Ace Electrical Wholesalers Pty Ltd v Bitar - [2018] NSWDC 360

District Court

New South Wales

Medium Neutral Citation: Ace Electrical Wholesalers Pty Ltd v Bitar [2018] NSWDC 360
Hearing dates: 7, 8 and 9 November 2018
Date of orders: 12 November 2018
Decision date: 12 November 2018
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1) Proceedings dismissed.
(2) Plaintiff to pay the defendant's costs.

Catchwords: JURISDICTION – jurisdiction of District Court
AGREEMENT – partly oral – partly in writing – between family members – assessing credit
Legislation Cited: Civil Procedure Act 2005, s 144
Conveyancing Act 1919, s 23C, s 46, s 54A
District Court Act 1973, Pt 3 Div 8 Subdiv 2, s 44, s 134
Justice Legislation Amendment Act (No 3) 2018
Supreme Court Act 1970
Supreme Court Rules 1970, Pt 14 r 2
Cases Cited: Abbott v Klein [2015] NSWDC 45
Australian Wholesale Meats (Sydney) v S&R Cool Logistics Pty Ltd [2018] NSWSC 1541
Bendigo and Adelaide Bank Limited v Jaeger [2018] NSWDC 244
Commonwealth Bank of Australia v QBE Insurance (Australia) Ltd [2018] NSWSC 1440
Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31; [2015] HCA 43
Forsyth v Deputy Commissioner of Taxation (2007) 231 CLR 531; [2007] HCA 8
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 83
Jefferis v Gells Pty Ltd trading as Gells Lawyers [2018] NSWDC 288
May v Brahmbhatt [2013] NSWCA 309
Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402
New South Wales Land and Housing Corporation v Quinn [2016] NSWCA 338
Nova 96.9 Pty Ltd v Natvia Pty Ltd [2018] NSWSC 1288
Pacific Shoji Pty Ltd v Xia [2018] NSWCA 290
Rogic v Samaan [2018] NSWSC 1464
Sapphire Suite Pty Ltd v Bellini Lounge Pty Ltd [2018] NSWDC 160
Sapphire Suite Pty Ltd v Bellini Lounge Pty Ltd [2018] NSWSC 1366
Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140
Southern Classic Group Pty Ltd t/as Southern Classic Cars v Arch Underwriting at Lloyd’s Ltd on behalf of Syndicate 2012 (No 2) [2018] NSWSC 1530
The NTF Group Pty Ltd v PA Putney Finance Australia Pty Ltd [2017] NSWSC 1194
Tzovaras v Williams [2018] NSWDC 275
Watson v Foxman (1995) 49 NSWLR 345
Category: Principal judgment
Parties: Ace Electrical Wholesalers Pty Ltd (ACN 103 597 002) - plaintiff
Mr Sami Bitar - defendant
Representation:
Counsel:
Mr J O’Sullivan - plaintiff
Ms A Avery-Williams - defendant
Solicitors:
Etienne Lawyers - plaintiff
KPL Lawyers - defendant

File Number(s): 2017/2939
Publication restriction: None

Judgment

1. Introduction

Ace Electrical Wholesalers Pty Ltd jointly owned a property in Heckenberg, New South Wales with Eile Melki, a close friend of Nabeh Bitar, the sole director of Ace. Mr Nabeh Bitar lived next door to the property.
The property was transferred to Mr Nabeh Bitar's nephew, Sami Bitar, pursuant to a transfer signed before a solicitor…

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] NSWDC 360
Decision Date: 12 November 2018

CaseChat Overview and Summary

In the case of Ace Electrical Wholesalers Pty Ltd v Bitar, the plaintiff, Ace Electrical Wholesalers Pty Ltd, sought to enforce a credit agreement against the defendant, Bitar, in the District Court. The dispute centred around the enforceability of an agreement that was partly oral and partly in written form, involving credit terms between family members. The core issue was whether the District Court had the jurisdiction to hear the matter given the nature and circumstances of the agreement.

The legal issue before the court was whether the agreement in question, being partly oral and partly in writing, fell within the jurisdiction of the District Court. The plaintiff argued that the written part of the agreement was sufficient to grant the court jurisdiction, while the defendant contended that the oral components and the familial nature of the agreement meant that the matter should be heard in a different forum.

The court found that the nature of the agreement, particularly its partly oral character and the familial relationship between the parties, was such that the matter should not be heard in the District Court. The court held that the presence of oral terms, coupled with the familial context, meant that the matter was more appropriately dealt with under different jurisdictional provisions. Consequently, the court dismissed the proceedings and ordered the plaintiff to pay the defendant's costs.

Orders

Orders of the court

(1) Proceedings dismissed.

(2) Plaintiff to pay the defendant's costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ace Electrical Wholesalers Pty Ltd v Bitar [2018] NSWDC 360
Hearing dates:	7, 8 and 9 November 2018
Date of orders:	12 November 2018
Decision date:	12 November 2018
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Proceedings dismissed. (2) Plaintiff to pay the defendant's costs.
Catchwords:	JURISDICTION – jurisdiction of District Court AGREEMENT – partly oral – partly in writing – between family members – assessing credit
Legislation Cited:	Civil Procedure Act 2005, s 144 Conveyancing Act 1919, s 23C, s 46, s 54A District Court Act 1973, Pt 3 Div 8 Subdiv 2, s 44, s 134 Justice Legislation Amendment Act (No 3) 2018 Supreme Court Act 1970 Supreme Court Rules 1970, Pt 14 r 2
Cases Cited:	Abbott v Klein [2015] NSWDC 45 Australian Wholesale Meats (Sydney) v S&R Cool Logistics Pty Ltd [2018] NSWSC 1541 Bendigo and Adelaide Bank Limited v Jaeger [2018] NSWDC 244 Commonwealth Bank of Australia v QBE Insurance (Australia) Ltd [2018] NSWSC 1440 Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31; [2015] HCA 43 Forsyth v Deputy Commissioner of Taxation (2007) 231 CLR 531; [2007] HCA 8 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 83 Jefferis v Gells Pty Ltd trading as Gells Lawyers [2018] NSWDC 288 May v Brahmbhatt [2013] NSWCA 309 Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2015] NSWCA 402 New South Wales Land and Housing Corporation v Quinn [2016] NSWCA 338 Nova 96.9 Pty Ltd v Natvia Pty Ltd [2018] NSWSC 1288 Pacific Shoji Pty Ltd v Xia [2018] NSWCA 290 Rogic v Samaan [2018] NSWSC 1464 Sapphire Suite Pty Ltd v Bellini Lounge Pty Ltd [2018] NSWDC 160 Sapphire Suite Pty Ltd v Bellini Lounge Pty Ltd [2018] NSWSC 1366 Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140 Southern Classic Group Pty Ltd t/as Southern Classic Cars v Arch Underwriting at Lloyd’s Ltd on behalf of Syndicate 2012 (No 2) [2018] NSWSC 1530 The NTF Group Pty Ltd v PA Putney Finance Australia Pty Ltd [2017] NSWSC 1194 Tzovaras v Williams [2018] NSWDC 275 Watson v Foxman (1995) 49 NSWLR 345
Category:	Principal judgment
Parties:	Ace Electrical Wholesalers Pty Ltd (ACN 103 597 002) - plaintiff Mr Sami Bitar - defendant
Representation:	Counsel: Mr J O’Sullivan - plaintiff Ms A Avery-Williams - defendant Solicitors: Etienne Lawyers - plaintiff KPL Lawyers - defendant
File Number(s):	2017/2939
Publication restriction:	None