Jaksic v Yim - [2011] NSWSC 962

Supreme Court

New South Wales

Medium Neutral Citation: Jaksic v Yim [2011] NSWSC 962
Hearing dates: Tuesday, 9 August 2011
Decision date: 09 August 2011
Jurisdiction: Common Law - Administrative Law
Before: Brereton J
Decision:
Grant leave pursuant to (NSW) Local Courts Act s 40 to appeal from the judgment of the Local Court.
Allow the appeal.
Set aside the judgment and order of the Local Court.
Remit the matter to the Local Court for determination conformably with this judgment.
Defendant to pay plaintiff's costs of appeal.

Catchwords: APPEAL - Appeal from decision of Local Court - on evidence not open for magistrate to conclude amount of debt as adjudged -failure to have regard to relevant evidence an error of law - erroneous treatment of defence as cross-claim reversed onus of proof - magistrate applied incorrect approach to onus of proof constituting an error of law - judgment set aside.
Legislation Cited: (NSW) Local Courts Act, s 40
Cases Cited: Abalos v Australian Postal Commission (1990) 171 CLR 168
Fox v Percy (2003) 214 CLR 118
SS Hontestroom v SS Sagaporack [1927] AC 37
Category: Principal judgment
Parties: Mr Peter Jaksic (plaintiff)
Ms Lisa Yim (defendant)
Representation: Counsel:
Mr Peter Yaksic (in person)
Ms Muir (defendant)
Solicitors:
Edmund Tend & Associates Lawyers (defendant)

File Number(s): 2010/387862

Judgment (ex tempore)

HIS HONOUR: On 26 September 2007, the appellant Peter Jaksic, who was the defendant in the proceedings in the Local Court, agreed to purchase from the respondent Ms Lisa Yim, who was the plaintiff in the Local Court, a Lexus motor vehicle for a sum of $63,000. To that extent their agreement was recorded in writing, but it was common ground before the Local Court and before this Court that they also orally agreed that, in order to facilitate the payment of the price by instalments, Mr Jaksic would entrust his bank debit card to Ms Yim who would draw on it from time to time and apply the proceeds so drawn to reduction of the debt.

In order to record those repayments, Ms Yim maintained a ledger, which commenced with an entry on 15 October 2007, and continued over five pages to conclude with an entry on 16 April 2009 showing the remaining balance of the debt as $39,550. It was not and is not in dispute that, in addition to the amounts treated as paid in the ledger, Ms Yim made withdrawals of additional amounts. Although the precise amount was never agreed, the total withdrawals made by Ms Yim amounted to about $71,640, of which only $23,450 was recorded in the ledger as applied to the motor vehicle debt. The substantial dispute at first instance was whether as she contended she did so at the request of Mr Jaksic and provided the additional amounts withdrawn to him for his own use or whether (as Mr Jaksic contended), she did so without his authority and retained them for her own purposes.

By statement of claim filed in the Local Court…

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: [2011] NSWSC 962
Decision Date: 09 August 2011

CaseChat Overview and Summary

The appellant, Jaksic, was involved in an appeal against a decision rendered by the Local Court in relation to a debt owed by the respondent, Yim. The Local Court had ruled in favour of Jaksic, determining that Yim owed a specified amount of money. This decision was based on the magistrate's assessment of the evidence presented during the trial. However, Jaksic appealed the decision, arguing that the magistrate had erred in law by concluding the amount of debt based on evidence that was not open to the magistrate to consider, and by failing to have regard to relevant evidence. Additionally, Jaksic argued that the magistrate had misconstrued the defence as a cross-claim and had applied an incorrect approach to the onus of proof, which constituted an error of law.

The legal issues before the court were whether the magistrate had erred in concluding the amount of debt based on evidence that was not open to the magistrate to consider, whether the magistrate had failed to have regard to relevant evidence, whether the magistrate had misconstrued the defence as a cross-claim, and whether the magistrate had applied an incorrect approach to the onus of proof. The court had to determine if these errors constituted errors of law that warranted the setting aside of the judgment. The court also had to consider whether the magistrate's decision was supported by the evidence and whether the onus of proof had been properly applied.

The court found that the magistrate had indeed erred in concluding the amount of debt based on evidence that was not open to the magistrate to consider. Furthermore, the court found that the magistrate had failed to have regard to relevant evidence and had misconstrued the defence as a cross-claim. Additionally, the court found that the magistrate had applied an incorrect approach to the onus of proof, which constituted an error of law. The court held that these errors warranted the setting aside of the judgment. The court found that the magistrate's decision was not supported by the evidence and that the onus of proof had not been properly applied. As a result, the appeal was allowed, and the judgment was set aside.

The final orders of the court were that the appeal be allowed, the judgment of the Local Court be set aside, and the matter be remitted to the Local Court for re-hearing. The court did not make any orders as to costs. The case highlights the importance of ensuring that the magistrate considers all relevant evidence and applies the correct legal principles when determining the amount of a debt owed and the onus of proof.

Orders