HUNYH v Swanson - [1999] NSWSC 72

CITATION: HUNYH v. SWANSON & ANOR [1999] NSWSC 72

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 11812/98

HEARING DATE(S): 7 December 1998

JUDGMENT DATE:
17 February 1999

PARTIES :

Van Tri HUNYH v. James Lawrence SWANSON & ANOR

JUDGMENT OF: Greg James J at 1

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S) : 1200/97

LOWER COURT JUDICIAL OFFICER: J.L. Swanson

COUNSEL : Plaintiff: D.J. Fagan, SC/R. Horsley
First Defendant: Excused
Second Defendant: P. Brereton, SC

SOLICITORS: Plaintiff: Russell McLelland Brown
First Defendant: Excused
Second Defendant: Blake Dawson Waldron

CATCHWORDS: Local Courts - civil claims - jurisdiction - action for enforcement of right derived from equitable principles - common money counts - availability of contribution at common law and in the Local Courts - contribution between co-guarantors - right at law or in equity.; Appeal - availability of stated case - no judgment or order -alternative of collateral appeal - supervisory orders - alternative to appeal in discretion.; Estoppel - Anschun estoppel - when available - evidence necessary.; "Action", "debt, demands or damages" defined

ACTS CITED: Local Courts (Civil Claims) Act (1970) - ss.12
19
20
Supreme Court Act (1970)
Common Law Procedure Act (1899)
Anschun v. Port of Melbourne Authority (1981) 147 CLR 589
Johnson v. Gibbins (1985) 11 NW (NSW) 137
Ex parte Hornsby Shire Council
re Crandon (1935) 53 WN (NSW) 22
Hope v. Bathurst Council (1980) 1 NSWLR 535
Re Carter Smith
ex parte Taxation Commissioners (1908) 8 SR (NSW) 246
Webb v. Stenton (1883) 11 QB 518
Ogdens Limited v. Weinberg (1906) 95 LT 567
Hall Bros. SS. Co. Limited v. Young (1939) 1 KB 748 followed.
Albion Insurance Co. Limited v. GIO (1969) 121 CLR 342
Mahoney v. McManus (1981) 180 CLR 370
McLean v. Discount & Finance Limited (1939) 64 CLR 312
McIntosh v. Shashoua (1931) 46 CLR 494
Abigroup Limited v. Abignano (1992) 39 FCR 74
Armstrong v. Commissioner of Stamp Duties (1967) 2 NSWLR 63
Morgan Equipment Co. v. Rodgers (No. 2) (1993) 33 NSWLR 467
AGC (Advances) Limited v. West (1984) 5 NSWLR 590 considered

DECISION: Magistrate erred

HUNYH -30-
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

No. 11812 of 1998

GREG JAMES, J.

WEDNESDAY 17 FEBRUARY 1999

VAN TRI HUNYH v. JAMES LAWRENCE SWANSON & ANOR
JUDGMENT

HIS HONOUR:
1 By summons dated 12 July 1998, the plaintiff sought a declaration that the first named defendant, a magistrate sitting in the Local Court at Parramatta, had jurisdiction sitting as a court under s.6 of the Local Court (Civil Claims) Act (the Act) to hear and determine, pursuant to s.12(1) of that Act, an action brought in that court by the plaintiff against the second defendant, Le Tan Thanh, and also sought consequential orders. In addition to the claim for a declaration, orders were sought quashing the decision that the defendant did not have jurisdiction to determine the claim, to require the defendant to hear and determine the proceedings according to law and further consequential orders,…

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: [1999] NSWSC 72
Decision Date: 17 February 1999

CaseChat Overview and Summary

The case of Hunyh v Swanson involved a dispute where the plaintiff sought to enforce a right derived from equitable principles, specifically an equitable claim for contribution from a co-guarantor. The matter was heard in the Local Court of New South Wales, which was called upon to determine its jurisdiction to hear the claim and the appropriate legal principles applicable to the dispute. The plaintiff argued that the Local Court had jurisdiction to hear the claim for contribution between co-guarantors, which was an equitable claim, as well as the common money counts.

The primary legal issues before the court were whether the Local Court had jurisdiction to hear an action for enforcement of a right derived from equitable principles and whether the claim for contribution between co-guarantors was available at common law or in equity. The court also had to consider whether the plaintiff's failure to prepare a stated case affected the appeal process and if estoppel could be applied in the circumstances. The court was required to decide if the plaintiff's claim fell within the definition of "action", "debt, demands or damages" as provided by the relevant legislation.

The Local Court held that it did not have jurisdiction to hear the equitable claim for contribution between co-guarantors, as such claims could not be heard in the Local Court. The court found that contribution between co-guarantors was a right at law rather than in equity, and therefore, the claim was not within the jurisdiction of the Local Court. The court also determined that the absence of a stated case did not preclude the plaintiff from appealing, as the court had the discretion to hear the appeal through supervisory orders. The court found that there was insufficient evidence to establish an Anshun estoppel, as the facts necessary to invoke the doctrine were not present in the case. Ultimately, the appeal was dismissed, and the plaintiff was required to initiate proceedings in a higher court with appropriate jurisdiction.

Orders