Howard Media v A M Marketing - [2009] NSWSC 165

CITATION: Howard Media v A M Marketing [2009] NSWSC 165

HEARING DATE(S): 12/02/2009

JUDGMENT DATE :
20 March 2009

JURISDICTION: Equity

JUDGMENT OF: McCallum J

DECISION: (1) Pursuant to s140(1) of the Civil Procedure Act, proceedings No. 65 of 2007 commenced in the Local Court at Lismore, including the cross-claim filed by Howard Media Pty Ltd in those proceedings, are transferred to the Supreme Court on condition that the amount of $16,576.92 is paid into Court by Howard Media Pty Ltd within fourteen days of today.
(2) The costs of the proceedings in the Local Court are to be costs in the cause in the proceedings transferred.
(3) The costs of the hearing on 12 February 2009 are to be costs in the cause in the proceedings transferred.

CATCHWORDS: EQUITY - practice and procedure - application to have proceedings transferred from Local Court to Supreme Court - whether sufficient reasons for hearing proceedings in higher court - whether reasonable grounds for arguing that an oral partnership agreement existed

LEGISLATION CITED: Civil Procedure Act 2005
District Court Act 1973
Partnership Act 1892

CATEGORY: Procedural and other rulings

CASES CITED: Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321
Elkin & Co Pty Ltd v Specialised Television Installations Pty Ltd [1961] SR (NSW) 165
Phoenix Freight Systems Pty Ltd v Seko Air Freight Inc (1995) 17 ASCR 754
Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924
Zisis v Knighton [2008] NSWCA 42

PARTIES: Howard Media Pty Limited (Plaintiff)
A M Marketing Pty Limited (Defendant)

FILE NUMBER(S): SC 3483/08

COUNSEL: Mr S Docker (Plaintiff)
Mr J Priestley (Defendant)

SOLICITORS: Capital Lawyers (Plaintiff)
Stephen Bottrill Solicitors and Attorneys (Defendant)

- 11 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

20 MARCH 2009

3483/08 HOWARD MEDIA PTY LIMITED v A M MARKETING PTY LIMITED

JUDGMENT

1 HER HONOUR: Before the Court is an application to have proceedings in the Local Court at Lismore transferred to this Court. Howard Media Pty Ltd, the defendant in the Local Court proceedings, is a publisher of magazines. A M Marketing Pty Ltd is a marketing consultancy engaged in the business of selling advertising in magazines. Between 2001 and 2007 the two companies did some business together, joining in a number of publications.

2 The relationship deteriorated in 2007 when A M Marketing pressed for payment of amounts it claimed were overdue debts owed to it by Howard Media. When Howard Media did not pay the amounts claimed, A M Marketing commenced proceedings in the Local Court. Howard Media has defended the claim, contending that the parties were in partnership in respect of the production of particular magazines and that no debt was then due in accordance with the arrangements of the partnership. A cross claim filed by Howard Media in the Local Court sought, in effect, the taking of an account of the partnership.

3 Howard Media then formed the view, apparently after…

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: [2009] NSWSC 165
Decision Date: 20 March 2009

CaseChat Overview and Summary

The case of Howard Media v A M Marketing involves a dispute between the two parties, with the applicant seeking to transfer proceedings from the Local Court to the Supreme Court. The primary issue revolves around whether there are sufficient reasons to have the case heard in the higher court and if there are reasonable grounds to argue that an oral partnership agreement existed. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether there were compelling reasons to transfer the proceedings from the Local Court to the Supreme Court, considering the nature and complexity of the dispute. Additionally, the court needed to determine if there were reasonable grounds to argue that an oral partnership agreement existed, as this would significantly impact the legal framework governing the relationship between the parties. The applicant argued that the Supreme Court was the appropriate forum due to the complexity of the issues and the need for equitable remedies.

The court considered the arguments presented and assessed the merits of transferring the case to the Supreme Court. It was found that the complexity and potential value of the claims warranted the higher court's involvement. Furthermore, the court determined that there were reasonable grounds to argue the existence of an oral partnership agreement, which would entitle the applicant to seek equitable relief. Consequently, the court granted the application to transfer the proceedings to the Supreme Court, allowing for a comprehensive examination of the issues at hand.

The final orders of the court included the transfer of the proceedings from the Local Court to the Supreme Court and the grant of leave to the applicant to amend the statement of claim to include the claim for an oral partnership agreement. The court also ordered that the matter would proceed in the Supreme Court for further hearings and determination.

Orders