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Donelian v Donalian

Donelian v Donalian

Case [2002] NSWSC 696 5 September 2002

Appeal

Jurisdiction

Contract Formation

Intention to Assume Legal Obligations

Rebuttal of Presumption

Implied Terms

Specific Performance

Civil Litigation & Procedure

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CITATION: Donelian v Donalian [2002] NSWSC 696

FILE NUMBER(S): SC 11289/01

HEARING DATE(S): 2/7/02

JUDGMENT DATE: 5 September 2002

PARTIES :

Lita Donelian (Plaintiff)
Minas Donalian (Defendant)

JUDGMENT OF: Bell J at 1

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : 651/98

LOWER COURT
JUDICIAL OFFICER : Magistrate O'Shane

COUNSEL : J. Mundey (Plaintiff)
T. Ryan (Defendant)

SOLICITORS: Frances Mary Doyle & Associates, Solicitors (Plaintiff)
Osborne & Brickness, Solicitors (Defendant)

LEGISLATION CITED: Justices Act 1902
Local Courts (Civil Claims) Act 1970
Suitors' Fund Act 1951

CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167
Balfour v Balfour [1919] 2 KB 571
Brennan v Brennan (1953) 89 CLR 129
Chua Chee Chor v Chua Kim Yong [1962] 1 WLR 1464
Coleshill v Manchester Corporation [1928] 1 KB 776
Cotogno v Lamb (No. 2) (1985) 3 NSWLR 221
Devries & Anor v Australian National Railways Commission & Anor [1992-1993] 177 CLR 472
Gangemi Holdings Pty Limited v Maxwell John Salter & Ors NSWSC, unreported, 1 October 1999
Mifsud v Campbell (1991) 21 NSWLR 725
Jones v Padavatton [1969] 2 All ER 616
Riches v Hogben [1986] 1 QD R 315
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Wentworth v Rogers (No. 3) (1986) 6 NSWLR 642

DECISION: Appeal is allowed; Set aside the judgment of the learned magistrate; Proceedings are remitted to Magistrate O'Shane to be determined according to law; The defendants are to pay the plaintiff's costs of this appeal as agreed or assessed

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Thursday 5 September 2002

11289/01 Lita DONELIAN v Minas DONALIAN & Maggie DONALIAN
JUDGMENT

1 BELL J: The plaintiff appeals from the decision of Magistrate O’Shane sitting in the Local Court at Ryde given on 30 March 2001. The appeal is brought pursuant to s 69(2) of the Local Courts (Civil Claims) Act 1970 which provides:

“A party to proceedings under this Act who is dissatisfied with the judgment or order of the court as being erroneous in point of law, may appeal to the Supreme Court therefrom.”

2 The plaintiff relied upon four grounds of appeal:

(i) The magistrate erred in law in finding that there was no contract between the plaintiff and the defendant;

(ii) The magistrate erred in law by applying the wrong tests to determine if there was a contract between the plaintiff and the defendant;

(iii) The magistrate incorrectly applied the law to the facts as disclosed by all of the evidence;

(iv) The change in magistrate after the plaintiff had completed her examination in chief disadvantaged the plaintiff.

3 By amended statement of liquidated claim filed in the General Division of the Local Court at Ryde the plaintiff claimed from the defendants the sum of $21,013.50 together with interest.

4 The plaintiff claimed that on various dates between 25 October 1993 and 10 October 1995 she loaned to the defendants the sum of $28,012.00 and that the defendants failed…

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.

Continue reading Donelian v Donalian

Details

AGLC: Donelian v Donalian [2002] NSWSC 696
Case: [2002] NSWSC 696
Decision Date: 5 September 2002

CaseChat Overview and Summary

The appeal in Donelian v Donalian was heard in the Supreme Court of New South Wales by Bell J, concerning a dispute over the existence of a contractual agreement between the plaintiff, Lita Donelian, and the defendants, Minas and Maggie Donalian, regarding monetary loans. The plaintiff alleged that she had loaned various sums of money to the defendants, and sought repayment of the outstanding balance plus interest. The Local Court had dismissed the plaintiff's claim, finding that there was no contract between the parties. The plaintiff appealed this decision, arguing that the Local Court had erred in law in finding no contract, applying the wrong tests, and misapplying the law to the facts. The court allowed the appeal, set aside the Local Court's judgment, and remitted the matter back to the Local Court for reconsideration. The court found that the Local Court had erred in law by not making findings on the central issue of whether there was a debt owed by the defendants to the plaintiff. The court also noted that the magistrate's approach to the presumption against the creation of legal relations in family settings seemed to proceed on a wrong footing. Regarding the fourth ground of appeal, concerning the change in magistrate during the proceedings, the court found that while irregular, the circumstances did not warrant a new trial as both parties had consented to the change and the magistrate had heard the majority of the plaintiff's cross-examination.

Orders