Henskens v Brett Anthony Smith - [2008] NSWSC 544

CITATION: Henskens v Brett Anthony Smith [2008] NSWSC 544

HEARING DATE(S): 30 May 2008

JUDGMENT DATE :
6 June 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) Leave is granted to extend the time to file the summons
(2) Leave to appeal is refused.
(3) The appeal is dismissed
(4) The judgment of his Honour Magistrate Morahan dated 26 September 2007 is affirmed.
(5) The further amended summons dated 27 March 2008 is dismissed.
(6) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: APPEAL - Local Court Magistrate - removal of good in backyard shed

LEGISLATION CITED: Local Court Act 1982

CATEGORY: Principal judgment

CASES CITED: Allen v Kerr & Anor [1995] Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Carr v Neill [199] NSWSC 1263
Devries v Australian National Railways Commission (1993) 177 CLR 472
Jackamarra v Krakouer (1998) 195 CLR 516
Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153
Livesey v New South Wales Bar Association (1983) 151 288
Re Refugee Review Tribunal
Ex-parte H (2001) 75 ALJR 982
R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082 (2002) 37 MVR 479
State Rail Authority of New South Wales v Earthline Constructions POty Ltd (in Liq) (1999) 160 ALR 588
Wakim v Mathiew Pty Ltd t/as Dove Migration Services [200] NSWSC 405

PARTIES: Peter Gerard Henskens (Plaintiff)
Brett Anthony Smith (Defendant)

FILE NUMBER(S): SC 15577/2007

COUNSEL: A Crossland (Defendant)

SOLICITORS: P G Henskens (Plaintiff in person)
City Law (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 78/2007

LOWER COURT JUDICIAL OFFICER : Morahan LCM

LOWER COURT DATE OF DECISION: 26 September 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 6 JUNE 2008

15577/07 - PETER GERARD HENSKENS v
BRETT ANTHONY SMITH
JUDGMENT (Appeal decision of Local Court Magistrate)
- removal of goods in backyard shed)

1 HER HONOUR: By further amended summons filed 27 March 2008, the plaintiff seeks firstly, an order granting leave to appeal the decision of his Honour Magistrate Morahan dated 26 September 2007; secondly, an order that the appeal be allowed; thirdly, an order that the judgment order made in favour of the defendant in the Local Court be set aside; fourthly, an order that the judgment order that the plaintiff pay the defendant’s costs as agreed or assessed on a party/party basis be set aside; fifthly, an order that the time for filing this appeal be extended (if necessary); sixthly, an order that leave be granted to rely on mixed question of law and fact in this appeal; and seventhly, an order that there be judgment for the plaintiff in the amount of $22,400 plus $846.29 plus $846.29.

2 The plaintiff is Peter Gerard Henskens (“Mr Henskens”). The defendant is Brett Anthony Smith (“Mr Smith”). Mr Henskens and Mr Smith were plaintiff and defendant respectively in the Local Court proceedings. Mr Henskens…

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 Henskens v Brett Anthony Smith

Details

AGLC: Henskens v Brett Anthony Smith [2008] NSWSC 544
Case: [2008] NSWSC 544
Decision Date: 6 June 2008

CaseChat Overview and Summary

The appellant, Henskens, appealed against a decision by a Local Court Magistrate who dismissed his claim against the respondent, Brett Anthony Smith, regarding the removal of a shed from his backyard. The appellant sought damages for trespass and loss of enjoyment of his property. The Local Court found that the respondent had permission from the appellant to remove the shed and thus dismissed the claim. The appellant's appeal focused on the magistrate's decision that the respondent had lawful authority to remove the shed.

The central legal issue before the court was whether the respondent had lawful authority to remove the shed from the appellant's property. The appellant argued that the respondent did not have permission to remove the shed and that the removal constituted a trespass. The respondent contended that there was a prior agreement between the parties that allowed the removal of the shed. The court had to determine whether the respondent had lawful authority, either by express or implied permission, to remove the shed from the appellant's property.

The court held that the respondent had lawful authority to remove the shed. The evidence showed that the appellant had verbally allowed the respondent to remove the shed. The court found that this constituted lawful authority. Additionally, the court noted that there was no evidence of any condition attached to the permission that would prevent the removal of the shed. The appeal was dismissed, and the decision of the Local Court was upheld. The court found that the respondent had lawful authority to remove the shed, and thus, the appellant's claim for damages was unsuccessful.

Orders