Sutherland v Gersteling [2001] NSWCA 191

New South Wales Court of Appeal

CITATION : Sutherland v Gersteling [2001] NSWCA 191 FILE NUMBER(S) : CA 40440/0 HEARING DATE(S) : 20/6/01 JUDGMENT DATE : 22 June 2001

PARTIES : Barry Sutherland and Geraldine Sutherland (Appellants) Johannes A. Gersteling and Carmela M. Gersteling (Respondents) JUDGMENT OF : Giles JA at 1; Ipp AJA at 2; Fitzgerald AJA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT DC 20/00 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

COUNSEL : N. Cotman SC and R Odgers (Appellants) M Painter (Respondents) SOLICITORS : Malcolm McDonald & Co (Appellants) Burston Roberts and Cole (Respondents) CATCHWORDS : Misleading and deceptive conduct - findings that a representation was made and relied on but that the representation was correct - trial judge's failure to understand the evidence - failure to comprehend strength of evidence that representation incorrect and misuse of evidence in consideration of representors' credibility - finding that representation correct set aside - new trial ordered. ND LEGISLATION CITED : Fair Trading Act 1987 Suitors Fund Act 1951 CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167 Rosenberg v Percival [2001] HCA 18 DECISION : Appeal allowed with costs. Judgment below set aside and new trial ordered. Costs of first trial to be reserved to the Judge retrying the action. If qualified, respondents to have a certificate under the Suitors Fund Act.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40440/00 GILES JA IPP AJA FITZGERALD AJA