MAILMAN and ORS v ELLISON and ORS

For the reasons I have given, it was in my opinion open to a tribunal of fact to find for the plaintiff upon one or more of the bases advanced for him. In so concluding, I do not of course express any opinion as to whether the tribunal of fact, on that evidence, would reach a conclusion or conclusions favourable to the plaintiff. My conclusion is merely that some such finding would be open.

It follows that the appeal should be upheld. The proceeding should be returned to the Equity Division. The judgment for the defendant should be set aside. The trial judge should, upon the basis that a conclusion for the plaintiff was open, proceed with the hearing. The course to be followed is, of course, to be determined by the trial judge, in conformity with the Act, the Rules and this Court's decision. If it be open to the defendant to call evidence, his Honour may see fit to allow the defendant to elect whether to do so: cf Pt34 R8(4). If the defendant elects to call evidence, then the hearing should proceed to a conclusion