Riley v The Owners - Strata Plan 73817 [2012] NSWCA 410

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Riley v The Owners - Strata Plan 73817 [2012] NSWCA 410 Hearing dates: 12 November 2012 Decision date: 12 December 2012 Before: Macfarlan JA at [1] Barrett JA at [2] Ward JA at [4] Decision: 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: APPEAL - appellant gave inconsistent evidence at trial as to whether the part of the ramp on which she slipped was wet or dry - trial judge accepted evidence that the area where the appellant slipped was dry - whether finding of the trial judge was improbable

APPEAL - trial judge made adverse credit findings - whether adverse credit findings were unwarranted - whether adverse findings infected the trial judge's finding as to the wet/dry issue or as to damages - whether failure by the trial judge to give proper consideration to the evidence at trial or a substantial miscarriage of justice Legislation Cited: Civil Liability Act 2002 (NSW) District Court Act 1973 (NSW) Strata Schemes Management Act 1996 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 Bathurst Regional Council v Thompson [2012] NSWCA 340 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Ellis v Wallsend Hospital (1989) 17 NSWLR 553,587 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239 Mason v Demasi [2009] NSWCA 227 McGlen-McLeod v Galloway [2012] NSWCA 368 Nominal Defendant v McLennan [2012] NSWCA 148 Ridis v Strata Plan 10308 (2005) 63 NSWLR 449 Seiwa Australia Pty Limited v Owners SP 35042 [2006] NSWSC 157 Smith v New South Wales Bar Association (1992) 108 ALR 55 Vella v Permanent Mortgagee Pty Ltd [2008] NSWSC 505 Whalan v Kogarah Municipal Council [2007] NSWCA 5 Texts Cited: J D Heydon, Cross on Evidence (7th ed, 2004, LexisNexis Butterworths) Category: Principal judgment Parties: Pelagia Riley (Appellant) The Owners - Strata Plan 73817 (First Respondent) Abigroup Contractors Pty Ltd (Second Respondent) Representation: Counsel G Curtin SC with A P Quinlivan (Appellant) N J Polin (First Respondent) D S Weinberger (Second Respondent) Solicitors CMC Lawyers (Appellant) McCullough & Buggy Lawyers (First Respondent) McCabe Terrill Lawyers (Second Respondent) File Number(s): CA 12/018553 Decision under appeal Date of Decision: 2012-10-18 00:00:00 Before: Gibb DCJ File Number(s): 10/124661