RCR Tomlinson Ltd v Russell

(2015) 47 WAR 547; [2015] WASCA 154

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Equity
2. › Rectification
3. › Common intention
4. › Standard of proof
5. › Clear and convincing proof
6. › Whether open to trial judge to find common intention established where findings inconsistent with unchallenged evidence
1. Appeal
2. › Standard of appellate review
3. › Credibility-based findings of fact
4. › Whether trial judge's findings glaringly improbable or contrary to compelling inferences
5. › Whether process of fact-finding miscarried
1. Evidence
2. › Rule in Browne v Dunn
3. › Unchallenged evidence
4. › Consequences of failure to cross-examine
5. › Whether trial judge bound to accept unchallenged evidence or explain rejection

Quick Take

Where a trial judge accepts unchallenged evidence from one witness but also accepts evidence from another witness that is essentially inconsistent with it, the trial judge must address the inconsistency in reasons, failing which the fact-finding process miscarries. Unchallenged evidence that renders a party's account highly improbable may preclude a finding that the party's common intention has been established by clear and convincing proof for rectification purposes.