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Condor Asset Management Ltd v Primestone Developments Pty Ltd

Condor Asset Management Ltd v Primestone Developments Pty Ltd

Case [2007] NSWSC 708 11 July 2007

Jurisdiction

Standing

Abuse of Process

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Compensatory Damages

Civil Litigation & Procedure

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CITATION: Condor Asset Management Ltd v Primestone Developments Pty Ltd [2007] NSWSC 708

HEARING DATE(S): 21, 28 May 2007

JUDGMENT DATE :
11 July 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Studdert J

DECISION: Summons is dismissed. The plaintiff is to pay the defendant's costs.

LEGISLATION CITED: Local Courts Act

CASES CITED: The Council of the Upper Hunter County District v Australian Chilling and Freezing Co Ltd (1967) 118 CLR 429
National Roads and Motorists' Association Ltd v Parkin (2004) 60 NSWLR 224
Wong v Mura [2001] NSWCA 366
McDonald v Dennys Lacelles Ltd (1933) 48 CLR 457
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1980) 144 CLR 300
Mayson v Clouet (1924) AC 980
Howe v Smith (1884) 27 Ch 89
Schmierer v Taouk [2004] NSWSC 345
Pavy & Matthews Pty Ltd v Hall (1986) 162 CLR 221
ANZ Banking Group Ltd v Westpac Banking Corp (1988) 164 CLR 662
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Roxburgh v Rothmans of Pall Mall Australia Ltd [2001] HCA 68
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430

PARTIES: Condor Asset Management Ltd (Plaintiff)
Primestone Developments Pty Ltd (Defendant)

FILE NUMBER(S): SC 12924/06

COUNSEL: S V Shepherd (Plaintiff)
A Crossland (Defendant)

SOLICITORS: Verekers Lawyers (Plaintiff)
L J Rickard (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 12718/04

LOWER COURT JUDICIAL OFFICER : P. Norton LCM

LOWER COURT DATE OF DECISION: 22 May 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Wednesday 11 July 2007

12924/06 CONDOR ASSET MANAGEMENT LIMITED v PRIMESTONE DEVELOPMENTS PTY LIMITED
JUDGMENT

1 HIS HONOUR: This is an appeal from a decision in the Local Court. The plaintiff, Condor Asset Management Limited, sued the defendant, Primestone Developments Pty Limited, seeking to recover moneys paid out, totalling $41,000. The claim failed; the proceedings resulted in a verdict for the defendant.

2 The appeal to this Court is governed by ss 73, 74 and 75 of the Local Courts Act. These sections provide, so far as is relevant:

“73. (1) A party to proceedings under this Part who is dissatisfied with the judgment or order of a Court sitting in its General Division may appeal to the Supreme Court against the judgment or order, but only as being erroneous in point of law….

74. (1) A party to proceedings under this Part who is dissatisfied with the judgment or order of a Court sitting in its General Division may appeal to the Supreme Court against the judgment or order on a ground that involves a question of mixed law and fact, but only by leave of the Supreme Court…

75. The Supreme Court may determine an appeal made under this Division:

(a) by varying the terms of 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

AGLC: Condor Asset Management Ltd v Primestone Developments Pty Ltd [2007] NSWSC 708
Case: [2007] NSWSC 708
Decision Date: 11 July 2007

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Condor Asset Management Ltd (the plaintiff) appealed against a decision made by the Local Court in a proceeding brought by the plaintiff against Primestone Developments Pty Ltd (the defendant). The plaintiff sought to recover moneys paid out, totalling $41,000, which it claimed was paid by way of a loan repayable on demand. The Local Court dismissed the claim. The appeal to the Supreme Court is governed by ss 73, 74 and 75 of the Local Courts Act. The plaintiff submitted that the Local Court erred in law and did not seek leave of the Supreme Court to appeal on a ground involving mixed law and fact. The plaintiff pursued 15 grounds of appeal, including that the Local Court erred in finding that a concluded oral agreement arose in terms of the document at annexure C and that the Local Court erred in finding that the plaintiff was in breach of the oral joint venture agreement. The court rejected the claim that the various sums paid by the plaintiff were paid by way of a loan repayable on demand and found that the plaintiff was in breach of the oral agreement. The court held that the appeal failed and dismissed the summons. The plaintiff is to pay the defendant's costs.

Orders