Assad v Eliana Construction & Developing Group Pty Ltd

[2015] VSCA 53

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Judgments and orders
3. › Reasons for judgment
4. › Adequacy of reasons
5. › Failure to address competing evidence and make credibility findings on critical factual disputes
6. › Whether reasons exposed path of reasoning to ultimate conclusion
1. Appeal
2. › Appellate remedies
3. › Remitter for rehearing
4. › Where inadequacy of reasons precludes appellate determination of factual dispute
5. › Absence of credibility findings on central issues
1. Contract
2. › Formation
3. › Settlement agreement
4. › Whether parties concluded binding agreement to settle joint venture disputes
5. › Competing accounts of terms
1. Equity
2. › Fiduciary duties
3. › Joint ventures
4. › Whether joint venturer owed fiduciary duty to other joint venturer
5. › Point raised for first time on appeal
6. › Whether evidence could have been called below

Quick Take

A trial judge who fails to make credibility findings on critical factual disputes, fails to address competing documentary evidence, and fails to explain the rejection of a party's case on a core issue will have their judgment set aside for inadequacy of reasons. Where the absence of credibility findings precludes the appellate court from resolving the factual dispute, the matter will be remitted for rehearing rather than determined on appeal. A notice of contention raising fiduciary duty for the first time on appeal will be dismissed where evidence could have been called below to meet the point.