Su v So, Verekers Lawyers v So

[2010] NSWCA 119

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Appeal from District Court
3. › Leave to appeal
4. › Application for leave to appeal on questions of fact
5. › Whether statutory policy of discouraging small appeals outweighed by nature and significance of errors alleged
6. › District Court Act 1973 (NSW), s 127(2)(c)
1. Appeal
2. › Standard of appellate review
3. › Findings of fact
4. › Primary judge's findings based on objective factors rather than demeanour
5. › Whether appellate court equally well placed to draw inferences from undisputed primary facts
6. › Application of Warren v Coombes and Fox v Percy principles
1. Torts
2. › Deceit
3. › Elements of tort
4. › Whether signature appended to contract of sale fraudulently and without authority of beneficial owner
5. › Whether primary judge required to address defendant's state of mind
6. › Whether genuine belief in authority negates deceit
1. Damages
2. › Exemplary damages
3. › Tort of deceit
4. › Whether exemplary damages available where primary judge failed to consider defendant's genuine belief in authority
5. › Requirement to address mental state of wrongdoer

Quick Take

Where a primary judge expressly disavows reliance on demeanour and bases findings on inferences from objective factors, the appellate court is as well placed as the trial judge to draw inferences from undisputed primary facts and will give effect to its own conclusion. A finding of deceit requires the court to address the defendant's state of mind, including whether the defendant held a genuine belief in authority. Compensatory damages require a causal nexus between the payment claimed as loss and the wrongful act found.