Abdel Naser Qushair v Naji Raffoul

[2009] NSWCA 329

NSW Court of Appeal

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Interrogate

Catchwords

1. Fair Trading
2. › Misleading or deceptive conduct
3. › Representations
4. › Whether alleged representations made
5. › Whether representations if made were misleading or deceptive
6. › Failure of representee to make own inquiries
7. › Whether failure to inquire precludes claim
8. › Fair Trading Act 1987 (NSW), ss 41, 42, 68, 72
1. Appeal
2. › Adequacy of reasons
3. › Trial judge's duty to give adequate reasons
4. › Credit-based findings
5. › Whether bald findings on credit sufficient where substantial factual issues to be addressed
6. › Whether failure to give adequate reasons warrants new trial
1. Practice and Procedure
2. › New trial
3. › Circumstances warranting new trial
4. › Inadequacy of reasons combined with errors in reasoning process

Quick Take

A trial judge's finding rejecting a witness's evidence as 'entirely unbelievable' must be supported by adequate reasons explaining why the evidence was rejected, particularly where the opposing party did not deny the relevant matters and did not challenge the witness on those matters in cross-examination. A representee's failure to make his or her own inquiries cannot of itself preclude a finding of misleading or deceptive conduct under s 42 of the Fair Trading Act 1987 (NSW) or prevent recovery of damages under s 68(1).