Vieira v O'Shea [2012] NSWCA 21

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Vieira v O'Shea [2012] NSWCA 21 Hearing dates: 24 October 2011 Decision date: 05 March 2012 Before: Basten JA at 1; Meagher JA at 1; Handley AJA at 51 Decision: (1) Allow the appeal. (2) Set aside order (1) made by the trial judge on 8 December 2010. (3) Judgment for the appellant against the first respondent for $255,248 plus interest at the prescribed rates from 31 March 2009 to the date of judgment. (4) Order that the first respondent pay the appellant's costs of the trial in respect of the claim against the first respondent. (5) Order that the first respondent pay the appellant's costs in this Court. (6) Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the appeal by the appellant. (7) Grant leave to the cross-appellant and cross-respondents to approach the Registrar to obtain a date for hearing of the cross-appeal. [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 Court146s 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: APPEAL - civil - evidence - construction of contract - whether evidence supports primary judge's findings as to contract terms - whether open to appellate court to reject findings based on credibility of witnesses - whether open to appellate court to reassess construction of contract based on findings of fact made by trial judge