Coshott v Shipton Lodge Cobbitty Pty Ltd - [2006] NSWCA 316

NEW SOUTH WALES COURT OF APPEAL

CITATION: Coshott & Anor v Shipton Lodge Cobbitty Pty Ltd [2006] NSWCA 316

FILE NUMBER(S):
40407; 40517 of 2006

HEARING DATE(S): 9 November 2006

DECISION DATE: 09/11/2006
EX TEMPORE DATE: 09/11/2006

PARTIES:
Robert Gilbert Coshott - 1st Claimant
Ljiljana Coshott - 2nd Claimant
Shipton Lodge Cobbitty Pty Ltd - Opponent

JUDGMENT OF: McColl JA Basten JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 12167/03; 11429/04; 13324/04

LOWER COURT JUDICIAL OFFICER: Johnson J

COUNSEL:
M D Seymour - Claimants
M Bradford - Opponent

SOLICITORS:
Mr R Coshott in person - Claimants
Mack & Associates - Opponent

CATCHWORDS:
APPEAL - application for leave to appeal from dismissal of appeals from two Local Court decisions - agistment of horses - whether contract by conduct established - bailment - whether correct determination of standard of care - COMPETENCY OF APPEAL - whether costs included in determining whether matter at issue on appeal amounted to $100,000 - leave refused
(ND)

LEGISLATION CITED:
District Court Act 1973
Local Courts Act 1982
Local Court (Civil Claims) Act 1970
Supreme Court Act 1970.

DECISION:
Application for leave to appeal and appeal dismissed. Claimants to pay the opponent’s costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40407/06
CA 40517/06
SC 12167/03
SC 11429/04
SC 13324/04
McCOLL JA
BASTEN JA
9 November 2006

ROBERT GILBERT COSHOTT AND LJILJANA COSHOTT v SHIPTON LODGE COBBITTY PTY LIMITED

Ex Tempore Judgment

McCOLL JA: The court has before it an application for leave to appeal from Justice Johnson’s decision to dismiss an appeal from two Local Court decisions referred to respectively in his Honour’s judgment as “the first proceedings”, which I will describe as the “agistment case” and the “second proceedings”, which I will describe as the “bailment case”: Coshott v Shipton Lodge Cobbity Pty Ltd [2006] NSWSC 556.
The claims before the Local Court concerned the agistment of horses at the Cobbitty premises of the opponent, on behalf of the first appellant, Mr Robert Coshott. The magistrate concluded in the agistment case that the opponent had established a contract arising from a course of dealing between the parties pursuant to which the opponent provided agistment and other services including services provided by farriers drenching and veterinary services.
The magistrate found that it was undisputed before him that prior to 1 January 1999 the claimant had been making payments to the opponent for services provided in accordance with invoices but from that date he stopped making those payments: see primary judgment at [28]. He concluded that the opponent had clearly established the existence of a contract between the parties having regard to the course of dealing of the parties over the years and that the first claimant was in breach of that contract. Accordingly, he awarded the opponent the full amount outstanding for the services which led to the entry of judgment in the sum of $27,194.32, court costs of $113 and interest of…

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: [2006] NSWCA 316
Decision Date: 09/11/2006

CaseChat Overview and Summary

The applicants, Coshott and others, sought leave to appeal to the Court of Appeal from the dismissal of their appeals in the District Court. Those District Court appeals concerned two separate decisions of the Local Court concerning the agistment of horses. The respondents were Shipton Lodge Cobbitty Pty Ltd and others. The core of the dispute involved allegations of breach of contract and bailment arising from the agistment of the applicants' horses.

The Court of Appeal was required to determine two primary legal issues. Firstly, whether the District Court had erred in its assessment of whether a contract by conduct had been established between the parties in relation to the agistment. Secondly, the Court had to consider whether the District Court had correctly determined the standard of care owed by the respondents as bailees. A further issue arose regarding the competency of the appeal, specifically whether the costs awarded in the Local Court were to be included when assessing if the "matter at issue" on appeal amounted to $100,000, which is a threshold for certain appeals.

In dismissing the application for leave to appeal and the appeal, the Court of Appeal found that the District Court had not erred in its findings. The Court was satisfied that the District Court had correctly applied the principles relating to contract by conduct and the standard of care owed in a bailment relationship. Crucially, the Court determined that the costs awarded in the Local Court were to be included in the calculation of the "matter at issue" for the purposes of the appeal threshold. As the total amount, including costs, did not reach $100,000, the appeal was not competent. Consequently, the application for leave to appeal and the appeal were dismissed, with the claimants ordered to pay the respondents' costs.

Orders

Orders of the court

Application for leave to appeal and appeal dismissed. Claimants to pay the opponent's costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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