RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 Hearing dates: 4 February 2015 Date of orders: 18 March 2015 Decision date: 18 March 2015 Before: McColl JA at [1]; Emmett JA at [105]; Sackville AJA at [127] Decision: (1) Give RHG leave to amend its notice of appeal in the form which appears at Orange 173 as further amended to take into account the settlement of the Baira appeal. (2) Direct RHG to file and serve the notice of appeal as so amended within seven days. (3) Set aside the judgment of Justice Davies given on 1 July 2014 insofar as it concerns the Iannis. (4) Order that there be a retrial of the proceedings between RHG and the Iannis on the following conditions: (a) That the evidence at the trial be the evidence in the new trial without any further examination or cross examination of witnesses or the tender of any further documentary evidence; (b) That the trial judge shall proceed to determine the matter without reference to the evidence of Joe Ianni and, subject to 4(c) and (d), upon such limited further written or oral submissions as the trial judge may direct; (c) That the parties be given the opportunity to make submissions to the trial judge as to how his Honour's reliance on the evidence of Joe Ianni should affect the conclusions his Honour previously reached; and (d) That the parties be given the opportunity to make submissions to the trial judge as to whether his Honour should draw any Jones v Dunkel inferences consequent upon the Iannis failure to call Joe Ianni. (5) Costs of the second trial to be at the discretion of Justice Davies. (6) RHG to pay the costs thrown away by its application to amend the notice of appeal. (7) Subject to (6), respondents to pay the costs of the appeal. (8) Respondents to have a certificate under the Suitors Fund Act 1951 (NSW) if otherwise qualified. Catchwords: APPEAL – new trial – denial of procedural fairness – second trial of respondents' proceedings seeking to set aside deed of loan and mortgage as unjust and unconscionable – court takes into account material not in evidence without notice to parties – whether substantial wrong or miscarriage of justice requiring new trial –