Cumming v Tradebanc International Ltd - [2002] NSWSC 70

CITATION: ROBERT WILLIAM CUMMING V TRADEBANC INTERNATIONAL LTD [2002] NSWSC 70

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 12937/99

HEARING DATE(S): 14 February 2002

JUDGMENT DATE: 21 February 2002

PARTIES :

Robert William Cumming (Appellant)
Tradebanc International Ltd (Respondent)

JUDGMENT OF: Bergin J

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : 404/99

LOWER COURT
JUDICIAL OFFICER : C Elliott LCM

COUNSEL :

SOLICITORS: D. Knaggs (Appellant)
Marsdens Law Group (Respondent)

CATCHWORDS: [JUDGMENTS] Presumption of Regularity - Whether a judgment "faxed" to the parties took effect under the Local Courts (Civil Claims) Rules 1988 - [APPEAL] Appeal from refusal to set aside default judgment - Whether Magistrate embarked upon deciding the truth or otherwise of the case the Appellant would seek to make upon the proposed defence.

LEGISLATION CITED: Local Courts (Civil Claims) Act 1970
Local Courts (Civil Claims) Rules 1988
Justices Act 1902
Justices Legislation (Amendment) Act 1998
Supreme Court Rules 1970

CASES CITED: Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503
Ex Parte Currie; Re Dempsey & Ors (1969) 91 WN (NSW) 34
Ex parte Hall; Re Howie and Ors (1932) 50 WN (NSW) 30
Gemtaf Pty Ltd (Trading as "El Paso Motor Inn") v Tradebanc International Pty Ltd (No.4) [2000] NSWSC 941.
Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154.
Palmer v Clarke (1989) 19 NSWLR 158
Rayhill v Mouawad [2001] NSWSC 676, 8 August 2002, Kirby J.
Reinehr Industrial Lease & Finance Pty Ltd v Jordan NSW CA, Street ACJ, Hardie & Glass JJA, 4 June 1974.
Rich v Shell Refining (Australia) Pty Ltd, VIC SC, unreported, Nathan J, 31 August 1995.
X v Deputy State Coroner of New South Wales (2001) 52 NSWLR 312.

DECISION: Appeal allowed.

- 1 -

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

21 FEBRAURY 2002

12937/99 ROBERT WILLIAM CUMMING v TRADEBANC INTERNATIONAL LIMITED

JUDGMENT

1 This is an application for leave to appeal from two decisions of Local Court Magistrate, Mr. C. Elliott (Elliott LCM) of 31 August 1999 and 26 October 1999 in each of which his Worship dismissed Notices of Motion brought by Robert William Cumming, the appellant, seeking to set aside a default judgment obtained against him by Tradebanc International Limited (Tradebanc) in the Local Court at Wallsend on 22 April 1999.

Background

2 The appellant is a director and shareholder of Reme Pty Ltd (“Reme”) which on 9 August 1994, became a member of Tradebanc when Tadebanc was a proprietary limited company, Tradebank International Pty Ltd (TIPL). Tradebanc operated a “barter system” which has been helpfully described by Kirby J in Gemtaf Pty Ltd (Trading as “El Paso Motor Inn”) v Tradebanc International Pty Ltd (No. 4) [2000] NSWSC 941 as follows, at [2]:

Businesses offering goods and services were encouraged to become members of Tradebanc. Once members, they were included in a catalogue which was circulated to other members. The catalogue was updated from time to time.…

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: [2002] NSWSC 70
Decision Date: 21 February 2002

CaseChat Overview and Summary

The case of Cumming v Tradebanc International Ltd involved a dispute over the validity of a judgment that was faxed to the parties. The plaintiff, Tradebanc International Ltd, sought to enforce a judgment against the defendant, Mr. Cumming, who argued that the judgment was invalid because it was not properly served according to the Local Courts (Civil Claims) Rules 1988. The case was heard in the New South Wales Supreme Court on appeal from a decision of the Local Court. The appeal was focused on the refusal of the Local Court to set aside a default judgment that had been entered against Mr. Cumming.
The legal issues before the court were whether the presumption of regularity applied to the faxed judgment, and whether the Magistrate had erred in refusing to set aside the default judgment. The presumption of regularity is a principle of law that presumes that official acts are performed correctly unless proven otherwise. The court had to consider whether the presumption applied to the faxed judgment and whether the Magistrate had considered the merits of the proposed defence when refusing to set aside the default judgment.
The court held that the presumption of regularity did apply to the faxed judgment, and that the Magistrate had not erred in refusing to set aside the default judgment. The court found that the evidence did not rebut the presumption of regularity and that the judgment was therefore valid. The court also held that the Magistrate had not embarked upon deciding the truth or otherwise of the case the Appellant would seek to make upon the proposed defence, but had instead considered whether the proposed defence was sufficient to rebut the presumption of regularity. The court found that the proposed defence was not sufficient to rebut the presumption of regularity.
The final orders of the court were that the appeal be dismissed with costs. The court found that the judgment of the Local Court was correct and that there was no error of law or procedure that warranted setting aside the default judgment. The court also found that the Appellant had not demonstrated any grounds for setting aside the judgment, and that the presumption of regularity applied to the faxed judgment.

Orders