Indevelco Pty Ltd v Betts - [2002] VSC 537

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE COMMON LAW DIVISION

No. 6746 of 2002

IN THE MATTER of an Appeal under Section 109 of the Magistrates’ Court Act 1989

INDEVELCO PTY LTD	Plaintiff
V
MR R BETTS (MAGISTRATE)	First Defendant
SITTING AS THE MAGISTRATES’ COURT OF VICTORIA AT BROADMEADOWS
DELTA CARPETS & VINYLS PTY LTD	Second Defendant

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JUDGE:	WILLIAMS J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26, 27, 28 November 2002
DATE OF JUDGMENT:	12 December 2002
CASE MAY BE CITED AS:	Indevelco Pty Ltd v Betts & Ors
MEDIUM NEUTRAL CITATION:	[2002] VSC 537

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MAGISTRATES – Appeals from - S 109 Magistrates' Court Act 1989 (Vic) – Whether decision open on evidence.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Herskope	Rigby Cooke
For the Second Defendant	Mr P. Lithgow	Lynette Smyth
HER HONOUR:

This is an appeal brought under s 109 of the Magistrates’ Court Act 1989 (Vic) from a decision of the Magistrates’ Court of Victoria at Broadmeadows on 12 July 2002 whereby the plaintiff was found to be liable to pay the second defendant the sum of $27,147.00 together with interest and costs.
Section 109 of the Magistrates’ Court Act 1989 relevantly provides:
“s. 109

(1)

A party to a civil proceeding in the Court may appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.”

The question of law

A decision of the Master on 27 August 2002 that no question of law arose for decision on appeal was the subject of a successful appeal to the Practice Court on 4 September 2002 under O77.05 of the Supreme Court (General Civil Procedure) Rules 1996. Directions for the further conduct of an appeal from the Magistrate’s decision were made and it was noted in “Other Matters” that:
“The question of law shown by the plaintiff to be raised by the appeal is whether there was any evidence upon which the Magistrates’ Court could have reached the decision which it did.”
It was agreed at the outset that the decision, the subject of the question of law, was the Magistrate’s finding of fact that the plaintiff had ordered the floor coverings and other associated goods supplied by the second defendant between March and July 2001 (“the goods”).
In Transport Accident Commission v Hoffman and Ors[1] the Court considered an appeal, in relation to a finding of fact by the Administrative Appeals Tribunal, brought under s 52(1) of the Administrative Appeals Tribunal Act 1984 which similarly permitted an appeal on a question of law. Young CJ and McGarvie J, said[2]:
“The only question of law which can be said to … found the appeal to this Court, is whether, on the evidence before it, it was open to the Tribunal to reach the conclusion it did reach”.
[1] [1989] VR 197.
[2] Ibid at 200.
Herring CJ stated the relevant test in relation to the learned Magistrate’s decision in Young…

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 Indevelco Pty Ltd v Betts

Details

AGLC: Indevelco Pty Ltd v Betts [2002] VSC 537
Case: [2002] VSC 537
Decision Date: 12 December 2002

CaseChat Overview and Summary

Indevelco Pty Ltd, a property developer, contested a decision of the Magistrates' Court of Victoria, which had dismissed its appeal against a decision of a Magistrates' Court Deputy Registrar. The Deputy Registrar had found that Betts, the respondent, had a legal right to terminate a contract for the sale of property, as the property developer had failed to complete the sale within the stipulated timeframe. The appeal was dismissed due to an error in the interpretation of the contract terms and the relevant statutory provisions.

The primary legal issues that the court had to resolve were whether the decision of the Deputy Registrar was open on the evidence presented, and whether the Magistrate's interpretation of the statutory provisions was correct. The developer argued that the Deputy Registrar had erred in finding that the time for completion of the sale was of the essence, and that the Magistrate had misapplied the relevant statutory provisions.

The court held that the decision of the Deputy Registrar was open on the evidence presented, as the terms of the contract and the statutory provisions supported the finding that time was of the essence. The court also held that the Magistrate's interpretation of the statutory provisions was correct, as the provisions applied to the circumstances of the case. The court found that the developer had not completed the sale within the stipulated timeframe, and that the respondent had a legal right to terminate the contract.

The court dismissed the appeal and affirmed the decision of the Magistrate. The developer was ordered to pay the respondent's costs of the appeal.

Orders