Gemtaf P/L v Tradebanc International P/L [No 1]

[1999] NSWSC 480

CITATION:	Gemtaf P/L & Ors v Tradebanc International P/L [No 1] [1999] NSWSC 480
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	11419/98
HEARING DATE(S):	19/05/99
JUDGMENT DATE:	19 May 1999
PARTIES :	Gemtaf Pty Limited t/as "El Paso Motor Inn" (1 Appel) Margaret Denise Pursell (2 Appel) Terence Edward Fitzgibbon (3 Appel) Tradebanc International Pty Ltd (Resp)
JUDGMENT OF:	Kirby J

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S) :	13632/97
LOWER COURT JUDICIAL OFFICER:	Ms J Wahlquist

COUNSEL :	D Knaggs, sol (Appels) A J Bellanto QC/A Goldsworthy (Resp)
SOLICITORS:	Douglas Knaggs (Appels) Tony Simons (Resp)
CATCHWORDS:	Appeal against Magistrate's decision; Sufficiency of Stated Case
ACTS CITED:	Justices Act 1902, s101 Supreme Court Rules, Pt32 r7
DECISION:	See para 7

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

KIRBY J

Wednesday 19 May 1999

11419/98 - GEMTAF PTY LTD & ORS v TRADEBANC INTERNATIONAL PTY LIMITED [No 1]

JUDGMENT (re Sufficiency of Stated Case)

1   HIS HONOUR: In this matter, an issue has arisen concerning the sufficiency of the stated case which is before the Court. Certain matters in the course of argument were stated from the bar table by Mr Bellanto QC, appearing for the respondents to the stated case, Tradebanc International Pty. Limited. Those matters appear to me potentially material to one of the issues raised by Mr Knaggs on behalf of the appellants.

2 In these circumstances, an application was made on behalf of Tradebanc International Pty. Ltd to call evidence to deal with that matter. Part 32, rule 7 deals with the circumstance where a stated case is said to be insufficient. It provides that, where it appears to the Court that a stated case does not state the facts and document sufficiently to enable the Court to decide the questions arising, or otherwise hear and determine the proceedings on the stated case, the Court may receive evidence, make findings of fact, and add to the stated case in accordance with the findings of fact of the Court.

3   That power may not be exercised in criminal proceedings. The submission has been made that the power is confined to material which was before the Magistrate. It is not open to the respondent, therefore, to supplement that material by matters which were not canvassed before the Magistrate.

4   However, the rule does not say that, nor do I believe it arises through any necessary implication. Matters may occur to the appellate Court, in this case, the Supreme Court, which were not canvassed in the Court below, but which are necessary to deal with the issues.

5   In those circumstances, I believe there is a general power to supplement the stated case in any way thought relevant to the resolution of the real issues which separate the parties. Therefore, I believe there exists in this case a need to do so and I will permit Mr Bellanto, therefore, to call such evidence.

6   If it should transpire that the particular matter is material to the ultimate resolution of the dispute, then that may have an impact upon the costs which are payable in the action.

7   I should also indicate the particular issue in respect to which there appears to me to be some deficiency in the material within the stated case is the way in which the system operated by Tradebanc International Pty Ltd deals with money which it requires a member to repay in order to reduce the level of the indebtedness from a particular level to a level which is within the credit limit determined by Tradebanc.

Last Modified: 05/21/1999