Bagumya v Kakwano - [2010] NSWSC 600

CITATION: Bagumya v Kakwano [2010] NSWSC 600

HEARING DATE(S): 23 April 2010

JUDGMENT DATE :
8 June 2010

JURISDICTION: Common Law

JUDGMENT OF: Rothman J at 1

DECISION:
(i) The application for leave to appeal and the appeal is dismissed;
(ii) The proceedings are dismissed;
(iii) The plaintiff shall pay the defendant’s costs of and incidental to these proceedings, as agreed or assessed;
(iv) The stay order issued by the Registrar on 14 December 2009, in this matter, is, on and from the date of this judgment, set aside.

CATCHWORDS: APPEAL AND REVIEW – appeal from magistrate – contractual dispute – determined by magistrate on facts – not solely question of law – appeal dismissed and leave to appeal dismissed

LEGISLATION CITED: Contracts Review Act 1980
Local Court Act 2007

CATEGORY: Principal judgment

CASES CITED: Agricultural and Rural Finance Pty Limited v Gardiner [2008] HCA 57; (2008) 238 CLR 570
Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322
Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; (2007) 178 A Crim R 220
Rasic v R; Johnny Lee Vella v R; Damien Charles Vella v R [2009] NSWCCA 202
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
The Queen v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co. Pty. Ltd. [1953] HCA 22; (1953) 88 CLR 100
Williams v R [1986] HCA 88; (1986) 161 CLR 278

PARTIES: Rukas Bagumya (Plaintiff)
Thomas Kakwano (Defendant)

FILE NUMBER(S): SC 2009/295580

COUNSEL: Self represented (Plaintiff)
M K Rollinson (Defendant)

SOLICITORS: Self represented (Plaintiff)
Clive Mills & Associates Solicitors (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 8004/08

LOWER COURT JUDICIAL OFFICER : Kok LCM

LOWER COURT DATE OF DECISION: 29 June 2009

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

8 JUNE 2010

2009/295580 Rukas Bagumya v Thomas Kiiza Kakwano
JUDGMENT

1 HIS HONOUR: The plaintiff, Rukas Bagumya, appeals a decision of Magistrate Kok, of 29 June 2009, in which the learned magistrate dismissed Mr Bagumya’s claim for the payment of money said to be owed under a contract.

2 Essentially, Mr Bagumya alleged that he had initially lent to the defendant, Thomas Kakwano, an amount that, with interest, added up to $30,000. This amount was lent over a period of time and, in effect, was part of an arrangement in which Mr Kakwano and/or his father, Ernest Kakwano, requested that Mr Bagumya pay university fees and certain other expenses associated with the study program of Thomas Kakwano in Australia and that those moneys would be repaid. The amount advanced, according to Mr Bagumya, totalled something less than $30,000 and an agreement was reached for the repayment of $30,000 (which included interest up to the end of October 2003, after which further interest would be payable).

3 The learned magistrate, from whom this appeal is brought, considered that she was “unable to find the plaintiff’s claim…

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: [2010] NSWSC 600
Decision Date: 8 June 2010

CaseChat Overview and Summary

Bagumya v Kakwano was an appeal against a decision made by a magistrate in a contractual dispute. The appellant, Bagumya, sought to challenge the decision on the basis that it was a question of law, while the respondent, Kakwano, argued that it was a factual determination. The appeal was heard in the Supreme Court of Victoria. The primary issue before the court was whether the magistrate's decision could be reviewed as a question of law or whether it was purely a factual determination that should not be disturbed on appeal. The court considered the nature of the decision-making process and the extent to which it involved factual findings or legal principles.

The court found that the magistrate's decision was primarily based on factual findings and involved the interpretation of a contract. The court held that the appeal was not solely a question of law, as the appellant had suggested, but rather a mixed question of law and fact. The court further found that the magistrate's decision was not an error of law and that there were no grounds for allowing the appeal. The court dismissed the appeal and denied leave to appeal, affirming the magistrate's decision. The court's reasoning was that the magistrate had carefully considered the evidence and applied the appropriate legal principles in reaching the decision.

As a result of the court's decision, the appeal was dismissed, and the magistrate's decision stood. The court's ruling reinforced the principle that appellate courts are generally reluctant to interfere with factual findings made by lower courts, particularly when they are based on a careful consideration of the evidence. The court also emphasised the importance of distinguishing between questions of law and questions of fact when determining the appropriate scope of appellate review. The final orders of the court were that the appeal be dismissed and that leave to appeal be refused.

Orders