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Huang v Drumm

Huang v Drumm

Case [2018] NSWSC 1300 27 August 2018

Civil Litigation & Procedure

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Huang v Drumm [2018] NSWSC 1300
Hearing dates: 14 August 2018
Date of orders: 27 August 2018
Decision date: 27 August 2018
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Dismiss the amended summons filed 18 April 2018.
(2) The plaintiff is to pay the defendant’s costs of the proceedings.
Catchwords: APPEALS – appeal from Local Court – question of law – claim for money paid on behalf of defendant for him to conduct proceedings as trustee – magistrate found no contract as alleged - whether magistrate erred by refusing to allow plaintiff to re-open case – whether conduct of magistrate gave rise to actual bias or a reasonable apprehension of bias – whether magistrate erred by failing to adjourn costs hearing when plaintiff did not appear – whether magistrate erred in ordering indemnity costs in response to Offer of Compromise - appeal dismissed
Legislation Cited: Local Court Act 2007 (NSW) ss 39, 40
Uniform Civil Procedure Rules 2005 (NSW) rr 12.7, 14.28, 36.16, 42.15
Cases Cited: Chamoun v District Court of New South Wales [2018] NSWCA 187
G R Vaughan Holdings Pty Ltd v Vogt [2006] NSWCA 263
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jaycar Pty Limited v Lombardo [2011] NSWCA 284
Michael Wilson & Partners Limited v Nicholls & Others (2011) 244 CLR 427; [2011] HCA 48
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Zelden v Sewell Henamast Pty Limited v Sewell [2011] NSWCA 56
Texts Cited: Nil
Category: Principal judgment
Parties: Biru Huang (Plaintiff)
Bernard Joseph Drumm (Defendant)
Representation:
Counsel:
In person (Plaintiff) & Mr J Gibson (Mackenzie friend)
D F Elliot (Defendant)
Solicitors:
Self-represented (Plaintiff)
Lander & Rogers (Defendant)

File Number(s): 2017/363068
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court of NSW

Jurisdiction:

Civil

Citation:

Nil

Date of Decision:

2 & 23 November 2017

Before:

Barnett LCM

Judgment

The Local Court proceedings

On 23 January 2015 the plaintiff, Biru Huang, commenced proceedings in the Local Court of New South Wales against Bernard Drumm. By a Second Amended Statement of Claim filed 14 June 2016 the plaintiff sought an order that Mr Drumm pay her the sum of $77,193.70 pursuant to an alleged oral contract, in the alternative as a result of “unjust enrichment”. In a Reply dated 17 November 2016 the plaintiff alleged an estoppel arising from what was said to be an acquiescence by the defendant in the plaintiff continuing to advance money to him.
The amount of the claim was in two parts. The plaintiff claimed $34,793.70 in respect of costs and disbursements paid by the plaintiff, allegedly on the defendant’s behalf, in proceedings in this Court against a Dr Mackintosh between July 2011 and September 2014. The second part of the claim was for $42,400 in respect…

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 Huang v Drumm

Details

AGLC: Huang v Drumm [2018] NSWSC 1300
Case: [2018] NSWSC 1300
Decision Date: 27 August 2018

CaseChat Overview and Summary

In the Local Court, Huang sued Drumm claiming repayment of money paid to him for conducting proceedings as trustee. The Local Court dismissed the claim, finding no contract existed as alleged by the plaintiff. The plaintiff now appeals to the court, arguing the magistrate erred in several respects. Firstly, the plaintiff contends that the magistrate erred in refusing to allow them to reopen their case. Secondly, the plaintiff argues that the magistrate's conduct gave rise to actual bias or a reasonable apprehension of bias. Thirdly, the plaintiff submits that the magistrate erred in failing to adjourn the costs hearing when the plaintiff did not appear. Lastly, the plaintiff claims the magistrate erred in ordering indemnity costs in response to an offer of compromise.

The appeal court found that the magistrate did not err in refusing to allow the plaintiff to reopen their case, as the application was not made promptly and the plaintiff had not demonstrated any sufficient reason for the delay. The court also found that there was no actual bias or a reasonable apprehension of bias in the conduct of the magistrate. Regarding the adjournment of the costs hearing, the court held that the plaintiff had not demonstrated any prejudice arising from the non-appearance, and therefore the magistrate did not err in proceeding with the hearing. Lastly, the court found that the magistrate did not err in ordering indemnity costs in response to an offer of compromise, as the plaintiff's offer did not meet the criteria for an "offer of compromise" under the relevant legislation.

Accordingly, the appeal was dismissed, and the decision of the Local Court was affirmed. The court ordered the plaintiff to pay the defendant's costs of the appeal.

Orders