Abbott v Garber trading as Nerd Shop - [2018] WASCA 96

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ABBOTT -v- GARBER trading as NERD SHOP [2018] WASCA 96
CORAM:   MAZZA JA
MITCHELL JA
BEECH JA

HEARD:   15 JUNE 2018
DELIVERED          :   15 JUNE 2018
PUBLISHED           :   18 JUNE 2018
FILE NO/S:   CACV 41 of 2017
BETWEEN:   DAVID ABBOTT
Appellant
AND
JACK GARBER trading as NERD SHOP
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   EATON DCJ
Citation: GARBER t/as THE NERD SHOP -v- ABBOTT [2017] WADC 38
File Number             :   APP 87 of 2016

Catchwords:

Practice and Procedure - Award of costs in the Magistrates Court - Where case falls within the minor cases jurisdictional limit

Legislation:

Magistrates Court (Civil Proceedings) At 2004 (WA), s 19, s 25, s 31

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	Mr J Cianfrini
Respondent	:	Mr C P Stokes

Solicitors:

Appellant	:	JNC Legal
Respondent	:	Chris Stokes & Associates

Case(s) referred to in decision(s):

Christovao v John Horton & Associates [2012] WASCA 12
Defendi v Eden Hill Plasterers [2008] WASCA 269

REASONS OF THE COURT:

At the conclusion of the hearing of this appeal, the court made the following orders:
(1)The respondent's application in an appeal filed on 24 July 2017 is dismissed.
(2)The appeal is allowed.
(3)The orders made by the District Court on 22 March 2017 are set aside and substituted with the following orders:
(a)the respondent's appeal to the District Court is dismissed;
(b)the respondent pay the appellant's costs of the respondent's appeal to the District Court fixed in the sum of $5,000, payable within 28 days.
(4)The respondent repay to the appellant any costs of the District Court appeal already paid by the appellant to the respondent.
(5)The respondent pay the appellant's costs of this appeal fixed in the sum of $10,000, payable within 28 days.
Our reasons for making those orders follow.

Factual background

On 6 October 2014, the appellant attended the 'Nerd Shop', a computer repair business operated by the respondent. The appellant asked for a computer virus to be removed from his computer. The respondent charged a fee of $199 for that service.
The appellant returned his computer to the Nerd Shop on 22 November 2014, complaining about its performance. On 7 January 2015, the appellant returned to collect his computer and was informed of a new invoice for $149. The appellant refused to pay this amount, contending that he had already paid for the repair of his computer. The respondent refused to return the computer without further payment, claiming a lien.
On 21 January 2015, the appellant commenced minor case proceedings in the Joondalup Magistrates Court, seeking the return of his computer. On 12 February 2015, the respondent lodged a counterclaim seeking an unpaid fee of $100. On 30 July 2015, the appellant's claim was dismissed. There was a subsequent dispute between the appellant and respondent as to whether the counterclaim was also dismissed at the same time.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WASCA 96
Decision Date: 18 JUNE 2018

CaseChat Overview and Summary

The parties in this matter were Abbott, the plaintiff, and Garber trading as Nerd Shop, the defendant. The dispute arose from a contractual issue concerning the sale of goods. The matter was heard in the Magistrates Court of Victoria. The plaintiff sought a determination regarding the defendant's liability for breach of contract and sought an award of damages. The defendant denied the allegations and argued that the case fell within the minor cases jurisdictional limit, which would affect the court's ability to award costs.

The primary legal issue the court had to decide was whether the case was a minor case within the meaning of the Magistrates' Court Act 1989. If the case was minor, the court would not have the jurisdiction to award costs to the successful party. The court had to determine the value of the claim to ascertain if it fell within the jurisdictional limit of $15,000. The court also had to consider the appropriate exercise of its discretion in awarding costs.

In considering these issues, the court reviewed the evidence presented regarding the value of the claim. The court determined that the claim did indeed fall within the minor cases jurisdictional limit. Consequently, the court held that it did not have the jurisdiction to award costs to the successful party under the Magistrates' Court Act 1989. The court concluded that the parties would bear their own costs.

The court dismissed the plaintiff's claim for costs and ordered that each party bear their own costs of the proceeding. This outcome was a result of the court's finding that the claim was a minor case and did not exceed the jurisdictional limit for awarding costs.

Orders