NSW Caselaw
New South Wales Court of Appeal
CITATION: Palenzuela v Palaje [2008] NSWCA 349
HEARING DATE(S): 2 December 2008
JUDGMENT DATE: 12 December 2008
JUDGMENT OF: Giles JA at 1; Tobias JA at 2; Gyles AJA at 49
(i) Appeal allowed. (ii) Set aside the orders made by Barrett J on 30 May 2008. DECISION: (iii) Order that there be a new trial of the proceedings. (iv) Order that the respondent pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified. (v) Order that the costs of the first trial abide the result of the second trial.
CATCHWORDS: APPEAL AND NEW TRIAL – Failure to assess significance of certain documentary evidence – Whether document could be regarded as written confirmation of contractual commitment - CONTRACTS – Whether contract of guarantee formed on facts
LEGISLATION CITED: Suitors' Fund Act 1951 (NSW)
CATEGORY: Principal judgment
Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251 Jones v Dunkel (1959) 101 CLR 298 CASES CITED: Manly Council v Byrne [2004] NSWCA 123 Palenzuela v Palaje [2008] NSWSC 527 State Rail Authority v Earthline Constructions Pty Ltd (In liq) [1999] HCA 3; (1999) 73 ALJR 306; (1999) 160 ALR 588
Nelia David Palenzuela PARTIES: Maria Concepcion Palaje Emily Palaje Antonio Mauceri
FILE NUMBER(S): CA 40152/08
COUNSEL: A: M W Sneddon R: T Atkin
SOLICITORS: A: McLaughlin & Riordan, Sydney R: S M Boyle & Co, Cronulla
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