Grant Plush and Jessie Plush v Grenfell Wholesalers (Reg'd) No. SCGRG 2724 of 1991 Judgment No. 3621 Number of Pages 6 Appeal and New Trial - [1992] SASC 3621

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE J

CWDS
Appeal and new trial - appeal - general principles interference with judge's findings of fact - Local Court Appeal - Goods and Services - Dispute over payment - Self serving document - Appeal allowed - Judgment in favour of the respondent set aside - Judgment entered for the appellants.

HRNG ADELAIDE, 18, 27 February 1992 #DATE 22:9:1992
Counsel for appellants:     Mr R Mcrae
Solicitors for appellants:    Robert Mcrae
Counsel for respondent:     Mr P Scragg
Solicitors for respondent:    Peter Scragg

ORDER
Appeal allowed.

JUDGE1 LEGOE J This is an appeal from the Local Court of Adelaide against a judgment for the respondent in the sum of $2,086.00. The respondent claimed this amount "for goods purchased from the plaintiff by the defendant, particulars of which the defendant has." The ordinary summons was issued on the 21st December 1990. The goods were fruit and vegetables delivered in October and December of 1986 and January 1987. 2. The hearing before Mr H. Williams, S.M. commenced on Tuesday 22nd October, 1991, when a Mr Tony Russo, fruit and vegetable merchant and one of the proprietors of the respondent "Grenfell Wholesalers", gave evidence. The degree of proof disclosed by the transcript is far from satisfactory. The appellants were not represented by counsel. Counsel appeared for the respondent and in a series of leading questions (apparently unrestrained by the learned Special Magistrate) counsel asked Mr Russo whether he (as Grenfell Wholesalers or in some other capacity not disclosed in the transcript) "had dealings with a business known as Whyalla Wholesalers." When asked who were the proprietors of that business Mr Russo answered "At the time I presume it is Jessie and John." When asked for surnames he answered "Jessie Plush and John Nikouladis." 3. Counsel for the respondent immediately set about proving the claim by putting a document in front of Mr Russo. By a series of leading questions a confused story then emerged that:
    - 1. The entries in the ledger are entries in respect of an
    account of Whyalla Wholesalers;
    2. The entries include payments made - credits given;
    3. Also invoices in relation to goods received;
    4. Ordering was done by telephone;
    5. Goods were delivered by truck to Whyalla;
    6. As far as Mr Russo understood as at 5th April 1987 the
    balance outstanding was $2,846.00.
    7. There was "some query in respect of some of the goods
    ordered ... Apparently that was another company they had been
    running."
    8. There was a transfer of goods which were wrongly
    assigned to this account - for $760.00.
    9. "Is it correct to say as at 5th April the true amount was
    $2086? Answer - That's correct." Mr Russo said no further
    payments had been received.
    10. The ledger referred to by Mr Russo in this confused
    statement of evidence extracted by a series of confused leading
    questions was tendered as Exhibit P.1. A study of the ledger
    disclosed that payments were made on…

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

AGLC: Grant Plush and Jessie Plush v Grenfell Wholesalers (Reg'd) No. SCGRG 2724 of 1991 Judgment No. 3621 Number of Pages 6 Appeal and New Trial [1992] SASC 3621
Case: [1992] SASC 3621
Decision Date: 22 September 1992

CaseChat Overview and Summary

The case before the Supreme Court is an appeal from the Local Court of Adelaide against a judgment for the respondent, Grenfell Wholesalers, in the sum of $2,086.00. The respondent claimed this amount for goods purchased by the appellants, Grant Plush and Jessie Plush, and delivered in October and December of 1986 and January 1987. The appellants contested the claim, arguing that they had paid for the goods in full. The Local Court found in favour of the respondent, and the appellants now appeal that decision to the Supreme Court.

The primary legal issue before the court was whether the respondent had proven, on the balance of probabilities, that the appellants had failed to pay the sum of $2,086.00 for the goods delivered. The respondent's case relied heavily on several documents, including a ledger (Exhibit P1), an account statement reconciliation (Exhibit P2), and a series of dockets (Exhibit P3). The appellants argued that these documents were inconsistent and self-serving, and that they had in fact paid for all goods delivered in 1986 upon receipt.

The Supreme Court found that the respondent had failed to establish the claimed debt. The ledger, account statement reconciliation, and dockets were inconsistent with each other and with the respondent's own admissions during cross-examination. The court noted that the respondent had admitted the appellants paid for goods as they were delivered in 1986, and that there were credits shown in the ledger which made the account statement reconciliation inconsistent with the ledger. The court concluded that the self-serving documents did not establish that any sum was owing and unpaid.

For these reasons, the Supreme Court allowed the appeal, set aside the judgment in favour of the respondent, and entered judgment for the appellants. The court observed that the respondent's case was based on documents that were not properly reconciled and failed to account for payments made by the appellants. The appeal was allowed on the basis that the respondent had not discharged the onus of proof, and the judgment in favour of the respondent was set aside.

Orders