Mitchell v Cullingral Pty Ltd [2012] NSWCA 389

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Hearing dates: 2 October 2012 Decision date: 30 November 2012 Before: Allsop P at [1] McColl JA at [3] Campbell JA at [4] Decision: (1) Appeal allowed. (2) Set aside orders (i) and (ii) of the District Court made on 30 October 2011. (3) Respondents to pay costs of the appeal, but to have a certificate under the Suitors Fund Act 1951 if qualified. (4) Costs of the first trial to follow the event of the second trial, subject to any contrary view of the judge hearing the retrial. [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 - grounds - failure to give reasons - where trial judge failed to resolve significant factual issues raised by the parties or purported to resolve factual issues without reference to relevant evidence - primary judge's reasoning process seriously flawed - new trial required

APPEAL - grounds - where defendant argues evidence insufficient to support cause of action pleaded below - consideration of evidence - absence of important factual findings prevents Court of Appeal from being in a position of deciding the matter for itself Legislation Cited: Civil Liability Act 2002 Land Tax Act 1956 Land Tax Management Act 1956 Uniform Civil Procedure Rules Cases Cited: Armagas Ltd v Mundogas SA (the Ocean Frost) [1985] 3 All ER 795 Armagas Ltd v Mundogas SA (the Ocean Frost) [1986] AC 717 Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn & Anor v Ashrafinia [2001] NSWCA 243; (2002) Aust Torts Reports ¶81-636 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Essington Investments Pty Ltd v Regency Property Pty Ltd [2004] NSWCA 375 Gardiner v Agricultural & Rural Finance [2007] NSWCA 235 Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 Jovic v Lamont [2007] NSWCA 47 Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 Nominal Defendant v Kostic [2007] NSWCA 14 Sangha v Baxter [2007] NSWCA 264 Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 Whalan v Kogarah Municipal Council [2007] NSWCA 5 Category: Principal judgment Parties: Ian Burnham Mitchell (First Appellant) Stephen Roy Webster (Second Appellant) Cullingral Pty Ltd (First Respondent) Wallace McKenzie Ashton (Second Respondent) Representation: Counsel: M Einfeld QC; A Harding (Appellants) B Shields; R Ranken (Respondents) Solicitors: Gilchrist Connell (Appellants) Peter Kennedy Lawyers (Respondents) File Number(s): 2010/101339 Decision under appeal Date of Decision: 2011-10-20 00:00:00 Before: Sorby DCJ File Number(s): 2010/101339