Hyde v Tabone

[2018] NSWSC 1601

Supreme Court

New South Wales

Medium Neutral Citation:	Hyde v Tabone [2018] NSWSC 1601
Hearing dates:	19 October 2018
Decision date:	23 October 2018
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Refuse leave to the plaintiff to appeal on grounds 1, 2, 3, 4, 5, 6, 7 and 8. (2) Otherwise dismiss the summons filed on 1 June 2018. (3) Order the plaintiff to pay the defendant’s costs of the proceedings.
Catchwords:	APPEAL – appeal from the Local Court – claim for money advanced pursuant to a loan agreement – judgment ordered on the basis of restitution of money had and received – leave required for questions of mixed law and fact and interlocutory orders – no error demonstrated
Legislation Cited:	Civil Procedure Act 2005 (NSW), Pt 6 Local Court Act 1970 (NSW), ss 39, 40
Category:	Principal judgment
Parties:	Roger Robert Hyde (Plaintiff) Frank Michael Tabone (Defendant)
Representation:	Counsel: D Maddox (Plaintiff) H Durack (Defendant)   Solicitors: Aubrey F Crawley & Co (Plaintiff) B W Tolson (Defendant)
File Number(s):	2018/172003
Publication restriction:	None
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Civil Date of Decision: 4 May 2018 Before: Giles LCM File Number(s): 2017/115710

Judgment

Introduction

1. By summons filed on 1 June 2018, Roger Hyde seeks relief against Frank Tabone in respect of an appeal from a judgment entered in favour of Mr Tabone in the Local Court by Giles LCM on 4 May 2018. As Mr Tabone was the plaintiff in the Court below and is the defendant in this Court and Mr Hyde was the defendant in the Court below and is the plaintiff in this Court, I propose to refer to them by name to avoid confusion.

2. This Court has jurisdiction with respect to judgments and orders of the Local Court by reason of ss 39 and 40 of the Local Court Act 1970 (NSW). Section 39 provides for a right of appeal to this Court “only on a question of law”. Section 40 provides for a right of appeal, subject to leave, on a question of mixed law and fact or an interlocutory judgment or order.

3. Before turning to the nine grounds of appeal, I propose to set out the background to the proceedings and summarise the reasons of the Court below.

The proceedings

The pleadings

4. By further amended statement of claim filed on 2 March 2018, Mr Tabone claimed $30,349.23 from Mr Hyde, together with interest and costs. The principal sum comprised two discrete amounts. The first amount was the sum of $20,000 which was said to be a loan from Mr Tabone to Mr Hyde, which had not, despite demands, been repaid. In the alternative, Mr Tabone alleged that he was entitled to restitution of the sum of $20,000 as money had and received by Mr Hyde. The second amount was $10,349.23 which was the tax refund in respect of Mr Tabone’s tax return for the 2013 tax year. The Australian Taxation Office (ATO) paid the amount to Mr Hyde, who was Mr Tabone’s tax agent, and Mr Hyde retained the money.

5. Mr Hyde agreed that Mr Tabone had deposited $20,000 into his bank account on 24 January 2013. Mr Hyde defended the claim on the basis that the $20,000 was money which was advanced at the request of Mr Greg Taylor and that it was a loan to Mr Taylor rather than to Mr Hyde. Mr Hyde also argued that Mr Taylor had repaid the $20,000 to Mr Tabone the day before the hearing and that therefore the amount was no longer owing. As to the second amount, Mr Hyde contended that he was entitled to retain Mr Tabone’s tax refund on account of his outstanding fees for the preparation of Mr Tabone’s tax returns.

6. Mr Hyde filed a cross-claim for amounts that were said to be owing for accountancy services he provided to Mr Tabone for the 2013 and 2014 financial years. He claimed the amount of $28,900, being the sum of invoice 2957 issued 19 December 2013 for $14,300 and invoice 3567 issued 17 May 2015 for $14,600. Mr Tabone defended the cross-claim on the basis that the amounts were not due and payable. Mr Tabone relied on the following circumstances: he had engaged Mr Hyde as his tax accountant from 1997 through to 2012; Mr Hyde had done the same work and schedules for the same number of Mr Tabone's properties every year; Mr Hyde had, every year, charged the plaintiff between $800 and $1,650; and the invoices the subject of the cross-claim had not been rendered until after the proceedings were commenced by the filing of the statement of claim on 12 April 2017, although they bore dates before that date.

The conduct of the proceedings

7. Mr Tabone’s solicitors sought the issue of a subpoena to Mr Taylor to give evidence at the hearing. Mr Maddox, who appeared for Mr Hyde in the Court below (and in this Court), told the Court below on 9 March 2018 that he had learned on 2 March 2018 that Mr Taylor had been subpoenaed by Mr Tabone. Despite two attempts, Mr Tabone’s solicitors’ process server had been unable to serve Mr Taylor. It was common ground that Mr Taylor had paid $20,000 to Mr Tabone on the eve of the hearing.

8. Mr Maddox also told the Court below on 9 March 2018 that at some stage during the week of the hearing but prior to 9 March 2018 (which was a Friday) Mr Hyde’s legal representatives found out that Mr Taylor had not been served. He also told the Court below that the $20,000 was paid to Mr Tabone at 3.45pm on 8 March 2018.

The hearing in the Court below

9. Because grounds 6 and 7 raise the issue of the refusal by the Court below to grant an adjournment of the hearing on 9 March 2018, it is necessary to set out in some detail the course of the proceedings in the Court below.

10. The hearing commenced before the Court below on 9 March 2018. Mr Durack, who appeared in the Court below (and in this Court) for Mr Tabone, opened the case and read the affidavits of Mr Tabone affirmed 29 November 2017 and 6 March 2018 respectively. He also read the affidavit of the process server, Alan McNamara, who had tried to serve Mr Taylor. Before Mr Durack called Mr Tabone to give oral evidence, her Honour called on Mr Maddox to identify the issues in the case.

11. The question of Mr Taylor’s availability was raised at an early stage. At tr. 4.31-.35, Mr Maddox told the Court below that his solicitor had spoken to Mr Taylor prior to the hearing and he was aware of the hearing but said that he had an important business meeting to attend: see also tr. 72.29-.34.

12. In the course of Mr Durack’s opening, Mr Maddox informed the Court below that a payment of $20,000 had been made to Mr Tabone on the previous afternoon. When Mr Durack objected to Mr Maddox giving evidence from the bar table, Mr Maddox said:

“I will just cross-examine on it, your Honour.”

(tr. 6.40; 9/3/08)

13. In addition to the affidavits referred to above, Mr Durack tendered a bundle of documents produced on subpoena from Westpac Banking Corporation to establish the relevant payments.

14. Mr Durack called Mr Tabone who was cross-examined by Mr Maddox. Mr Tabone agreed that he had received $20,000 from Mr Taylor the previous afternoon but said that Mr Taylor owed him $1.5m and that the $20,000 related to that loan and not to the loan to Mr Hyde which was the subject of the proceedings (tr. 10.19-.20). In the course of the cross-examination of Mr Tabone, Mr Maddox said:

“We have got a statement from him [Mr Taylor], but we didn’t bother about getting it signed because we thought that this issue of the 20,000 was not going to arise.”

(tr. 13.16-.18)

15. The cross-examination of Mr Tabone concluded before the morning adjournment. There was no re-examination of Mr Tabone. Mr Durack closed Mr Tabone’s case. After the short adjournment, Mr Maddox read Mr Hyde’s affidavit and tendered a photocopy of the cheque paid by Mr Taylor to Mr Tabone on 8 March 2018. Mr Hyde gave further evidence in chief before he was cross-examined by Mr Durack.

16. Following the luncheon adjournment, Mr Maddox applied to have the proceedings adjourned on the basis that he needed to obtain evidence from Mr Taylor. Mr Durack opposed the adjournment on the basis that the $20,000 paid by Mr Taylor to Mr Tabone on 8 March 2018 was irrelevant to the proceedings. He also referred to the amount in dispute being small and the fact that the “legal fees are mounting”.

17. The final passage of the transcript relating to the adjournment application, including her Honour’s reasons for refusing the application are extracted below (tr.74.21-75.20):

“MADDOX: . . . the application does come at the heel of the hunt, but it comes after two significant developments, and that is recently we had understood that Mr Taylor would be subpoenaed and would be here.

HER HONOUR: Why did you think that?

MADDOX: Because we were told, or at least I was told, at that the motion last Friday, a week ago, that Mr Taylor had been subpoenaed. It was only after we found out this week that the subpoena had not been served, that my solicitor did some running around to try and find out what had happened. The result was, and I'm not going to give evidence from the bar table again, but the end result of it was that at quarter to 4, I think it was, yesterday $20,000 was paid.

HER HONOUR: I know.

MADDOX: I came to court-

HER HONOUR: Reading between the lines, you say that that is Mr Taylor on behalf of your client paying the plaintiff, and the plaintiff has trousered that and decided that he is still going after the other 20 grand.

MADDOX: That's right.

HER HONOUR: Yes. I make no judgment at this point. Look, clearly everybody knew Mr Taylor was a very important witness. I appreciate that you thought that the plaintiff was going to get him, but you made no effort to get him, you were relying on them.

MADDOX: They have got the onus of proof on that issue.

DURACK: It's not our responsibility to have Mr Taylor here. We have gone out of our way to do everything we could to do that, but he is equally as important to the defendant's case.

HER HONOUR: Sure.

DURACK: So we have done everything we could, including issuing a subpoena, and going to the expense of that. My friend's client has done nothing, except make assumptions, which in my submission he wasn't entitled to make. It was a matter for them to get their evidence together to defend the case. There is no evidence now before the Court, as your Honour knows and to point out the obvious, about how that payment is to be characterised. That is a separate matter. That will be a separate piece of litigation.

HER HONOUR: Yes, look, Mr Maddox, I am not with you unfortunately, it is all too little, too late. If what you say was this important hammer blow yesterday afternoon, it should have been done in a proper way, for some people who were engaged in a piece of litigation. That did not happen, and today you reap the rewards of that unfortunately. Yes, over an objection, I am not prepared to grant an adjournment I am afraid.

MADDOX: As the Court pleases.”

18. Following the refusal of the adjournment application, Mr Maddox was permitted to ask further questions in chief of Mr Hyde, who was not cross-examined further. Mr Hyde was then re-examined.

19. During the hearing the parties each handed up a different version of proposed agreed facts. Mr Durack handed up Mr Tabone’s proposed facts in the course of his opening (tr. 3.45-47) and indicated to the Court below that only paragraph 1 was agreed. Paragraph 1 said:

“The plaintiff [Mr Tabone] deposited $20,000 into the defendant’s [Mr Hyde’s] bank account on 24 January 2013.”

The reasons for judgment

20. The findings made by the Court below are summarised below by reference to the judgment given on 4 May 2018. The transcript references are to the transcript of the reasons which were given orally on that day.

The claim for $20,000

21. Mr Tabone had tried, quite diligently, to secure service of a subpoena on Mr Taylor (who did not appear at the hearing) (tr. 2.33-.34). Without Mr Taylor it was impossible to make any finding that, on balance, the $20,000 from Mr Tabone was paid over by any mutual agreement as a loan to Mr Hyde (tr. 2.45-.46). Consequently, the Court had to fall back on Mr Tabone’s alternative case: that he was entitled to restitution of the money from Mr Hyde. Mr Hyde had no real defence to the claim in restitution and did not claim the money was paid for any other purpose. For 12 months Mr Hyde said he did not even know the money came from Mr Tabone and had believed that it was a gift from Mr Taylor. Once Mr Hyde learned that the $20,000 had come from Mr Tabone, he continued to retain it despite Mr Tabone’s demands for its return (tr. 2.48-3.6).

22. The Court below referred to the recent payment to Mr Tabone from Mr Taylor and to Mr Tabone’s evidence that Mr Taylor owed him $1.2m and that the payment of $20,000 by Mr Taylor was on account of this unrelated loan (tr. 3.25-.32). The reference to a loan of $1.2m is plainly a reference to Mr Tabone’s evidence that he was owed $1.5m by Mr Taylor. The disparity is immaterial for present purposes.

23. Because of the parties’ opaque business practices and the absence of Mr Taylor, the Court below could not be satisfied that the $20,000 paid to Mr Tabone on the eve of the hearing amounted to a repayment of the monies claimed by Mr Tabone from Mr Hyde. Consequently, the Court found Mr Tabone was entitled to restitution of the $20,000 paid by him into Mr Hyde’s account on 24 January 2013 (tr. 3.34-.39).

The claim for $10,349.23

24. It was common ground that, for the tax year ended 2013, Mr Tabone was entitled to a tax refund of $10,349.23. The ATO paid that sum into the trust fund of Mr Hyde's firm. Mr Hyde neglected to inform the plaintiff of the refund, which he retained (tr. 3.41-.46). Mr Tabone, who was unaware that his tax refund had been sent to and received by Mr Hyde, complained to the ATO in the mistaken belief that it had not paid his tax refund. When Mr Tabone found out that the refund had been paid to Mr Hyde's firm, Mr Tabone made a complaint to Mr Hyde's professional body (tr. 4.1-.6).

25. Mr Tabone gave evidence that Mr Taylor telephoned him and said that if he withdrew his professional complaint against Mr Hyde, Mr Taylor would pay the amount of the tax refund to him. Mr Tabone immediately emailed the woman dealing with his professional complaint against Mr Hyde and withdrew his complaint. Mr Taylor failed to pay any money to Mr Tabone in return for withdrawing the complaint (tr. 4.8-. 17).

26. Ultimately there was no real dispute or contest that the tax refund amount of $10,349.23 was owed to Mr Tabone, save for the payment of Mr Hyde's fees for the preparation of the 2013/2014 tax returns (tr. 4.19-.22). As the tax refund was held in the trust account of the firm who took over Mr Hyde's business when he retired, the question arose as to the appropriate orders (tr. 4.22-.24).

27. The Court below declined to make an order relating to the firm and said (tr. 8.2-.6):

“I actually have no actual knowledge of where this money is. So I could be involving somebody who does not have this money in their trust account. So yes, actually on reflection I am not going to make any order about any third party about any money they may or may not have in their trust account... ".

The cross-claim

28. In respect of any outstanding amounts for Mr Hyde's preparation of the 2013/2014 tax returns, there was no basis on which Mr Hyde could substantiate his claim for increased fees given that he had performed the same work for the plaintiff for a tenth of those fees for many years. Her Honour found that Mr Tabone was obliged to pay the highest rate of the usual range of fees, $1,650 each for the preparation of each of these two years' tax returns. Her Honour allowed an amount of $3,300 in judgment on the cross-claim (tr. 6.1-.7).

29. There was no appeal in respect of the cross-claim.

Consideration

The grounds of appeal

30. It is convenient to address the grounds of appeal in turn. Where there is an overlap in the grounds, they will be addressed together. The grounds are as follows:

“1.   Her Honour erred in declining to find that the $20,000 paid to the plaintiff [Mr Tabone] on the day before the hearing was not in payment of any debt of $20,000 owed by the defendant [Mr Hyde] to the plaintiff [Mr Tabone].

2.   Her Honour erred in her finding that the defendant [Mr Hyde] was liable to pay $20,000 plus interest to the plaintiff [Mr Tabone], as her Honour had found that the $20,000 paid on 24 January 2013 was the result of a contractual loan, or a payment by mistake.

3.   Her Honour erred in finding that the defendant [Mr Hyde] was liable to pay $20,000 plus interest to the plaintiff [Mr Tabone], because the result was that the plaintiff [Mr Tabone] was unjustly enriched by $20,000 after having been paid $20,000 on the day before the hearing.

4.   Her Honour erred in her finding that the defendant [Mr Hyde] was liable to pay the tax refund of $10,349.23 plus interest to the plaintiff [Mr Tabone], as it was an agreed fact that the plaintiff [Mr Tabone] was entitled to be paid this sum from money held by the defendant's [Mr Hyde’s] former accounting firm, the result being that the plaintiff [Mr Tabone] is being paid $10,349.23 twice.”

5.   Her Honour erred in finding that the defendant [Mr Hyde] was liable to pay $10,349.23 plus interest to the plaintiff [Mr Tabone], because the result was that the plaintiff was unjustly enriched by $10,349.23.

6.   Her Honour erred in refusing the defendant's [Mr Hyde’s] application for an adjournment so that crucial evidence could be given by Mr Taylor.

7.   Her Honour erred in not granting the adjournment on the basis that the defendant [Mr Hyde] pay the plaintiff's [Mr Tabone’s] costs thrown away because of the adjournment.

8.   As to grounds 1-5, her Honour's findings were made when there was no significant evidence to support them.

9.   Her Honour failed to give adequate reasons for her findings that the defendant [Mr Hyde] was liable to pay to the plaintiff [Mr Tabone]:

a) the sum of $20,000 plus interest; and

b) the sum of $10,349.23 plus interest.

31. Grounds 1-5 do not raise questions of law. At best they raise questions of mixed law and fact, which would require leave. I am not persuaded that leave ought be granted for any of these grounds which are considered below.

Grounds 1-3: the principal sum of $20,000

32. Grounds 1-3 raise the same point and can be addressed together. In substance, Mr Hyde submitted that the Court below ought to have found that the $20,000 which Mr Taylor paid to Mr Tabone the day before the trial discharged Mr Hyde’s indebtedness to Mr Tabone for the $20,000 the latter had transferred to him in January 2013. Mr Hyde relied, as he did at trial, on the amount of the payment and its timing to support the submission. The only direct evidence on this issue came from Mr Tabone who said that Mr Taylor owed him a significant amount of money and that the payment of $20,000 on 8 March 2018 was unrelated to the proceedings.

33. The Court below was entitled to accept Mr Tabone’s evidence, which was not directly controverted. Mr Taylor did not give evidence. No inference could be drawn against Mr Tabone for not calling Mr Taylor. Mr Hyde relied on the payment from Mr Taylor in support of his defence of payment. Her Honour was entitled to find that Mr Hyde had not discharged the onus of proving that defence. None of grounds 1, 2 or 3 has been made out.

Grounds 4 and 5: the claim for the tax refund

34. Ground 4 contains an allegation that it was an agreed fact that Mr Tabone was entitled to be paid the tax refund from money held by the accounting firm where Mr Hyde had formerly been a partner and that, on this basis, Mr Tabone would be paid the sum of $10,349.23 twice. As referred to above, this fact was not agreed although it was proposed by Mr Hyde.

35. Another difficulty with this ground is that the location of the funds has not been established. Further, the evidence as to the location of the funds was inconsistent. Mr Hyde pleaded in his amended defence (which Mr Maddox confirmed in closing address he had drafted on the basis of his instructions from Mr Hyde: tr. 22.21-.23) that he had earlier appropriated Mr Tabone's tax refund for his own use. However, in examination-in-chief Mr Hyde gave evidence that the refund was still held elsewhere (by the firm of which he had been a partner). The Court below ultimately was not satisfied that it was held elsewhere, although the possibility was raised. In any event Mr Hyde accepted that the tax refund money was in fact owed to Mr Tabone.

34. In his submissions before me, Mr Maddox argued that there was a possibility that Mr Tabone could obtain the sum of $10,349.23 from Mr Hyde’s former accounting firm and also execute the judgment against Mr Hyde, which would lead to his being paid the amount twice. Mr Maddox contended that the Court below ought to have made provision for the possibility of double payment in the order and made the judgment against Mr Hyde conditional on the firm’s failure to remit the sum of $10,349.23 to Mr Tabone. There was no foundation for the proposition that this possibility was other than hypothetical since it was common ground that Mr Tabone had received nothing by way of payment of the judgment debt.

35. The only defendant in the proceedings was Mr Hyde. Her Honour considered that Mr Hyde was obliged to remit the sum of $10,349.23 to Mr Tabone as it was his tax refund and Mr Hyde had wrongfully withheld it. Her Honour found that Mr Hyde was, in these circumstances, liable to pay Mr Tabone the full amount together with interest (with a deduction to take account of the judgment on the cross-claim). I discern no error in the approach of the Court below.

Grounds 6 and 7: the refusal of Mr Hyde’s application for an adjournment

38. These grounds require leave as they relate to an interlocutory order, namely the refusal of an application for an adjournment. No question of law arises unless it can be said, relevantly, that her Honour’s discretion miscarried, either because the result was outside the parameters of a proper exercise of discretion or because her Honour failed to take into account a consideration that she was obliged to take into account. Mr Maddox submitted in this Court that the interests of justice were overwhelmingly in favour of an adjournment as he had been surprised by Mr Tabone’s explanation for the payment of $20,000 to him by Mr Taylor (that it related to an unrelated loan from Mr Taylor to him), which had been made the previous afternoon. He submitted that her Honour ought to have granted the adjournment and ordered Mr Hyde to pay the costs thrown away by the adjournment.

39. It is plain from the narrative set out above that Mr Maddox made a forensic decision not to apply for an adjournment when he first became aware that Mr Tabone’s solicitors had been unable to serve Mr Taylor with the subpoena. It is also of significance that Mr Maddox only became aware that a subpoena had been issued to Mr Taylor on 2 March 2018. Mr Maddox allowed Mr Durack to open his case and call all of his evidence and close his case before he applied for an adjournment. By that stage the matter had occupied almost a full day and was about to conclude. As Mr Durack submitted to the Court below, the amount in issue was relatively small in proportion to the costs. It is well established that costs are not necessarily sufficient to overcome the prejudice occasioned by delay. It was, in my view, well within her Honour’s discretion to refuse the adjournment in accordance with Part 6 of the Civil Procedure Act 2005 (NSW). Mr Hyde has failed to identify any respect in which her Honour’s discretion miscarried. I am not satisfied that leave ought be granted to argue these grounds.

Ground 8: alleged lack of “significant evidence” to support the findings in grounds 1-5

40. The allegation that there is “no evidence” to support a finding raises a question of law. However, allegations of sufficiency of evidence raise questions of fact. Mr Maddox did not develop this ground. Having reviewed the evidence and the reasons of the Court below, I do not discern any basis for the allegation that the evidence was insufficient to support any finding the subject of this ground. I refuse leave to argue this ground.

Ground 9: alleged insufficiency of the reasons of the Court below

41. This ground raises a question of law for which leave is, accordingly, not required.

Reasons for the judgment of the principal sum of $20,000

42. Mr Maddox raised her Honour’s statement at tr. 2.45 of the reasons:

“Without him [Mr Taylor] it is impossible to make any finding on balance that this $20,000 was paid over by any mutual agreement as a loan to the defendant [Mr Hyde].”

43. Mr Maddox submitted that her Honour did not deal with the evidence, which he described as “compelling” that the $20,000 was paid the day before the hearing and corresponded, in terms of the amount, with the principal amount claimed by Mr Tabone against Mr Hyde. He also argued that the Court below was in error in the following passage:

“And because of these parties’ business practices, and that is over-selling it, as I have despaired earlier and the absence of Greg Taylor, no-one could confidently say what this mysterious $20,000 payment was meant to represent, and we were left with the plaintiff’s evidence that it was unrelated to these proceedings.”

(tr. 3.34-.38, 4/5/2018)

44. Mr Maddox criticised her Honour’s use of the word “confidently” in this context and submitted that her Honour had misapprehended the standard of proof, being on the balance of probabilities. Mr Maddox also submitted that the Court below erred in accepting Mr Tabone’s “thin” evidence rather than the “more likely” evidence of Mr Hyde.

45. As is evident from the summary of Mr Maddox’s submission, his contentions go beyond the ground of sufficiency of reasons and allege error in fact-finding and the standard of proof. However, they can be addressed relatively briefly.

46. Latitude is to be given to reasons delivered orally, even if not ex tempore, particularly in busy courts such as the Local Court. Thus I would not infer from the Magistrate’s use of the words “impossible” or “confidently” that her Honour misapprehended the civil standard of proof, which is on the balance of probabilities. It is essential to the workings of such courts that reasons usually be given orally, either at the conclusion of the hearing or on another day. In substance, her Honour’s reasons indicate that she was not satisfied that there was a loan agreement between Mr Tabone and Mr Hyde, although she was satisfied that Mr Tabone had paid $20,000 to Mr Hyde, which was sufficient to make out the claim in restitution.

47. I do not consider the reasons of the Court below to be inadequate. Further, it was, for the reasons given above, open to the Court below not to be satisfied that the payment of $20,000 made on 8 March 2018 was a repayment of the $20,000 which had been paid to Mr Hyde in January 2013 since there was another credible explanation: namely, that it amounted to the repayment of an unrelated loan made by Mr Tabone to Mr Taylor.

Reasons for judgment of the amount of the tax refund

48. Mr Maddox relied on the following passage from the transcript of her Honour’s reasons for judgment at tr. 4.24:

“Orders will have to be drafted – gentlemen you will have to help me with that – such that this third party, who is not involved in these proceedings is obliged to deliver this amount up to the plaintiff for some such corresponding order that makes good this judgment.”

49. After her Honour had ordered judgment, which included the amount of the tax refund, there was a discussion between bar and bench about the form of the order. Mr Maddox suggested, at tr. 7.11 4/5/18, that the Magistrate should order Mr Hyde to do “all things” to have $10,349.23 paid to Mr Tabone by a certain period and if it was not paid he would be liable to pay it personally. Mr Maddox accepted in the Court below that such a course was “procedurally messy”. Mr Durack submitted that it was not necessary to involve the firm as the case had been brought against Mr Hyde personally. Her Honour referred to the circumstance that the firm was an unrelated third party which was not a party to the proceedings and therefore was not inclined to change the judgment.

50. Her Honour explained in the reasons why Mr Tabone was entitled to judgment for $10,349.23 as well as the sum of $20,000. It is questionable whether her Honour would have had power to make any other order in the circumstances where the firm was not a party and her jurisdiction was limited. Further, there was no denial of natural justice (nor is one alleged) as is apparent from the discussion recorded on the transcript referred to above.

51. I am not persuaded that there was any relevant deficiency in the reasons of the Court below. Ground 9 has not been made out.

Costs

52. The parties accepted that there was no reason why costs ought not follow the event in circumstances where one party has been wholly successful and the other party wholly unsuccessful. Accordingly, I propose to order Mr Hyde to pay Mr Tabone’s costs of the proceedings.

Orders

53. For the reasons given above, I make the following orders:

1. Refuse leave to the plaintiff to appeal on grounds 1, 2, 3, 4, 5, 6, 7 and 8.

2. Otherwise dismiss the summons filed on 1 June 2018.

3. Order the plaintiff to pay the defendant’s costs of the proceedings.

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Decision last updated: 24 October 2018