Foote v Cannon - [2024] VSC 453

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 02307

CRAIG FOOTE	Appellant
v
SCOT CANNON	Respondent

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2024
DATE OF JUDGMENT:	2 August 2024
CASE MAY BE CITED AS:	Foote v Cannon
MEDIUM NEUTRAL CITATION:	[2024] VSC 453

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MAGISTRATES — Appeal from order of the Magistrates’ Court of Victoria — Judgment entered against appellant in default of defence — Whether magistrate erred in entering judgment in default of defence where a defence had in fact been filed — Whether error material — Appeal allowed — Whether appropriate to remit matter to Magistrates’ Court for re-hearing — Order set aside — Appellant to pay replacement cost of goods subject of proceeding, interest, and costs — Magistrates’ Court Act 1989 (Vic) s 109.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondent	Ms R N Malone	White Cleland Pty Ltd

HER HONOUR:

In early 2019, Craig Foote and Scot Cannon agreed to work in partnership, in a cabinet making and joinery business. At the time, they had neighbouring factories in Frankston. They worked together in Mr Cannon’s factory, in which he stored some personal goods — a motorboat with trailer, a jet ski with trailer, a panel saw, a table tennis table, and a Holden utility tub. In about May 2019, they agreed to store the goods in Mr Foote’s factory, in order to declutter their working space.

In July 2019, the two men fell out bitterly and the partnership ended. Mr Cannon asked Mr Foote to return his goods. Mr Foote refused to do so until Mr Cannon paid him the money he said he was owed. Each of them held stubbornly to his position, and their dispute escalated. Mr Cannon sued Mr Foote in the Magistrates’ Court of Victoria for the return of the goods, or payment of $13,000. Rather than returning the goods, Mr Foote sold them. He also counterclaimed against Mr Cannon for payment of $90,000 for storage of the goods.

On 29 March 2022, Magistrate Pithouse ordered Mr Foote to pay Mr Cannon $20,959 plus costs of $14,397.87, in default of defence. The magistrate made a separate order striking out Mr Foote’s counterclaim for failure to comply with the Magistrates’ Court rules. The circumstances in which those orders were made are described in detail below.

Mr Foote has now appealed the magistrate’s order to this Court, under s 109 of the Magistrates’ Court Act 1989 (Vic). Section 109 enables a party to appeal on a question of law from a final order of the Magistrates’ Court in a civil proceeding. After hearing and determining the appeal, this Court may make such order as it thinks appropriate, including an order remitting the case to the Magistrates’ Court for re-hearing.[1]
[1]Magistrates’ Court Act 1989 (Vic), s 109(6).

Mr Foote raises two questions of law in the appeal:[2]

(a) whether 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.

Continue reading Foote v Cannon

Details

AGLC: Foote v Cannon [2024] VSC 453
Case: [2024] VSC 453
Decision Date: 2 August 2024

CaseChat Overview and Summary

The appeal was brought by the appellant, Foote, against a decision of the Magistrates' Court of Victoria, with the respondent being Cannon. The nature of the dispute centred on a claim for the return of goods, with the appellant seeking to recover the replacement cost of the goods, interest, and costs. The Magistrates' Court had entered a default judgment against the appellant, despite the fact that a defence had been filed. The appellant argued that the magistrate erred in entering the default judgment and that this error was material.

The legal issues before the court were whether the magistrate had indeed erred in entering judgment in default of defence when a defence had been filed, and if this error was material enough to warrant setting aside the judgment. The court needed to determine if the error was such that it warranted the appeal being allowed and, if so, whether it was appropriate to remit the matter to the Magistrates' Court for re-hearing. The court considered the relevant statutory provisions, particularly section 109 of the Magistrates’ Court Act 1989 (Vic).

The court found that the magistrate had indeed erred in entering a judgment in default of defence when a defence had been filed. The court determined that this error was material, leading to the allowance of the appeal. Given the nature of the error, the court decided that it was appropriate to remit the matter to the Magistrates' Court for re-hearing, rather than simply setting aside the judgment. The court ordered that the appellant was to pay the replacement cost of the goods, interest, and costs as determined by the Magistrates’ Court.

Orders