Lin v Solomon [2017] NSWCA 328

Lin v Solomon [2017] NSWCA 328

The appeal was allowed only to remove the cost of air conditioning removal from the damages award. The apprehended bias ground failed because the matters relied upon, viewed alone and together, would not cause a fair-minded observer to apprehend prejudgment; they showed the primary judge attempting to understand and test the appellant's case. The evidence grounds failed because the appellant tendered the letter of demand without seeking a limitation order, so s 60 of the Evidence Act meant the hearsay rule did not apply, and there was in any event abundant evidence of arrears and admissible business-record evidence. The damages grounds largely failed because the respondents proved the...

Jurisdiction
Australia
Judgment Date
15 December 2017
Procedural Posture
Civil Appeal / Appeal From a District Court of New South Wales Decision Delivered on 16 December 2016, Including Refusal of a Recusal Application, Judgment for the Respondents on a Lease Guarantee Claim, and Dismissal of the Appellant's Cross Claim for Misleading or Deceptive Conduct.
Outcome
Appeal allowed in part.
Legal Topics
['procedural Fairness' 'apprehended Bias' 'judicial Recusal' 'hearsay' 'evidence Act S 60' 'business Records' 'lease Guarantee' 'damages for Breach of Lease' 'mitigation' 'misleading or Deceptive Conduct' 'reliance on Representations']
['administrative Law' 'evidence' 'contracts' 'fair Trading'] ['procedural Fairness' 'apprehended Bias' 'judicial Recusal' 'hearsay' 'evidence Act S 60' 'business Records' 'lease Guarantee' 'damages for Breach of Lease' 'mitigation' 'misleading or Deceptive Conduct' 'reliance on Representations']

Case Brief

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Procedural Posture

Civil Appeal / Appeal From a District Court of New South Wales Decision Delivered on 16 December 2016, Including Refusal of a Recusal Application, Judgment for the Respondents on a Lease Guarantee Claim, and Dismissal of the Appellant's Cross Claim for Misleading or Deceptive Conduct.

Legal Issues

  1. 1 ['Whether the primary judge erred in declining to recuse herself for apprehended bias.' 'Whether the primary judge erred in allowing a letter of demand tendered by the appellant without limitation to be used as evidence of unpaid rent and outgoings.' 'Whether the primary judge erred in quantifying damages for breach of the lease, including unpaid rent and outgoings, mitigation, make good costs, hoarding costs and air conditioning removal costs.' "Whether the primary judge erred in dismissing the appellant's cross-claim alleging misleading or deceptive representations by the respondents' leasing agent."]

Ratio Decidendi

The appeal was allowed only to remove the cost of air conditioning removal from the damages award. The apprehended bias ground failed because the matters relied upon, viewed alone and together, would not cause a fair-minded observer to apprehend prejudgment; they showed the primary judge attempting to understand and test the appellant's case. The evidence grounds failed because the appellant tendered the letter of demand without seeking a limitation order, so s 60 of the Evidence Act meant the hearsay rule did not apply, and there was in any event abundant evidence of arrears and admissible business-record evidence. The damages grounds largely failed because the respondents proved the...

Court Disposition

Appeal allowed in part.

Orders

  • ['Appeal allowed in part.' 'Set aside order 2 entered on 16 December 2016 and in lieu thereof order that the appellant pay the respondents the sum of $602,178.35 plus interest from 16 December 2016.' 'The appellant to pay the costs of the respondents in this Court as agreed or assessed.' 'Registrar of this Court is...