Goldberg v Jefferson Ford Pty Ltd - [2000] VSC 46

SUPREME COURT OF VICTORIA

COMMON LAW DIVISION

Not Restricted

No. 6457 of 1999

DAVID GOLDBERG	Appellant
v
JEFFERSON FORD PTY LTD	Respondent

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2000
DATE OF JUDGMENT:	9 February 2000
MEDIA NEUTRAL CITATION:	[2000] VSC 46

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Appeal – s.109 Magistrates' Court Act 1989 – goods sold and delivered – guarantee – appeal dismissed

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D. Goldberg appeared on his own behalf
For the Respondent	Mr N. Klooger	Kyrou Defreitas & Associates

HIS HONOUR:

This is an appeal pursuant to s.109(1) of the Magistrates' Court Act 1989 from an order of Mr Hallenstein, Magistrate, on the 20th of July 1999 in the Magistrates' Court, that the appellant, Mr David Goldberg, pay the respondent, Jefferson Ford Pty Ltd the sum of $3,306.40, together with interest of $301.70, and costs of $2,335.40.

The respondent, Jefferson Ford Pty Ltd, had as plaintiff issued proceedings in the Magistrates' Court on the 28th of December 1998 against two defendants. The first defendant was Ted Morgan (trading as West End Henley Motors) and the second defendant was Mr David Goldberg.

The proceedings were issued in the Frankston Magistrates' Court. At the request of Mr Goldberg they were on 7 May 1999 transferred for hearing to the Melbourne Magistrates' Court. At a pre-hearing conference at the Frankston Magistrates' Court on 19 February 1999 there was informal discovery provided by the respondent to the appellant (and the other defendant below). Defences had been filed on 21 January 1999 by the two defendants below and further and better particulars thereof filed by them on 18 March 1999. Ultimately the matter came on for hearing at the Melbourne Magistrates' Court on 20 July 1999. Judgment was given that day.

The appellant before me is Mr Goldberg, who has appeared in person and has most fully and capably made submissions and argued the case he wishes to present before me. To that end Mr Goldberg has been at the Bar table in order to assist him in marshalling his papers and to provide proper convenience to him.

There is no appeal by the first defendant below, Ted Morgan (trading as West End Henley Motors). The plaintiff below, Jefferson Ford Pty Ltd, being the respondent before me, is represented by Mr Klooger of counsel.

The claim below, which is set forth in nine paragraphs of particulars, is clear. The essential parts in relation to the first defendant below are as follows:

"3.In the month of August 1998 the Plaintiff at the request of the first defendant supplied and delivered goods and materials to the first defendant to the value of $4,593.05 for which the first defendant agreed to pay within the usual commercial terms, particulars of which have been delivered to the first defendant.
4.In breach of the agreement the first defendant has failed to pay for the said goods and materials supplied and delivered".

Likewise, the claim against the second defendant below (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.

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Details

Case: [2000] VSC 46
Decision Date: 9 February 2000

CaseChat Overview and Summary

The matter involved Goldberg, the appellant, who sought to appeal against a decision of the Magistrates' Court of Victoria in relation to a dispute with Jefferson Ford Pty Ltd, the respondent. The dispute centred on the sale and delivery of goods and the alleged breach of a guarantee provided by the respondent. The appeal was brought pursuant to section 109 of the Magistrates' Court Act 1989, which allows for an appeal to the Supreme Court on a question of law. The court was tasked with determining whether the Magistrates' Court had correctly interpreted the terms of the guarantee and whether the respondent had breached those terms.

The primary legal issues the court had to decide were whether the terms of the guarantee provided by the respondent were breached and, if so, whether the respondent was liable for damages. The court had to examine the terms of the guarantee and the evidence presented to determine if there was a breach and whether the respondent was indeed liable. The court also had to consider the appropriate remedy if it found that a breach had occurred.

The court, after a thorough examination of the evidence and the terms of the guarantee, found that the Magistrates' Court had correctly interpreted the guarantee and had properly determined that there was a breach. The court held that the respondent was liable for the breach of the guarantee and that the damages awarded by the Magistrates' Court were appropriate. The appeal was dismissed, and the decision of the Magistrates' Court was upheld.

The court made no further orders beyond dismissing the appeal and affirming the decision of the Magistrates' Court. The liability of the respondent and the amount of damages awarded remained as determined by the Magistrates' Court.

Orders