Food and Beverage Australia Ltd v Andrews

[2017] VSCA 258

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Appeal
2. › Appellate review of findings of fact
3. › Findings based on conflicting oral evidence
4. › Whether findings demonstrated to be wrong by incontrovertible facts or uncontested testimony
5. › Whether findings glaringly improbable or contrary to compelling inferences
6. › Fox v Percy [2003] HCA 22
7. › Robinson Helicopter Co Inc v McDermott [2016] HCA 22
1. Contract
2. › Action for debt
3. › Defence of discharge by oral agreement
4. › Alleged oral agreement to discharge debt and substitute loan to related corporation
5. › Whether agreement established on the evidence
1. Courts and Judges
2. › Reasons for judgment
3. › Adequacy of reasons
4. › Failure to make findings of fact
5. › Delay between hearing and delivery of judgment
6. › Whether reasons adequate to enable appellate review
1. Evidence
2. › Rule in Browne v Dunn
3. › Note of witness not referring to agreement alleged to have been made three days earlier
4. › Finding adverse to witness in respect of omission
5. › Omission not put to witness in cross-examination
6. › Whether rule infringed where document put into evidence by witness

Quick Take

The rule in Browne v Dunn is not infringed where a trial judge draws an adverse inference from a document that was put into evidence by the witness against whom the inference is drawn, even where the inference was not put to the witness in cross-examination. Delay of 18 months between hearing and judgment delivery may weaken the trial judge's advantage in assessing credit but is not itself a ground of appeal; the ground of appeal is the error or infirmity to which the delay may have contributed.