Turjman v Stonewall Hotel Pty Ltd [2011] NSWCA 392

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Turjman v Stonewall Hotel Pty Ltd [2011] NSWCA 392 Hearing dates: 26 September 2011 Decision date: 21 December 2011 Before: Bathurst CJ & Allsop P at [1], Beazley JA at [13], Giles JA at [14], Sackville AJA at [112] Decision: In each appeal, appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: NEGLIGENCE - ceiling collapse in hotel - plaintiffs injured - ceiling not properly installed in 1993 - licence as place of public entertainment renewed in 2002 - structural engineer's certificate that premises structurally sound and capable of withstanding loadings arising from its use - owner of hotel failed to inform structural engineer of activities (dancing) at hotel - owner of hotel breached duty of care requiring that it take reasonable care to avoid foreseeable risk of injury to plaintiffs - but found at trial that factual causation not established between breach and injury to plaintiffs - whether leave to argue on appeal for breach of implied warranty that premises as safe for their purpose as reasonable care and skill could make them - facts not fully found - otherwise not in interests of justice - leave refused - whether finding as to factual causation erroneous - what structural engineer would have done if informed of the dancing - analysis of experts' evidence - (by majority) finding not erroneous. Legislation Cited: Civil Liability Act 2002 (NSW) Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Calvert v Stolznow (1982) 1 NSWLR 175; Commercial Union Assurance Co ofAustralia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389; (1991) 6 ANZ Ins Cas 61-042; Elayoubi v Zipser [2008] NSWCA 335; Fox v Buffalo Park 47 NYS 788 (1897); Maclenan v Segar (1917) 2 KB 325; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631; Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1; Voli v Inglewood Shire Council (1963) 110 CLR 74; Water Board v Moustakas (1988) 180 CLR 491. Category: Principal judgment Parties: Mark Turjman -Appellant (CA 176922/04) Corey Butler Appellant (CA 176923) Steven McKenzie - Appellant (CA 176924/04 Antonino Tati - Appellant (CA 269424/05) Representation: S Campbell SC & G Wilson - Appellants M Windsor SC & J Chapman - Respondent Keddies Lawyers, Redfern - First, Second and Third Appellants Pryor Tzannes & Wallis, Mascot - Fourth Appellant Yeldham Price O'Brien Lusk - Respondent File Number(s): 2004/176922 2004/176923 2004/176924 2005/269424 Decision under appeal Citation: Al Mousawy v Howitt-Stevens Constructions Pty Ltd & Ors [2010] NSWSC 122 Before: Hoeben J File Number(s): 20247/04; 20247/04; 20246/04; 3701/05