Britt v Parcell

[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
Respondent – P. Boncardo instructed by M. Nott (Goldman Lawyers)

File Number(s):

2020/003262232

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: This is an appeal pursuant to s 39(2) of the Local Court Act 2007. The plaintiff before me, Mr Nathan Britt, was the defendant in the Local Court. The defendant before me, Mr Blaine Parcell, was the plaintiff in the Local Court. To avoid confusion, I shall refer to the moving party in these proceedings as the applicant and the responding party as the respondent. It ought be clear from the legislative provision invoked by the applicant that the proceedings in the Local Court were in the Small Claims Division.

Legislative scheme

2. The appeals procedure for judgments in the civil jurisdiction of the Local Court needs to be considered. The Local Court Act 2007, s 38 provides this:

"Subject to this Division, all judgments and orders of the Court exercising jurisdiction under this Part are final and conclusive".

The following section deals with appeals as of right. It is this:

"39(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with the judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.

(2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on a ground of lack of jurisdiction or denial of procedural fairness".

The next section of the Local Court Act 2007 deals with appeals requiring leave. It is in these terms:

“40(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.

(2) A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court:

(a) an interlocutory judgment or order,

(b) a judgment or order made with the consent of the parties.

(c) an order as to costs".

Section 41 of the Act bears a heading "Determination of appeals" and in (1) provides what orders may be made by the Supreme Court and in (2) provides what orders may be made by this Court.

3. Accordingly, it must be seen that the Local Court Act itself distinguishes between errors of law, errors that involve questions of mixed law and fact, and appeals which require the leave of the Supreme Court but such leave only arises in cases heard in the General Division. One must therefore distinguish errors of law, errors of fact, and errors of mixed fact and law. However, the right of appeal from the Small Claims Division to this Court does not involve errors of law or errors of fact or errors of mixed fact and law but only orders made with a "lack of jurisdiction" or a "denial of procedural fairness".

Pleadings

4. The pleadings in the Local Court were not made by lawyers but by the parties. The pleading made by the plaintiff/respondent was this:

1. On 23 March 2020...the plaintiff left the defendant...property [at Mascot] leaving behind...dog Harold. We also had a cruise planned for May 2020 which cost...the plaintiff...$1,200 in which the defendant...has taken as the cruise was reimbursed due to COVID-19. ...the plaintiff...has made numerous deposits into the defendant's...NAB high interest bank account totalling $8,100 which...the plaintiff...is also wanting back.

2. The Police have contacted the defendant...on numerous occasions to return Harold to...plaintiff..., the defendant...is yet to return...dog Harold.

3. The amount of monies I am wanting to claim is the amount $9,300 as well as the safe return of the...dog Harold".

On any view of it, the plaintiff's claim was for the return of the dog to him, a dog which by inference is a dog detained by the defendant and for the return of moneys which the defendant/applicant had to the use of the plaintiff/respondent.

5. The defence to the statement of claim is much lengthier but I shall endeavour to shorten it, to cut to the chase. That defence is this:

"2. The defendant denies the statement in para 1 of [leaving with] the plaintiff's dog, Harold. The NSW Companion Animals Register lists both the defendant and the plaintiff as the owners of Harold. The plaintiff was removed by NSW Police on March 23 from the defendant's apartment [at Mascot] after becoming violent.

3. The defendant admits the allegation of receiving the amount of $1,200 to be paid to a travel agent as part payment for a planned cruise. The defendant has not returned this money to the plaintiff as this was used to pay for replacement [of] of items the plaintiff refused to return after a request made by NSW Police.

4. The defendant admits the allegation in para 1 of receiving bank deposits from the plaintiff as specified to an account for payment of bills as specified in the evidence provided in the plaintiff's claim. The defendant also made payments on a regular basis to the plaintiff to the value of $18,053 between March 2019 and 23 March 2020. In addition [to] these payments, on March 24 the defendant provided in addition $500 through a third party at the request of the plaintiff...

6. The defendant admits the allegation in para 2 to receiving calls from NSW and Victoria Police before and after 20 July 2020, with regards to an allegation of the plaintiff's stolen dog. During these calls by NSW Police, specifically, the defendant requested the retrieval of a building security swipe and key to the defendant's leased apartment [at Mascot] and a key to a BMW motor vehicle to which the plaintiff repeatedly refused. [the paragraph then states that the cost of replacing those items was $1,250]. The defendant has retained the money refunded from the cruise to cover these costs.

7. The defendant denies the allegation that the plaintiff solely owns Harold, the dog...

8. The defendant denies the allegation in para 3 of the ownership by the plaintiff alone of the dog, Harold.

9. The plaintiff has provided evidence on p 19 [of the defendant's tender bundle] that the defendant was with him at the shelter on 17 January [2019] and Harold was adopted later that afternoon..."

There are three further paragraphs of the defence but they carry the defence case nowhere.

Local Court proceedings

6. The matter was heard by Assessor Keir sitting in the Downing Centre Local Court on 22 October 2020. Less any confusion arise, the transcript says, "In the Local Court, John Maddison Tower" but the formal address of the Local Court is the Downing Centre Local Court, but Local Court proceedings are often heard in the John Maddison Tower just as many District Court hearings are held in the Downing Centre. At the hearing before the Assessor, the parties were represented by solicitors. There is a transcript of the proceedings in the Local Court, and that can be found on pp 96 to 119 of exhibit A before me. The Assessor's reasons commence at the foot of p 20 of that transcript, or p 115 of exhibit A before me. In essence, the Assessor found for the the respondent both on his claim for the restitution of the dog, Harold, to him and for the refund to him of $9,300 being moneys had and received by the applicant to the use of the respondent. Exhibit A contains at p 123 a formal judgment made on 26 October 2020 ordering the plaintiff to pay $9,447 being the damages awarded on the monetary claim together with a filing fee of $103 and a service fee of $44. I am unaware as to whether any formal order was made for the return of the dog. I am told from the Bar table that no part of the judgment formally entered or no part of the order for the return of the dog has been implemented and that there is an application for a stay of proceedings that has not yet been heard in the Local Court.

Grounds of appeal

7. The grounds of appeal are these:

"6. That the learned Assessor made an error of law by finding that the Court had jurisdiction to order that Harold be returned to NSW when Harold was not "detained goods" within that meaning in s 30 of the Local Court Act 2007 when Harold was then a companion animal within the meaning in s 5 of the Companion Animals Act 1998 and was at all material times under the effective and responsible care of an owner within the meaning in that Act.

7. That the Assessor erred by acting on the error in ground 1 and by not dismissing the claim with respect to the return of Harold to NSW.

8. That the Assessor erred by acting on the errors in ground 1 and 2 above and by not permitting Harold to continue to live with the plaintiff who does and can provide for the effective and responsible care and management of Harold.

9. The Assessor erred by finding, contrary to the evidence, that there was a contract between the parties despite no evidence of consideration or intention to be legally bound.

10. The Assessor erred by finding that a contract existed between the parties despite the existence of a domestic relationship".

8. I have quoted the grounds with the numbering provided in the amended summons but the numbering refers not to the number of the grounds of appeal but to the paragraphs of summons. The grounds numbered 9 and 10 are grounds added to an amended summons which has typed upon it the date 10 May 2021 but was only filed in Court on 13 May 2021, that is, yesterday. The respondent formally objects to grounds 9 and 10 but he told me that, nevertheless, he could meet such grounds.

A dog is a chattel personal

9. Harold is a desexed male dog that was purchased from the Sydney Dog and Cat Home on 17 January 2019. The total cost of purchasing the dog was $350.50. That was paid for by the credit card owned by the respondent. The dog is a boxer dog. I shall refer to the dog as Harold. The first argument advanced by the plaintiff was that the dog did not fall within the meaning of "detained goods" in s 30(2)(b) of the Local Court Act 2007. The same provision can be found in s 30(1)(b) of the Act which confers jurisdiction on the General Division of the Local Court. The conferral of jurisdiction on the Small Claims Division is contained in s 30(2). The argument advanced was that Harold was not "goods".

10. This involves a reconsideration of basic principles. I often have recourse to books that I use when I was a law student. In the third edition of Megarry and Wade, The Law of Real Property, (1966) there is a discussion of the meaning of the term "real property" commencing at p 10. It highlights the difference between real property and personal property:

"As is the case with so many expressions in English law, the explanation of the term 'real property' is historical.

In early law, property was deemed 'real' if the Courts would restore to a dispossessed owner the thing itself, the 'res', and not mere give compensation for the loss. Thus, if X forcibly evicted Y from his freehold land, Y could bring a 'real' action whereby he could obtain an order from the Court that X should return the land to him. But if X took Y's sword or glove from him, he could bring only a personal action which gave X the choice of either returning the article or paying the value thereof. Consequently, a distinction was made between real property (or 'realty'), which could be specifically recovered and personal property (or 'personalty'), which was not thus recoverable. Nature has provided one division of property, namely into immovables (i.e. land) and movables: the English division into real and personal property is similar, with one important exception. In general, all interests in land are real property with the exception of leaseholds (or 'terms of years'), which are classified as personalty.

This peculiar exception was first of all due to the fact that leases were foreign to the feudal system of land holding by tenure, under which, in its earliest form, the social and economic status of every member of society was fixed. Originally, leases were rather regarded as personal business arrangements under which one party allowed the other the use of his land in return for a rent. They were in other words personal contracts, operating in personam between the parties and not creating or transferring any rights in rem, i.e. rights in the land itself which could affect feudal status. Leases helped to supply a useful form of investment for a society which knew nothing of stocks and shares. Money might be employed in buying land and letting it out on lease in order to obtain an income from the capital, or in buying a lease for a lump sum which would be recovered with interest out of the produce of the land. These were commercial transactions, more in the sphere of money than of land, as land-owing was then understood. Once leaseholds were classified with personal property, it was discovered that the position was not without its advantages. Not only were leases then immune from feudal burdens and the intricate legal procedure required for freeholds: they could be bequeathed by will in times when wills of other land were still not allowed. Thus the illogical position continued until it became too well settled to alter.

Leaseholds are still, therefore, personalty in law. But having now for so long been recognised as interest in land and not merely contractual rights, they have been classified under the paradoxical heading of 'chattels real'. The first word indicates their personal

nature (cattle were the most important chattels in early days, hence the name), the second shows their connection with land. The three types of property may therefore be classified thus:

(i) Realty.

(ii) Chattels real.

(iii) Pure personalty."

11. Another term for pure personalty is chattels personal. In our law, any form of property must either be realty, a chattel real, or a chattel personal. If one goes to a standard law dictionary such as Osborn's Concise Law Dictionary, one will find this type of definition of the word "goods":

"All chattels personal other than things in action and money, emblements and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale".

That definition is taken from the Sale of Goods Act 1893 (UK). That statute was one of a number of statutes passed in the late 19th century or the early 20th century which were designed to bring together various common law principles and to codify and rationalise the common law. Another example of such a statute is the Partnership Act, both in the UK and in various jurisdictions in Australia. The first edition of Sutton, the Law of Sale of Goods in Australia and New Zealand (1971) commences the introduction with this:

"The law governing the sale of goods in Australia and New Zealand is based on the English Sale of Goods Act 1893, the various States having enacted legislation substantially identical with the parent Act".

A footnote refers one to the Sale of Goods Act 1896 (Qld), the Sale of Goods Act 1896 (Tasmania), the Sale of Goods Act 1895 (WA), the Sale of Goods Act 1895 (SA), the Sale of Goods Act 1923 (NSW), the Goods Act 1958 (Vic), the Sale of Goods Ordinance 1954 (ACT), the Sale of Goods Act 1908 (NZ).

12. The Sale of Goods Act 1923 provides a number of definitions in s 5. The definition of goods is this:

"Goods include all chattels personal other than things in action and money. The term includes emblements and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale".

“Goods” is a word apt to describe all personal chattels that are corporeal. A chose in action is not corporeal and emblements are in fact pieces of land that are agreed to be severed or taken from the land. I do not need to decide whether emblements such as a crop of wheat growing on land or a crop of potatoes growing in the land is a good for the purposes of s 30 of the Local Court Act 2007. However, I would point out that, for example, a distinction must be made when considering "money". One may have a valuable coin collection which, for example, has solid silver or gold coins with a face value much lower than their actual value and one may be able to recover in detinue a valuable coin collection even though it might otherwise be described as "money". That question does not arise for discussion here, but I would think that the word "money" in the definition of goods in the Sale of Goods Act means only a claim in debt rather than a claim made in detinue for a specific object such as a specific gold coin with a nominal face value but worth much more in monetary terms. There can be no doubt that an animal is a chattel. As what I have quoted from Megarry and Wade makes clear, the word chattel is derived from the same etymon as the word cattle. A cow or an ox is a chattel. Any animal is a chattel.

13. If one needs any further statement of that principle, one can have regard to cases such as Edwards v Gilliespie [2020] NSWDC 475 proceedings which concerned "Oscar the Cavoodle". At [11] it was accepted by Gibson DCJ that Oscar was a chattel. The problem in that that case was that it was not a claim in detinue but a claim for equitable relief which was beyond this Court's jurisdiction. Another case is Di Gergorio v Ohanessian [2021] NSWDC 100 in which the Local Court assessor ordered a party to deliver a dog, Xena, a female American Staffordshire Terrier to another party. The appeal to this Court from that decision was dismissed by Scotting DCJ. There is no argument that the dog was not a "good" capable of being the subject of an order for the return of goods. In Downey v Beale [2017] FCCA 316, Harman FCCJ said at [14], "The law describes the manner in which this case is to be determined. [name of dog omitted] is a chattel and his ownership is to be determined by the Court as an issue of the ownership of property". The matter of a dog being an item of personal property was also considered by the Federal Circuit Court in Davenport v Davenport (No 2) [2020] FCCA 2766 by Tonkin FCCJ. At [34] his Honour said this

To date Courts have dealt with pets and other animals as personal property. The term “personal property” is defined in Butterworth’s Legal Dictionary as “all forms of property other than real property; that is all forms of property other than land and interests in land (excluding leaseholds).” Personal property is traditionally divided into two classes: chattels real (which includes interests in land for a fixed term of years and annuities issuing out of such interests) and chattels personal (which includes all other forms of personal property both tangible and intangible). The term “chattel” is defined in the Legal Dictionary as a moveable possession; any property that is not freehold land. There is no precise definition of a chattel at common law it can be a real or personal chattel. A chattel personal can be classified as either a chose in possession (items capable of being the subject of actual possession) or a chose in action (items that cannot be physically possessed but are recoverable by action). A chose in possession is an item of tangible personal property that is capable of physical possession by the owner and transfer by delivery such as a book or a chair in other words a moveable possession. The authorities establish that a dog is regarded as property being a chattel or personal property. I am satisfied that the Court has jurisdiction to hear and determine the wife’s application for final orders that she retain the dog as part of the property dispute. That matter has not been listed for trial.

14. If one needs any further elucidation of the matter, one can go to the Civil Procedure Act 2005. Section 93 relates to judgments for the detention of goods. It is in these terms:

93 Judgments for detention of goods

(1) In proceedings for the detention of goods, the court may (whether or not their value has yet been assessed) give judgment—

(a) for their delivery to the plaintiff, or

(b) for payment to the plaintiff of an amount equivalent to their assessed value, or

(c) for their delivery to the plaintiff or for payment to the plaintiff of their assessed value, at the defendant’s option,

and, in addition to any judgment referred to in paragraph (a), (b) or (c), may also give judgment for payment to the plaintiff of damages for their detention.

(2) The court may, in an order for delivery of goods or in a subsequent order, specify the date by which delivery of the goods must be effected.

(3) If judgment has been given as referred to in subsection (1) (a), but the goods are subsequently damaged, destroyed or otherwise rendered unavailable for delivery, the court may, on application by the plaintiff, make an order for the payment to the plaintiff of an amount equivalent to their assessed value, as referred to in subsection (1) (b).

(4) If judgment has been given as referred to in subsection (1) (c) and the plaintiff subsequently applies for an order under this subsection, the court may make an order for the delivery of the goods to the plaintiff without the option for any payment of the kind referred to in subsection (1) (b).

(5) In this section, the assessed value of goods is their value as assessed by, or in accordance with the directions of, the court.

There is no definition of "goods" in s 3 of that Act. There is such a definition in s 102 of the Act but that is only for the purposes of Pt 8 which relates to enforcement of judgments and orders. The definition in s 102 is this:

"goods means chattels, other than chattels real".

The purpose of that, though, is that it gives meaning to s 105 which is headed "Judgments for delivery of goods" and is in these terms:

"A judgment or order for the delivery of goods may be enforced by a writ of delivery".

It appears that the remedy for a judgment for the delivery of goods is enforced by the issuing of a writ of delivery and such a writ can be granted in respect of any chattel personal.

15. The argument that Harold could not be the subject of any jurisdiction of the Local Court to order the return of detained goods is without any basis.

Companion Animals Act 1988

16. The next argument advanced by the plaintiff is an argument based on s 7 of the Companion Animals Act 1988. The general definitions for the purposes of that Act are provided in s 5. The definition of "owner" refers one to s 7. Section 7 is in these terms:

7 Meaning of “owner”

(1) Each of the following persons is the owner of a companion animal for the purposes of this Act—

(a) the owner of the animal (in the sense of being the owner of the animal as personal property),

(b) the person by whom the animal is ordinarily kept,

(c) the registered owner of the animal.

(2) A reference in this Act to the owner of a companion animal is a reference to each and all owners of the animal.

Note— A provision of this Act that makes the owner of a companion animal guilty of an offence makes each owner guilty of the offence.

(3), (4) (Repealed)

(5) When a companion animal is ordinarily kept by an employee on behalf of his or her employer, the animal is for the purposes of this Act taken to be ordinarily kept by the employer and not the employee. This subsection does not prevent an employee being the registered owner of an animal and does not prevent the employee being an owner if the employee is the registered owner.

(6) In any prosecution of the owner of a companion animal for an offence against this Act it is a defence if the defendant establishes that—

(a) another owner of the animal has been convicted of an offence arising out of the same circumstances, or the commission by another owner of the animal of an offence arising out of the same circumstances has been proved but a court has made an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of the offence, or

(b) another owner of the animal has paid the amount of the penalty prescribed under section 92 (Penalty notices) for an alleged offence arising out of the same circumstances.

The first thing to note is that in the chapeau to (1) the definition provided is "for the purposes of this Act". It is not for the purposes of the law generally. It is only for the purposes of the Companion Animals Act 1998. The argument advanced by the applicant is based upon the three limbs in (1), each limb created by a paragraph and the use of the word "persons", a plural word in the chapeau. Paragraph (a) refers to the "owner of the animal (in the sense of being the owner of the animal as personal property)". That person was held by the Assessor to be the respondent. There was evidence to support that finding. Although it ought not be necessary to do so, I shall for the benefit of those involved in this litigation refer to it.

17. The parties met in or around April 2018 and formed an intimate, romantic relationship. In or around September 2018, the respondent moved into accommodation rented by the applicant in Mascot. They then lived together as domestic partners. The relationship came to an end on 23 March 2020 when the applicant called police to the apartment after there was an incident between the two men. When the police arrived they asked the respondent to leave, which he did, and an ADVO was made for the protection of the applicant from the respondent. The applicant's job required him to be away from the shared accommodation for a week or a fortnight at a time on a fairly regular basis. The affidavit of the respondent contained this matter:

"11. Prior to Christmas 2018, I said to Nathan words to the effect: 'What about we get a dog'.

12. Nathan responded with words to the effect of: 'What do we need a dog for?' and 'Who is going to look after it'.

13. I regularly browse pet rescue and pet adoption sites in our lounge room but Nathan never engaged in this search.

14. Nathan regularly travelled out of Sydney for work and I often felt isolated and believed a pet would be great company.

15. On 17 January 2019, I visited Sydney Dogs and Cats Home [in Carlton] and found a dog called Harold that I had an instant connection with.

16. Without consulting Nathan, I pre-filled all the paperwork

required for purchase and adoption of Harold.

17. While going back to my apartment at about 12.30pm, I texted Nathan pictures of Harold and said: 'I love him'....

18. Nathan texted, 'I'm a yes', which I understood to mean that he was supportive of my buying a pet....

19. I then visited the offices of the building manager in our apartment complex [at Mascot] to see if it was possible to have a pet in the apartment.

20. On 17 January 2019, I received an email from...the building manager...confirming that my intent to have a pet on the premises had been conveyed to the owner...

21. Nathan returned to our apartment and we both went to the Sydney Dogs and Cats Home in his car so I could finalise the purchase of the dog.

22. At 1628 on 17 January 2019, I paid the Sydney Dogs and Cats Home $350.50 for Harold's adoption charge, council registration, food and collar and leads..."

18. There is no dispute that that payment was made by the respondent from his own funds. The idea to purchase a dog was the respondent's. The respondent purchased the dog to be a companion for him with his own money. That in law makes him the owner of the dog.

19. The applicant's argument is not based on the first paragraph of the definition of "owner" in the Companion Animals Act but, rather, on the second paragraph: namely, that the applicant was a "person by whom the animal is ordinarily kept". I thought there was some learning on the meaning of the question "ordinarily kept". My associate's search ascertained that the only authority on the subject was one of my own. It is Hatch v Wood-Davies [2006] NSWDC 96 a judgment given at Wagga Wagga. To determine the meaning of those words, I had recourse to legislative history starting with the Dog and Goat Act 1898 and the Dog Act 1966. That Act replaced the Dog and Goat Act 1898. The Dog Act 1966, of course, was replaced by the Companion Animals Act 1998. I commenced the discussion on this issue at [103] to [126]. In essence, the term used describes a person who physically has possession of the dog, not the person who cares or nurtures the dog, the person who provides its food and water and perhaps exercise. Insofar as the applicant was the lessor of the premises which he was sharing with the respondent at Mascot and that is where the dog was kept, then the applicant could be seen to be a keeper of the dog whenever both he and the dog were in the same place.

20. The third limb of the definition of owner is s 7(1) of the Companion Animals Act is "the registered owner of the animal". Despite brave submissions made on behalf of the applicant, this can only refer to the respondent. The certificate of registration was reprinted on 12 April 2019. It shows the owner as being the respondent at the address in Mascot where up until 23 March 2020 the respondent resided with the applicant. It gives a "secondary contact person" as being the applicant but it does not state that the secondary contact person is the owner.

21. However, again, it is necessary to consider the structure of the Companion Animals Act 1998. For example, s 8 requires a companion animal to be identified from the age of 12 weeks. Under s 8(3) the owner of the animal is guilty of an offence if it is not identified in accordance with (1). Under s10B(2) the owner of a companion animal must comply with a notice requiring a companion animal to be registered. Failure to do so is a criminal offence. Section 11 places requirements on the owner to notify of certain changes and events. Again, a failure to notify is a criminal offence. Section 11C requires an annual permit for a dangerous dog. The owner of a dangerous dog who does not comply with that provision is guilty of a criminal offence. Furthermore, an annual permit is required for "restricted dogs" and the owner of a restricted dog who fails to comply with that provision is guilty of a criminal offence. The Act allows for a notice to be given requiring a permit to be obtained for a companion animal. The owner of a companion animal who fails to comply with such a notice is guilty of a criminal offence. Section 12 requires a dog to wear a collar and tag. The owner of a dog is guilty of an offence if he or she does not comply with that provision.

22. Section 12A places an obligation under criminal sanction for the owner of a dog to take all reasonable precautions to prevent the dog from escaping from the property on which it is being kept. Section 13 places responsibilities on a person with a dog in a public place. If the section is contravened, either the owner of the dog or, if the owner is not present at the time of the offence, some other person who is over the age of 16 years in charge of the dog commits a criminal offence. Of course, if the dog has escaped, that is an offence under s 12A, an offence committed by the owner. Section 14 prohibits dogs to be in a number of specified public places. If a dog is found in such a place, either the owner of the dog or, if the owner is not present at the time of the offence, a person of or above the age of 16 years is in charge of the dog at the time is guilty of a criminal offence. Section 15 provides that certain breeds of dogs are to be muzzled. If the section is contravened, either the owner of the dog or a person of or above the age of 16 years who is in charge of the dog is guilty of an offence at the time. Therefore, the scheme of the Act is that should, for example, a dog which is required to be muzzled escapes and runs into a public place without the muzzle, the owner of the dog is liable for both the escape of the dog and the dog’s not being muzzled.

23. Section 16 refers to offences where a dog attacks a person or animal. Again, the owner of the dog or, if the owner is not present, any person of or above the age of 16 years who is in charge of the dog at the time is guilty of a criminal offence. If a dog defecates in a public place, the owner of the dog or, if the owner is not present, but the dog is under the control of a person of or above the age of 16 years, that person is guilty of a criminal offence. So if a dog escapes from its owner and defecates whilst not under the control of any person, the owner of the dog is still liable for the dog's defecating in a public place. Section 25 provides for liability for injury to a person or damage to a person's property. That liability is placed on the owner of the dog. That can be found in ss 25, 26 and 27. Section 26 extends the liability for injury to a person to death caused by the dog injuring a person.

24. I need not continue any further except to refer to s 72. Section 72 is headed "certificate of registration". It is in these terms:

72 Certificate of registration

(1) The Departmental Chief Executive is to provide the registered owner of a companion animal with a certificate of registration for the animal, showing the registration information for the animal.

(2) The certificate of registration is to be provided at the time of registration and is to be provided free of charge.

(3) The certificate of registration is evidence that the animal is registered and that the registration information shown on the certificate is that entered on the Register. Information entered on the Register is presumed (in the absence of evidence to the contrary) to be correct.

Note—

In this way, the certificate of registration can be used as evidence of (for example) the name of the registered owner of an animal and the address at which it is ordinarily kept.

(4) The Departmental Chief Executive can issue a replacement certificate of registration when a certificate of registration is lost, stolen, damaged or destroyed, and can charge a fee for the issue of the replacement certificate.

I highlight that s 72(3) provides that the certificate of registration is evidence that the animal is registered and that the registration information shown on the certificate that is entered into the register is presumed, in the absence of evidence to the contrary, to be correct. In the current matter, that presumption was in favour of the respondent.

Co-ownership?

25. The argument advanced is that because of the nature of the relationship between the plaintiff and the defendant, the dog was in fact joint or common property and, therefore, as the applicant had some form of joint or common tenancy in the dog, an order in the nature of detinue, an order for the delivery of the dog from the applicant to the respondent could not be made. The Companion Animals Act 1998 does not otherwise amend the law relating to the ownership of chattels. The dog belonged to the respondent. He paid for it. It was his property just as much as if he went out and bought a cup of coffee or a book. Even if he took them back to the premises in which both the respondent and the applicant were living, such cup of coffee or book would remain the respondent's property.

26. It is very much because of such considerations that when there is a breakdown of de facto or domestic relationships, which have lasted for more than two years, or when there is the breakdown of a marriage that Courts exercising jurisdiction of the Family Law Act 1975 can make property adjustment orders. The Companion Animals Act does not create in the respondent a form of tenancy in the dog. Nor does the evidence disclose that there was any declaration by the respondent that the property was enjoyed by both the respondent and the applicant. True it is, he sought the applicant's consent to purchasing the dog, but that was explicable purely by the fact that the respondent would have had to have lived with the dog since the dog was to live with the applicant in the premises the applicant was sharing with the respondent. Furthermore, that is merely a question of fact. The argument does not raise any issue of jurisdiction. The dog was a chattel. The dog could be described as "goods". There is no doubt that the Local Court in its Small Claims Division had power to order the delivery of the dog by the applicant to the respondent. Not only did the right arise under the common law in the action of detinue but it also arose under s 93 of the Civil Procedure Act 2005.

Detinue

27. The next argument advanced by the applicant was that the action in detinue had not been made out in the Local Court because of a lack of a formal demand by the plaintiff upon the defendant and a clear refusal by the defendant of the plaintiff's demand. In the 13th edition of Bullen & Leake & Jacob's Precedents of Pleadings (1990) the following may be found on p 953:

"The distinction between detinue and conversion used to be that with the former mere possession adverse to the rights of the person entitled to possession was sufficient and it was unnecessary to show any intention to deal with the goods in a way inconsistent with those rights. In practice, however, demand by the person with possessory title followed by an unjustified refusal to deliver up was treated as a conversion, thus rendering detinue largely otiose even before its abolition in 1977.

A demand is necessary before the detention will be actionable (Clayton v Le Roy [1911] 2 KB 1031) and the defendant must be in possession at the time of the demand. If he is not, then there is no conversion by detention (although there may have been an earlier conversion by transfer - Featherstonehaugh v Johnson (1818) 8 Taunt 237).

The demand must be unconditional (Rushworth v Taylor (1841) 3 QB 699) and the refusal must also be unconditional. A detainer may be entitled to a reasonable time in which to make inquiries but, once that has elapsed, whether or not the detainer is satisfied as to the claimant's rights, must hand over the goods (Alexander v Southey (1821) 5 B. & Al 247)."

28. Of course, the action in detinue has not been abolished in this State. The problem here is that that issue was never raised in the Local Court. In fact, the respondent argues that the demand was admitted by the pleading. The respondent points to the fact that the plaintiff's pleading was relying upon requests made by him through the police for the return of the dog and the failure of the defendant to reply. In par 6 of the defence, the defendant admitted the allegation in par 2 of receiving calls from both the New South Wales and Victoria Police before and after 20 July 2020 with regards to an allegation made by the plaintiff that his dog had been "stolen" by the defendant. Even in the pleading, the defendant maintained that he was entitled to refuse the demand made by the plaintiff to the police for the return of the dog.

LUNCHEON ADJOURNMENT

29. Before turning to the issue of the matter not having been raised in the Local Court, it is important to bear in mind that these proceedings were in the Small Claims Division of the Local Court. It is important to bear in mind the procedure and other considerations arising when matters are in the Small Claims Division of the Local Court. The following provisions of the Local Court Act 2007 ought be noted:

35 Procedure generally in Small Claims Division

(1) The jurisdiction of the Court sitting in its Small Claims Division may be exercised by a Magistrate or an Assessor.

(1A) However, the jurisdiction of the Court in proceedings involving company title home unit disputes under section 34A may only be exercised by a Magistrate.

(2) Proceedings in the Small Claims Division are to be conducted with as little formality and technicality as the proper consideration of the matter permits.

(3) The rules of evidence do not apply to proceedings being heard or other proceedings in the Small Claims Division.

(4) Witnesses may not be cross-examined except in circumstances in which, and to the extent to which, the cross-examination of witnesses is authorised by the rules or a practice note.

(5) A Magistrate or an Assessor exercising the jurisdiction of the Court sitting in its Small Claims Division may inform himself or herself on any matter relating to proceedings being heard or other proceedings in the Small Claims Division in such manner as he or she thinks fit.

(6) Proceedings in the Small Claims Division (other than any judgment given or order made in respect of the proceedings) are not required to be recorded.

36 Conciliation of parties

(1) A Magistrate or an Assessor is not to give judgment or make a final order in respect of proceedings being heard in the Court’s Small Claims Division unless the Magistrate or an Assessor has brought, or has used his or her best endeavours to bring, the parties to the proceedings to a settlement acceptable to the parties.

(2) If such a settlement is reached, the Magistrate or an Assessor is to give judgment or make a final order that gives effect to the terms of the settlement.

37 Costs in Small Claims Division

Except as provided by the rules, the Court sitting in its Small Claims Division has no power to award costs.

30. It is important to bear in mind that the sittings in the Small Claims Division are to be conducted without undue formality and undue technicality. The rules of evidence do not apply and the assessor, if the Assessor is sitting as the Local Court, or a magistrate sitting in the Small Claims Division, is permitted to act in an inquisitorial fashion by informing him or herself on any matter relating to proceedings before the assessor or magistrate. In Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287, Leeming JA said at [101]:

"The legislative policy is clear: relatively small claims brought in the Small Claims Division should be resolved efficiently, cheaply, relatively informally, and finally in that division. Otherwise, the legal costs will swamp the original claim..."

In regard to a predecessor s 39(2) of the current Act, O'Keefe J said in Kojima v Australian Chinese Newspapers [2000] NSWSC 1153 at [19]:

"...the legislation has been so framed so as to ensure to the greatest extent possible that claims before the Small Claims Division of the Local Court should begin and end in that Court. The limitation on the right of appeal permitted by the statute betokens this. Such a policy is readily understandable in light of the fact that the ceiling for claims in the Small Claims Division is so low, $3,000 at the material time. Taking up the time of superior Courts with such small matters is thus avoided in the vast majority of cases".

Although the jurisdictional limit of the Small Claims Division is currently $20,000, it has to be borne in mind that what was in issue was $9,300 and a dog which was purchased for the princely sum of $350.50. Of course, a dog would have much greater value to its owner. Companion animals are beloved pets and much money is often laid out to feed them, house them and provide for their needs. Nevertheless, the matter was clearly within the Small Claims Division of the Local Court and the matters that I have just mentioned had to be and must be taken into account.

31. I return to the issue that the question of the making of a formal demand for the return of Harold and a formal refusal to do so by the applicant were not canvassed at the hearing in the Local Court. Indeed, according to learned counsel for the respondent, none of the points now sought to be agitated were raised in the Local Court. Jurisdictional issues were raised in the Local Court. The first jurisdictional issue raised there was that the dog was located at that time and still is in Victoria and the Local Court of New South Wales had no power to make an order in respect of a piece of personal property that was located out of New South Wales. That of course is completely irrelevant when the cause of action arose within New South Wales.

32. The other submission as to jurisdiction was said by the solicitor appearing for the current applicant in the Local Court in this fashion:

"The second submission...goes a bit further...It really goes to the nature of the action and it's arising out of a de facto relationship and what the defendant submits is this is really probably a federal matter. The parties were involved in a de facto relationship. They were involved in, and it's commonly accepted, I think it's generally accepted between the parties, excuse me if I'm wrong, there was an intermingling of funds. They were living together for 18 months. It was a domestic relationship. It falls within the boundaries of a de facto relationship pursuant to the Family Law Act and...the Court is not able to hear it because it's not invested with powers under the Family [Law] Act of the Commonwealth provisions in respect of de facto relationships".

Of course, this de facto relationship had not persisted for two years. That led to the Assessor applying a reductio ad absurdum which had Counsel for the current applicant agree that as the Family Court or the Federal Circuit Court could not make a property adjustment order as the relationship had not persisted for two years, that, nevertheless, the matter was a "federal matter" and the Local Court had no jurisdiction and, therefore, no Court had jurisdiction in respect of returning the dog to the plaintiff/respondent. Those issues have not been agitated before me, and very properly so, but the issue about the Court having no power to make an order for the return of the dog was not agitated at all.

33. In Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631, Mason P said commencing at 644:

"In an endeavour to escape the consequences of the stance adopted below, senior counsel for Multicon Engineering sought to characterise the constitutional argument as a jurisdictional point, citing a number of cases in support of the principle that parties cannot by consent confer power upon a Court to make orders outside its jurisdiction: Cockle v Isaksen (1957) 99 CLR 155 at 161; Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163-165; National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 585; Household Finance Services Ltd v Commercial Tribunal (NSW) (1995) 36 NSWLR 220 at 222. In my view, this principle has no application to the case as presented by Multicon Engineering which, it will be remembered, accepts the validity of Giles J's order referring the whole proceedings to the referee pursuant to Pt 72 and accepts the validity of r 13 (so long as it is construed in accordance with the constitutional principle advanced by Multicon Engineering in this appeal). In other words, the jurisdiction of the Supreme Court of New South Wales to entertain and dispose of the proceedings is not in issue, nor its power to use the assistance of the referee and his report. By this means Rolfe J ascertained 'existing rights by judicial determination of issues of fact and law' (Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 258, citing R v Davison (1954) 90 CLR 353 at 369 in a matter within the Federal jurisdiction confirmed by s 86 of the Trade Practices Act 1974 (Cth).

Indeed the fragility of Multicon Engineering's contention that a 'jurisdictional' error occurred (assuming the correctness of the constitutional point) is exposed by the very fact that Multicon Engineering argues that r 13 as expounded in Super precluded the adoption of the referee's findings, except with the consent of the parties at the time. The qualification entailed in the concluding words was added in order to accommodate Multicon Engineering's submission to Rolfe J (repeated in the Court of Appeal) that he could, with Multicon Engineering's consent, adopt significant parts of the evidence before the referee and those parts of the report to which no objection was taken. This concession lies ill with Multicon Engineering's argument that its stance before Giles J did not have some preclusive effect. But of present relevance is the difficulty of fitting such a qualification with the argument that an impermissible assumption of jurisdiction or even power was involved. From start to finish the issue in the appeal involved the manner in which the power conferred by r 13 was exercised. That manner was (for present purposes) exactly as proposed by Multicon Engineering, in the cases cited about a Court declining to make an order by consent that is outside jurisdiction have no application.

In support of the procedural objection the Federal Airports Corporation and the Attorney-General relied principally upon University of Wollongong v Metwally [No 2] (1985) 58 ALJR 481. That was a case in which a party to completed proceedings by way of case stated in the High Court sought to vacate a declaratory order which had been made by the Full Court of the High Court after it had been perfected by being taken out. The applicant desired to raise a point which had not been raised on the hearing in the High Court and which was in direct conflict with the basis of the case presented on his behalf in the completed proceedings in the High Court. (He wished to assert the constitutional invalidity of the Racial Discrimination Act 1975 (Cth) after having lost an earlier argument which assumed the validity of that Act, contending that it was inconsistent with a State Act: see University of Wollongong v Metwally (1984) 158 CLR 447.) In that context, the High Court stated (at 483) that:

'It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.'

While the principle is a compelling one, it needs recognition that University of Wollongong did not involve an appeal by way of re-hearing. Indeed it did not involve an appeal at all: see Coulton v Holcombe (1986) 162 CLR 1 at 17.

Since this is an appeal by way of a re-hearing, the matter should be approached in accordance with the principle stated in cases such as Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 and Coulton v Holcombe (at 7-9). A party seeking to advance for the first time on appeal a new ground not taken at trial will be precluded from doing so if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial. Multicon Engineering argues that these principles do not preclude it from raising the constitutional point on appeal, because all that is in issue is the proper approach to be followed in considering whether to adopt a report in a matter in the Federal jurisdiction. The evidence which each party wished to rely upon was before the judge.

However, there is another principle of more direct relevance. A party does not have a right to insist that a new point be decided on appeal simply because all of the facts have been established beyond controversy or the point is one of construction or of law, even constitutional law. This is because it remains a question of whether the appellate court 'may find it expedient and in the interests of justice to entertain the point'; Water Board v Moustakas (1988) 180 CLR 491 at 497; see also Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32 at 47. The rule is not an absolute one, as evidenced by the Court's decision in Della Patrona v Director of Public Prosecutions (Cth) [No 1] (Court of Appeal, 1 September 1995, unreported). Unlike the present case, the respondent in Della Patrona failed to raise the 'procedural point' until long after the appellant had been given leave to debate it. This was a very important factor in the Court's consideration. For later proceedings in the same case, see Della Patrona v Director of Public Prosecutions (Cth) [No 2] (1995) 38 NSWLR 257. However:

'...it is a sound general principle, leading not only to the maintenance of fair play, but also to the repression of unnecessary litigation, that parties must be bound by the course they deliberately adopted at the trial': Rowe v Australia United Steam Navigation Company Ltd (1909) 9 CLR 1 at 24, per Isaacs J; see also Browne v Dunn (1893) 6 R 67 at 75; Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 284'.

In Coulton (at 7), Gibbs CJ, Wilson J, Brennan J and Dawson J said that:

'It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish'."

34. Those remarks are particularly significant in the present case which concerns proceedings before the Small Claims Division of the Local Court for reasons stated by O'Keefe J in Kojima v Australian Chinese Newspapers (supra). The same principle can be found discussed by Allsop J (as he then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424. His Honour said:-

36. The roles of the trial and the appeal need to be kept distinct. The appeal is not a reworking of the trial taking account of such impediments as are thrown up by the judge’s findings which alter the landscape. As was said in Coulton v Holcombe, supra at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

37. It is beyond question that if a new matter is raised and evidence could have been given which by any possibility could have prevented the point from succeeding, the point cannot be taken: Coulton v Holcombe supra at 7-8.

38. However, to say as much does not exhaust the description of the considerations for an appellate court when faced with a party raising a fresh point. First, the finality of litigation and the importance of parties being bound to the cases they make at trial should never be overlooked: Gleeson CJ and Hayne J in Crampton, supra at [15] and [157], respectively and University of Wollongong v Metwally, supra; see too JB Chandler Investment Company Limited (in voluntary liquidation) v Commissioner of Taxation (1993) 47 FCR 588 per Gummow J at 593G. Secondly, the difficulty of the party against whom the new point is raised reaching back in time to assess, necessarily hypothetically, how the conduct of the trial would, or may, have been different should not be underestimated. Such judgments or assessments can require re-agitation or reconsideration of decisions taken before and at trial (which may be privileged) and which can be very difficult to assess and articulate after the event. The entitlement of a party to the benefit of the opportunity of informed and reasonably contemporaneous assessment of relevant evidence, or inquiry, should be respected. Thirdly, the potential unfairness on counsel conducting an appeal who will be expected to assist the court in respect of the prejudice, or lack of it, to his or her client in the face of such matters being raised should not lightly be brushed aside. Even when counsel cannot positively say that something in particular would have been done differently, that does not mean that the court will be satisfied of a lack of prejudice. The possibility of evidence or the possibility that the hearing would have taken a different course, if not fanciful, may well suffice to deny raising of the new point. These considerations should not be seen as not requiring counsel frankly and candidly to say that the trial would not have been conducted differently if he or she is of that view. Fourthly, and in conclusion, before any new point be allowed, the court should be able to be satisfied that the raising of it could work no injustice on the other party and is otherwise in the interests of justice. The extent of the consideration of “the interests of justice” was discussed by Branson J and Katz J in H v Minister for Immigration and Multicultural Affairs, supra, at [8]. For my part, I would reserve comment upon the matters there discussed in this context concerning the relevance of the growing pressure on the time of courts. Considerations of the kind there discussed by their Honours have not formed part of my reasons, expressed later, for refusing to entertain certain issues on appeal. Nothing I have said is intended to be in any way contrary to, or inconsistent with, what was said by R D Nicholson J in Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32 at 47 or with the cases there discussed, that being an authority specifically relied on by the appellants in argument.

39. Whether or not a point was raised at the hearing should not be decided narrowly or technically. The pleadings and the particulars will ordinarily mark the boundaries of the dispute. Due regard also should be had to the direction of the conduct of the hearing within or outside these marked boundaries: Water Board v Moustakas, supra at 497-98.

35. As I said before the luncheon adjournment, the issue about the giving of formal notice and a formal denial of the request may be seen in the pleadings but was certainly not the subject of any argument at all in the Small Claims Division before the Assessor. In the circumstances, it is not a matter that can be agitated on this appeal which is limited to two very narrow issues: a question of jurisdiction; and a question as to the denial of procedural fairness.

Appeal grounds numbered 6, 7 and 8

36. There is no substance in appeal grounds that bear the numbers 6, 7 and 8. If there were a jurisdictional argument, it is raised in appeal ground 6. Appeal grounds 7 and 8 are really pleading errors of fact based on an earlier error of law and I am not persuaded that there was an earlier error of law going to the question of jurisdiction.

Grounds 9 and 10

37. I then turn to the final two grounds of the appeal. There is no dispute that the applicant and the respondent wished to take a cruise in 2020. For that reason, the respondent transferred $1,200 to the applicant's bank account on 25 February 2020. The cruise was cancelled because of the COVID-19 pestilence. The evidence contains an email sent by Alexander Jeon, the travel agent, to the respondent advising him that the deposit for the cruise - namely, $2,524 - was returned to the applicant's bank account on 3 August 2020. The email says this:

"As discussed, as he had paid for the cruise from his own account and under his name, we are legally only allowed to refund back to the person who has paid".

This was $1,200 given by the respondent to the applicant to pay for the cruise or its deposit. That was refunded to the applicant on 3 August 2020 but the applicant did not account to the plaintiff for his money.

38. It is also common ground that the respondent paid four separate amounts totalling $8,100 to the applicant. Paragraphs 59 and 60 of the respondent's affidavit are these:

"59. I trusted Nathan and began to transfer my funds from the joint account to Nathan's personal account from March 2019 for the purposes of him [sic] investing the money.

60. On 27 March 2019 and 12 July 2019 I made four separate

payments totalling $8,100. Annexed and marked 01-04 is a photocopy of the four confirmations of monthly transactions sent".

In his statement, the applicant said this:

"10. On 12 July 2019, he paid me the sum of $4,700 which sum was received by him by way of a tax refund. He asked me to invest those funds in a managed account which I did on his behalf. The funds were invested in an IOOF managed fund's account known as a Pursuit Select Account. The account was closed in April 2020. Subsequent to the investment of the firm [sic], I was informed by IOOF and verily believe that the amount on the investment has diminished due to the impact of the COVID-19 upon the investment portfolio. I believe the current balance of the investment is $3,200...

11. In addition to the sum of $4,700 referred to in par 10 above, the plaintiff also made the following payments to me which I held in escrow to be paid back from [sic, scil. to] him from the bills account:

(a) 27 March 2019: $1,000.

(b) 10 April 2019: $1,500.

(c) 8 May 2019: $900.

Annexed hereto and marked with the letter D, a true copy of the transaction reports to [sic] the above payments".

The $4,700 was the respondent's income tax refund. The other amounts were ones which the defendant admitted he was holding on behalf of the plaintiff. No clearer case could be made out for moneys had and received by the applicant for the use of the respondent.

39. Nevertheless, the applicant seeks to raise two new grounds of there being "no contract" or there being no contract because there is existed between the respondent and the applicant a "domestic relationship" and therefore there was no intention of creating legal relationships in accordance with the well-known case of Balfour v Balfour [1919] 2 KB 571. There was raised in the discussion about the jurisdictional issue the fact that this was a domestic relationship but otherwise it was never asserted in the Local Court that the moneys were not recoverable because of Balfour v Balfour and nor was it alleged that some contract had been entered into, but the matter proceeded on the basis of quasi-contract, as we used to call it, or now the principles of unjust enrichment.

40. The only real defence raised in the Local Court was one of set-off which the Assessor rejected because it was not adequately particularised. At p 24 of the transcript of proceedings in the Court below, or p 119 of exhibit A, the Assessor is recorded as saying this:

"In terms of this set-off, Mr Britt in his statement is essentially claiming a number of payments, I think, that were due to him and never paid by Mr...Parcell. And that is at annexure J to his statement. Now the difficulty that that Court has with that schedule is that it lacks detail. All it is, is a list of dates from March 2019 and I think the evidence is, the couple lived together from September 2018 through to 23 March 2020 which is probably consistent with the separation date which I believe is March 2020 and the only itemisations on that are two items that say 'Harold's food'.

So I cannot be satisfied on this evidence, Mr Kassim, that your client has made out a claim for moneys owed which could be set-off against the debt that I have determined is owed by your client to Mr Parcell. There is just simply no evidence of it. If there were utilities, bills or other bills that Mr Parcell should have contributed to then I would expect those bills to be attached so I could see what they were actually for and then we could be satisfied the particular portion of that can be attributed to Mr Parcell.

Similarly, there is a conflict in the evidence in terms of the rent arrangement. Mr Parcell says the arrangement was a rent-free and he was going to be attending to the domestic duties and I think pay for petrol, contribute to groceries and day to day living expenses, and that Mr Britt would pay rent, utilities, car registration and insurance.

On the other hand, Mr Britt says that the rent was $740 a week and he was agreed that Mr Parcell would contribute one-third of that. But there is no evidence of what the rent was. It would not be too difficult to attach a lease or a rental statement substantiating that claim. So, what I consider to be Mr Britt's evidence of mere bare assertions unsupported by any evidence that could have easily been obtained to support his claim".

We know exactly why the set-off failed. It failed for lack of adequate proof. I think it is highly ironical that the moneys that the applicant sought to offset included moneys paid by the applicant for the payment of food for the dog the applicant has failed to deliver up to the respondent. There is no substance, in my view, in paras 9 and 10. There is no issue about jurisdiction. Insofar as it might be thought to be inadequate dealing with an issue, it is patently clear that the Assessor dealt with the issues that were raised.

Procedural fairness

41. If I understand the applicant's argument correctly, the essence of the argument about procedural fairness can be seen in a number of paragraphs of the appellant's written submissions which are in MFI1. They are these:

"70. The Assessor was under a duty to afford procedural fairness.

71. The content of that procedural fairness included looking at the whole of the evidence, availing...herself [of] the law and applying the facts to the law.

72. The Assessor failed to draw the proper inference of fact, drew the wrong inference of fact, misconstrued the statute/legislation, and failed to give proper weight to the evidence."

The relevant principle of natural justice is the audi alteram partem rule. When one reads the transcript, it is patently clear that the Assessor listened to each of the submissions put on behalf of the applicant and read the evidence that was placed before her by the applicant and weighed that evidence. All that is being alleged is either a factual error or an error of law. That is not a failure to give an impartial assessment of the evidence. The Assessor, the applicant might think was not impartial, but objectively she was. I can find no substance in these two grounds. Because of the fact that it was only raised on 10 May 2021 in proceedings commenced in the Local Court on 23 June 2020 and heard in the Local Court on 22 October 2020 and not raised in the Court below, the application to rely upon those two grounds should not be permitted and, even if I were to permit them, they must be dismissed.

42. For those reasons, the appeal is dismissed.

[Submissions about costs]

43. This is an application for indemnity costs. The relevant principles can be found stated in Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Limited (No 2) [2009] NSWCA 12 by Allsop P (as he then was) with whom Beazley JA (as her Excellency then was) and Campbell JA agreed. At [4] his Honour said this:

The first basis ([3 (a)] above) was supported by reference, in part, to the well-known line of cases to the effect that a party should pay costs on an indemnity or a solicitor and client basis when it appears that an action (here an appeal) has been commenced or continued in circumstances where the moving party, properly advised, should have known that it had no chance of success: Fountain Selected Meats (Sales) Pty Limited v International Produce Merchants Pty Limited (1988) 81 ALR 397 at 401, applied in Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 615-616 (Mason P, with whom Clarke JA agreed, and with which statement of principle Meagher JA did not disagree, though he dissented on the order for indemnity costs); Harrison v Schipp [2001] NSWCA 13 at [138] (Giles JA, with whom Handley JA agreed and Fitzgerald JA relevantly agreed); Commonwealth of Australia v Ryan (No 2) [2002] NSWCA 386 at [6] (Beazley, Giles and Hodgson JJA); Chen v Karandonis [2002] NSWCA 412 at [110] (Beazley JA, with whom Heydon and Hodgson JJA agreed); Colgate-Palmolive v Cussons Pty Limited (1993) 46 FCR 225 at 232-234 (Sheppard J in his helpful summary of the structure of the principles); and Re Wilcox; Ex parte Venture Industries Pty Limited (No 2) (1996) 72 FCR 151 at 156-157.

It is also important to bear in mind what his Honour said at [10]:

I should say that the basis for awarding costs on an indemnity basis in DSE (Holdings) Pty Limited v Intertan Inc [2004] FCA 1251; 51 ACSR 555 at [35]-[40] (upheld on appeal: Intertan Inc v DSE (Holdings) Pty Limited [2005] FCAFC 54) was particular to that case. In that case, I took the view that although the points run by the appellant at the trial had not been imprudently or unreasonably taken, nevertheless the appellant had engaged in litigious “trench warfare” taking every point in the teeth of honest commercial commonsense. I said the following at [36] in the context of a 12 day case that could have been a three day case with certain reasonable concessions and a degree of openness about the evidence:

“… if people want to fight trench warfare in commercial litigation and if people want to fight a case about rectification and common understanding and construction of contracts and not lay out reasonably frankly the evidence that is central to that then they should pay the full costs of a 12-day trial.”

44. In the current case, there was a hearing in the Small Claims Division of the Local Court. The matter came before me yesterday with an estimate of "half a day" but it took me half a day to read the documentation that had been relied upon in the Local Court. I suspect that the real dispute was not about the monetary judgment but about the order for the return of the dog, Harold. Whilst this could not be called "trench warfare in commercial litigation", it had the flavour of "trench warfare in Family Court litigation". At [11] the President pointed out that in that case the appellant had "trimmed its arguments responsibly". In the current case, the applicant had not trimmed his arguments responsibly but expanded them and kept returning to the issues which had earlier been argued making the hearing a painful exercise. Perhaps counsel for the appellant ought to have considered Proverbs 26:11:

"Sicut canis, qui revertitur ad vomitum suum, sic stultus, qui iterat stultitiam suam".

45. The respondent has submitted that this was an appeal that lacked any merit. I agree. There were repeated attempts by the applicant to turn alleged errors of law and/or alleged errors of fact into arguments about jurisdiction or the denial of natural justice. The attempt was palpable and ought not to have been made. The respondent has been wholly successful. The initial estimate of this case was half a day. It took two whole days. That was because of the way the appellant mounted his case and argued it and reargued it and revisited the argument yet again and again.

46. I order the applicant to pay the respondent's costs on an indemnity basis. That order is made pursuant to s 98(1)(c) of the Civil Procedure Act 2005.

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Amendments

02 May 2022 - 1. Paragraph 3: "must" removed; quotation marks inserted around "denial of procedural fairness".

Decision last updated: 02 May 2022