The Owners – Strata Plan 87265 v Saaib; Alexandrova v The Owners – Strata Plan 87265 [2022] NSWCA 63

The Owners – Strata Plan 87265 v Saaib; Alexandrova v The Owners – Strata Plan 87265 [2022] NSWCA 63

The majority (Basten JA, Gleeson JA) found that the combination of circumstantial facts supported, on the balance of probabilities, the inference that Mr Saaib authorised his nephew Mr Zaatini to enter the Marrickville building contract on his behalf, reversing the trial judge in that respect. Consequently, The Owners Corporation's primary claim succeeded and the contingent claim against Ms Alexandrova failed. The dissent (Macfarlan JA) would have upheld the trial judge, holding the findings were not glaringly improbable and causation was not proved against Alexandrova.

Parties
Appellant (2021/83984), Respondent (2021/140048): The Owners – Strata Plan 87265; Respondent (2021/83984): Mr Tony Saaib; Appellant (2021/140048): Ms Irena Alexandrova
Jurisdiction
Australia
Judgment Date
14 April 2022
Procedural Posture
Appeal / Principal Judgment – Post Trial Appeal From Equity Division
Outcome
Majority: Owners Corporation's appeal allowed as against Mr Saaib, appeal allowed by Ms Alexandrova and judgment against her set aside. Dissent: Would have dismissed Owners Corporation's appeal and allowed Ms Alexandrova's appeal.
Legal Topics
Findings of Fact, Admissibility of Tendency Evidence, Jones V Dunkel Inference, Misleading or Deceptive Conduct, Causation, Statutory Warranties, Proportionate Liability
Appeals Evidence Consumer Law Findings of Fact Admissibility of Tendency Evidence Jones V Dunkel Inference Misleading or Deceptive Conduct Causation +2 more

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Parties

The Owners – Strata Plan 87265

Appellant (2021/83984), Respondent (2021/140048)

Mr Tony Saaib

Respondent (2021/83984)

Ms Irena Alexandrova

Appellant (2021/140048)

Procedural Posture

Appeal / Principal Judgment – Post Trial Appeal From Equity Division

Legal Issues

  1. 1 Whether Mr Saaib authorised Mr Zaatini to enter into the building contract on behalf of Mr Saaib for the Marrickville development
  2. 2 Whether a Jones v Dunkel inference should be drawn from Mr Saaib's failure to call Mr Zaatini
  3. 3 Whether evidence relating to the Leura project was admissible as tendency evidence

Ratio Decidendi

The majority (Basten JA, Gleeson JA) found that the combination of circumstantial facts supported, on the balance of probabilities, the inference that Mr Saaib authorised his nephew Mr Zaatini to enter the Marrickville building contract on his behalf, reversing the trial judge in that respect. Consequently, The Owners Corporation's primary claim succeeded and the contingent claim against Ms Alexandrova failed. The dissent (Macfarlan JA) would have upheld the trial judge, holding the findings were not glaringly improbable and causation was not proved against Alexandrova.

Court Disposition

Majority: Owners Corporation's appeal allowed as against Mr Saaib, appeal allowed by Ms Alexandrova and judgment against her set aside. Dissent: Would have dismissed Owners Corporation's appeal and allowed Ms Alexandrova's appeal.

Orders

  • Allow the Owners Corporation's appeal; set aside orders of 1 March 2021 (as varied 21 April 2021) in Equity Division.
  • Judgment for Owners Corporation against Mr Saaib for $3,425,583.54, effective 1 March 2021.