Wilson & Anor v Dartanyon Pty Ltd [2009] NSWCA 377

New South Wales Court of Appeal

CITATION: Wilson & Anor v Dartanyon Pty Ltd [2009] NSWCA 377

HEARING DATE(S): 11 November 2009

JUDGMENT DATE: 25 November 2009

JUDGMENT OF: Tobias JA at 1; Young JA at 72; Rein J at 73

(a) Direct the parties within 14 days to file with the Court short minutes of order to give effect to these reasons for judgment and reflecting: (i) the amount of the judgment to which the respondent is entitled against each appellant; DECISION: (ii) the amount of interest payable on that judgment up to and including 3 April 2009 (being the date of the orders of Delaney DCJ); (iii) the terms, if agreement can be reached, of the orders for costs of the trial if they are to differ from those made by his Honour. (b) In the event that the parties cannot agree on (a)(iii) above, they are directed to file submissions on the question of indemnity costs within the said period of 14 days.

CATCHWORDS: CONTRACTS – Agreement for sale of land and construction of house – Whether second appellant executed agreement – Whether terms of agreement and accompanying 'Annexure A' required second appellant to repay respondent 'vendor finance' loan upon sale of property – Whether first appellant executed guarantee of loan – Whether guarantee, if executed, extended to 'vendor finance' loan – Agreement unable to be produced at hearing – Findings by primary judge as to terms of agreement based primarily upon credit findings - APPEAL – Admission of further evidence – Where evidence not available at hearing – Building contract anonymously received by appellants after hearing – Whether special grounds existed to admit contract under s 75A(8) Supreme Court Act 1970 – Whether there was a real possibility that the primary judge would have reached a different decision had the building contract been admitted at hearing