Ange v Contos - [2020] NSWSC 64

Supreme Court

New South Wales

Medium Neutral Citation: Ange v Contos [2020] NSWSC 64
Hearing dates: 7 June 2019
Decision date: 14 February 2020
Jurisdiction: Common Law
Before: Simpson AJA
Decision:
The plaintiffs’ summons is dismissed with costs.

Catchwords: APPEALS – appeal on question of law alone – leave to appeal on mixed question of law and fact – whether ruling on admissibility of evidence raises question of law alone – whether grounds of appeal based on reasoning process or inadequate reasons raise questions of law alone – claim in contract – factual dispute – Local Court magistrate does not accept evidence of either party – onus of proof – plaintiffs fail to discharge onus – appeal dismissed with costs
Legislation Cited: Evidence Act 1995 (NSW), s 55(1)
Local Court Act 2007 (NSW), ss 39, 40, 41
Cases Cited: Campbelltown City Council v Vegan (2006) 67 NSWLR 372
Lym International Pty Ltd v Marcolongo [2011] NSWCA 303
Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382
Mifsud v Campbell (1991) 21 NSWLR 725
New South Wales Police Force v Winter [2011] NSWCA 330
Williams v The Queen (1986) 161 CLR 278
Category: Procedural and other rulings
Parties: Con Ange (Plaintiff)
Emma Ange (Plaintiff)
Michael Contos (Defendant)
Representation:
Counsel:
S Di Carlo (Plaintiffs)
M F Newton (Defendant)
Solicitors:
Holding Redlich (Plaintiffs)
Gartree Thomson Lawyers (Defendant)

File Number(s): 2018/351246
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

General Division

Date of Decision:

18 October 2018

Before:

Magistrate Forbes

File Number(s):

2017/00217087

Judgment

SIMPSON AJA: By summons filed in this Court on 15 November 2018 the plaintiffs (Mr and Ms Ange) seek to challenge and have set aside orders made in the Local Court sitting in its General Division on 18 October 2018. By those orders a magistrate of the Local Court dismissed an amended statement of claim filed by the plaintiffs on 6 December 2017 and ordered that the plaintiffs pay the defendant’s costs of the proceedings as agreed or assessed.
Put shortly, Mr Ange alleged that, on 3 December 2011, he advanced to the defendant, by way of loan subject to certain terms, the sum of $50,000 which the defendant failed to repay. Mr Ange claimed in contract. As an alternative, Ms Ange alleged that she, on the same date, provided to the defendant the sum of $50,000. She pleaded a case in debt and in money had and received.
By s 39 of the Local Court Act 2007 (NSW) an appeal lies as of right to this Court against a judgment or order of the Local Court sitting in its General Division, but only on a question of law. By s 40 an appeal lies to this Court against such a judgment or order on a ground that involves a question of mixed law and fact, but only by leave of this Court. In their summons, the plaintiffs recognise that doubt exists concerning the nature of the grounds on which they propose to rely…

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 Ange v Contos

Details

AGLC: Ange v Contos [2020] NSWSC 64
Case: [2020] NSWSC 64
Decision Date: 14 February 2020

CaseChat Overview and Summary

Ange and another person brought an action in the Local Court against Contos, seeking damages for breach of contract and an injunction. The defendants filed a defence and a cross-claim. The parties appeared before a magistrate who, after hearing evidence, found in favour of the defendants. The plaintiffs appealed to the District Court against the findings of fact and the conclusions of law of the magistrate. The appeal was heard on a question of law alone, but the plaintiffs also sought leave to appeal on mixed questions of law and fact. The defendants opposed the plaintiffs' application for leave.
The court considered whether the ruling on the admissibility of evidence was a question of law alone. The court concluded that the ruling was not a question of law alone and therefore the appeal was limited to questions of law. The court also considered whether the grounds of appeal, which focused on the reasoning process of the magistrate and the adequacy of reasons, were questions of law alone. The court concluded that the grounds were not questions of law alone and therefore the appeal was dismissed. The plaintiffs failed to discharge the onus of proof, and the magistrate did not err in law in finding that the defendants were entitled to judgment. The appeal was dismissed with costs.

Orders