Di Gregorio v Ohanessian

[2021] NSWDC 100

District Court

New South Wales

Medium Neutral Citation:

Di Gregorio v Ohanessian [2021] NSWDC 100

Hearing dates:

19 March 2021

Date of orders:

31 March 2021

Decision date:

31 March 2021

Jurisdiction:

Civil

Before:

Scotting DCJ

Decision:

1. The appeal is dismissed.

2. I confirm the orders of the Assessor.

3. The plaintiff is to pay the defendant’s costs of the appeal, as agreed or assessed.

Catchwords:

APPEALS – procedural fairness – grounds not made out – appeal dismissed

Legislation Cited:

Local Court Act 2007

Cases Cited:

Russell v Wilson (1923) 33 CLR 538

Category:

Principal judgment

Parties:

Anthony Di Gregorio (Plaintiff)
Maral Ohanessian (Defendant)

Representation:

Counsel: A Conwell (Plaintiff)

Solicitor: John de Mestre & Co Pty Ltd (Defendant)

File Number(s):

2020/356141

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Small Claims Division

Date of Decision:

23 November 2020

Before:

Assessor E Keir

File Number(s):

2020/222436

Judgment

Introduction

1. This is an appeal from an Assessor in the Small Claims Division of the Local Court, brought pursuant to s 39(2) Local Court Act 2007 and is limited to an appeal based on a lack of jurisdiction or a denial of procedural fairness.

2. On 23 November 2020 the Assessor made an order that the plaintiff, Anthony Di Gregorio, deliver a dog, “Xena” a female American Staffordshire Terrier (the dog), to the defendant, Maral O’Hanessian, on the basis that she was the owner of the dog.

3. The plaintiff appeals from that decision on both of the grounds provided for by s 39(2).

Factual background

4. As this is not an appeal on the merits of the decision, the facts can be stated shortly.

5. The plaintiff and the defendant were in a relationship and lived together in the period of sometime before December 2018 to 16 January 2020.

6. In or about December 2018 the plaintiff undertook searches on internet classified advertisement platforms with a view to purchasing an American Staffordshire Terrier. As a result of those searches the plaintiff entered into a series of communications with Paul Mares, a breeder from Cooma.

7. Later that month, the plaintiff and defendant travelled to Cooma to see the dog. An agreement was entered into for the purchase of the dog for $1,000 with the dog to be delivered after its final vaccinations were administered later in the month. The purchase price was paid in cash on that day. It was common ground that both the plaintiff and the defendant contributed to the purchase price, but it was in dispute as to whether the plaintiff paid $200 or $300.

8. On or about 29 December 2018, the plaintiff and the defendant travelled to a petrol station at Thornleigh to collect the dog from Mr Mares. There was a green coloured document completed on that day by the breeder. The plaintiff alleged that he signed the document as the dog’s owner, but the document was not produced in evidence. The defendant alleged that she also signed that document. The plaintiff alleged that the document was…