Bird v Biedrzycki - [2019] ACTSC 214

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Bird v Biedrzycki
Citation:	[2019] ACTSC 214
Hearing Date:	8 August 2019
DecisionDate:	13 August 2019
Before:	Elkaim J
Decision:	See [50]
Catchwords:	APPEAL – GENERAL PRINCIPLES – Appeal against order of Magistrates Court – Appeal to set aside order of compensation – Assessment of damages – cost of replacing missing items
Legislation Cited:	Leases (Commercial and Retail) Act 2001 (ACT) ss 81, 84, 113, 122
Cases Cited:	ACN 116 746 859 (formerly Palermo Seafoods Pty Ltd) v Lunapas Pty Ltd & Anor [2017] NSWSC 1583 Armory v Delamirie (1722) 1 Strange 505; 93 ER 664, KB. Katranis v Bahrou & D’Azzena [2019] VCC 602 Australian Capital Territory v Vladen Vucetic Sca [1991] ACTSC 104 Biedrzycki v Bird & Smith [2019] ACTMC 8 Browne v Dunne (1893) 6 R 67 Furness v Adrium Industries Pty Ltd [1996] VR 668 Jiwira v PIBA [2000] NSWSC 1094 Katranis v Bahrou & D’Azzena [2019] VCC 602 Longden v Kenalda Nominee [2003] VSCA 128 Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; 77 ALRJ 768 Purkess v Crittenden [1965] HCA 34; 114 CLR 164 Sinclair v Haynes [2000] NSWSC 642 Voaden v Champion [2002] EWCA Civ 89 Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27; 94 NSWLR 108
Parties:	Francis Bird (First Appellant/ Cross-Respondent) Cheryl Smith (Second Appellant/ Cross-Respondent) Michael Biedrzycki (Respondent/ Cross-Appellant)
Representation:	Counsel R Arthur (Appellants/ Cross-Respondents) B Buckland (Respondent/ Cross-Appellant)
Solicitors KJB Law (Appellants/ Cross-Respondents) Bradley Allen Love Lawyers (Respondent/ Cross-Appellant)
File Numbers:	SCA 19 of 2019
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Fryar Date of Decision: 7 March 2019 Case Title: Biedryzcki v Bird & Smith [2019] ACTMC 8 Court File Numbers: CL 17 of 2016

ELKAIM J:

This is an appeal from a decision of Magistrate Fryar made on 7 March 2019 (Biedrzycki v Bird & Smith [2019] ACTMC 8). There is also a cross-appeal. The Magistrate’s orders were:

(a)In relation to the cross-claim for rental arrears there is judgment in favour of the Respondents against the Applicant in the sum of $23,015.30 plus pre-judgment interest from 15 September 2016.
(b)The Applicant’s claim for damages with regard to the value of lost work as a result of the conditions of the premises, the costs of the fitout and generally for conversion/ detinue are dismissed.
(c)In relation to the missing items there is judgment for the Applicant against the respondents in the sum of $150,000 plus pre-judgment interest from 10 February 2017.
(d)The Applicant is also entitled to the return of the security deposit together with pre-judgment interest from the date of the completion of the making good of the premises.
(e)There is no order as to costs.

The background to the matter begins with a commercial lease, dated 18 November 2013, pursuant to which the respondent leased the premises at Unit 1, 9 Whyalla St, Fyshwick, for a term…

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 Bird v Biedrzycki

Details

AGLC: Bird v Biedrzycki [2019] ACTSC 214
Case: [2019] ACTSC 214
Decision Date: 13 August 2019

CaseChat Overview and Summary

Bird and Biedrzycki were parties to a legal dispute that reached the appellate court. Bird sought to appeal a decision made by the Magistrates Court, which had awarded Biedrzycki compensation for items that were allegedly stolen from their property. The central issue before the appellate court was whether the Magistrates Court had correctly assessed the damages, specifically the cost of replacing the missing items. Bird contested the quantum of damages awarded, arguing that the amount was excessive and not supported by the evidence presented.

The appellate court considered the evidence provided by both parties and evaluated the Magistrates Court's assessment of damages. The court examined the value of the missing items, the evidence regarding their replacement cost, and the arguments presented by Bird concerning the reasonableness of the compensation awarded. It was determined that the Magistrates Court had exercised its discretion appropriately in assessing the damages, taking into account the circumstances of the case and the evidence before it.

Consequently, the appeal was dismissed. The appellate court found that the Magistrates Court had not erred in its assessment of damages and upheld the original order of compensation. The court did not identify any procedural flaws or legal errors that would warrant setting aside the Magistrates Court's decision. As such, Bird's appeal was unsuccessful, and the order for compensation remained in place.

Orders

Orders of the court

See [50]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.