MURRAY v. DUDDY [2005] NSWCA 55

New South Wales Court of Appeal

CITATION: MURRAY v. DUDDY [2005] NSWCA 55

HEARING DATE(S): 17.02/2005

JUDGMENT DATE: 17 February 2005

JUDGMENT OF: Beazley JA at 1,12; Hodgson JA at 2; Ipp JA at 11

DECISION: (1) Appeal allowed.; (2) Set aside the judgment, orders and verdict of the trial judge.; (3) Order that the matter be remitted to the Supreme Court for a new hearing.; (4) Order the respondent to pay the appellant's costs of the appeal on the basis of an appeal lasting one day but to have a certificate under the Suitors Fund Act 1951, if so entitled.; (5) Order that the costs of the first trial abide the result of the second trial.

CATCHWORDS: REASONS - duty of trial judge to provide sufficient reasons

CASES CITED: Beale v. GIO of New South Wales (1997) 48 NSWLR 430

Wendy Jill Murray (Appellant) PARTIES: Eric Keith Duddy (Respondent)

FILE NUMBER(S): CA CA 40532/04; CD 12555/01

D. Conti SC/P. Bolster (Appellant) COUNSEL: P. Hamill SC/M. Avenell (Respondent)

McKells (Appellant) SOLICITORS: Duncan Maclean (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): CLD 12184/01

LOWER COURT JUDICIAL OFFICER: Shaw J

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40532/04

BEAZLEY JA HODGSON JA IPP JA

17 February 2005 WENDY JILL MURRAY v. ERIC KEITH DUDDY Judgment 1 BEAZLEY JA: The court is in a position to give judgment in each of these matters. I will deal with this appeal first, noting that there was a concession by the respondent that the judgment of Shaw J could not stand in its terms and the matter ought to be remitted for re-hearing. In light of that concession I propose to make short comments only. 2 Mrs Murray brought proceedings against Eric Duddy arising out of her purchase, on his behalf, of two properties, "West Garawan" and "Square Bush". The properties, which Mr. Duddy had owned, were purchased from Westpac at a mortgagee sale following default by Mr. Duddy of his loan obligation to Westpac. Mrs Murray borrowed moneys to complete the purchase. There have been related proceedings in the Court in relation to those borrowings, which have been dealt with and heard concurrently with this appeal. 3 Mrs Murray claimed Mr Duddy breached his agreement with her to provide the moneys for the purchase of the properties (the contract claim) or that he falsely represented to her that he had the money for the purchase but he did not, in fact, have the money (the deceit claim). The trial judge dealt with Mrs Murray's claim in ten paragraphs. In doing so he considered that the basic questions he had to resolve were ones of fact [50]. In determining those questions he preferred the evidence of Mr Duddy over Mrs Murray, although he said at [57] that in doing so he was not making findings based on credibility. 4 Senior counsel for Mrs Murray submitted that she was entitled to succeed on her claims given a finding of the trial judge earlier in his judgment, at [33], that Mr. Duddy was not in a position to provide "[the] finance or was unwilling to do so". That finding, it was said, was a specific finding of breach of contract as well as a finding sufficient to establish deceit. Senior counsel submitted on that basis that Mrs Murray was entitled to succeed on her claim and that a judgment and verdict should be entered in her favour. 5 Whilst the finding at [33] is favourable to Mrs Murray's claim, it does not of itself establish the claim. A decision on the contract claim would have required a finding as to the terms of the contract, whether Mr. Duddy did what was required of him under the contract, and whether he was excused from doing so by some conduct of the appellant. A decision on the deceit claim would have required a finding as to the terms of the representation, whether the representation was true, and whether Mr Duddy believed it to be true. 6 Unfortunately the trial judge did not make any of those findings, save for the one to which I have referred. Further, a finding by a trial judge that the evidence by one party is to be preferred over the evidence of another party is not always conclusive as to whether a claim has been established. Some analysis of the evidence was required to determine whether the claim had been made out. I should add that the manner in which the judge dealt with his conclusions of preferring one party's evidence over another and his conclusions on credibility were particularly unsatisfactory in this case. They were reached without consideration of the evidence of Mr Murray in particular, which conflicted with that of Mr Duddy and which corroborated the evidence of Mrs Murray. 7 There was also other evidence including that of Mrs Jill Duddy and that of Mr Duddy, which was internally inconsistent and which should have been resolved by his Honour. His Honour's preference for Mr Duddy's evidence over that of Mrs Murray was also made without reference to the probabilities that were suggested by all of the circumstances of and surrounding the transactions. 8 In Beale v GIO of New South Wales (1997) 48 NSWLR 430, this Court revisited the duty of a trial judge to provide sufficient reasons. As Meagher JA stated at p 443 that duty involves at least the following steps in the reasoning process: "First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it… Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. … Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found (References omitted)." 9 Unfortunately, the judge did not engage in the necessary judicial exposition of his reasons. As I have indicated, senior counsel for the respondent conceded during the course of his argument that that was the case and that there was no option in this matter other than to order a new trial. Accordingly I would propose the following orders: