherstone by Mr. Gruzman, who appeared for the Defendants' at the Hearing. It is not clear whether Mrs. Weatherstone was called by the Plaintiffs' or by the Defendants', I am prepared to assume that she was called for the Defendants', the question was: Question: "In your explorations under the house, did you see that area?" Answer : "I never went to that area, my Husband would have because he had crawled over and under everything." 10 I take it Mr. Gruzman, when asking the question, must have been under the impression she had inspected under the house. The Plaintiffs' submit from that answer Mr. Weatherstone would have been able to give clear evidence as to whether or not the opening had been made prior to the sale of the property, and that such evidence would have been conclusive. 11 It was submitted to the Magistrate that the Defendants should have called evidence from Mr. Weatherstone, no explanation, it said, was given as to why he was not called and in the absence of such reason the Plaintiff submits that the Court should draw an adverse inference from that failure, Jones-v-Dunkel (1959) 101 CLR at 298. 12 The Plaintiff's complaint is the failure of the learned Magistrate to have regard to the principle annunciated in Jones -v- Dunkel in the decision in which he found a verdict for the Defendants'. It is submitted by the fact that he failed to mention the matter he has been guilty of an error of law, the reason being that if called Mr. Weatherstone would have given evidence of the existence of the hole in the wall before the building was sold, in those circumstances it was submitted there would have been a verdict for the Plaintiffs'. 13 There were similar written submissions made about Mr Wardman who inspected the building on behalf of the Plaintiffs', it was said he was present throughout the case and the Magistrate said he was referred to as the Defendants' expert. I do not understand why that was so, the only basis in which I could understand that is it was Mr. Wardman who engaged the Defendants' to inspect under the house. In any event no reference was made by Mr. Kerr in his verbal submissions on the failure to call Mr. Wardman. 14 The basis of this application which was before me was based on the effect of the decision in Jones -v- Dunkel (infra). The evidence of Mrs. Weatherstone relied on to establish that Mr. Weatherstone's evidence would have been conclusive is hearsay and at best speculative. She was not able to give direct evidence of what observations her Husband may have made at what time, and whether in fact he made observations as to the existence of this hole in the wall at relevant times. She may have assumed that he had gone everywhere under the house, but there is no admissible evidence as to this fact. It is going too far in my view as been submitted by Mr. Kerr, on behalf of the Plaintiffs' that the evidence of Mr. Weatherstone, if called, would have been conclusive as to the question. There may be a number of answers that may have been given if called, not necessarily confirming that the hole in the wall was in existence at that time. 15 In my view this is very different from the circumstances in Jones -v-Dunkel. That was a special case being tried by a jury, the issue being agitated was whether the trial Judge had given appropriate directions to the jury on the failure of the Defendant to call a vital witness. Two semi-trailers had collided in circumstances where one driver was killed. The only witness to the accident was the surviving driver. The Plaintiff's case was that from that position of the vehicles on the roadway an inference should be drawn that it was more probable than not that the Plaintiff's vehicle was on its correct side. In this case the argument as I understand it that the inference the Plaintiffs' sought to be drawn namely that the hole in the brickwork was present at the time of the inspection should be drawn in the absence of the failure to call Mr. Weatherstone. 16 Menzies J. page 312 at Jones -v-Dunkel set out the principle in circumstances that evidence that could have been contradicted by the Defendant can be accepted more readily if the Defendant fails to give evidence. That is not the case here, the Defendant did give evidence, and did contradict any inferences claimed by the Plaintiffs' that the hole in the brickwork was not there when he made the inspection. Menzies J. went on to say that in circumstances if the Defendants' dispute an inference available to the Plaintiffs' and were in a position to give evidence on the matter and failed to do so such failure may be properly taken into account as a circumstance in favour of drawing the favourable inference contended for. In this situation the Defendants' have called evidence as disputed by that evidence the inference sought to be drawn by the Plaintiffs', (see in similar terms Kitto J. at page 308). 17 The question here is in the circumstances should the Defendants' have called Mr. Weatherstone and suffer the consequence of not having called him or alternatively give an explanation as to why he was not called. 18 As is pointed out in Cross on Evidence, 5th edition, the significance to be attributed to the fact that a witness did not give evidence will be in the end depend upon whether in the circumstances this is to be inferred that the reason why the witness was not called was that the party expected to call him feared to do so. I am not satisfied on the material before me that the Magistrate erred in not referring to the Jones -v-Dunkel question. I have referred to the unsatisfactory nature of Mrs. Weatherstone's evidence and in particular its hearsay nature. 19 The learned author in Cross then points out that there are many instances where such an inference is not open, the party may not be in a position to call the witness. The fact is here there is no material available to establish that the Defendants' at the time of the Hearing of this case knew of anything what Mr. Weatherstone was able to say if he were called. The answer given by Mrs Weatherstone was not in response to the question asked, therefore there could be many explanations as to why he was not called. Furthermore the Defendants' may not have been put on notice that a submission was going to be made relating to the failure to call Mr. Weatherstone. 20 A party is not under an obligation to call a witness blind. Furthermore the significance of the inference depends on the closeness of the relationship of the absent party, and there is no such relationship here. It cannot be said that he was in the Defendants' camp. There is no property in this witness the Plaintiffs' could have called the evidence if they wished. 21 In all the circumstances here I am not satisfied the learned Magistrate's failure to make specific reference to this question is such that I should uphold the Plaintiffs' application and I dismiss the stated case. ********** Last Modified: 10/06/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.