Carolan v Dickerson

[2000] NSWSC 1132

CITATION:	Carolan v Dickerson [2000] NSWSC 1132
FILE NUMBER(S):	SC 10077/00
HEARING DATE(S):	04/12/00
JUDGMENT DATE:	6 December 2000
PARTIES :	Glen Carolan - Plaintiff Mathew Dickerson - Defendant
JUDGMENT OF:	Bell J at 1

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	437/1996
LOWER COURT JUDICIAL OFFICER :	Magistrate Jacob

COUNSEL :	A Capelin - Plaintiff P Strain - Defendant
SOLICITORS:	Quirk, Davidson & Easdown - Plaintiff Nelson Keane & Hemingway - Defendant
LEGISLATION CITED:	Local Courts ( Civil Claims) Act1970 Justices Act 1902
CASES CITED:	Carr v Neill (NSWSC 1263 1999) Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
DECISION:	Appeal allowed; judgment given by Magistrate on 17/12/99 quashed. In lieu thereof judgment for the defendant (the plaintiff below) in the sum of $15,000 together with interest. Plaintiff to pay defendant's costs both of these proceedings and the proceedings below.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Wednesday, 6 December, 2000

10077/00 - Glen CAROLAN v Mathew A DICKERSON

JUDGMENT

1 HER HONOUR: This is an appeal brought pursuant to s 69(2) of the Local Courts (Civil Claims) Act 1970 (“the Act”) from the judgment of Magistrate Jacob sitting in the Local Court at Dubbo. Section 69(2) of the Act provides that a party to proceedings who is dissatisfied with the judgment of the Court as being erroneous in point of law may appeal to this Court. The provisions of Part 5 of the Justices Act 1902 apply (to the extent to which they are applicable) to appeals brought pursuant to s 69(2) of the Act.

2 Part 5 of the Justices Act 1902, which came into effect on 1 March 1999, provides pursuant to s 104(1) that an appeal may be brought on any of the following grounds:

(a) A ground that involves a question of law alone,

(b) a ground that involves a question of mixed law and fact, but only with the leave of the Supreme Court,

(c) the ground that the conviction, order or sentence cannot be supported having regard to the evidence.

3 Mr Capelin, who appeared on behalf of the plaintiff, contended in his written submissions both that the judgment appealed from could not be supported having regard to the evidence and that the Magistrate erred on a question of law as to whether a contract had been formed between the parties. Mr Strain, on the defendant’s behalf, in his written submissions appears to have accepted that, by force of s 104(1) of the Justices Act, an appeal on the ground that the judgment could not be supported having regard to the evidence was open.

4    I note that in Carr v Neill (NSWSC 1263 1999) Sully J considered the effect of s 104(1) of the Justices Act in its application to appeals from the Local Court brought under the Act. His Honour concluded that s 69(2) of the Act confers the jurisdiction and that s 104 of the Justices Act provides the machinery by which the appeal is brought. In his Honour’s view the introduction of Part 5 of the Justices Act did not operate to expand the bases upon which appeals from magistrates exercising jurisdiction under the Act might be brought. Such appeals remain confined to those which identify error of law.

5 As I have noted, in the way the matter was argued before me it was the parties’ common position that an appeal under s 104(1)(c) was open. I am not persuaded that is so in the light of Sully J’s reasons in Carr. Nothing turns on this in the circumstances of this appeal since I am, in any event, not persuaded that the judgment below cannot be supported having regard to the evidence.

6    The proceedings relate to the sale by the defendant to the plaintiff of a screen-printing business for the sum of $16,000. It was the defendant’s case in the Local Court (where he was the plaintiff) that the agreement for sale was an oral one concluded on or about 11 April, 1996. He contended that the contract had been partly performed and that thereafter the plaintiff had refused to pay the purchase price. He commenced proceedings in the Local Court at Dubbo seeking judgment in the amount of $16,000. He was successful in this claim. On 17 December, 1999 the Magistrate gave judgment in that sum together with interest and costs.

7    In the proceedings before the Magistrate evidence in chief was adduced by way of the tender of witness statements. Both the plaintiff and the defendant were cross examined. A central issue concerned the terms of a conversation between plaintiff and defendant said to have occurred on or about 11 April 1996. The Magistrate resolved this factual issue in favour of the defendant. She rejected the evidence of the plaintiff and accepted the defendant’s account.

8    Mr Capelin acknowledged that her Worship’s findings in this respect cannot be assailed. It was his submission that, upon an acceptance of the evidence of the defendant, it had not been open to the Magistrate to find that a contract for sale of the business had been concluded. He submitted that there was no evidence that a price (or any mechanism for determining the same) had been agreed. He pointed to the defendant’s evidence (at p.23 of the transcript of proceedings on 28/6/99) that no agreement had been reached as to the date of delivery of the screens or their condition as supporting his contention that it was not open to the Magistrate to find that a contract had been formed.

9    In order to understand the nature of Mr Capelin’s challenge it is appropriate to refer, in a summary way, to the history of the dealings between the parties as detailed in the defendant’s witness statement.

10    In late 1995 the defendant decided to sell his screen printing business. He and his wife drew up some rough figures relating to the business but did not, at that stage, settle on a price. The plaintiff heard that the business was for sale. He called to see the defendant and to inspect the equipment. The plaintiff asked how much the defendant was asking for the business to which the defendant replied “We are open to offers given the information we have given you” (this appears to be a reference to the contents of a brochure which the defendant had prepared). Some weeks later the plaintiff told the defendant “We’ve decided against the business in case you hadn’t gathered”. The defendant and his wife continued to run the business thereafter. Around March 1996 the defendant and his wife determined to make a serious attempt to sell the business. They fixed on a sale price of $16,000. They prepared a revised brochure which stated that the sale price of the business including specified assets was $16,000 (“the revised brochure”).

11    The business was advertised in the local press. On the evening of 11 April 1996 the plaintiff called to the defendant’s premises. In his statement the defendant set out the terms of his discussion with the plaintiff in paras 17 and following. The relevant portions of the statement are as follows:

“17. He asked me about the screen printing business. He told me he had seen that it was for sale again.
18. He asked me how we were going with the selling of the business. There followed a conversation of which the substance is as follows:
I said: “We’ve got someone coming up from the Orange/Bathurst area who sounds quite keen.”
He said: “Don’t worry about him.”
I said: “He’s already rung and said he is coming.”
He said: “Don’t worry about it. I’ll take it.”
I said: “If you are definitely going to buy the business, I’ll tell the other bloke not to come up.”
He said: “I’m taking it.”
I said: “I’ll have to see if I can get hold of him. I’ll go and tell this bloke not to come up tomorrow.”

…..

21. After we had the conversation set out above, Glen and I then had a further discussion about transferring the business telephone number, when he could pick up the equipment and about the stainless steel box I was having made for me by Dubbo Stainless Steel. We also talked about the flier I was to send to all the customers of the business and how I would put some sort of special offer in the flier for the customers.
22. In relation to the collection of the gear I said: “I’ll get Chris’s ute to move the gear over for you”. He said: “Don’t worry, we’ve got access to a truck.”
23. I said: “We’ll organise the transfer of the telephone number and for fliers to go out.” I said: “Let’s go over to the storage area this weekend to collect the gear.” He said: “I’ll give you a ring”.
24. Some time before Glen Carolan came into my shop, I had distributed a brochure about the sale of my business. That brochure is the same as the one which is attached to this statement. That brochure clearly stated the price and that there was no doubt that we were both speaking about the purchase of the business at the price set out in the brochure, that is, sixteen thousand dollars ($16,000). I cannot recall the specific words used which related to the price, but it is my clear recollection that it was quite clear in the conversation that Glen Carolan had read the contents of the brochure and agreed to buy the business for the price of $16,000.”

12    In the course of her reasons for judgment Magistrate Jacob stated:

“The plaintiff said that he subsequently prepared a marketing brochure offering the business for sale for $16,000 and that a copy had been given to the defendant and other interested parties.”

13    Mr Capelin submitted that the finding (the plaintiff had been given the revised brochure) was not open to the Magistrate. He submitted that the opinion expressed in the balance of para 24 set out above (that it was quite clear that Glen Carolan had read the contents of the brochure and agreed to buy the business for the price of $16,000) was not capable of supporting a finding that the brochure had been given to the plaintiff. He took me to a passage in the evidence of the defendant appearing at p 29 of the transcript of 28th June 1999:

“Q. You have no recollection of Mr Carolan having this document prior to your conversation on 11 April?

A. Certainly Glen … .

Q. … You didn’t supply it to him?
A. No, Glen had a previous copy. I had given Glen a previous copy of that when he previously looked at the business. It was a slightly different document in that the price down the bottom was different but in essence the document was the same.”

14    It was Mr Capelin’s submission that the Magistrate had made an error in that she had wrongly concluded that the evidence established that the defendant had given the plaintiff a copy of the revised brochure. This was a critical error, so the argument ran, since it was the only evidence capable of establishing that the parties were agreed upon a price for the sale of the business. In Mr Capelin’s submission this wrongful factual finding was fundamental in the sense that once it was taken away there remained no evidence upon which the Magistrate might have arrived at her finding. I am not convinced that were the Magistrate’s finding (extracted at para 10 above) wrong, it would support a challenge that her decision was wrong in law; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. However, it is not necessary to dwell on this aspect since I am not persuaded that the finding was wrong.

15    The Magistrate did not find that the defendant had supplied a copy of the revised brochure to the plaintiff. Rather she found that a copy of the revised brochure had been given to the plaintiff and other interested parties. I have set out the terms of para 24 of the defendant’s witness statement above. I was informed that no objection was taken to the tender of para 24 in the proceedings before the Magistrate. Indeed, this appeal was conducted upon the basis that the defendant had not been challenged in cross examination in the court below upon the assertions contained in para 24 (save to the limited extent involved in the line of questioning developed at pp 29/30 of the transcript of 28 June 1999).

16    Para 24 provided a basis upon which it was open to the Magistrate to find both that the plaintiff had been supplied with (or was aware of the contents of) the revised brochure and that the plaintiff’s statement “I’m taking it” in the course of the conversation on 11 April 1996 amounted to an acceptance of the defendant’s offer to sell the business (including the specified assets) for the sum of $16,000.

17    The plaintiff challenged the Magistrate’s judgment upon an alternative basis relating to the calculation of the quantum of damages. As I have noted, the Magistrate gave judgment in the amount of $16,000 together with interest. There was evidence before her that the defendant had re-sold the business for $1,000. The defendant concedes that the Magistrate erred in failing to take account of this evidence in assessing damages.

18    In the light of this concession the plaintiff is entitled to succeed on the limited basis. The focus of the argument before me was the challenge to the judgment in favour of the defendant. In these circumstances I consider the appropriate order for costs is that the plaintiff pay the defendant’s costs of the appeal.

19    For these reasons my orders are:

(1) The appeal is allowed;
(2) Quash the judgment given by the Magistrate on 17 December 1999;

(3) In lieu thereof judgment for the defendant (the plaintiff below) in the sum of $15,000 together with interest.

(4) The plaintiff is to pay the defendant’s costs both of these proceedings and the proceedings below.

*****

Last Modified: 12/07/2000