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Ciszek v Enterprise Financial Solutions Pty Ltd

Ciszek v Enterprise Financial Solutions Pty Ltd

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CITATION: Ciszek v Enterprise Financial Solutions Pty Limited [2010] NSWSC 1265

HEARING DATE(S): 26 October 2010

JUDGMENT DATE :
4 November 2010

JUDGMENT OF: Schmidt J

DECISION: 1. Leave to appeal is granted and the appeal upheld.
2. The judgment of the Local Court given on 9 June 2010 is set aside.
3. I note the terms of the agreement reached between the parties in settlement of the proceedings in the Local Court, namely that the defendant is to retain possession of and have title to 4 plasma television sets upon payment of the agreed sum of $500.
4. The plaintiff is to pay the defendant's costs of the motion of 26 February 2010, as agreed or assessed.
5. The proceedings in the Local Court are to be discontinued with no order as to costs.
6. The defendant is to pay the plaintiff's costs of this appeal, as agreed or assessed.

CATCHWORDS: APPEAL AND NEW TRIAL - appeal - practice and procedure - appeal from Local Court - sections 39 and 40 of the Local Court Act 2007 - whether judgment appealed against was an interlocutory judgment requiring leave - leave required on appeal from interlocutory judgment, even when raising questions of law - leave granted - whether Magistrate erred in conclusion reached as to the effect of an alleged settlement agreement - whether Magistrate further erred in failing to determine that a binding agreement had been reached - section 73 of the Civil Procedure Act 2005 - nature of agreement - whether evidence established agreement reached - binding agreement established - appeal upheld - costs

LEGISLATION CITED: Civil Procedure Act 2005
Local Court Act 2007
Trade Practices Act 1974 (Cth)

CATEGORY: Principal judgment

CASES CITED: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 293 CLR 175
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540
Banque Commerciale S.A., En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Bagumya v Kakwano [2010] NSWSC 600
Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372
GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631
Laycock v Putty Community Association Incorporated [2006] NSWSC 900
Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353
Sanofi v Parke Davis Pty Ltd (No 1) [1982] HCA 9; (1982) 149 CLR 128
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Whitty v Fin Control Systems Pty Ltd [2000] NSWSC 332

PARTIES: Plaintiff - Richard Michael Ciszek
Defendant - Enterprise Financial Solutions Pty Limited ACN 101 737 204

FILE NUMBER(S): SC 2010/227775

COUNSEL: Plaintiff - Mr A Henskens
Defendant - Mr S Bell

SOLICITORS: Plaintiff - O'Sullivan Saddington Lawyers
Defendant - SR Law

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 4555/09

LOWER COURT JUDICIAL OFFICER : Magistrate Bradd

LOWER COURT DATE OF DECISION: 9 June 2010

- 24 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

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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Details

Case: [2010] NSWSC 1265
Decision Date: 4 November 2010

CaseChat Overview and Summary

The appeal before the court involved the plaintiff, Ciszek, and the defendant, Enterprise Financial Solutions Pty Ltd. The dispute originated from an alleged settlement agreement between the parties, which Ciszek claimed had been breached by the defendant. The matter was initially heard and determined in the Local Court, and Ciszek sought to appeal the decision of the Local Court to the Supreme Court.

The legal issues before the court were whether the judgment appealed against was an interlocutory judgment requiring leave, whether the Magistrate erred in concluding that the alleged settlement agreement had been reached, and whether the Magistrate erred in not determining that a binding agreement had been reached. The court had to consider whether the appeal required leave under sections 39 and 40 of the Local Court Act 2007 and whether the evidence established that a binding agreement had been reached. The court also needed to determine whether the Magistrate erred in his conclusions about the settlement agreement under section 73 of the Civil Procedure Act 2005.

The court found that the judgment appealed against was an interlocutory judgment, and therefore leave was required to appeal, even if questions of law were being raised. The court granted leave and considered the evidence presented. It was determined that the evidence did establish that a binding agreement had been reached between the parties. The court found that the Magistrate had erred in his conclusions about the settlement agreement, and therefore the appeal was upheld. The court awarded costs to the appellant, Ciszek.

The final orders of the court were that the appeal was upheld, and the decision of the Local Court was set aside. The matter was remitted to the Local Court for further proceedings in light of the findings of the Supreme Court. The appellant, Ciszek, was awarded costs of the appeal.

Orders