CITATION: Anthony John Silvestro v Jiang Guang Ming [2007] NSWSC 267 HEARING DATE(S): 7 March 2007
JUDGMENT DATE :
26 March 2007JURISDICTION: 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
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…
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- Case
- [2007] NSWSC 267
- Decision Date
CaseChat Overview and Summary
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.
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Decision
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