Baira v RHG Mortgage Corporation Limited [2012] NSWCA 387

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Baira v RHG Mortgage Corporation Limited [2012] NSWCA 387 Hearing dates: 11 April 2012 Decision date: 03 December 2012 Before: Bathurst CJ at [1]; Basten JA at [207]; Tobias AJA at [367] Decision: A With respect to the proceedings brought by RHG Mortgage Corporation Ltd against Rosa Baira, being matter 2008/285539 in the Common Law Division: (1) Set aside orders 1-8; and orders 13, 17 and 18, to the extent that they order that Rosa Baira pay costs, being orders made in the Common Law Division on 17 June 2011. (2) Order that there be a retrial of the claim by RHG Mortgage Corporation Ltd against Rosa Baira and of the first cross-claim (brought by Rosa Baira). (3) Order the first, second and third respondents to pay the costs of the first appellant (Rosa Baira) in this Court. B With respect to the proceedings brought by RHG Mortgage Corporation Ltd against Rosario Ianni and Domenica Ianni being matter 2008/284857 in the Common Law Division: (1) Set aside orders 1-8; and orders 13, 17 and 18 to the extent that they order that Rosario and Domenica Ianni pay costs, being orders made in the Common Law Division on 17 June 2011. (2) Order that there be a retrial of the claim by RHG Mortgage Corporation Ltd against Rosario and Domenica Ianni and of the first cross-claim (brought by Rosario and Domenica Ianni). (3) Order that the first, second and third respondents pay the costs of the second and third appellants (Rosario and Domenica Ianni) in this Court. [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: APPEAL - civil - credibility - trial judge rejected evidence of plaintiffs - plaintiffs sought to challenge credibility findings on appeal - whether findings contrary to compelling inferences or glaringly improbable - whether trial judge failed to use or palpably misused his advantage in hearing the relevant witnesses - whether distinction between challenge to credibility and challenge to inferences from facts admitted or found - discussion of Fox v Percy [2003] HCA 22; 214 CLR 118; Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472; Abalos Australian Postal Commission [1990] HCA 97; 171 CLR 167