Rawson Homes Pty. Ltd. v. Donnelly & Anor. [2005] NSWCA 211

New South Wales Court of Appeal

CITATION: Rawson Homes Pty. Ltd. v. Donnelly & Anor. [2005] NSWCA 211

HEARING DATE(S): 7 June 2005

JUDGMENT DATE: 23 June 2005

JUDGMENT OF: Hodgson JA at 1; Tobias JA at 61; McColl JA at 62

DECISION: 1. Appeal as against the plaintiff allowed. 2. Appeal as against CSR dismissed with costs. 3. Judgment below in favour of the plaintiff and in relation to the costs of the plaintiff set aside. 4. Matter remitted to the District Court for re-trial of the issue of liability for common law negligence only, costs of the first hearing to be in the discretion of the judge hearing the re-trial. 5. Plaintiff to pay the costs of Rawson Homes of the appeal as against the plaintiff, and to have a certificate under the Suitors' Fund Act if otherwise entitled.

CATCHWORDS: APPEAL - Challenge to factual findings of primary judge - Whether glaringly improbable - Whether vitiated by error

Australian Air Express Pty. Ltd. v. Langford [2005] NSWCA 96 Bial v. Housing Commission of NSW [1976] 1 NSWLR 388 Boylan Nominees Pty. Ltd. v. Sweeney [2005] NSWCA 8 Hollis v. Vabu Pty. Ltd. (2001) 207 CLR 21 Jacob v. Utah Constructions & Engineering Pty. Ltd. (1966) 116 CLR 200 CASES CITED: Laundess v. Laundess (1994) 20 MVR 156 McDonald v. Girkaid Pty. Ltd. [2004] Aust Tort Reports 81-768, [2004] NSWCA 297 Pack-Tainers Pty. Ltd. v. Moore [2005] NSWCA 43 Starks v. RSM Security Pty. Ltd. [2004] Aust Torts Reports 81-763 [2004] NSWCA 351 Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 CLR 16 Todorovic v. Moussa [2005] NSWCA 100

Rawson Homes Pty. Limited - appellant PARTIES: Joshua Steven Donnelly - 1st respondent CSR Limited - 2nd respondent