Ward v Loumbos

[2017] NSWCA 35

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Appellate review of findings of fact
3. › Credit-based findings
4. › Whether primary judge misapprehended evidence of witnesses
5. › Whether misapprehension vitiated fact-finding process
6. › Whether new trial should be ordered
7. › Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1)
1. Deeds
2. › Deed poll evidencing immediate gift
3. › Whether deed poll executed in escrow
4. › Whether gift subject to condition that marriage take place
5. › Whether donor intended immediate gift
1. Equity
2. › Setting aside instruments
3. › Mistake
4. › Whether donor executed deed under mistaken belief as to its effect
5. › Whether donee procured execution knowing of donor's mistake

Quick Take

A primary judge's misapprehension of the evidence of witnesses — specifically, attributing to them concessions they did not make — can vitiate the fact-finding process and warrant a new trial, even where the findings are credibility-based and the primary judge had the advantage of seeing the witnesses. The Fox v Percy principles permit appellate intervention where the primary judge's comprehension or evaluation of evidence has miscarried.