Britt v Parcell

Case [2021] NSWDC 464


District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Britt v Parcell [2021] NSWDC 464
Hearing dates: 13-14 May 2021
Date of orders: 14 May 2021
Decision date: 14 May 2021
Jurisdiction:Civil
Before: Neilson DCJ
Decision:

Appeal dismissed. Order applicant pay respondent’s costs on an indemnity basis.

Catchwords:

Appeal – From Small Claims Division of Local Court – Limited right of appeal: only if Local Court acted without jurisdiction or denied procedural fairness – Consideration of statutory scheme – Claim commenced by respondent to appeal, plaintiff in Local Court – Claims for moneys had and received by the defendant to the use of the plaintiff ($9,497) and for the return of a dog, “Harold” – Plaintiff/respondent wholly successful in Local Court.

(1) Animals – a dog is a chattel personal and Local Court had power to order the return of the dog.

(2) Torts – Detinue – elements of demand for return of goods and refusal to comply. Admitted on pleadings. Not argued in Local Court. Could not be an appeal.

(3) Appeal – arguments not raised in Court below. Should not be raised on appeal. Neither errors of law or errors of fact raised an argument about jurisdiction or raise a question of denial of procedural fairness.

(4) Domestic Relationships – as domestic relationship between parties had not persisted for 2 years, no Federal jurisdiction available, and property rights could not be adjusted between parties by any court. Jurisdiction of ordinary courts not affected.

(5) Costs – when appeal should not have been made.

Legislation Cited:

Civil Procedure Act 2005

Companion Animals Act 1988

Dog Act 1966

Dog and Goat Act 1898

Family Law Act 1975

Goods Act 1958 (Vic)

Local Court Act 2007

Sale of Goods Act 1893 (UK)

Sale of Goods Act 1895 (SA)

Sale of Goods Act 1895 (WA)

Sale of Goods Act 1896 (Qld)

Sale of Goods Act 1896 (Tas)

Sale of Goods Act 1908 (NZ)

Sale of Goods Act 1923

Sale of Goods Ordinance 1954 (ACT)

Cases Cited:

Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Limited (No 2) [2009] NSWCA 12

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424

Davenport v Davenport (No 2) [2020] FCCA 2766

Di Gergorio v Ohanessian [2021] NSWDC 100

Downey v Beale [2017] FCCA 316

Edwards v Gilliespie [2020] NSWDC 475

Hatch v Wood-Davies [2006] NSWDC 96

Kojima v Australian Chinese Newspapers [2000] NSWSC 1153

Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631

Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287

Texts Cited:

Bullen & Leake & Jacob's Precedents of Pleadings (Sweet and Maxwell, 13th ed, 1990)

Megarry and Wade, The Law of Real Property (Stevens, 3rd ed, 1966)

Proverbs 26:11

Sutton, the Law of Sale of Goods in Australia and New Zealand (The Law Book Co., 1st ed, 1971)

Category:Principal judgment
Parties: Applicant – Nathan Britt
Respondent – Blaine Parcell
Representation: Counsel:
Applicant – M. Fantin

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Details
AGLC
Britt v Parcell [2021] NSWDC 464
Case
[2021] NSWDC 464
Decision Date

CaseChat Overview and Summary

Britt brought an action against Parcell in the Small Claims Division of the Local Court, seeking the return of a dog named Harold and the recovery of $9,497 on the basis of moneys had and received. The Local Court found in favour of Britt on both claims. Parcell now appeals the decision, arguing that the court erred in ordering the return of the dog and in awarding damages for moneys had and received. The appeal was limited to questions of jurisdiction, errors of law, or procedural unfairness.

The appeal raised issues outside the scope permissible by statute. The court was asked to consider the validity of claims not raised or argued in the Local Court. The claim for the return of the dog, based on the tort of detinue, was admitted on the pleadings and not argued in the Local Court. Similarly, the court was asked to consider the impact of the domestic relationship between the parties on the property rights of the parties, which was neither raised nor argued in the Local Court. None of these issues raised questions of jurisdiction, errors of law, or procedural unfairness.

The court held that the appeal should not have been brought because it did not engage with the limited grounds for appeal permitted by statute. The Local Court had jurisdiction over the claims and did not act without jurisdiction or deny procedural fairness. The appeal raised arguments outside the permissible scope, and the appeal was dismissed. The court ordered that Parcell pay Britt’s costs on an indemnity basis.

Orders

Orders of the court

Appeal dismissed. Order applicant pay respondent’s costs on an indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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