Virginia Nemeth (by her tutor) v Australian Litigation Funders Pty Ltd and Ors [2013] NSWSC 529

Virginia Nemeth (by her tutor) v Australian Litigation Funders Pty Ltd and Ors [2013] NSWSC 529

 

Judge

Sackar J

Decision
See paragraph [328].

Catchwords
CONTRACTS – heads of agreement – whether binding arrangement – use of extrinsic evidence in determining formation of contract – construction of contracts – use of extrinsic evidence in construction of contract – relief from obligations – relief under general law and consumer protection legislation from contractual obligations – whether contract is unjust under the Contracts Review Act 1980.

EVIDENCE – admissibility of non-expert evidence as to human condition, personal characteristics and behaviour – assessment of credibility of witness – discretion of judge to accept or reject evidence – whether appointment of tutor affects discretion to make findings as to credibility.

EQUITY – unconscionable conduct – whether defendant engaged in unconscionable conduct at general law.

TRADE AND COMMERCE – trade practices – whether defendant engaged in unconscionable conduct under the Trade Practices Act 1974 (Cth) – whether director of corporate defendants is liable as accessory.

 

Sackar J

191.

This is a somewhat unusual case. It is one of the few cases I can recall where the epithets used by the plaintiff’s counsel to describe his client far exceeded any used or hinted at by the defendant’s counsel. Whilst the plaintiff’s counsel opened the case by suggesting that the plaintiff, Mr Byrnes, Ms Winter and Mr Rogerson for various reasons would have question marks over their heads in relation to their reliability and/or credibility, by the end of the case it is fair to say that most of the criticism was reserved for his own client. He did invite me to reject certain things which had been said by Mr Byrnes and Ms Winter, but indicated he had no criticisms of Mr Rogerson’s evidence in the end. I will return to each of these in due course.

192.

It was submitted on her behalf that she was incapable of making an informed decision as to where her best interests lay in relation to the Family Court litigation, and that she was at relevant points irrational. The following exchange took place between myself and counsel for the plaintiff:

His Honour: I don’t want to start debating this now but you would ask me to reject her email to Mr Meyer would you?

Newlinds: Yes

His Honour: As being an untruthful account on her part?

Answer: Yes

His Honour: And will I accept also to be untruthful that she received these anonymous letters? How much do I accept? You will deal with that in submissions.

Newlinds: Of my client?

His Honour: Yes

Newlinds: Hardly anything

His Honour: Hardly anything

Newlinds: Mr Coles will give you a burst on her credit, but it does not matter. She is not reliable.

His Honour: All right. So I should reject much of what she has said, both in her affidavit in the witness box, should I?

Newlinds: Yes, unless it’s otherwise corroborated.

193.

There is little doubt that the plaintiff’s counsel in his refreshingly candid approach would rightly have deserved the approval of Sir Owen Dixon as being an example par excellence of what Sir Owen described (extra curially) as candour in advocacy (Sir Owen Dixon, Jesting Pilate, (1965) The Law Book Company Ltd at page 134).

 

David Cormack – Brisbane Barrister

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