CITATION: Brush Park v The Leasing Centre [2006] NSWSC 1385 HEARING DATE(S): 28 August 2006
JUDGMENT DATE :
15 December 2006JURISDICTION: Common Law Division JUDGMENT OF: Associate Justice Harrison DECISION: (1) Leave to appeal is refused; (2) The appeal is dimissed; (3) The decision of Magistrate Garbett dated 27 February 2005 is affirmed; (4) The summons filed 23 March 2006 is dismissed; (5) The plaintiff is to pay the defendant's costs as agreed or assessed. CATCHWORDS: Appeal decision of Local Court Magistrate - alleged overpayment for poker machines LEGISLATION CITED: Local Courts Act 1982 (NSW) - s 73 CASES CITED: Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
BP Refinery (Westernport) Pty Limited v Hastings Shire Council (1977) 180 CLR 266
Carr v Neill [1999] NSWSC 1263
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Devries v Australian National Railways Commission (1993) 177 CLR 472
Henjo Investments Pty Ltd and Ors v Collins Marrickville Pty Ltd (1988) 79 ALR 83
Jebeli v Modir and Golyaei [2005] NSWCA 184
Jones v Dunkel (1959) 101 CLR 298
R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082
Ronald Wallace Gould and Another v Peter Vaggelas and Others (1984) 157 CLR 215
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588
Swain v Waverley Municipal Council [2005] HCA 4
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and Ors (2004) 211 ALR 342PARTIES: Brush Park Bowling Club Limited - Plaintiff
The Leasing Centre (Aust) Pty Limited - DefendantFILE NUMBER(S): SC 11340/2006 COUNSEL: Mr S A Benson - Plaintiff
Mr J M White - DefendantSOLICITORS: Kenneally & Co Lawyers - Plaintiff
Swaab Attorneys - DefendantLOWER COURT JURISDICTION: Local Court LOWER COURT FILE NUMBER(S): 1367/2005 LOWER COURT JUDICIAL OFFICER : James E Garbett LCM LOWER COURT DATE OF DECISION: 27 February 2005
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONASSOCIATE JUSTICE HARRISON
11340/2006 - BRUSH PARK BOWLING CLUB LIMITEDFRIDAY, 15 DECEMBER 2006
v THE LEASING CENTRE (AUST)JUDGMENT (Appeal decision of Local Court Magistrate
PTY LIMITED
- alleged overpayment for poker machines)
1 HER HONOUR: By summons filed 23 March 2006 the plaintiff seeks firstly, to appeal the decision of His Honour Magistrate James E Garbett LCM dated 27 February 2005 in proceedings 1367/05 and secondly, an order that the judgment in favour of the defendant on 27 February 2005 be set aside and in lieu thereof verdict and judgment be entered for the plaintiff.
2 Brush Park Bowling Club Limited (Brush Park) is the plaintiff in this Court as well as in the Local Court. The Leasing Centre (Aust) Pty Limited (The Leasing Centre) is the defendant in this Court as well as in the Local Court. Brush Park relied on the affidavit of Belinda Kenneally sworn 17 May 2006 and an affidavit of Terence Sperber…
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- AGLC
- Brush Park v The Leasing Centre [2006] NSWSC 1385
- Case
- [2006] NSWSC 1385
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Local Court Magistrate had correctly interpreted the lease agreement and whether the plaintiff was entitled to a refund of the alleged overpayment. The court needed to determine if the Magistrate had properly assessed the terms of the contract and whether there was an overpayment made by the plaintiff. The court also had to consider whether the plaintiff had a valid claim for the alleged excess amount.
The court examined the lease agreement in detail and concluded that the Magistrate had correctly interpreted the terms of the contract. The court found that there was no overpayment made by the plaintiff and that the amount paid was in accordance with the lease agreement. The court further held that the plaintiff had not provided sufficient evidence to support its claim for a refund. Consequently, the appeal was dismissed, and the plaintiff's claim was rejected. The court upheld the decision of the Local Court Magistrate and ruled in favour of the defendant, The Leasing Centre.
Orders
Orders of the court
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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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