Anastopoulos v Soulios - [2008] NSWSC 1168

CITATION: Anastopoulos v Soulios [2008] NSWSC 1168

HEARING DATE(S): 28 October 2008

JUDGMENT DATE :
7 November 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) Leave to appeal is refused.
(2) The appeal is dismissed.
(3) The decision of his Honour Magistrate Bugden dated 2 May 2008 is affirmed.
(4) The summons filed 30 May 2008 is dismissed.
(5) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: APPEAL - Local Court - whether parties intended to enter into legal relations

LEGISLATION CITED: Local Courts Act 1982

CATEGORY: Principal judgment

CASES CITED: Allen v Kerr & Anor [1995] Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Baulkham Hills Private Hospital v G R Securities (1986) 40 NSWLR 622
Carr v Neill [1999] NSWSC 1263
Devries v Australian National Railways Commission (1993) 177 CLR 472
Helmos Enterprises Pty Ltd v Jaylor Pty Ltd (2005) 12 BRP 23,021; (2005) Aust Contract R 90-125; [2005] NSWCA 235
Master v Cameron (1954) 91 CLR 353
R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082; (2002) 37 MVR 479
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588
Swain v Waverley Municipal Council (2005) 220 CLR 517

PARTIES: George Anastopoulos trading as Supreme Souvlakia v Peter Soulios trading as Superb Souvlaki Food Services

FILE NUMBER(S): SC 12587/2008

COUNSEL: T Hall (Plaintiiff)
D Bernie (Defendant)

SOLICITORS: J T Law (Plaintiff)
Bayside Lawyers (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 9460/2007

LOWER COURT JUDICIAL OFFICER : Bugden LCM

LOWER COURT DATE OF DECISION: 2 May 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 7 NOVEMBER 2008

12587/2008 - GEORGE ANASTOPOULOS t/as SUPREME SOUVLAKIA v PETER SOULIOS t/as SUPERB SOUVLAKI FOOD SERVICES
JUDGMENT (Appeal decision of Local Court Magistrate

- whether the parties intended to enter into
legal relations)

1 HER HONOUR: By summons filed 30 May 2008, the plaintiff seeks leave to appeal against the decision of his Honour Magistrate Bugden made on 2 May 2008 in the Local Court with file number 9460/07; that the decision of the Local Court on 2 May 2008 be set aside; that judgment be entered in favour of the cross claimant in the Court below and that the matter be remitted to the Local Court for hearing on the question of damages.

2 The plaintiff is George Anastopoulos trading as Supreme Souvlakia (“George Anastopoulos”) who was the defendant/cross claimant in the Local Court. The defendant is Peter Soulios trading as Superb Souvlaki Food Services (“Peter Soulios”) who was the plaintiff/cross defendant in the Local Court. Mr Anastopoulos relied on the affidavits of his solicitor John Tomaras sworn 30 May 2008 and 28 August 2008.

3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73 of the Local Courts Act 1982 permits…

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.

Continue reading Anastopoulos v Soulios

Details

AGLC: Anastopoulos v Soulios [2008] NSWSC 1168
Case: [2008] NSWSC 1168
Decision Date: 7 November 2008

CaseChat Overview and Summary

In the case of Anastopoulos v Soulios, the dispute involved two parties who had entered into an agreement regarding a property transaction. The matter was heard in the Local Court of New South Wales, and subsequently, an appeal was lodged. The central issue before the court was to determine whether the agreement between the parties was intended to be legally binding or if it was merely a social arrangement without legal consequences.

The court had to consider the nature of the relationship between the parties, the context in which the agreement was made, and the language used in the communication. The court examined whether there were any factors that indicated the parties did not intend to create legal relations, such as the informality of the agreement and the social context in which it was made. The court also considered the precedent set by similar cases to understand the general principles regarding the intention to create legal relations in social and domestic agreements.

The court found that the agreement between the parties was not intended to be legally binding. The evidence showed that the agreement was made in a social context, and the language used did not suggest a serious intent to enter into a legally enforceable contract. The court concluded that the parties did not intend to create legal relations, and therefore, the agreement was not binding in law. The appeal was dismissed, and the decision of the Local Court was upheld.

Orders