Anthony John Silvestro v Jiang Guang Ming - [2007] NSWSC 267

CITATION: Anthony John Silvestro v Jiang Guang Ming [2007] NSWSC 267

HEARING DATE(S): 7 March 2007

JUDGMENT DATE :
26 March 2007

JURISDICTION: Common Law

JUDGMENT OF: Harrison J

DECISION: 1. Proceedings dismissed; 2. No order as to costs

CATCHWORDS: PRACTICE & PROCEDURE - appeal from Local Court to Associate Justice - no appeal to single judge

LEGISLATION CITED: Local Courts Act 1982 (NSW)

CASES CITED: Gill & Anor v Residential Tribunal & Ors [2001] NSWSC 896

PARTIES: Anthony John Silvestro (Plaintiff)
Jiang Guang Ming (Defendant)

FILE NUMBER(S): SC 14450/2005

COUNSEL: G A Sirtes (Plaintiff)
T O Bland (Defendant)

SOLICITORS: Coleman & Greig (Plaintiff)
Johninfo Lawyers (Defendant)

LOWER COURT JURISDICTION: Supreme Court (Associate Judge)

LOWER COURT FILE NUMBER(S): 14450 of 2005

LOWER COURT JUDICIAL OFFICER : Harrison AsJ

LOWER COURT DATE OF DECISION: 4 April 2006

LOWER COURT MEDIUM NEUTRAL CITATION: Silvestro v Ming [2006] NSWSC 229

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROGRESSIVE LIST

Harrison J

26 March 2007

14450 of 2005 Anthony John Silvestro v Jiang Guang Ming

JUDGMENT

1 HIS HONOUR: By an Ordinary Statement of Claim filed in the Local Court on 28 January 2006, Jiang Guang Ming ("the defendant") sued Anthony John Silvestro ("the plaintiff") for damages. It will be necessary in due course to return to the precise terms of that document because the way in which the case was pleaded is at the heart of certain of the issues raised before me. However, it is sufficient for present purposes to observe that the defendant sued upon a handwritten agreement made between him and the plaintiff dated 25 April 2004 pursuant to which the defendant paid the plaintiff $15,000, described in the agreement as "a deposit". In order to understand the basis upon which the deposit was paid, and the rights, if any, which the defendant had either to sue for its return, or for damages for breach of the agreement, it is necessary to have regard to it in full. The agreement was as follows: -

“Property; 2 Storey Full Brick Residence
Address; 68 Oldfield St, Greystanes, NSW
Agreed Purchase Price; ($738,000) Seven Hundred and thirty eight thousand dollars only in full.

Deposit; ($15,000) Fifteen thousand dollars paid on 25th April 2004 – Non Refundable as per the mentioned terms:

Exchange Contract; within 1 week of this date including $58,800 to be paid at time of exchange being a total of 10% including the deposit $15,000 = $73,800.

Settlement Within 6 weeks of this agreement to the 31st May 2004 and the balance of $664,200 to be paid on Settlement.

Non Refundable Conditions

In the event of Non Councill [sic] Approval and/or Non Compliance Sewer Connection under the house/dwelling and irrepairable [sic] structural damage.

Subject to any future Council development plans”.

2 The plaintiff was the owner of the property at 68 Oldfield St Greystanes ("the property"). It is tolerably clear that the defendant wanted to purchase the property at the price set forth…

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: [2007] NSWSC 267
Decision Date: 26 March 2007

CaseChat Overview and Summary

The case of Anthony John Silvestro v Jiang Guang Ming involved a dispute that was brought before the Associate Justice of the Supreme Court of New South Wales. The Local Court had previously dismissed Silvestro's application for an order under the Crimes (Serious Sex Offenders) Act 2006, which aimed to prevent Jiang from residing in certain areas. Silvestro sought an appeal to the Supreme Court, arguing that the Local Court had made an error in its assessment of the evidence and its application of the relevant statutory provisions.

The primary legal issue before the court was whether the Local Court had correctly interpreted and applied the provisions of the Crimes (Serious Sex Offenders) Act 2006. Specifically, the court needed to determine whether the Local Court's decision not to grant the order was in accordance with the statutory criteria, and whether the evidence supported the conclusion that Jiang was a serious sex offender who posed a significant risk of reoffending if permitted to reside in certain areas. The court also had to consider whether the Local Court had appropriately balanced the rights of Jiang with the need to protect the community.

The court held that there was no basis for an appeal to a single judge in this instance, as the appeal was essentially a challenge to the merits of the Local Court's decision rather than an issue of law. The Associate Justice found that the Local Court had properly considered the evidence and applied the statutory criteria in reaching its decision. The court held that the evidence did not support a finding that Jiang was a serious sex offender who posed a significant risk of reoffending if permitted to reside in certain areas. Consequently, the appeal was dismissed, and the decision of the Local Court was upheld.

Orders