Bessemer v The Owners Corporation of Strata Plan 35054

[2002] NSWSC 734

CITATION:	Bessemer v The Owners Corporation of Strata Plan 35054 & Ors [2002] NSWSC 734
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 12955/01; 13568/01; 13569/01; 13570/01
HEARING DATE(S):	8 & 9 August 2002
JUDGMENT DATE:	22 August 2002
PARTIES :	Ms Lorraine Helen Bessemer (all matters) The Owners Corporation of Strata Plan 35054 (12955/01 & 13568/01) Mr Bruce William Bentley (13568/01 & 13570/01) North Harbour Strata Managers Pty Ltd (13568/01) Ku-Ring-Gai Municipal Council (13569/01 & 13570/01) Mr Alan Cameron (13570/01) Mr Brian Banning (13570/01)
JUDGMENT OF:	Sperling J at 1

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	1363/00 803/00 6615/98 614/00
LOWER COURT JUDICIAL OFFICER :	Mr J McIntosh LCM

COUNSEL :	The Plaintiff in person in all matters Mr B Bentley (solicitor-advocate) for The Owners Corporation of Strata Plan 35054 in matter 12955/01; in person in matters 13568/01 and 13570/01 Mr G McVay for Ku-Ring-Gai Municipal Council in matters 13569/01 and 13570/01 and for Mr Brian Banning in matter 13570/01 Mr A Cameron (by leave) for North Harbour Strata Managers Pty Ltd in matter 13568/01; in person in matter 13570/01
SOLICITORS:	J S Mueller & Co Solicitors for The Owners Corporation of Strata Plan 35054 in matter 12955/01 and Mr Bruce William Bentley in matters 13568/01 and 13570/01 Fox & Staniland Lawyers for Ku-Ring-Gai Municipal Council in matters 13569/01 and 13570/01 and Mr Brian Banning in matter 13570/01
CATCHWORDS:	Appeal from the Local Court on a question of law - no question of principle
LEGISLATION CITED:	Local Courts (Civil Claims) Act 1970, s69
CASES CITED:	Papadopoulos v Tseris (Court of Appeal, 16 March 1997, unreported)
DECISION:	1. In Appeal 13570/01, appeal dismissed, the plaintiff to pay the defendants' costs of the appeal; 2. In Appeal 13568/01, appeal dismissed, the plaintiff to pay the defendants' costs of the appeal; 3. In Appeal 13569/01, appeal dismissed, the plaintiff to pay the defendant's costs of the appeal; 4. In Appeal 12955/01, appeal dismissed, the plaintiff to pay the defendant's costs of the appeal.

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Sperling J

Thursday, 22 August 2002

12955/01 Bessemer v The Owners, Strata Plan 35054
13568/01 Bessemer v The Owners Corporation of Strata Plan 35054 & Ors
13569/01 Bessemer v Ku-Ring-Gai Municipal Council
13570/01 Bessemer v Cameron & Ors

Judgment

1 His Honour:

INTRODUCTORY

2 There are four appeals before the court. In each, Lorraine Helen Bessemer appeals against a determination of the Local Court.

SC File Number	LC File Number	Date of Hearing
12955/01	1363/00 Hornsby	23 August 2001
13568/01	803/00 Hornsby	22 October 2001
13569/01	6615/98 Hornsby	22 October 2001
13570/01	614/00 Hornsby	22 October 2001

3 The appellant was at all relevant times the owner of a strata title unit in a block of units at 44B Ku-Ring-Gai Avenue, Turramurra.

4 The parties to the proceedings in this were as follows:

SC 12955/01 (LC 1363/00)

Plaintiff: Lorraine Bessemer
Defendant: The Owners Corporation of Strata Plan 35054

SC 13568/01 (LC 803/00, 715/97)

Plaintiff: Lorraine Bessemer
Defendants: The Owners Corporation of Strata Plan 35054, Bruce William Bentley, North Harbour Strata Managers Pty Limited.

SC 13569/01 (LC 6615/98)

Plaintiff: Lorraine Bessemer
Defendant: Ku-Ring-Gai Municipal Council

SC 13570/01 (LC 614/00)

Plaintiff: Lorraine Bessemer
Defendants: Alan Cameron, Brian Banning, Bruce William Bentley and Ku-Ring-Gai Municipal Council.

5 In 12955/01, the Owners Corporation of Strata Plan 35054 is sued as “The Owners – Strata Plan 35054”.

6 The above parties were represented as follows on the hearing of the appeals: Ms Bessemer appeared in person; Mr G McVay of counsel appeared for Ku-Ring-Gai Municipal Council and Mr B Banning; Mr B Bentley, solicitor, appeared in person (where sued personally) and for the Owners Corporation of Strata Plan 35054 in 12955/01; Mr A Cameron appeared in person and was given leave to appear for North Harbour Strata Managers Pty Limited.

7 No appearance was announced for the Owners Corporation in 13568/01. That circumstance escaped my attention until this judgment had been fully drafted. In view of the result, the absence of representation for the Owners Corporation at the hearing of the appeal in 13568/01 does not matter.

8 In each case, the appeal is brought pursuant to s 69 of the Local Courts (Civil Claims) Act 1970, which provides for appeal to this Court from the decisions of the Local Court on questions of law.

9 At the commencement of the hearing of the appeals, an application was made by the appellant for an adjournment. The proceedings out of which the appeals arise involved disputes that have arisen between her and the owners corporation. The appellant wished to have the opportunity of applying to this Court for an order quashing a particular resolution of the owners corporation which she said was at the root of the disputes which had arisen. I declined to grant the adjournment because I did not see how the contemplated application could affect the outcome of the appeals. However, I said that if it appeared at a later stage that the appellant might be prejudiced by the appeals proceeding to a conclusion at this stage I would reconsider the question of adjournment. I said that, if no adjournment was ultimately granted, I would give my reasons for refusing the adjournment in the course of my judgment in relation to the appeals. No adjournment was, in the event, granted and I will give my reasons for that in the course of this judgment.

10 The parties and the legal representatives, at my request, compiled a set of pleadings and exhibits tendered below in each matter. These were placed in four separate ring binders and marked compendiously “Exhibit A” on the appeal. The summons and affidavit in support, filed in this court, and in the transcript of the proceedings in the Local Court (already on the court file) completed the record for the purpose of the appeals.

11 As recorded above, three of the Local Court matters were heard on the same day. To some extent, they were heard concurrently. However, when the transcript was typed up from the tape recording of the proceedings, a separate transcript was produced for each matter. The dissection was not entirely successful, but it has been possible to identify those parts of the transcript that relates to each matter.

12 The appeals were heard together without objection, but submissions were taken separately in each matter after some initial discussion.

APPEAL 13570/01

13 By summons filed on 19 November 2001, the appellant appeals against the decision of Mr J McIntosh, magistrate, sitting in the Local Court at Hornsby, in proceedings 614/00. The Local Court proceedings were heard and determined on 22 October 2001.

14 In those proceedings, the appellant, as plaintiff, sued Messrs Cameron, Banning and Bentley and Ku-Ring-Gai Municipal Council for damages to compensate her for liabilities incurred in and in relation to proceedings 191/96 heard and determined in the Hornsby Local Court on 19 May 1997, and for consequential loss and damage.

15 In proceedings 191/96, the proprietors recovered judgment against the appellant on 19 May 1997 for levies in relation to her unit, for damages for damage to the common property, and for interest. Messrs Cameron, Banning and Bentley and the Council were involved in those proceedings in various ways and were alleged to have misled the court in various ways.

16 His Worship’s reasons for decision in proceedings 614/00 commence at p17 of the transcript for proceedings 614/00 on 22 October 2001. After recording that Messrs Cameron and Banning had denied the allegations and that Mr Bentley had filed a defence and an affidavit outlining his role in proceedings 191/96 as solicitor for the proprietors, the transcript reads “Matter interposed” and then matter 614/00 was dismissed. However, the balance of his Worship’s reasons for decision in this matter are to be found in the transcript for proceedings 803/00 heard on the same day. The passage is at page 18 of the transcript for those proceedings where his Worship dealt with aspects of 614/00 and 803/00 together.

17 His Worship held there that, in each of these matters, the issues raised in the allegations against the respective defendants had been decided in the earlier proceedings in relation to which the misconduct was alleged. His Worship held that the appellant was estopped from asserting such misconduct in the two proceedings before him for that reason.

18 His Worship went on to say:

There was no evidence before this Court to support the statements of claim by Mrs Bessemer to the requisite degree, that is on the balance of probabilities and in the light on all the matters I have just mentioned I am of the view that the cases are not made out in 614 and 803.

19 That was a finding that, in those two matters, the appellant had failed to discharge the burden of proving factually the assertions of misconduct alleged in the two proceedings.

Grounds of appeal

20 The grounds of appeal in proceeding 13570/01 are advanced in the appellant’s affidavit sworn on 19 November 2001 in the appeal:

1: The Magistrate erred by trying to hear three matters mixed together at one hearing when each matter was to do with separate issues of misconduct and dishonesty by the defendants.
2: The Magistrate ignored the evidence which was before him and which proved that the defendants lied to the Court and put falsified documents to the Court on 19th May 1997.
3: The Magistrate erred by stopping the plaintiff from giving all her evidence.
4: The Magistrate was wrong in saying that the matters were dealt with by Magistrate Evans, when, in fact, Magistrate Evans had refused to allow the plaintiff to present her evidence and this included evidence from an expert witness which proved the lies and falsified document of the defendants.
5: The Magistrate is wrong in saying that his Court was sitting in appeal when the parties are different, the evidence has not been given previously and the outcome of this case will not change the outcome of the case of 19th May 1997 and the cause of action of May 1997 was to claim money dishonestly for the defendants and the cause of action of this hearing is to obtain compensation for the claimant for the severe emotional and financial harm caused to her by the abuse and dishonesty of the defendants.
6: The Magistrate failed to acknowledge the ongoing crime of the 1st, 2nd and 4th Defendants by their denial of their previous misleadings and lies to the Court on 19 May 1997. The 1st, 2nd, and 4th defendants did not have to give any grounds of defence but their denials altered the outcome by preventing the claimant from obtaining judgement in her favour.
7: The appellant was denied justice.
8: The whole of the decision is appealed.
9: The case is to do with a Civil Claim made by Lorraine Bessemer against four defendants, Allan Cameron, Brian Banning, Ku-ring-gai Council and Bruce Bentley for compensation for the cost to her of their misconduct in misleading, trying to and presenting false documents to Hornsby Local Court on 19 May 1997. The three files heard on 22 October 2001 are 6615/98, 614/00 and 803/00 of Hornsby Court.

Ground 1: The Magistrate erred by trying to hear three matters mixed together at one hearing when each matter was to do with separate issues of misconduct and dishonesty by the defendants.

21 I am not persuaded that the appellant was unfairly prejudiced by the matter being heard with two others in the Local Court.

Ground 2: The Magistrate ignored the evidence which was before him and which proved that the defendants lied to the Court and put falsified documents to the Court on 19th May 1997.

Ground 6: The Magistrate failed to acknowledge the ongoing crime of the 1st, 2nd and 4th Defendants by their denial of their previous misleadings and lies to the Court on 19 May 1997. The 1st, 2nd, and 4th defendants did not have to give any grounds of defence but their denials altered the outcome by preventing the claimant from obtaining judgement in her favour.

22 I will deal with these grounds together.

23 The appellant had the onus of proving the asserted misconduct, that being part of her case. The magistrate was not satisfied that the assertions were correct. He was not bound to find on the evidence before him that the defendants had lied or falsified documents as alleged in relation to the proceedings heard and determined on 19 May 1997. There was no error of law in that regard.

Ground 3: The Magistrate erred by stopping the plaintiff from giving all her evidence.

24 The assertion made against the magistrate is not made out on an examination of the transcript.

Ground 4: The Magistrate was wrong in saying that the matters were dealt with by Magistrate Evans, when, in fact, Magistrate Evans had refused to allow the plaintiff to present her evidence and this included evidence from an expert witness which proved the lies and falsified document of the defendants.

25 The magistrate was not required to make this finding on the evidence before him. There was no error of law in that regard.

Ground 5: The Magistrate is wrong in saying that his Court was sitting in appeal when the parties are different, the evidence has not been given previously and the outcome of this case will not change the outcome of the case of 19th May 1997 and the cause of action of May 1997 was to claim money dishonestly for the defendants and the cause of action of this hearing is to obtain compensation for the claimant for the severe emotional and financial harm caused to her by the abuse and dishonesty of the defendants.

26 The observation that the court was being asked to sit on appeal from the decision in the earlier proceedings cannot have been intended to be taken literally. If it was an error, it was not one that contributed to the result.

Ground 7: The appellant was denied justice.

Ground 8: The whole of the decision is appealed.

Ground 9: The case is to do with a Civil Claim made by Lorraine Bessemer against four defendants, Allan Cameron, Brian Banning, Ku-ring-gai Council and Bruce Bentley for compensation for the cost to her of their misconduct in misleading, trying to and presenting false documents to Hornsby Local Court on 19 May 1997. The three files heard on 22 October 2001 are 6615/98, 614/00 and 803/00 of Hornsby Court.

27 These grounds add nothing further.

Adjournment

28 As to adjournment, the appellant stated in argument that the levies the subject of the earlier proceedings were struck pursuant to or as a result of resolutions of the management committee of the strata plan which were invalid. Other steps had been taken to declare the resolutions invalid. Such other steps had only just proved to be unsuccessful. The adjournment was sought to allow time for an application to this court to declare the resolutions invalid. How the appellant intended to utilise any such decision was not clear.

29 I have given consideration to whether the present proceedings should now be adjourned without decision, pending the outcome of further proceedings as the appellant requests. I refuse the application for two reasons. First, I do not see a reasonable prospect that the course which the appellant proposes to take might be of practical utility to her in relation to this appeal. Secondly, there is a public interest in litigation being determined without undue delay.

Result

30 Insofar as the assertions of misconduct were part of the appellant’s case, she bore the burden of proving that the assertions were correct on a balance of probabilities. Because the assertions were of serious misconduct amounting to criminal behaviour, the magistrate was bound to reject the assertions unless he was satisfied of them to a high standard of satisfaction. That he was not so satisfied on the evidence before him was not an error of law.

31 The alternative basis on which the magistrate dismissed the claim, estoppel, need not be examined. To succeed the appellant had to satisfy the magistrate of the assertions made against the defendants. She failed to do so. That was sufficient to determined the proceedings against her.

APPEAL 13568/01

32 By summons filed on 19 November 2001, the appellant appeals against the decision of Mr J McIntosh, magistrate, sitting on the Local Court at Hornsby in proceedings 803/00. The proceedings were heard and determined on 22 October 2001.

33 In those proceedings the appellant, as plaintiff, sued the proprietors of Strata Plan 35054, for damages for liabilities incurred in and in relation to proceeding 715/97 heard and determined in the Hornsby Local Court on 11 February 1998, and for consequential loss and damage.

34 In proceedings 715/97, the proprietors of Strata Plan 35054 recovered judgment for levies and for interest. Mr Cameron and Mr Bentley were involved in the proceedings in various ways. They and the proprietors were alleged to have misled the court in various ways.

35 His Worship’s reasons for decision appear at pages 17 and 18 of transcript for proceedings 803/00 on 22 October 2001. As I have recorded, his Worship dealt with proceedings 803/00 in conjunction with proceedings 614/00. In each matter, the appellant failed because of his Worship’s holding concerning estoppel arising from earlier proceedings and because his Worship was not satisfied that the allegations of misconduct had been made out factually.

Grounds of appeal

36 The grounds of appeal in proceedings 13568/01 are advanced in the appellant’s affidavit sworn on 19 November 2001 in those proceedings:

1: The Magistrate erred by trying to hear three matters mixed together at one hearing when each matter was to do with separate issues of misconduct and dishonesty by the defendants.
2: The Magistrate erred by giving the other matters precedence and not hearing all the plaintiff’s evidence in this matter.
3: The Magistrate was wrong in saying that this Court was sitting in appeal when two of the three defendants are different, the outcome of this case will not alter the outcome of a matter of 11th February, 1998, and the cause of action of the case of 11 February 1998 was to claim money dishonestly from the plaintiff and the cause of action of this hearing was to obtain compensation for the plaintiff for the severe emotional and financial harm caused to the plaintiff by the defendants’ dishonesty and crime.
4: The Magistrate was wrong in saying that Magistrate Bradd had dealt with the matter when there was no defendant present at Magistrate Bradd’s hearing and no evidence was given in defence at the hearing.
5: The Magistrate erred by ignoring the evidence which was before him of the misconduct and dishonesty of the defendants.
6: The Magistrate failed to acknowledge the ongoing crime of the first and third defendants by their denial of their previous misleadings and lies to the Court on 11th February, 1998. The first and third defendants did not have to give any grounds of defence but their denials altered the outcome of this matter by preventing the plaintiff from obtaining judgement in her favour.
7: The appellant was denied justice.
8: The whole of the decision is appealed.
9: The case is to do with a Civil Claim made by Lorraine Bessemer against three defendants, The Owners Corporation of Strata Plan 35054, Bruce William Bentley and North Harbour Strata Managers Pty Ltd for compensation for the cost to her of their misconduct in misleading, lying to and presenting falsified documents to Hornsby Local Court on 11 February, 1998. The three files heard together at Hornsby Local Court on 22nd October, 2001, are 6615/98, 614/00 and 803/00 of Hornsby Court.

37 This appeal gives rise to similar issues to those arising in appeal 13570/01. Where I reject a ground of appeal for substantially the same reasons as in the case of that appeal, I will say “See 13570/01”.

Ground 1: The Magistrate erred by trying to hear three matters mixed together at one hearing when each matter was to do with separate issues of misconduct and dishonesty by the defendants.

38 See 13570/01 (Ground 1).

Ground 2: The Magistrate erred by giving the other matters precedence and not hearing all the plaintiff’s evidence in this matter.

39 There is nothing to suggest that the magistrate gave other matters precedence to the detriment of proper attention to the present matter. There is nothing in the transcript to suggest that the magistrate refused to receive relevant evidence.

Ground 3: The Magistrate was wrong in saying that this Court was sitting in appeal when two of the three defendants are different, the outcome of this case will not alter the outcome of a matter of 11th February, 1998, and the cause of action of the case of 11 February 1998 was to claim money dishonestly from the plaintiff and the cause of action of this hearing was to obtain compensation for the plaintiff for the severe emotional and financial harm caused to the plaintiff by the defendants’ dishonesty and crime.

40 See 13570/01 (Ground 5)

Ground 4: The Magistrate was wrong in saying that Magistrate Bradd had dealt with the matter when there was no defendant present at Magistrate Bradd’s hearing and no evidence was given in defence at the hearing.

41 The observation complained of was merely preliminary to the magistrate’s statement that he was not sitting on appeal, as to which see 13570/01 (Ground 5).

Ground 5: The Magistrate erred by ignoring the evidence which was before him of the misconduct and dishonesty of the defendants.

Ground 6: The Magistrate failed to acknowledge the ongoing crime of the first and third defendants by their denial of their previous misleadings and lies to the Court on 11th February, 1998. The first and third defendants did not have to give any grounds of defence but their denials altered the outcome of this matter by preventing the plaintiff from obtaining judgement in her favour.

42 See 13570/01 (Grounds 2 and 6).

Ground 7: The appellant was denied justice.

Ground 8: The whole of the decision is appealed.

Ground 9: The case is to do with a Civil Claim made by Lorraine Bessemer against three defendants, The Owners Corporation of Strata Plan 35054, Bruce William Bentley and North Harbour Strata Managers Pty Ltd for compensation for the cost to her of their misconduct in misleading, lying to and presenting falsified documents to Hornsby Local Court on 11 February, 1998. The three files heard together at Hornsby Local Court on 22nd October, 2001, are 6615/98, 614/00 and 803/00 of Hornsby Court.

43 These grounds add nothing further.

Adjournment

44 See 13570/01.

Result

45 The appeal should be dismissed. See 13570/01.

APPEAL 13569/01

46 By summons filed on 19 November 2001, the appellant appeals against the decision of Mr J McIntosh, magistrate, sitting in the Local Court at Hornsby, in proceedings 6615/98. The proceedings were heard and determined on 22 October 2001.

47 In those proceedings, Ku-Ring-Gai Municipal Council sued the appellant for recovery of rates on her home unit. His Worship gave judgment for the Council in its claim, and dismissed a cross-claim by the appellant in which the appellant claimed damages for negligence in allowing its officers to give untruthful information to various courts and to the Strata Schemes Office and for negligence in failure to discharge responsibilities pursuant to Strata Title legislation.

48 His Worship’s reasons for decision are at pages 12 and following of the transcript for 22 October 2001. They may be summarised as follows. The claim for rates and interest was supported by documentation. As for the cross-claim, the conduct alleged in the amended cross-claim was the same as that alleged in proceedings 614/00 and 803/00, in which his Worship had earlier found that the allegations were not made out.

49 Proceedings 614/00 and 803/00 are respectively the subject of appeals in 13570/01 and 13568/01. The decisions in those proceedings were given by his Worship earlier on the same day, 22 October 2001.

Grounds of appeal: the Council’s claim

50 The grounds of appeal in proceedings 13569/01 are advanced in the appellant’s affidavit sworn on 19 November 2001 in those proceedings. I have designated the two parts of Ground 13 as (a) and (b).

1: The Magistrate erred by finding that the grounds of the cross-claim were the same as the grounds for the claims of the files nos. 614/00 and 8003/00 [sic] of Hornsby Local Court when this was not so.
2: The Magistrate ignored the evidence that the plaintiff/cross defendant had colluded with an owners corporation and facilitated burglary of the cross claimant’s unit and theft of a part of her unit.
3: The Magistrate ignored the evidence that the plaintiff/cross defendant was negligent or deliberately dishonest in not ensuring the compliance by the owners corporation with a S317D notice issued to them to make the building comply with fire-safety regulations.
4: The Magistrate ignored the evidence that the cross defendant had participated in the framing and conviction of the cross claimant for allegedly not complying with the S317D notice which, in fact, was issued to the owners corporation and it was their responsibility to do the work needed to comply.
5: The Magistrate ignored the evidence that the cross claimant could not do the work needed to comply with the S317D notice because the notice was not issued to her and further to this the cross defendant itself had refused to give her a building approval which she needed to do the work on common property.
6: The Magistrate ignored the evidence that the cross-claimant could not have been framed or convicted of the offence if the cross-defendant had behaved responsibly and pursued and if necessary convicted the owners corporation for its non-compliance with the Notice.
7: The Magistrate ignored the evidence of the deep and ongoing hurt and anguish suffered by the cross-claimant as a result of the wrongful conviction.
8: The Magistrate ignored the evidence of the further taunt to the cross claimant by her being ordered to pay the cross-defendant for their participation in the framing and conviction.
9: The Magistrate was wrong in finding that Magistrate Evans covered the above misconduct and abuse of the cross-claimant when in fact Magistrate Evans had erroneously found that the cross-claimant had committed the offence and further to this Magistrate Evans accepted a charge of the date of the offence in order to excuse the owners corporation for not complying with the Notice and to enable him to find the cross-claimant guilty of the offence.
10: The Magistrate failed to acknowledge that the cross claim was for compensation for the emotional and financial hurt and damage suffered by the cross claimant because of the negligence and dishonesty of the cross defendant.
11: The Magistrate erred by finding that it was reasonable for the plaintiff/cross defendant to continually sue the defendant/cross claimant for rates and legal costs when she was always trying to pay them and that she didn’t have sufficient money because of the cost to her of their misconduct and crime. The appellant was denied justice.
12: The whole of the decision is appealed.
13: (a) The case is to do with a Statement of Claim made by the Ku-ring-gai Council for alleged outstanding rates of $568.00 against Lorraine Bessemer. The majority, or all, of the money claimed is for legal costs and charges from the other actions taken against the defendant even though she was willing and trying to pay the plaintiff and after informing the plaintiff that they were causing the financial hardships.
(b) The defendant cross claimed for compensation for the cost to her of the plaintiff’s misconduct and crime. The plaintiff asked Hornsby Court to hear this matter with two other Claims made by the defendant at Hornsby Local Court and this disadvantaged the defendant/cross claimant.
This file is no. 6615/98 of Hornsby Court. The other two Claims are file no. 614/00 and 803/00 of Hornsby Court.


Ground 11: The Magistrate erred by finding that it was reasonable for the plaintiff/cross defendant to continually sue the defendant/cross claimant for rates and legal costs when she was always trying to pay them and that she didn’t have sufficient money because of the cost to her of their misconduct and crime. The appellant was denied justice.

Ground 13: (a) The case is to do with a Statement of Claim made by the Ku-ring-gai Council for alleged outstanding rates of $568.00 against Lorraine Bessemer. The majority, or all, of the money claimed is for legal costs and charges from the other actions taken against the defendant even though she was willing and trying to pay the plaintiff and after informing the plaintiff that they were causing the financial hardships.

51 These grounds of appeal relate to the Council’s claim as distinct from the appellant’s cross-claim. They assert no error of law on the part of the magistrate in his determination of that claim. None of the other grounds of appeal relate to the Council’s claim as distinct from the appellant’s cross-claim. Accordingly, subject to the cross-claim, the appeal must fail.

The cross-claim

52 It is necessary to deal only with Ground 1 for the reasons which follow.

Ground 1: The Magistrate erred by finding that the grounds of the cross-claim were the same as the grounds for the claims of the files nos. 614/00 and 803/00 of Hornsby Local Court when this was not so.

53 The magistrate erred in holding that the misconduct asserted by the appellant as the basis for her claim in proceedings 6615/98 was the same as that relied upon in proceedings 614/00 and 803/00. It was not. Counsel properly conceded that this ground of appeal was made out.

54 Counsel argued that a later finding by the magistrate, that he was not satisfied on a balance of probabilities that the cross-claim was made out, stood independently from the assumption that the alleged misconduct was the same as in 614/00 and 803/00. I am not persuaded that this is so.

55 Accordingly, absent any other ground for upholding the decision of the magistrate, the appeal would have to be allowed.

56 It is unnecessary, in these circumstances, to consider the other grounds of appeal. The appellant would be in no stronger position so far as the outcome of the appeal is concerned if any of them were upheld.

Notice of contention

57 Part 51B r18 provides as follows:

Where a defendant wishes to contend that the decision of the tribunal below should be affirmed on grounds other than those relied upon by the tribunal below but does not seek a discharge or variation of any part of the decision of the tribunal below, the defendant need not file a notice of cross-appeal but, within the time limited by rule 17 (2), the defendant must:
(a) file notice of that contention stating, briefly but specifically, the grounds relied upon in support of the contention; and
(b) serve the notice of contention on each other party to the appeal.

58 The grounds on which the Council wished to contend that the decision below should be affirmed were:

a) There was no evidence of the matters alleged in the amended cross-claim.
b) The court below could not reasonably have found the matters alleged in the amended cross-claim on the evidence before it.

59 The court probably has an inherent power to entertain such a contention without a formal notice being filed: Papadopoulos v Tseris (Court of Appeal, 16 March 1997, unreported). The same considerations would, however, apply where notice of contention is given late. In the present case, the contention was raised on the hearing of the appeal without notice.

60 I heard submissions, primarily with a view to ascertaining whether the appellant would be unfairly prejudiced by the court entertaining the Council’s contention without notice to her. I decided she would not be so prejudiced, and I allowed the contention to be argued. I directed that the Council file a notice of contention, effectively enlarging the time for that to be done pursuant to the rules.

61 A notice of contention in terms maternally identical with the above formulation has been filed.

62 I have examined the record of the proceedings before the magistrate. There was in fact no evidence to support the allegations made in the cross-claim. The decision to dismiss the cross claim must accordingly be upheld.

Adjournment

63 See 13570/01.

Result

64 This appeal must be dismissed.

APPEAL 12955/01

65 By summons filed on 22 October 2001, the appellant appeals against the decision of Mr J McIntosh, magistrate, sitting in the Local Court at Hornsby in proceedings 1363/00. The proceedings were heard and determined on 23 August 2001. That was earlier than the date on which the other three matters were heard by him, 22 October 2001.

66 In those proceedings, the proprietors of Strata Plan 35054 sued the appellant to recover levies relating to her unit, and interest. The appellant cross-claimed, claiming damages for untruthful statements allegedly made to various courts and to the Strata Schemes Office, and for negligence causing diminution in the value of her unit. There was judgment for the plaintiffs on the plaintiff’s claim. The cross-claim was dismissed.

67 Mr McIntosh’s reasons for decision appear at pages 18 and following on the transcript for 23 August 2001. His Worship found that the levies were properly payable. He said that he also dismissed the cross-claim (p 24). In response to a comment by the appellant he said (p 25) that he had read the appellant’s affidavit.

68 The grounds of appeal in proceedings 12955/01 are advanced in the appellant’s affidavit sworn on 19 February 2001 in those proceedings:

1: The Magistrate erred by allowing the hearing of this matter to proceed before the determinations of three matters which were already and previously in the Court.
2: The Magistrate erred by stopping the appellant when she tried to inform the Court that the outcome of the three matters which were previously in the Court would affect the evidence of this matter.
3: The solicitor for the respondent misled the Court when he gave information to the Court to the effect that there was no relevant connection between the parties of the three previous matters and this matter.
4: The Magistrate erred by ignoring the information given to the Court by the appellant that there was a relevant connection between the parties of the three previous proceedings and the parties of this proceedings.
5: The Magistrate was continually abrasive to the appellant to the extent that she became too distressed to present pertinent facts to him.
6: The Magistrate erred by stopping the appellant several times when she tried to acquaint the Court with the facts of the matters of this proceedings.
7: The Magistrate stated words to the effect that he was determined to limit the appellant’s evidence and he erred by then limiting the appellant’s evidence.
8: The Magistrate erred by believing that matters in the appellant’s affidavit were not for his consideration as he saw it or that the matters were not relevant.
9: The Magistrate erred by denying the appellant the opportunity to present the evidence that the respondent was obtaining money by deception by raising levies which included unlawful amounts.
10: The Magistrate erred by accepting the untrue evidence of the respondent’s witness, Allan Cameron, when the witness said words to the effect that “no monies were ever used for unlawful purposes”.
11: The Magistrate erred by not allowing the Court to take into account the money which the appellant had paid to the respondent during the time of the matters of the Plaint and which was greater than the amount claimed by the respondent and which was obtained unlawfully by the respondent.
12: The appellant believes that it is appropriate to pay lawful levies but when money is being obtained unlawfully in the guise of levies then it is not appropriate to pay the unlawful amounts.
13: The Magistrate’s decision is erroneous and he, himself, made the erroneous decision possible by allowing the proceedings to be heard at an inappropriate time and by accepting misleading and untrue information and evidence from the solicitor and witness for the respondent and by ignoring and/or limiting the information and evidence from the appellant.
14: The appellant was denied justice.
15: In addition to the above the Magistrate erred by ordering costs to be determined by the Registrar of the Court when the Registrar has no jurisdiction to do so.
16: The whole of the decision is appealed.
17: The case is to do with a Statement of Liquidfied [sic] Claim made by the Owners-Strata Plan No. 35054, the respondent, against Lorraine Bessemer, the appellant for levies which it alleges, falsely, were struck pursuant to the Strata Schemes Management Act, 1996 and which the respondent claims have not been paid by the appellant. It is the fifth claim made by the respondent against the appellant since December 1993. All five claims are falsified.
The three proceedings previously in Hornsby Local Court and which need to be determined before an informed decision can be made on this proceedings are to do with the falsifications of claims and deceit of Courts by the respondent at times before the times of this proceedings.
18: The untoward and possibly criminal behaviour of the respondent has caused serious emotional, moral and financial harm to the appellant.


Application for adjournment of proceedings before the Local Court.

Ground 1: The Magistrate erred by allowing the hearing of this matter to proceed before the determinations of three matters which were already and previously in the Court.

Ground 2: The Magistrate erred by stopping the appellant when she tried to inform the Court that the outcome of the three matters which were previously in the Court would affect the evidence of this matter.

Ground 3: The solicitor for the respondent misled the Court when he gave information to the Court to the effect that there was no relevant connection between the parties of the three previous matters and this matter.

Ground 4: The Magistrate erred by ignoring the information given to the Court by the appellant that there was a relevant connection between the parties of the three previous proceedings and the parties of this proceedings.

69 I will deal with these grounds together.

70 At the commencement of the hearing on 23 August 2001, the appellant applied for an adjournment on the ground that the matter should not be decided prior to the other three matters, which were pending and listed for 22 October 2001. The basis for that application was that the four matters were related and, in particular, that the other three matters, or some one or more of them, gave rise to issues for decision which were material to the present matter.

71 The magistrate refused the adjournment on the ground that the relationship of those issues to the present matter had not been established. That might or might not have been correct but assuming for the purpose of the argument that the magistrate was not correct, the appellant can only succeed here on the ground of wrongful refusal of an adjournment if she was unfairly prejudiced thereby. Without that element the magistrate could not properly have granted the adjournment irrespective what other reasons were advanced.

72 There was nothing before the magistrate on which any such unfair prejudice could be found. In particular, there was no suggestion that the appellant was not ready to deal with whatever issues arose in the proceedings then before the court, notwithstanding that they also arose for determination at the later time, if that be the fact, or that having to deal with any such issues twice over would be seriously burdensome or costly for the appellant.

The Council’s claim

73 I will now deal with the grounds of appeal relating to the Council’s claim. Some of these grounds may relate to the cross-claim as well. I will deal with them here in their totality.

Ground 5: The Magistrate was continually abrasive to the appellant to the extent that she became too distressed to present pertinent facts to him.

Ground 6: The Magistrate erred by stopping the appellant several times when she tried to acquaint the Court with the facts of the matters of this proceedings.

Ground 7: The Magistrate stated words to the effect that he was determined to limit the appellant’s evidence and he erred by then limiting the appellant’s evidence.

Ground 9: The Magistrate erred by denying the appellant the opportunity to present the evidence that the respondent was obtaining money by deception by raising levies which included unlawful amounts.

74 These complaints are not supported by the record.

Ground 10: The Magistrate erred by accepting the untrue evidence of the respondent’s witness, Allan Cameron, when the witness said words to the effect that “no monies were ever used for unlawful purposes”.

Ground 11: The Magistrate erred by not allowing the Court to take into account the money which the appellant had paid to the respondent during the time of the matters of the Plaint and which was greater than the amount claimed by the respondent and which was obtained unlawfully by the respondent.

Ground 12: The appellant believes that it is appropriate to pay lawful levies but when money is being obtained unlawfully in the guise of levies then it is not appropriate to pay the unlawful amounts.

75 These issues were impliedly determined against the appellant. It is not shown that, to have done so, was an error of law.

Ground 13: The Magistrate’s decision is erroneous and he, himself, made the erroneous decision possible by allowing the proceedings to be heard at an inappropriate time and by accepting misleading and untrue information and evidence from the solicitor and witness for the respondent and by ignoring and/or limiting the information and evidence from the appellant.

76 These points have been covered.

Ground 15: In addition to the above the Magistrate erred by ordering costs to be determined by the Registrar of the Court when the Registrar has no jurisdiction to do so.

77 This ground of appeal is rejected.

Ground 14: The appellant was denied justice.

Ground 16: The whole of the decision is appealed.

Ground 17: The case is to do with a Statement of Liquidfied [sic] Claim made by the Owners-Strata Plan No. 35054, the respondent, against Lorraine Bessemer, the appellant for levies which it alleges, falsely, were struck pursuant to the Strata Schemes Management Act, 1996 and which the respondent claims have not been paid by the appellant. It is the fifth claim made by the respondent against the appellant since December 1993. All five claims are falsified.
The three proceedings previously in Hornsby Local Court and which need to be determined before an informed decision can be made on this proceedings are to do with the falsifications of claims and deceit of Courts by the respondent at times before the times of this proceedings.

78 These grounds add nothing further.

The cross-claim

Ground 8: The Magistrate erred by believing that matters in the appellant’s affidavit were not for his consideration as he saw it or that the matters were not relevant.

Ground 18: The untoward and possibly criminal behaviour of the respondent has caused serious emotional, moral and financial harm to the appellant.

79 These grounds relate to the cross-claim. The decision on the cross-claim is at page 24 of the transcript. After the Council’s claim was upheld and quantified, the following appears, so far as is material:

BENCH: Is there any order I need to make re their cross claim?
BENTLEY: I think it should be dismissed?
BENCH: Cross claim dismissed.
BENTLEY: The costs I have been talking to cover both the cross claim and the debt of claim your Worship.
DEFENDANT: Your Worship just a minute, you’re allowing this, I’m not allow under the Act to put any, real, any real argument, the pertinent facts to you. That’s why, that’s what, my unit is worthless while that is going on. I can’t sell it, I can’t do anything, we’ve been going--
BENCH: Madam I read your affidavit, that was tendered in the case.
DEFENDANT: But you didn’t take any notice of it.
BENCH: Madam I deal with the matters on the evidence before me, that’s my job.
DEFENDANT: Including the affidavit?
BENCH: Yes.
DEFENDANT: Well the affidavit is true.
BENCH: That is the decision I have made.
JUDGEMENT FOR THE PLAINTIFF, CROSS CLAIM DISMISSED.

80 Ground 18 is a restatement of an element in the cross-claim and provides no ground of appeal on a question of law.

81 As for Ground 8, I take the magistrate’s statement that he had read the affidavit to mean, in context, that he had read it and found it did not support the appellant’s case in relation to the cross-claim.

82 The affidavit was Exhibit 3 in the Local Court proceedings. It did not provide evidence on which the cross-claim could succeed. As for the appellant’s claim for damages for untruthful statement allegedly made to various courts and to the Strata Title office, the appellant’s affidavit asserted only that the plaintiffs had intentionally misled “Local Courts” so as to have those courts order the defendant to pay them money she did not owe. There was no evidence in the affidavit as to what moneys were so ordered and paid.

83 As for the appellant’s claim for damages for diminution in value of her unit, allegedly caused by negligence on the part of the plaintiffs, a diminution in value was said to have arisen because of outstanding levies. The implication was that the levies were negligently struck. But no facts were specified in the affidavit as allegedly constituting “negligence” on the part of the plaintiffs in that regard or any other.

84 Thus it was that, apart from the questions which would have arisen as to the legal basis for the claims in the cross-claim, the appellant’s affidavit did not state facts which made out any such causes of action.

85 The magistrate was bound to hold that the appellant’s cross-claim was not made good, and to dismiss the cross-claim.

Adjournment of the appeal

86 See 13570/01.

Result

87 This appeal must be dismissed.

Orders

88 I make the following orders:

1. In Appeal 13570/01, appeal dismissed, the plaintiff to pay the defendants’ costs of the appeal;

2. In Appeal 13568/01, appeal dismissed, the plaintiff to pay the defendants’ costs of the appeal;

3. In Appeal 13569/01, appeal dismissed, the plaintiff to pay the defendant’s costs of the appeal;

4. In Appeal 12955/01, appeal dismissed, the plaintiff to pay the defendant’s costs of the appeal.

-oOo-

Last Modified: 08/28/2002