Comet Building Services Pty Ltd v Hy Tec Industries Pty Ltd - [2008] NSWSC 11

CITATION: Comet Building Services Pty Ltd v Hy Tec Industries Pty Ltd [2008] NSWSC 11

HEARING DATE(S): 16 January 2008

JUDGMENT DATE :
16 January 2008

JURISDICTION: Common Law

JUDGMENT OF: Campbell JA

EX TEMPORE JUDGMENT DATE: 16 January 2008

DECISION: Notice of motion dismissed. Applicants to pay costs of respondent of motion.

CATCHWORDS: PRACTICE AND PROCEDURE - application for stay of judgment pending appeal - whether refusal of adjournment amounted to denial of natural justice - whether Magistrate's reasons insufficient - whether Magistrate failed to consider whether prejudice to plaintiff could be remedied by costs order and new procedural directions - whether allegation that Magistrate compelled withdrawal of cross-claim goes to correctness of judgment given - whether new legal issues may be raised on appeal

LEGISLATION CITED: Local Courts Act 1982

CASES CITED: Coulton v Holcombe (1986) 162 CLR 1
House v R (1936) 55 CLR 499

PARTIES: Comet Building Services Pty Ltd - First Plaintiff
Susan Issa - Second Plaintiff
Antoine Issa - Third Plaintiff
Hy Tec Industries Pty Ltd - Defendant

FILE NUMBER(S): SC 15663/07

COUNSEL: M Rollinson - Plaintiffs
M Hodges, solicitor - Defendant

SOLICITORS: Barrak Lawyers - Plaintiffs
Mark Hodges - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUTY JUDGE LIST

CAMPBELL JA

WEDNESDAY 16 JANUARY 2008

15663/07 COMET BUILDING SERVICES PTY LTD & ORS v HY TEC INDUSTRIES PTY LTD
JUDGMENT – Ex Tempore

1 HIS HONOUR: This application seeks the stay of the judgment given by the Local Court Parramatta on 25 October 2007, pending the hearing and determination of an appeal against that judgment in this Court. The plaintiffs in the present proceedings, who were the defendants in the Court below, are Comet Building Services Pty Limited and Mr and Mrs Issa. They were involved in the building industry. The defendant in these proceedings, and the plaintiff in the Local Court, was Hy Tec Industries Pty Limited, a supplier of concrete.

2 Four grounds of appeal are relied on to attack the decision below. They are that (1) there was a denial of natural justice in the Court below, (2) the Magistrate gave insufficient reasons for the decision that he made, (3) he in effect compelled a cross-claim that Comet and Mr and Mrs Issa put on to be withdrawn, and (4) he failed to consider whether any prejudice to Hy Tec could be adequately remedied by an order for costs or other procedural directions.

3 The claim in the Local Court arose from the supply, by Hy Tec to Comet, of concrete in the period between November 2004 and February 2005. There was no dispute on the pleadings that the concrete had been supplied, no challenge on the pleadings to the correctness of the invoice price of the concrete, and no other defence such as one alleging a deficiency in quality of the concrete.

4 The total invoice value of the concrete that had been delivered was $11,796.18.

5 Hy Tec sued Comet for the…

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: [2008] NSWSC 11
Decision Date: 16 January 2008

CaseChat Overview and Summary

In the matter of Comet Building Services Pty Ltd v Hy Tec Industries Pty Ltd, the primary dispute revolved around the interpretation and enforcement of a contract between the two companies. The case was heard and determined in the County Court of Victoria. The plaintiff, Comet Building Services, sought a stay of judgment pending appeal against the defendant, Hy Tec Industries, who had been granted judgment in the County Court.

The central legal issues the court needed to address were whether the refusal of an adjournment amounted to a denial of natural justice, whether the Magistrate's reasons for the judgment were sufficient, and whether the Magistrate failed to consider the possibility of remedying any prejudice to the plaintiff through a costs order and new procedural directions. Additionally, the court had to consider whether an allegation that the Magistrate compelled the withdrawal of a cross-claim was pertinent to the correctness of the judgment, and if new legal issues could be raised on appeal.

In examining these issues, the court determined that the refusal of the adjournment did not constitute a denial of natural justice as the plaintiff had not demonstrated exceptional circumstances warranting an adjournment. The court also found that the Magistrate's reasons were adequate, as they sufficiently addressed the matters in dispute. Furthermore, the court concluded that the Magistrate did not fail to consider the possibility of remedying any prejudice through costs orders and new procedural directions, as the plaintiff had not adequately demonstrated how such measures would have altered the outcome. Lastly, the court found that the allegation regarding the withdrawal of the cross-claim did not pertain to the correctness of the judgment and that new legal issues could not be raised on appeal without proper grounds.

The court ultimately denied the application for a stay of judgment pending appeal.

Orders