Stambolziovski v Nestorovic and Camanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate

Court of Appeal (NSW)|2015-10-02|Before: Beazley P, Ward JA

Background

The background to the proceedings can be briefly stated.
Sasha entered into a standard form residential tenancy agreement in respect of the Ramsgate premises for a six month term commencing on 1 May 2009. It was a term of the agreement that no more than one person might ordinarily live in the premises at any one time. The landlord was identified on the form as M Nestorovic. It was not disputed that this was a reference to Ms Nestorovic's father, Mr Mladen (Mick) Nestorovic (to whom I will refer as Mick).
The premises were described in the tenancy agreement by reference only to the street address of the premises and there was some uncertainty (at least at the hearing of the appeal) as to whether the external laundry in which Mrs Stambolziovski fell was part of the demised premises or not. That uncertainty arose because there was a separate "granny flat" at the Ramsgate address that at all material times was occupied by Mr Aleksandar Nestorovic, Ms Nestorovic's brother, and there was evidence that the external laundry was used for storage of tools by Mick, a retired handyman who had done a lot of plumbing work over about 30 years. There was also evidence that Mick visited the premises once or twice a week to see his son (Aleksandar) and that he used the external toilet on occasions. Therefore, whether by some form of unspoken arrangement or otherwise, it was clear that Sasha, as tenant of the Ramsgate premises, did not have exclusive use of the external laundry area.
There was also some confusion on the part of Mrs Stambolziovski at the hearing before the primary judge as to whether she and her husband were residing at their son's house at the time of the accident. That confusion may have arisen because they were in the process of moving in to live with their son at around that time. (The subsequent residential tenancy agreement commencing on 2 July 2010, presumably to regularise the position, made provision unlike the first for no more than four persons ordinarily to live in the premises.)

Pleadings

Mrs Stambolziovski alleged that the injury, loss and damage sustained by her as a result of the accident were caused by the negligence of Ms Nestorovic and/or Camanaro Prestige Properties, that negligence being particularised (at [8] of the pleading) as follows: 1. failing to take reasonable steps to ensure that the external laundry was safe; 2. failing to keep the external laundry in a state of good and serviceable repair; 3. failing properly to maintain the toilet; 4. failing to ensure that water did not leak from the toilet (or its plumbing); 5. failing to take reasonable steps to ensure that the tiles covering the laundry floor were not unduly slippery, particularly when they became wet; 6. failing promptly to repair the toilet (or its plumbing) upon receipt of notice of the leak from the tenant; and 7. failing to take reasonable steps to prevent access to, or use of, the external laundry in circumstances where the toilet leak had been brought to its attention by the tenant.
In answer to the whole of the statement of claim, Ms Nestorovic said (at [11] of her amended defence) that: she had engaged Camanaro Prestige Properties to manage the premises; it had never reported any complaints made by Sasha or Mrs Stambolziovski about a leak in the toilet or the toilet's plumbing in the external laundry of the premises (which leak was denied); they had never directly complained to her about a leak in the toilet or the toilet's plumbing in the external laundry of the premises; and that, in the circumstances, she was not liable in negligence or at all. Further in answer to the whole of the statement of claim, Ms Nestorovic said that if, which was not admitted, Mrs Stambolziovski had sustained the injury, loss and damages alleged in the statement of claim, it was caused or contributed to by Mrs Stambolziovski's own negligence ([13]).
Further, Ms Nestorovic invoked s 5H of the Civil Liability Act 2002 (NSW), asserting that if, which was not admitted, Mrs Stambolziovski sustained the injury, loss and damage as alleged in her pleading, then it was caused or contributed to by a risk that would have been obvious to a reasonable person in the position of Mrs Stambolziovski ([15]) and hence was the materialisation of an obvious risk, as a result of which no duty of care was owed to Mrs Stambolziovski ([16]).
Ms Nestorovic further pleaded that: the risk of harm was not foreseeable, was insignificant and, in the circumstances, a reasonable person in Ms Nestorovic's position would not have taken any precautions against the alleged risk of harm ([17]); the probability of any harm occurring was so low that a reasonable person would not have taken any precautions against a risk of harm ([18]); and the accident was not causally related to anything that she did or omitted to do ([19]).
There were three cross-claims filed: the first, by Ms Nestorovic against Camanaro Prestige Properties, seeking among other things damages, an indemnity and/or contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) or an indemnity pursuant to the Managing Agent Agreement between them; the second, by Ms Nestorovic against Sasha, again claiming damages and an indemnity and/or contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act and also for alleged breaches of the residential tenancy agreement between them; and the third, by Camanaro Prestige Properties against Ms Nestorovic, seeking damages, indemnity and/or contribution pursuant to s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act; damages for breach of the Managing Agent Agreement and an indemnity pursuant to the Managing Agent Agreement.

Primary judgment

As noted in the introduction to these reasons, the primary judge dismissed Mrs Stambolziovski's claim. His Honour also dismissed the respective cross-claims. There is no challenge made by any of the cross-claimants in that regard.
His Honour proceeded on the basis (see [2]) that the slip, fall and injury to Mrs Stambolziovski were not in issue and identified the central issue as being whether the injury occurred in circumstances suggesting negligence. His Honour also identified this as a case in which the credit of Mrs Stambolziovski, and to a lesser extent her family members, was critical in determining whether she had discharged her onus of proof since she was alone in the laundry at the time she fell.
His Honour's conclusion at [91] was expressed as follows: I am not persuaded on the balance of probabilities that the plaintiff slipped on water leaking from the toilet, as she alleges. The more likely cause of her fall was water on the floor as a result of her mopping the external laundry. The principal reasons for this conclusion are as follows.
The six reasons that followed may be summarised as follows: 1. that the hospital records were inconsistent with Mrs Stambolziovski's account and provided a contemporaneous record "by as many as three different persons" that she told the hospital people that she slipped whilst cleaning ([92]); 2. that Mrs Stambolziovski's account of her fall was weakened by her having initially reported to have been a visitor rather than a resident at the time of the fall ([93]); 3. that there was an absence of independent evidence that the toilet leaked; that it continued to leak after the accident for many months and that it had been repaired; and no evidence that the flush cone was defective ([94]); 4. that there was an absence of evidence of any real complaint about the leaking toilet after the accident, even when it remained unrepaired ([95]); 5. that a statement of Mick made in December 2012 [in the context of an insurance claim then made in respect of the damages claim] that he was told by Simon that the fall occurred while Mrs Stambolziovski was mopping was consistent with, and in his Honour's view likely to be independent of, the hospital records (his Honour not being persuaded that Mick could realistically or did derive information from the hospital records falsely to invent the conversation) ([96]); and 6. that his Honour's view of Mick (his Honour having earlier concluded at [88] that he was a witness of credit based on the detail of his evidence about conversations, the manner of his testimony, and his apparent lack of financial interest in the result of the proceedings [96]) fortified his Honour's inclination to accept the evidence of the Dimartis rather than the Stambolziovskis as to the nature of the conversations requesting a letter about the leaking toilet (although his Honour was disinclined to put substantial weight on those oral conversations subsequent to the accident) ([97]).
As a result of his Honour's finding that the claim for breach of duty by failing to remedy the leaking toilet, and that this failure caused Mrs Stambolziovski's injury, could not be sustained, his Honour considered there was no utility in considering the alternative submission by the defendants (that there was no breach of duty even on Mrs Stambolziovski's evidence) nor in making any assessment of damages ([98]).

Appeal

Although in Mrs Stambolziovski's notice of appeal the principal relief sought was that the appeal be allowed and there be a judgment in her favour (with the remittal of the matter to the District Court only for the assessment of damages payable to her), in oral submissions on the appeal it was accepted that if the appeal were to be allowed it would be necessary (given the need for credit findings to be made) for the matter to be remitted for hearing also on the question of liability.
There were 14 grounds of appeal. However, at the outset of the hearing of the appeal, the Court was informed that Mrs Stambolziovski no longer pressed grounds 2, 5, 7 and 10 of her grounds of appeal. The remaining grounds are as follows: 1. The primary Judge erred at paragraph 20 in failing to draw an inference against the respondents in accordance with Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389. 3. The primary Judge erred in finding and relying upon there being "no evidence from a repairer and no record of inspection" (paragraph 76) as a matter which told against the appellant's case. 4. The primary Judge erred in finding that there was no direct evidence that the water upon which the appellant slipped was occasioned by a toilet leak: paragraph 76. 6. The primary Judge erred in relying upon the fact that the flush cone had not been provided to the appellant's expert as a matter telling against the appellant's case. 8. The primary Judge erred in finding that Mr Nestorovic [Mick] was a witness of credit and truth: paragraph 88. 9. The primary Judge erred in finding and relying upon a finding that the appellant's case was less worthy of belief because she had a financial interest whereas the respondents did not. 11. The primary Judge erred in finding that the plaintiff slipped and fell on water whilst mopping. 12. The primary Judge erred in using the absence of "independent witnesses" as a circumstance that told against the plaintiff's case. 13. The primary Judge erred in not evaluating the credit of the respondents' [sic] and their witnesses. 14. The primary Judge erred in findings relying upon in a testimonial manner a statement of Mr Nestorovic [Mick] which was admitted as a prior inconsistent statement only.
By notice of contention, Ms Nestorovic seeks the decision of the primary judge to be affirmed on the ground that, on the best evidence presented by Mrs Stambolziovski, there was no evidence that Ms Nestorovic was negligent because there was no evidence that Ms Nestorovic was aware, nor was there any evidence of any basis of which she ought to have been aware, that the cistern leaked.
The second respondent, Camanaro Prestige Properties, has filed a submitting appearance and was not represented at the hearing of the appeal.

Ground 1 - Failure to draw Ferrcom inference

The first ground of appeal raises a complaint as to the refusal by his Honour to draw an inference adverse to Ms Nestorovic arising from the fact that the Telstra technician was asked no questions going to the mechanics of Mrs Stambolziovski's fall, such as questions concerning the state of the floor or whether he had observed any cleaning utensils, such as a mop and bucket, at the scene. Emphasis is placed on the fact that Mr Sogenovski was called to give evidence by Ms Nestorovic and that her Counsel had an opportunity to confer with Mr Sogenovski before he gave evidence.
His Honour (at [20]), referring to a submission made for Ms Nestorovic that the evidence of Mr Sogenovski did not support Mrs Stambolziovski's evidence as to the precise location of her fall or in respect of his presence in the house at the time she went outside, said that he did not regard Mr Sogenovski's evidence as of great weight.
His Honour had already noted (at [18]) that Mrs Stambolziovski did not cross-examine the Telstra technician about his evidence that she was lying in the laundry rather than largely or partly in the toilet room; and that neither party had asked him about the condition of the floor at the time he found Mrs Stambolziovski. His Honour went on (at [20]) to say that the failure by either party to ask questions of Mr Sogenovski as to the condition of the floor surrounding Mrs Stambolziovski led to the conclusion that his evidence on the matter could not help either party.
For Mrs Stambolziovski, it is submitted that a deliberate forensic decision was made for Ms Nestorovic to lead the evidence from Mr Sogenovski in the manner that was done. In that regard, reference was made to the transcript where there was recorded the following exchange between the primary judge and Counsel appearing for Ms Nestorovic at the hearing: HIS HONOUR: … what was the purpose of the evidence of the Telstra employee? IPP: I prefer to deal with that in closing. HIS HONOUR: Unless the parties misunderstood my very brief comment at the end of the examination - IPP: No. That comment, certainly from my perspective, was loud and clear and there were very good reasons why the evidence was led in the way that it was ….
Pausing there, the transcript does not record any comment by the primary judge at the conclusion of Mr Sogenovski's examination (or, for that matter, after the brief cross-examination in which Mr Sogenovski agreed that he had a good look in the laundry). Nor was the Court enlightened in submissions as to the substance of any such comment. Whatever the precise comment to which his Honour was there referring, the significance attributed by Mrs Stambolziovski to the above exchange is that there was a forensic decision made by Ms Nestorovic not to adduce evidence from Mr Sogenovski as to the condition of the laundry floor or whether there was any cleaning equipment there.
The reference to a Ferrcom inference is a reference to what was said by Handley JA in Commercial Union Insurance Company of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E, applying the principles in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 to the situation where a party fails to ask questions of a witness in chief. In that case, his Honour (with whom Kirby P agreed) was of the opinion that the Court should not draw inferences favourable to the insured on matters going to whether it could and would have obtained insurance cover without a particular endorsement (an issue relevant to the question of damages in that case) when no attempt was made to prove those matters by direct evidence, and in particular where no relevant questions were asked of the principal of the insured.
What was put to the primary judge for Mrs Stambolziovski in the present case, was that his Honour should draw the inference that nothing Mr Sogenovski could have said would have assisted the defendants to show that there was no leak from the toilet or that there was cleaning equipment present or that the floor was dry.
For Ms Nestorovic, it is submitted that, since neither party questioned Mr Sogenovski as to what he saw in the laundry, any inference which could be drawn from the failure to do so was bound to be equivocal and that his Honour was not obliged to draw, and did not err in not drawing, a Ferrcom inference.
Mrs Stambolziovski, however, submits that the critical issue in the case was that Ms Nestorovic needed to explain the presence of water on the tiling in the outside laundry and, to do so, needed to prove the presence of a mop and bucket to rebut the suggestion that the water came from a leaking toilet. Thus it was submitted that it was crucial for Ms Nestorovic to obtain evidence from Mr Sogenovski (or any witness at the scene) as to the state of the floor.
There are a number of difficulties with the submission that his Honour erred in not drawing a Ferrcom inference against Ms Nestorovic on this issue.
First, as was made clear in Ferrcom, the drawing of such an inference is an application of the principles in Jones v Dunkel. It is an inference that may be drawn where a party fails to adduce particular evidence that one would have expected that party to adduce and where the failure to do so is not satisfactorily explained. One might expect relevant evidence to be adduced by Ms Nestorovic from a witness who was, colloquially speaking, "in her camp". However, the fact that Mr Sogenovski was called to give evidence by her does not make him in some way "in her camp". Mr Sogenovski was an independent witness who could have been called by either party. It is well recognised that there is no property in a witness. That Ms Nestorovic's legal representatives had conferred with Mr Sogenovski before he gave evidence or that Mrs Stambolziovski's legal representatives had only little notice that he was to be called, is not to the point. There was nothing to preclude an application for a short adjournment for them to confer with him.
Second, as was put to the primary judge, the rule does not permit an inference to be drawn that the uncalled or untendered evidence would in fact have been damaging to the party not tendering it. It cannot be used to fill gaps in the evidence or to convert conjecture and suspicion into inference. Thus it could not be used, as was conceded by Mrs Stambolziovski at the hearing below, to draw an inference in favour of there being a leaking toilet.
Third, the submission that Ms Nestorovic needed to explain the presence of water on the floor assumes that there was water on the floor in the first place and subverts the onus of proof. It was Mrs Stambolziovski who bore the onus of proving both that there was water on the floor where she slipped and that the water came from a leaking toilet. The fact that Counsel for Ms Nestorovic did not question Mr Sogenovski as to his observation of the condition of the floor or as to whether he saw any cleaning equipment at the scene of the accident does not warrant the drawing of an inference adverse to Ms Nestorovic as to either of those two matters.
Ground 1 of the notice of appeal is not made out.

Grounds 3, 4 and 6 - findings relating to claim that toilet was leaking

I turn to consider, as a group, the various complaints made as to matters relating to Mrs Stambolziovski's claim that the toilet was leaking.
Grounds 3 and 4 relate to the statements by his Honour (at [76]) that there was no independent evidence of a leaking toilet; no evidence from a repairer and no record of an inspection; and no direct evidence that the water on the floor on which Mrs Stambolziovski was said to have slipped was occasioned by a toilet leak. (His Honour also noted that there were no photographs of the allegedly leaking toilet.) In effect they challenge the third of the reasons given by the primary judge for the conclusion at [91] of his reasons, namely that there was an absence of independent evidence that the toilet leaked (see [39] above).
Ground 6 is a complaint as to his Honour's statement (at [81]) that the flush cone was not provided to Mrs Stambolziovski's expert who visited the premises to inspect the toilet and laundry to prepare a report on how the accident occurred.
As to ground 3, Mrs Stambolziovski submits that she did not think of bringing proceedings until consulting lawyers in August 2010, by which time the toilet had been fixed and that there would have been no need for photographs to be taken when no proceedings were contemplated. However, that is beside the point. What his Honour was pointing to, at [76], was the lack of independent evidence, i.e., evidence other than the testimony of the Stambolziovski family members, that there was a leaking toilet. That Mrs Stambolziovski may not have thought to obtain such evidence at around the time of the accident or before she says the toilet was fixed does not alter the fact that what this meant in practical terms was that there was simply no such evidence.
The question was not whether the lack of such evidence was a matter which told against Mrs Stambolziovski's case. The question, which his Honour clearly addressed in the paragraphs of which complaint is here made, was whether Mrs Stambolziovski had established on the balance of probabilities that there was a leaking toilet. Evidence of the kind to which his Honour referred would have assisted Mrs Stambolziovski to prove her case. There was none.
Ground 3 is not made out.
As to ground 4, it is submitted for Mrs Stambolziovski that the "finding" (at [76], that there was no direct evidence that the water upon which she slipped was occasioned by a toilet leak) is inconsistent with the fact that the evidence disclosed that, apart from the "mop theory" of the respondents, there was no other source of water in the laundry/toilet; the laundry was used essentially for storage, and there was a fully set up laundry available inside the home and this was generally used. Again, this submission assumes the presence of water.
Mrs Stambolziovski points to the evidence given by her as to the presence of the water on the floor and the evidence given by members of her family (Simon and Sasha) concerning the water leakage and how it commenced behind the toilet in the vicinity of the flush cone and would leak all the way from the toilet area to the laundry area and then outside.
However, the statement the subject of ground 4 must be read in context with what his Honour said at [77], namely that there was no evidence that the toilet had been flushed on the morning of the accident, or of the last time it was flushed, or of the length of time that water remained on the laundry floor after it was flushed. Therefore, even if his Honour accepted that the laundry had not been used as a functioning laundry, there was no evidence to support Mrs Stambolziovski's account that on this particular morning there was water on the floor and that it had emanated from a leaking toilet. Moreover, in circumstances where there was an available alternative explanation (i.e., that she simply tripped on the step) this was not an "either/or" case.
The ambulance/hospital records do, it must be noted, make reference to wet tiles or slipping while cleaning but the difficulty in relying on those records in the respondents' case (about which Mrs Stambolziovski here complains) applies equally in her case.
Ground 4 is not made out.
As to ground 6, Mrs Stambolziovski complains that the drawing of adverse inferences against her for failing to provide the flush cone to her expert, Mr Adams, was in error because Mr Adams was an ergonomist, whose speciality was in the safety of flooring not plumbing. It is said that he could have given no relevant evidence concerning the flush cone. However, what his Honour went on to say (at [81]) was that no expert was called to give opinion evidence as to the integrity of the flush cone and (at [82]) that the only evidence of the condition of the flush cone was that of Mick, who observed no defect in the flush cone that had been tendered.
Read in context, the fact that the flush cone was not given to Mr Adams for comment can hardly be seen as dispositive of the question whether Mrs Stambolziovski had established on the balance of probabilities that the toilet was leaking at the relevant time. The real difficulty for Mrs Stambolziovski was that there was no independent evidence from which one could conclude that the flush cone tendered in evidence, which was said to have been removed from the toilet, was or had at the relevant time been defective (something in effect conceded in Mrs Stambolziovski's submissions in this Court at [64]).
I should add that it is also submitted for Mrs Stambolziovski (in her general complaints as to miscellaneous factual findings without reference to any particular grounds of appeal) that the primary judge did not deal with the submissions concerning the flush cone being of the same type that fitted the relevant toilet or with the submission that the precise effect of a faulty flush cone (leaking upon flushing) was what Mrs Stambolziovski's witnesses had observed. However, again, what [81] and [82] of his Honour's reasons relevantly point to is the lack of independent expert evidence as to the defective (or otherwise) nature of the flush cone that was said to have been removed from the toilet. The fact that the first was of a type that fitted this toilet, or that the mechanism of the leak as described by the Stambolziovski family would be consistent with a faulty flush cone takes the matter no further.
Ground 6 is not made out.

Grounds 8, 9, 12, 13 and 14 - grounds going to credit/independent witnesses

The principal complaint made by Mrs Stambolziovski in relation to his Honour's assessment of the credit of the witnesses from both camps is that his Honour concluded that Mick was a witness of credit (ground 8). It is submitted that his Honour erred in not evaluating the credit of the respondents and their witnesses and erred in using the absence of "independent" witnesses as a circumstance that told against Mrs Stambolziovski's case. Complaint is also made as to the reliance placed by his Honour on Mick's December 2012 statement.
At the outset, it must be said that although it was accepted by Mrs Stambolziovski that findings of credit are difficult to challenge on appeal (reference being made to Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 388; Shimokawa v Lewis [2009] NSWCA 266), there was a singular lack of attention to what would amount to incontrovertible or glaringly improbable evidence such as would warrant appellate intervention in relation to any particular credit-based findings. Mrs Stambolziovski did not point to particular factual findings in this regard nor did she show how any relevant findings were contradicted by incontrovertible evidence or why they were glaringly improbable in light of all the evidence.
The fact that evidence given at trial may be inconsistent with earlier statements, for example, is not sufficient to raise a Fox v Percy argument. Prior inconsistent statements are not on any view of the matter incontrovertible evidence.
What the submissions for Mrs Stambolziovski illustrate is that her complaint lies in the way in which his Honour weighed the conflicting evidence and the fact that his Honour accepted Mick as a witness of credit at all. What seemed to be submitted was that it was that his Honour could not have found Mick to be a witness of credit at all and therefore should have accepted as correct the Stambolziovski version of events wherever that conflicted with his evidence. In a different context, in Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 Beazley JA, as her Honour then was, noted debate in the authorities as to when disbelief in the testimony of a witness may prove positive support for the proposition that the contrary of such testimony is correct (see [111]-[114]). In the present case, even had his Honour disbelieved Mick's evidence as to, say, the request for a letter, this would not have required acceptance of Mrs Stambolziovski's evidence as to the circumstances of her fall.
In written submissions on the appeal, complaint is made that his Honour did not consider many of the submissions made as to why Mick was not a witness of credit; "a number" of those submissions being said to "suggest" that the finding (apparently there referring to the finding that he was a witness of credit) was "glaringly improbable having regard to incontrovertible evidence" (see written submissions at [56]-[57]). Simply labelling evidence "incontrovertible" does not make it so.
For Mrs Stambolziovski, it is submitted that the "difficulties" with Mick's evidence included that: 1. he did not present as an impartial witness; clearly sided with Ms Nestorovic; was keen to get his evidence out and winked at "his" solicitor in the course of trying to get his evidence out; 2. he avoided directly answering questions; 3. he gave evidence which could not be reconciled concerning his knowledge of the proceedings (it being submitted that he had not told the truth about this and had avoided service); 4. the suggestion he had nothing to lose from the proceedings because he had an insurance company was not truthful, at least in the beginning; 5. he had organised a series of statements, including his 11 December 2012 statement (Exhibit K), which made no mention of the conversations with Simon that he was so keen to give oral evidence of throughout the course of his evidence; and 6. his evidence to the effect that there are three sides to a story, his side, their side and the truth.
Pressed in oral submissions to identify the so-called incontrovertible evidence which it was submitted should have led his Honour not to make the credit finding that he did in relation to Mick, Counsel for Mrs Stambolziovski pointed to three matters: the fact that there were statements by Mick that were inconsistent with or different from his oral evidence (pointing to Exhibits L and K); evidence of process servers as to service of court documents in the proceedings below; and what Mick had told another judge (Charteris DCJ) at a directions hearing on 12 December 2012 when the case had been set down for an assessment hearing (referring to the transcript as to what was said by his Honour as to what had happened on an earlier occasion).
None of those matters amounts to incontrovertible evidence inconsistent with any particular findings of fact made by the primary judge; nor is there any basis for saying that a finding that Mick was, overall or on balance, a witness of credit was glaringly improbable by reference to those matters. None of that indicates that the primary judge in any way misused the advantage open to him as a trial judge.
As to the import of the "winking", ultimately it was a matter for the primary judge to assess the manner in which evidence was given. The portions of transcript to which this Court was taken would be consistent, for example, with Mick having a firm belief (correct or otherwise) that the evidence he was able to give would deliver the killer blow to what he clearly regarded as an unmeritorious claim. Similarly, it was for the primary judge to assess whether Mick was being obstructive in answering questions in cross-examination and what should be drawn from that if he was.
As to the evidence to which this Court was taken regarding the attempts to effect service of process, there were two affidavits of attempted service of the statement of claim and particulars of injury on Ms Nestorovic in December 2011 and January 2012. None of those affidavits implicated Mick in any fashion in an attempt to obstruct service of the statement of claim on his daughter. There was a further affidavit of service deposing to service of the originating process on 25 January 2012, service being effected by leaving the documents with a Doug Nestorovic who said that Ms Nestorovic was not there but said he would give them to her.
In September 2012, there was a motion for default judgment for unliquidated damages that a licensed process server deposed he had served on Ms Nestorovic by handing the documents to "Mick". The process server deposed to a conversation with a male occupant working on a motor vehicle at the relevant address, who seems to have accepted service (but somewhat confusingly the affidavit records that he asked that the documents be handed to his mother because he had oily hands). If the male was Mick, then the female to whom the documents were handed could not have been Ms Nestorovic as she is his daughter, not his mother (assuming the deponent of the affidavit had accurately noted the conversation).
In any event, the 2012 affidavit related to service of an application for default judgment, not the originating process. The Court was then taken to the transcript of what occurred before Charteris DCJ on 12 December 2012 after default judgment had been obtained. On that occasion it appears that Ms Nestorovic was present in the Court and that both she and Mick, who was speaking for her, gave answers to his Honour. Ms Nestorovic said that she "never received any mail" and that she "received the subpoena from [her] mother, handed that in, and never heard anything again" (this apparently referring to a subpoena to produce documents that the Court here was informed was served in April 2011). Mick is recorded as confirming that his daughter's position was that she did not receive the original statement of claim and he then said "[w]e assure your Honour that we did not get that, except for the subpoena".
It was submitted that Mick had not told the truth about his knowledge of the proceedings and had avoided service. In my opinion it could not be concluded from the evidence to which this Court was taken that Mick had avoided service of the originating process nor could it be concluded, without more evidence of what "Doug" did with the documents that the process server deposed were left with him, that Ms Nestorovic's denial of receipt of the originating process was false. Any suggestion that from that evidence his Honour should have concluded that Mick was not a witness of credit on any matter of relevance in the proceedings cannot be sustained. It is clear that Mick was there answering a question directed at what his daughter was saying - not as to service of any documents on him (and it was not suggested that any of the documents were served on him personally).
Reference was also made to the statement by Mick, during the exchanges that followed, that he was not aware that if there was insurance cover then the insurance company would conduct the case. Ms Nestorovic herself appears to have told the judge on that occasion that she had an insurance policy and that she had rung up and lodged a claim over the telephone but it would appear from the exchange that this was fairly recent because she said that "we were supposed to ring them back today". It is again not clear what significance can be attributed to these exchanges. It was submitted for Mrs Stambolziovski that "[t]he suggestion that he [presumably, Mick] had nothing to lose from the proceedings because he had an insurance company was not truthful, at least in the beginning". This apparently seeks to discredit evidence given at the hearing (once the insurance position was known) with what Mick had said to Charteris DCJ as to the position in relation to insurance. It is not apparent how any adverse inference could be drawn from the exchanges transcribed on 12 December 2012 as to the insurance position or, which can be inferred from those exchanges, that on the previous occasion there was a belief that there was no insurance. The most that can be gleaned from this is that, until it was suggested to Mick that there might be an insurance policy that covered the claim, he may have believed that the claim was uninsured. How that advances matters in determining his ultimate credit was not made clear.
As to the prior statements, as already noted, they are not incontrovertible evidence of any kind. The fact that Mick did not refer to matters in earlier statements of which he later gave evidence was a matter to be assessed in the context of his evidence as a whole. His Honour addressed the submission that Mick was being an advocate for a particular position because of his desire to give evidence of two conversations with Simon (that are the ones considered in relation to ground 14 in due course) (see [87] of the judgment).
The matters raised by Mrs Stambolziovski as "difficulties" in Mick's evidence were matters that his Honour was in a position to assess, with the benefit of seeing how he gave evidence in the witness box (limited as the conclusions to be drawn from demeanour are, and were acknowledged by his Honour to be).
His Honour gave reasons for accepting Mick as a witness of credit (at [88]); correctly, in my opinion, dismissed the challenge to Mick's credit that was based on the suggestion that he had avoided service (noting that he was not a party to the proceedings); and was clearly aware that Mick had a close familial connection with the owner of the premises ([87]). The view his Honour formed as to Mick's overall credit was clearly open to him.
Ultimately, I am not persuaded that his Honour erred in a way which would permit appellate intervention in relation to any of his finding on his assessment of Mick's credit. Ground 8 is not made out.
Grounds 9, 12 and 13 can be disposed of briefly.
As to ground 9, it was obvious that Mrs Stambolziovski had a financial interest in the outcome of the proceedings. His Honour did no more than note (at [89]) the claim that the respondents did not have any interest in the proceedings, adding that it was not obvious that Ms Nestorovic (as owner) had a financial interest as she was covered by insurance and that while the real estate agent had no insurance its business was conducted in the name of a company, which Mr Dimarti had described as a two dollar company. His Honour's observations in that regard were not of themselves dispositive of anything and did not amount, as it was suggested by Mrs Stambolziovski, to putting the plaintiff in some special class of witness. Ground 9 is not made out.
Ground 12 suffers from the problem already identified when considering grounds 3 and 4. There can be no dispute that this was a case where there were no independent (i.e., non-Stambolziovski family members) witnesses as to the actual circumstances of the fall, other than Mr Stojenovski who was not there when the accident happened and was not asked by either party what his observations were as to the condition of the laundry, and his evidence did not on its face support Mrs Stambolziovski's account as to the location of the fall. Nor were there any independent witnesses as to the state of the toilet or its alleged subsequent repair. That meant, as his Honour said at the outset of his reasons, that crucial to the determination of the dispute was an assessment of the credit of Mrs Stambolziovski and to a lesser extent her family members.
As to ground 13, other than making the credit finding in respect of Mick to which I have already referred, his Honour made relatively few express credit findings. However, that does not mean that he did not evaluate the witnesses' evidence properly.
As to the Stambolziovski family members, his Honour noted areas where he had some doubts as to the reliability of Mrs Stambolziovski's evidence (such as whether she was living at the premises at the time of the accident and whether the request for a letter in relation to the leaking toilet was prompted by a request from her solicitors) in respect of which he considered caution should be adopted when considering that evidence. Those matters indicated a general unreliability in her recollection of the time at which various events had occurred and his Honour's comments were balanced and objectively based. His Honour considered the evidence of her daughter-in-law to be of little value for the reasons expressed at [45]. There is little to be said against that. Implicitly, his Honour did not accept the evidence of Sasha and Simon in respect of the state of the toilet and/or its repair. His Honour also considered that Simon's denial of requesting a letter at the time of the gift of the box of beer was weakened by one aspect of his demeanour when answering the relevant questions but then indicated that he would not place much weight on this ([62]).
As to the defence witnesses, his Honour considered that Mr Dimarti's evidence was unsatisfactory in some respects (see [57]-[58]) and considered that little turned on the honesty (or otherwise) of Mrs Dimarti's evidence ([60]). His Honour made the finding of credit in respect of Mick after considering the various submissions made on behalf of Mrs Stambolziovski contending for a different assessment of his credit.
His Honour ultimately concluded that there were difficulties with both sets of witnesses in respect of the disputed conversations after the accident. While his Honour seems to have preferred Mick's version of events in relation to those conversations to the version given by the Stambolziovski witnesses, his Honour made it clear that he accepted that witnesses' recollections of events could vary and that he was not deciding the claim principally on the basis of the disputed conversations.
His Honour adequately addressed the credit of the respondents' witnesses, having regard to the disputed factual issues. Ground 13 is not made good.
Finally, in this group of challenges to his Honour's reasons, it was contended by ground 14 that his Honour erred in "relying upon in a testimonial manner" a statement of Mick that was admitted "as a prior inconsistent statement only". It is not wholly clear what is meant by "relying upon in a testimonial manner". As I understand it, the complaint is really that his Honour relied on the relevant statement other than as going solely to the credit of Simon.
The statement in question was one that Mick had prepared for the purposes of the insurance claim made on 28 December 2012 (apparently after the query raised when the matter was before Charteris DCJ as to the availability of any insurance for the claim). In that statement Mick said, for the first time, that about a few days after the alleged injury occurred Simon said to him "My missus last week was mopping the floor in the external laundry when she slipped". (It is noted for Mrs Stambolziovski that this was one of the matters identified as a reason for the conclusion at [91] that she had not discharged the onus of proving that she slipped on water leaking from the toilet.)
The circumstances in which that statement was admitted into evidence need to be set out.
Objection was raised at the hearing below when Counsel for Ms Nestorovic sought to adduce evidence from Mick as to a conversation with Simon about the accident that had happened to his wife, Mrs Stambolziovski. The objection was put on the basis that the conversation had not been put to Simon when he was in the witness box. Objection was also taken on that basis as to a question whether in early 2010 Simon had asked Mick for a favour as well as on the basis that it would go only to Simon's credit.
His Honour ruled that evidence of that conversation, or a prior inconsistent statement of Simon, could not be elicited from a person other than Simon unless the requirements of s 43(2) of the Evidence Act 1995 (NSW) had been satisfied.
Following Mick's cross-examination, an application was made to tender the 28 December 2012 statement. There was an objection taken and debate as to its admissibility. Objection was taken primarily to the parts of that statement that had been sought to be led in chief and it was indicated that the primary submission was that this went only to credit. Ultimately an application was made to recall Simon in order to satisfy the requirements of s 43(2) as to the admissibility of a prior inconsistent statement. That then occurred and Mick was cross-examined on the voir dire.
Mick gave oral evidence of a conversation in which he said that Simon told him that his wife had slipped in the back laundry while mopping the floor. Counsel for Mrs Stambolziovski indicated, in response to a question for his Honour, that he was content to tender the 28 December 2012 statement. The statement was recorded as having been admitted without objection (Exhibit L).
The complaint here made is that such evidence was inadmissible as to the truth of the assertion (i.e., that Mrs Stambolziovski had slipped while mopping the floor), it only having been admitted as a prior inconsistent statement of Simon, its only relevance going to Simon's credit. In response, Ms Nestorovic notes that the 28 December 2012 statement was admitted into evidence generally without any restriction and that, once in, that evidence was admitted for all purposes.
Alternatively, Mrs Stambolziovski submits that the statement could be of no weight in the absence of evidence tying such information to an admission by Mrs Stambolziovski. It is submitted that s 60 of the Evidence Act, which provides an exception to the hearsay rule for evidence of a previous representation admitted for a non-hearsay purpose, does not apply in this context as the statement of Simon does not purport to be the re-telling of a representation made to him by Mrs Stambolziovski or anyone else.
It is further submitted that if greater use were intended to be made of it, this should have been flagged so that the court could consider any appropriate application to restrict the use of the statement, for example, pursuant to s 136 of the Evidence Act, reference here being made to Ghebrat v The Queen [2011] VSCA 299; (2011) 214 A Crim R 118 at [47]; Russell v The Queen [2013] VSCA 155 at [29]-[32]. Both of those cases were in the criminal context. In the former, the trial judge was found to have erred in not explaining to the jury the limited purpose (as a foundation for the witness' opinion) that the hearsay evidence was admitted - said to be tantamount to an endorsement of the use of the evidence for a hearsay purpose without any hearsay notice or a ruling that it fell under an exception, including that under s 60. In the latter, the trial judge improperly directed the jury as to the use that could be made of certain evidence where no exception to the hearsay rule had been engaged. Neither case takes the present matter any further.
The objection raised by ground 14 is not as to the admissibility of the 28 December 2012 statement per se. Indeed, as noted above, Counsel for Mrs Stambolziovski ultimately did not object to its tender once s 43(2) had been satisfied. The complaint made is as to its use. The fact that complaint was made in the course of argument that the statement could only go to credit does not limit the use his Honour might properly make of the statement once it was finally admitted or on the equivalent oral evidence given by Mick. No procedural unfairness was shown by reference to the fact that there was no restriction on its admission. It was open to Mrs Stambolziovski, through her Counsel, to make an application to limit its use. He did not. Nor, for that matter, was this a ground of appeal.
In any event, the relevance his Honour seems to have seen in the account given by Mick of this conversation with Simon (see [96]) was principally its consistency with the hospital records, to which I refer in more detail in the context of ground 11 below. His Honour considered it unlikely that Mick had derived information from the hospital records in order falsely to invent that conversation. It may be inferred that his Honour saw the consistency in this evidence as one of the factors that strengthened his view as to Mick's credit generally but the primary use made of this conversation in that context related to the disputed versions of the post-accident conversations on which his Honour expressly disclaimed placing much weight.
It may be accepted that a statement by Simon (who did not witness the accident) to Mick to the effect that Mrs Stambolziovski was injured while mopping the floor, absent any evidence that suggests that his wife had told him this or as to the basis on which he may have formed that conclusion, would have little, if any, probative weight in establishing that this was what had occurred. Simon might simply have conveyed his assumption as to what had happened without any basis for so doing. However, even if his Honour erred in the weight to be placed on such a statement (limited as the weight so placed on it seems to have been) - see [112] above, for the reasons I set out in relation to ground 11, such an error does not affect the principal finding that, on the evidence, Mrs Stambolziovski did not establish that the cause of the accident was water on the floor emanating from a leaking toilet.
Therefore, to the extent that his Honour may have treated the evidence of Simon's prior inconsistent statement as supporting the conclusion that the more likely cause of the accident was that Mrs Stambolziovski slipped while mopping the floor, nothing turns on this for the outcome of the present appeal for the reasons I deal with in ground 11 below.

Ground 11 - error in finding that Mrs Stambolziovski slipped and fell on water whilst mopping

Mrs Stambolziovski contends that his Honour erred in finding that the most likely cause of the accident was that she fell in water whilst mopping. This, in essence, was her principal complaint as to his Honour's findings.
The first point to note is that the principal finding at [91] is that his Honour was not persuaded that Mrs Stambolziovski had slipped on water emanating from the toilet. That finding was sufficient of itself to dispose of the claim. Mrs Stambolziovski failed to discharge the onus of proof she bore.
It is by no means clear that the second sentence in [91] was a separate finding by his Honour, on the balance of probabilities, as to the cause of the accident. Indeed the tenor of the comment suggests to me that what his Honour may have been intending to convey was that, had it been necessary to determine, that is what he would have concluded. In this regard, the reference to "the more likely cause" suggests to me that his Honour was not being definitive in making an actual finding as to the cause. Further, only two of the six stated reasons for his Honour's conclusion related to evidence concerning the question whether Mrs Stambolziovski was mopping the floor.
However, if, contrary to the way I would read it, the second sentence of [91] is to be read as a finding that Mrs Stambolziovski slipped while mopping the floor, then I accept that the hospital notes do not provide reliable support for that conclusion. Apart from the fact that they refer only to Mrs Stambolziovski "cleaning" the bathroom not mopping the laundry (which might be explicable by imprecision in the recording of the history given by Mrs Stambolziovski), the weight that can be placed on them must be low in the absence of evidence of what was said to those who took the history of the accident from Mrs Stambolziovski.

The hospital notes

Before turning to the hospital records, it should be noted that the ambulance notes recorded that Mrs Stambolziovski "slipped on wet tiles". However, there is nothing to indicate whether this was an observation made by the ambulance officer(s) attending at the house or the account given at the time by Mrs Stambolziovski.
The relevant hospital entries were summarised in his Honour's reasons (at [21] and [23]). The first of those, which seems to be an Emergency Department Nursing Assessment Record, apparently incorrectly dated 28 August 2009, recorded that Mrs Stambolziovski was admitted following "Cleaning bathroom + slipped on wet tiles". As his Honour observed, parts of the form appear to have been completed in different handwriting. The time of admission was recorded at 12.05pm that day.
There were then some clinical notes dated 27 August 2009 which, in what seems to be different handwriting again, record that "States she slipped on the bathroom floor (which she was cleaning) onto R hip" and "did not hit head/lose consciousness". It is not clear whether the reference to slipping on the bathroom floor while cleaning was simply a repetition of the previous history or a separate statement of Mrs Stambolziovski there being recorded, although "states" might suggest the latter.
There is a subsequent entry at 3.25pm on the day of the accident, in different handwriting from that referred to in the entry recorded above, noting that the family was assisting Mrs Stambolziovski with translation which includes the note "fall on wet floor".
A procedure checklist before surgery on 29 August 2009 recorded under the heading "current health" "Slipped while cleaning bathroom". Again, it is unclear whether that was a repetition of the previous history or a fresh statement being recorded. The form also notes that Mrs Stambolziovski has "little English".

His Honour's treatment of the notes

His Honour was conscious of the need for caution when considering the import of the hospital records (referring to Mason v Demasi [2009] NSWCA 227 at [2]), particularly in the case of a witness with a limited understanding of English ([30]). His Honour was also alive to the possibility that later references to cleaning in the notes, although written by a different hand, might have been influenced by the earlier records ([30]).
At [31], his Honour said: …In my view the hospital records were evidence of a possible alternative sequence of events. They had the advantage of being contemporaneous but the disadvantage indicated in Mason. They were part of the evidence that needed to be weighed in the balance.
What his Honour ultimately concluded in this regard was that the hospital records (inconsistent with Mrs Stambolziovski's oral account of the accident), provided a contemporaneous record "by as many as three different persons" that she told the hospital people she slipped whilst cleaning ([92]).

Did his Honour err in his treatment of the notes?

Insofar as his Honour appears to have assumed that each of the handwritten notes recorded something separately told by Mrs Stambolziovski to the maker of that note, there is no evidence to support such an assumption. It may well be that the history as to the circumstances of the accident, as recorded the first time, may simply have been repeated in the subsequent hospital notes. That error is one that clearly influenced his Honour's view as to the more likely cause of the accident.
Therefore, I agree with the complaint made by Mrs Stambolziovski that the hospital notes provided no direct support for the suggestion that Mrs Stambolziovski was mopping the floor at the time of the accident. The first reason articulated by his Honour for his conclusion on liability (at [92]) suffers from that difficulty.
However, even if this was a separate finding that had infected the finding made in the first sentence of [91], and I do not think it was, in my opinion there was no substantial miscarriage of justice in the present case since the evidence (leaving aside the import of the hospital records) on the balance of probabilities does not establish that the cause of the accident was water on the laundry emanating from the toilet.
Before explaining why this is so, I should address the reasons why Mrs Stambolziovski says that the remaining five reasons for the conclusion at [91] were flawed.

Reasons why Mrs Stambolziovski says his Honour's conclusion was flawed

Mrs Stambolziovski submits that the second reason is a fragile basis on which to reject her claim because confusion as to whether she was a visitor or resident was understandable given that she had previously lived just down the road. I accept that little weight could be placed on those conflicting accounts but I do not see that this assists Mrs Stambolziovski. The point his Honour seems to have been making at [93] seems to have been that the reliability of Mrs Stambolziovski's account of the fall was weakened by the inconsistency of her evidence as to other matters at the relevant time. His Honour was understandably cautious about accepting the reliability of her evidence in general because of the various instances where her account had changed. However, it is not apparent that much turned on the second of the reasons. His Honour does not go so far as to suggest, for example, that the version initially given by Mrs Stambolziovski (that she was a visitor) might have been prompted by a desire to downplay her familiarity with the laundry.
As to the third reason, namely the absence of independent evidence that the toilet leaked, which I have already addressed, it is said for Mrs Stambolziovski that it is difficult to understand what such evidence could be. The implicit suggestion by his Honour that there might have been photographs of the leak or of the repairs is rejected on the basis that if no proceedings were contemplated at the time this would not have been necessary. That does not, however, meet the difficulty that, whether or not this was understandable, there was a lack of independent evidence which meant that his Honour was ultimately required to determine the matter based largely on findings as to the credit of the respective witnesses. (Somewhat surprisingly, the submissions for Mrs Stambolziovski on this issue appear to concede that there was no evidence that the flush cone was defective - see [64].)
As to the fourth reason, it is submitted that there was no reason to assume that Mrs Stambolziovski would have made a complaint after the accident. Apart from the fact that one would ordinarily expect complaints to be made by or on Mrs Stambolziovski's behalf if she had suffered a serious injury arising from a previously observed fault in the toilet, particularly one that was alleged to have been the subject of prior complaints, his Honour cannot fairly be criticised by pointing to the lack of corroborative evidence of this kind.
The basis on which the fifth and sixth reasons are said to have been flawed have been dealt with already. His Honour's acceptance of Mick as a witness of credit was not shown to be flawed by reference to any evidence that incontrovertibly contradicted any particular aspect of his evidence relevant to an issue in dispute. As noted, his Honour himself indicated that little weight was put on the disputed oral conversations after the accident which was one of the central issues of dispute between the parties.

Conclusion on ground 11

Even if some of the six principal reasons articulated by the primary judge would not, alone or in combination, have led me to the conclusion that the more likely cause of the accident was the mopping of the floor by Mrs Stambolziovski, the conclusion that Mrs Stambolziovski did not establish on the balance of probabilities that the accident was caused by water that had leaked from the toilet was one that was in my opinion clearly correct on the evidence before his Honour.
Leaving aside the accounts of the accident that were recorded in the hospital notes, there was at least a third possible explanation for the accident (one involving no water on the floor at all) and that is to be found in the account recorded as having been given by Mrs Stambolziovski, with the assistance of an interpreter, to Dr Wallace of the accident in May 2011.
Dr Wallace, on whose reports Mrs Stambolziovski relied, recounted in his May 2011 report the history of the accident as being that Mrs Stambolziovski was "walking from the external laundry into the toilet where there was a small step upwards in the tiled floor and as she stepped forward with her left foot, she tripped on the step and slipped and fell to the ground striking her back against a wall".
Dr Wallace's subsequent report, in 2012, again taken with the aid of an interpreter, noted that the history she previously provided had been read back to Mrs Stambolziovski and that she "now states" that the injury happened as follows: "She was walking from the external loungeroom into the toilet when she slipped in some water spilt on the floor and fell to the ground striking her back against a wall. She states that she did not trip on the small step at the entrance to the toilet."
It would appear that both in 2011 and 2012 Mrs Stambolziovski had the assistance of an interpreter in explaining to Dr Wallace what had occurred. Therefore the change in the two accounts is not readily explicable. The significance of the change in the accounts is that the former made no reference to water on the floor.
If the accident could potentially have happened in the way Mrs Stambolziovski told Dr Wallace in 2011 that it did, then it is not correct to suggest, as Mrs Stambolziovski here does, that if there is no support for the "mopping" theory then the explanation for the accident could only be leaking water from the toilet. The mechanics of the fall (i.e., falling forward rather than backwards) would be consistent with a trip on the step leading into the toilet or the laundry itself. The latter would also be consistent with Mr Sojenovski's observation as to her position in the laundry after the accident. Other aspects of Mrs Stambolziovski's account, such as hitting her head on the wall, are inconsistent with the hospital assessment of her physical condition (there being no record of a head injury when she was examined at the hospital and her condition being described as alert and orientated).
In the absence of independent evidence that the toilet was leaking, and in the absence of any evidence (independent or otherwise) as to its use on the day in question or as to when it had last been used, the evidence on which Mrs Stambolziovski relied to establish her claim rested solely on her word as to the cause of the accident. The inconsistencies in her evidence led his Honour understandably to conclude that it needed to be considered with caution.
Thus in my opinion, it cannot be said that Mrs Stambolziovski established that on the balance of probabilities the accident occurred as a result of her slipping in water emanating from a leaking toilet. Even if there was an erroneous finding that the more likely cause was a slip while mopping, and this infected his Honour's principal conclusion that Mrs Stambolziovski did not discharge the onus of proof, there has been no substantial miscarriage of justice such as would permit this Court to remit the matter for a further trial.
In light of the above conclusion it is not necessary to deal with the remaining "miscellaneous" factual errors identified by Mrs Stambolziovski (which are not the subject of any particular ground of appeal).
I would dismiss the appeal with costs.

Notice of contention

The argument put for Ms Nestorovic in relation to her notice of contention is that, on the evidence, the primary judge could never have concluded that there was any negligence on her part, as the owner, because there is no absolute or strict liability in a landlord and the evidence did not establish that she knew of the leak (or was in breach of a duty by not knowing of the leak). Reference is made to Jones v Bartlett [2000] HCA 56; (2001) 205 CLR 160 in this regard.
Mrs Stambolziovski took issue with the ground raised in the notice of contention on the basis that this point was not taken at trial and is contrary to the case put at trial by Ms Nestorovic that Mick was acting as the owner's agent; that he was in effect an undisclosed agent; and that the maintenance agreement was signed by Mick as agent for Ms Nestorovic. Reliance was placed on the concession made at the hearing that he was the agent for his daughter. Mrs Stambolziovski relies on the knowledge of Mick to impute his knowledge of the leaking toilet (from his own use of it) to Ms Nestorovic.
Counsel for Ms Nestorovic made clear on the appeal that there was no attempt to resile from the position taken at first instance that Mick was his daughter's agent. Nor was it suggested that not all of his knowledge should be imputed to her. Therefore, the Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 point goes nowhere.
Rather, for Ms Nestorovic emphasis is placed on the fact that the highest that the evidence rose in this regard was the evidence of Sasha that when he went sometimes to pay the rent he told Mr Dimarti "that there's a leak in the loo". Sasha said that the agent's response was that he should raise the matter with "the owner's son" (presumably, a reference to Aleksandar, Mick's son and Ms Nestorovic's brother). Sasha admitted that he did not do this. There was no evidence that complaint was made to Mick (although, as I have earlier noted, there was evidence by Simon as to Mick's repair of the toilet some time after the accident).
It is submitted for Ms Nestorovic that even, if contrary to the specific findings of the judge, there was a leaky cistern and complaints were made about it to the managing agent, no liability for negligence for failure to repair the toilet can be sheeted home to Ms Nestorovic. It is further noted that there was no evidence as to when the cistern began to leak; no evidence which would suggest that it was a continuous leak (as opposed to, say, a leak that incurred intermittently or only after use); and no evidence that it was a substantial leak.
On the primary judge's findings, Mick was a witness of credit. He denied knowledge of a leak (or for that matter, of having made any repair to the toilet). Unless that denial could be challenged there was no evidence of any relevant knowledge on his part that could be imputed to Ms Nestorovic so as to render her liable for a failure to repair the alleged leak.
Had it been necessary, I would have held that the ground raised by the notice of contention was made good.

Orders

The order I propose is that the appeal be dismissed with costs.
EMMETT AJA: This appeal is concerned with a claim made by the appellant, Mrs Blaga Stambolziovski (Mrs Stambolziovski), that injuries she sustained when she fell in an external laundry of premises situated at Ramsgate were the result of negligence on the part of the respondents. The first respondent, Ms Lilly Nestorovic (Ms Nestorovic), was the owner of the Ramsgate premises. Some part of the Ramsgate premises was the subject of a lease granted by Ms Nestorovic to Mr Sasha Stambolziovski (Mr Stambolziovski), who is the son of the appellant. The essence of the complaint made by Mrs Stambolziovski is that she slipped on water that was present on the floor of the laundry when she entered the laundry for the purpose of using a toilet attached to the laundry. She alleged that the water on the floor was the result of a leak from the toilet and that the presence of the water was the result of a failure by Ms Nestorovic to take reasonable steps to ensure that the external laundry was safe and a failure to ensure that water did not leak from the toilet. She also alleged that the managing agent of the Ramsgate premises (the second respondent) was similarly negligent.
The fact that Mrs Stambolziovski suffered injury as a result of the fall in the laundry was not in dispute. However, both Ms Nestorovic and the managing agent disputed that the fall was the result of water leaking onto the floor from the toilet. Mrs Stambolziovski sued Ms Nestorovic and the managing agent in the District Court. A judge of the District Court found in favour of the defendants and directed judgment for them. His Honour was not persuaded that, on the balance of probabilities, the accident occurred as alleged by Mrs Stambolziovski. His Honour's conclusion was based essentially on an assessment of the credit of witnesses called by the parties and an analysis of probabilities based on the objective evidence, to the extent that there was any.
I have had the advantage of reading in draft form the proposed reasons of Ward JA for concluding that the appeal should be dismissed. I agree with her Honour's conclusions and the reasons for those conclusions. I agree with the order proposed by her Honour.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 October 2015

Civil Liability Act 2000(NSW)

HEADNOTE [This Headnote is not to be read as part of the judgment] On 27 August 2009, Mrs Stambolziovski (the appellant) sustained injuries when she slipped and fell in an external laundry at premises rented by her son. She brought proceedings in the District Court claiming damages for negligence against both the owner of the property, Ms Lilly Nestorovic (the first respondent) and the real estate agent responsible for managing the lease of the property, Camanaro Prestige Properties Pty Ltd trading as Sydneyhome Real Estate Ramsgate Beach (the second respondent) for failing to remedy an allegedly leaking external toilet that was said to have been the cause of the fall. The central dispute between the parties was as to the circumstances of the accident. The appellant's case was that she slipped and fell on wet tiles in the external laundry which had become contaminated with water that had seeped from a nearby external toilet. She was found in the laundry by a technician working at the premises. Evidence was given by her son and husband that the toilet leaked when flushed. The first respondent's father (who performed home handyman duties and had used the toilet and laundry) and brother (who lived in a granny flat on the premises) gave evidence denying that the toilet leaked. The primary judge identified that the appellant's credit, and to a lesser extent that of her family members, was critical in determining whether she had discharged her onus of proof since she was alone in the laundry at the time she fell. The primary judge dismissed her claim. His Honour was not persuaded on the balance of probabilities that the appellant had slipped on water leaking from the toilet. His Honour considered that the more likely cause of her fall was water on the floor as a result of her mopping the external laundry. On appeal, the appellant challenged certain factual findings made by the primary judge, in particular findings regarding whether the toilet was leaking, as well as findings relating to the credit of witnesses, the use made of certain evidence and the primary judge's failure to draw an inference adverse to the first respondent arising from the fact that the technician (who was called by her to give evidence) was not asked questions about the state of the laundry. The first respondent, by notice of contention, sought to affirm the judgment below on the basis that, on the best evidence presented by the appellant, there was no evidence that she was aware, nor was there any evidence of any basis of which she ought to have been aware, that the toilet leaked. The second respondent filed a submitting appearance. Held dismissing the appeal (Ward JA, Beazley P and Emmett AJA agreeing): 1. the primary judge did not err in not drawing a Ferrcom inference ([56] - [58]); the drawing of such an inference is an application of the principles in Jones v Dunkel, it may be drawn where a party fails to adduce particular evidence that one would have expected that party to adduce and where the failure to do so is not satisfactorily explained ([56]); it does not permit an inference to be drawn that the uncalled or untendered evidence would in fact have been damaging to the party not tendering it ([57]). Commercial Union Insurance Company of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 considered. 1. the primary judge did not err in concluding that there was no independent evidence that there was a leaking toilet ([64]); no direct evidence that the appellant slipped on water occasioned by a toilet leak ([68]); and no independent expert evidence as to whether a flush cone in the toilet or said to have been removed from the toilet was defective ([71]-[72]). 2. the appellant did not demonstrate that any of the findings as to the credit of witnesses were contradicted by incontrovertible evidence or that they were glaringly improbable in light of all the evidence ([78]). Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 388; Shimokawa v Lewis [2009] NSWCA 266 referred to. 1. (per Beazley P) Fox v Percy provides a standard of appellate review in respect of a trial judge's findings of fact, rather than creating a threshold that a trial judge must reach before accepting a witness as a witness of credit. The matters of which the appellant complained were matters of credit for the trial judge's determination and did not satisfy any of the tests stated in Fox v Percy ([8]). Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 considered. 1. no unfairness was shown by reference to the fact that there was no restriction on the use to be made of a prior inconsistent statement of the appellant's husband that was admitted into evidence ([111]); to the extent that the primary judge may have treated the evidence as supporting the conclusion that the more likely cause of the accident was that the appellant slipped while mopping the floor, nothing turned on this for the outcome of the appeal ([113]-[114]). 2. the words "the more likely cause" in the primary judge's statement that the more likely cause of the accident was water on the floor as a result of her mopping the external laundry, suggest that this was not a separate finding, on the balance of probabilities, as to the cause of the accident ([117]). 3. insofar as the primary judge assumed that each of the handwritten hospital notes relating to the accident was something separately told by the appellant to the maker of the note, there was no evidence to support such an assumption; that error influenced the primary judge's view as to the more likely cause of the accident ([127]); the hospital notes provided no direct support for the suggestion that the appellant was mopping the floor at the time of the accident ([128]). 4. even if the statement as to the more likely cause of the accident was a separate finding by the primary judge that was in error, there was no substantial miscarriage of justice; the primary judge was correct to conclude that the evidence did not establish, on the balance of probabilities, that the cause of the accident was water on the laundry floor emanating from the toilet; there was no substantial miscarriage of justice such as would permit the Court to remit the matter for a further trial ([129]; [135]; [142]). 5. as to the notice of contention, on the primary judge's findings, unless denial of knowledge of the leak by the first respondent's father could be challenged there was no evidence of any relevant knowledge on his part that could be imputed to the first respondent so as to render her liable for a failure to repair the alleged leak ([150]).

Judgment

BEAZLEY P: I have had the advantage of reading in draft the comprehensive reasons of Ward JA with which I agree. I wish only to make the following short observations in relation to the appeal.
The appellant, in opening the appeal, stated that the principal basis of the appeal was the trial judge's failure, in accordance with the principles in Fox v Percy [2003] HCA 22; 214 CLR 118, to give consideration and effect to incontrovertible evidence in the case that diminished the credit of Mr Mladen 'Mick' Nestorovic. The appellant identified the incontrovertible evidence as statements made by Mr Nestorovic, the father of the first respondent, who was called as a witness in the first respondent's case, which were inconsistent with other evidence.
The inconsistency was said to be that, at an earlier hearing before another District Court judge, Charteris DCJ, Mr Nestorovic denied that the first respondent had been served with the statement of claim. However, there was evidence led at trial and put to Mr Nestorovic that service of the first respondent's statement of claim had been attempted on him on 25 September 2012. He denied any memory of this incident in cross-examination. At [88], the trial judge decided on this issue as follows: "Mr Mick Nestorovic's credit was also challenged on the basis that he had avoided service. I am not persuaded that this occurred. As he was not a party, none of the documents were required to have been served on him. The content of the affidavit of service did not establish that he had been served with the documents. Even if he was served in late September 2012, he appeared in court in December 2012. The circumstances of that service and his evidence about it do not assist me in assessing his credit."
The appellant complained that, having made submissions about these matters, the trial judge failed at [88] to give any real consideration to whether Mr Nestorovic had misled Charteris DCJ. Reference was also made to Mr Nestorovic being partisan in his evidence and in exhibiting a demeanour (in winking at the first respondent's solicitor) such that his Honour should not have accepted his evidence.
Before this Court, the appellant was challenged with the proposition that Mr Nestorovic's statements as to service did not amount to incontrovertible evidence. The appellant then reformulated the submission and contended that Mr Nestorovic's evidence, in light of the other unchallenged evidence, was glaringly improbable and that the trial judge did not take appropriate advantage of his opportunity, in hearing and observing the witness, to deal with these credibility issues (see Fox v Percy at 127).
The matters upon which the appellant relied were not incontrovertible evidence. They were statements in respect of matters that were not central to the question of liability and which merely went to Mr Nestorovic's credit. Nor did the appellant demonstrate that the trial judge had misused his advantage in any way. The credit of both the appellant and her witnesses and the first respondent's witnesses was in issue on the question of liability.

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