Barrak Corporation Pty Ltd v The Kara Group of Companies Pty Ltd [2014] NSWCA 395

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Barrak Corporation Pty Ltd v The Kara Group of Companies Pty Ltd [2014] NSWCA 395 Hearing dates: 27 October 2014 Decision date: 19 November 2014 Before: Barrett JA at [1] Sackville AJA at [3] Adamson [4] Decision: (1) Appeal dismissed. (2) Subject to an application for a different order being made in writing within seven days (7), order the appellant to pay the respondent's costs of the 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 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 failed to exclude several possible causes for the damage suffered and hence failed to discharge onus - doctrine of res ipsa loquitur inapplicable

LEGAL PRACTITIONERS - undesirability of solicitor acting when a material witness in proceedings - risk posed to administration of justice when solicitor on record is also a witness - change in rule from qualified prohibition (Rule 19) to qualified permission (Rule 27.2) - same legislative purpose of protecting the administration of justice Legislation Cited: Fair Trading Act 1987 (NSW) Home Building Act 1989 (NSW), s 48K Legal Profession Act 2004 (NSW), ss 496, 497 New South Wales Professional Conduct and Practice Rules (Solicitors' Rules) 2013, r 27.2 Professional Conduct and Practice Rules 1995, r 19 Trade Practices Act 1974 (Cth), s 52 Cases Cited: Allied Pastoral Holdings Pty Limited v Commissioner of Taxation [1983] 1 NSWLR 1 Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 Browne v Dunn (1893) 6 R 67 UKHL Kuhl v Zurich Financial Services Australia Limited [2011] HCA 11; 243 CLR 361 Mitchell v Burell [2008] NSWSC 772 Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; 200 CLR 121 Category: Principal judgment Parties: Barrak Corporation Pty Ltd (Appellant) The Kara Group of Companies Pty Ltd (Respondent) Representation: Counsel: M Condon SC (Appellant) H Altan/N Avery-Williams (Respondent) Solicitors: Barrak Lawyers (Appellant) MCK Lawyers (Respondent) File Number(s): 2013/314772 Publication restriction: Nil Decision under appeal Date of Decision: 2013-09-27 00:00:00 Before: Whitford DCJ File Number(s): 2011/270996