SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
SULLY J
17 December, 1999
10880/99 - Malcolm CARR v Trevor NEILL
JUDGMENT
1 HIS HONOUR: Mr. Malcolm Carr, to whom I shall hereinafter refer as ‘the appellant’, and Mr. Trevor Neill, to whom I shall hereinafter refer as ‘the respondent’, are both solicitors of this Court. They have become embroiled in litigation stemming from a proposal for the sale by the respondent to the appellant of a legal practice formerly carried on by the respondent. 2 That litigation commenced with the issue on 19 September 1996 of an Amended Statement of Liquidated Claim brought by the respondent as plaintiff against the appellant as defendant. The respondent claimed a sum of $31,250 “being the balance of moneys payable by the ……(appellant) ……to the … … (respondent) … … pursuant to an agreement between ……(the respondent) …… and ……(the appellant) … … executed by …..(the respondent) ……and ……(the appellant) ….. on or about the 3 May 1994 ……”. The claim alleged an agreement for the sale by the respondent to the appellant of the former’s legal practice for a sum of $100,000. It was alleged that the appellant had agreed to pay the purchase price, as to the sum of $50,000 on 1 July 1994; and as to the balance of $50,000 by eight equal instalments of $6,250 each upon certain nominated days commencing with 1 October 1994 and ending with 1 July 1996. It was alleged that the appellant had paid the first three of such eight instalments; but had failed to pay the remaining five instalments. 3 The proceedings thus commenced were vigorously defended. They proceeded to a vigorously contested hearing at the Downing Centre Local Court before Mr. M. Price LCM. Evidence and submissions occupied no less than four hearing days, on 8, 11 and 12 November 1998 and 1 March 1999. The learned Magistrate reserved…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Carr v Neill [1999] NSWSC 1263
Case
[1999] NSWSC 1263
Decision Date
CaseChat Overview and Summary
The case of Carr v Neill involves a dispute between two solicitors, Malcolm Carr (appellant) and Trevor Neill (respondent), concerning the sale of a legal practice. The litigation began with the respondent filing a claim against the appellant for the balance of the purchase price under an agreement for the sale of the legal practice. The Local Court found in favour of the respondent, and the appellant appealed to the Supreme Court. The appellant's appeal was based on several issues, including whether the parties intended to enter into a legally binding agreement, and whether the pre-completion audit was conducted. The court found that the evidence supported the Local Court's findings, and that the appeal was not based on an error of law. Therefore, the appellant's summons was dismissed with costs.
In this case, the Supreme Court considered the nature and scope of the available appeal, and found that the appeal was only permissible if the judgment from which the appeal was brought was shown to have been "erroneous in point of law". The court also examined the relevant provisions of the Local Courts (Civil Claims) Act 1970 (NSW) and the Justices Act 1902, and concluded that the jurisdiction of the Supreme Court in connection with the present appeal was limited to cases where the judgment was erroneous in point of law.
The court found that the evidence supported the Local Court's findings that the parties intended to enter into a legally binding agreement, and that the appellant had made payments in accordance with the terms of the agreement. The court also found that there was no error of law in the Local Court's conclusion that the pre-completion audit was conducted.
In light of these findings, the court held that the appellant had not shown cause for the disturbance of the judgment given at first instance. The appellant's summons was therefore dismissed with costs. The exhibits were to remain in Court for a period of 28 days from the date of the judgment, and if no appeal was lodged within that period, the exhibits were to be returned to the persons or bodies respectively entitled to them.