AVANES v CLUB MARCONI OF BOSSLEY PARK SOCIAL RECREATIONAL & SPORTING CENTRE LTD & ORS [2003] NSWCA 184

New South Wales Court of Appeal

CITATION : AVANES v CLUB MARCONI OF BOSSLEY PARK SOCIAL RECREATIONAL & SPORTING CENTRE LTD & ORS [2003] NSWCA 184 HEARING DATE(S) : 4 July 2003 JUDGMENT DATE : 11 July 2003

JUDGMENT OF : Sheller JA at 1; Ipp JA at 25; Tobias JA at 26 DECISION : 1 The appellant is granted leave to appeal and ordered to file a notice of appeal in terms of its draft notice of appeal within seven days of this order; 2 Appeal allowed; 3 Set aside the verdict and judgment for Club Marconi and the order for costs made by Judge Delaney on 3 October 2002; 4 In lieu thereof verdict and judgment for the plaintiff, Piloora Avanes, against the defendant, Club Marconi, for $21,000 to take effect from 26 April 2001; 5 The defendant, Club Marconi, to pay the costs of the plaintiff of the hearing before Judge Delaney and of this appeal but to have a certificate under the Suitors' Fund Act 1951, if so qualified; 6 Remit to the District Court all questions of costs in the proceedings between the plaintiff and Mr Del Duca and on Club Marconi's cross-claim against Mr Del Duca to be determined by that Court.

CATCHWORDS : Appeal and New Trial - Appeal - Interference with judge' s findings of fact - Functions of appellate court - Where findings based upon credibility of witnesses - Preference of expert reports - Re-examination of facts - Negligence - Dangerous premises - Liability of Occupier - Obviousness of risk - Illumination of area LEGISLATION CITED : Supreme Court Act 1970 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Brodie v Singleton Shire Council (2001) 206 CLR 512 Devries v Australian National Railways Commission (1993) 177 CLR 472 CASES CITED : Fox v Percy (2003) 77 ALJR 989 Hackshaw v Shaw (1984) 155 CLR 614 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Wyong Shire Council v Shirt (1980) 146 CLR 40 Piloora Avanes - Claimant/Appellant PARTIES : Club Marconi of Bossley Park Social Recreational & Sporting Centre Ltd - First Opponent/First Defendant Anthony Del Duca - Third Opponent/Third Defendant FILE NUMBER(S) : CA 40958/02 P Biggins - Claimant/Appellant COUNSEL : D R Russell - First Opponent/First Defendant N/A - Third Opponent/Third Defendant David Legal - Claimant/Appellant SOLICITORS : Moray & Agnew - First Opponent/First Defendant Lum Mow & Associates - Third Opponent/Third Defendant