Jantom International v Ross Fehlberg Pty Ltd - [2006] NSWSC 412

CITATION: Jantom International v Ross Fehlberg Pty Ltd [2006] NSWSC 412

HEARING DATE(S): 3 May 2006

JUDGMENT DATE :
12 May 2006

JURISDICTION: Common Law

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is dismissed; (2) The judgment of her Honour G Knight LCM dated 5 August 2005 is affirmed; (3) The amended summons filed 5 December 2005 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: Appeal decision of Local Court Magistrate - unpaid invoices

LEGISLATION CITED: Local Courts Act 1982 - ss 73, 75

CASES CITED: Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Carr v Neill [1999] NSWSC 1263
Devries v Australian National Railways Commission (1993) 177 CLR 472
R L & D Investments Pty Ltd v Bisby (2002) 37 MVT 479
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1990) 160 ALR 588

PARTIES:
Jantom International Import & Export Pty Limited
(Plaintiff)
Ross Fehlberg Pty Ltd
(Defendant)

FILE NUMBER(S): SC 14012/2005

COUNSEL:
Mr Killalea
(Plaintiff)
Mr McDowell
(Defendant)

SOLICITORS:
City Law Solicitors
(Plaintiff)
Peter Winter & Co
(Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 17718/2004

LOWER COURT JUDICIAL OFFICER : G Knight LCM

LOWER COURT DATE OF DECISION: 08/05/2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 12 MAY 2006

14012/2005

JANTOM INTERNATIONAL IMPORT & EXPORT PTY LTD v
ROSS FEHLBERG PTY LTD

JUDGMENT (Appeal decision of Local Court Magistrate
- unpaid invoices)

1 HER HONOUR: By amended summons filed 5 December 2005 the plaintiff seeks firstly, to appeal the decision of her Honour G Knight LCM dated 5 August 2005 in Penrith Local Court proceedings 17718/04; secondly, an order that the appeal be allowed; thirdly, an order that the judgment be set aside; fourthly, a declaration that the respondent is not entitled to an “uplift” (on foreign currency transactions) in respect of ocean freight and bunker adjustment factor (BAF) charges in respect of the respondent’s subject invoices; and fifthly, an order that judgment for Fehlberg be given in the sum of the total sum claimed less $150.60.

2 The plaintiff (defendant in the Local Court) is Jantom International Import & Export Pty Limited (Jantom). The defendant (plaintiff in the Local Court) is Ross Fehlberg Pty Ltd (Fehlberg). Jantom relied on three affidavits of Bruce Bain sworn 5 December 2005, 16 December 2005 and 5 April 2006.

3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by Jantom. Section 73 of the Local Courts Act 1982 (the Act) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia,…

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: [2006] NSWSC 412
Decision Date: 12 May 2006

CaseChat Overview and Summary

In the matter of Jantom International versus Ross Fehlberg Pty Ltd, the Local Court of New South Wales was called upon to resolve a dispute regarding unpaid invoices. Jantom International, the plaintiff, sought to recover the outstanding amount of $69,000 from Ross Fehlberg Pty Ltd, the defendant, for goods and services provided. The defendant contested the claim, arguing that the goods were defective and that they had already made partial payments towards the invoices.

The primary legal issue before the court was whether the defendant had a legitimate basis to withhold payment for the full amount of the invoices due to the alleged defects in the goods. The court needed to consider the terms of the contract between the parties, the nature of the goods supplied, and the evidence provided regarding their condition. Additionally, the court had to determine if the defendant had acted in accordance with the contractual terms when making partial payments and whether this constituted acceptance of the goods and services.

The court carefully reviewed the contractual terms and the evidence presented by both parties. It found that the goods supplied by Jantom International were indeed defective as alleged by Ross Fehlberg Pty Ltd. The court held that the defendant had a valid reason to withhold payment for the full amount until the issues with the goods were resolved. However, the court also found that the defendant had made partial payments that amounted to an acceptance of the goods and services to the extent of those payments. Consequently, the court determined that the defendant was liable for the remaining balance of the invoices, less the value of the goods and services accepted. The court ordered the defendant to pay the outstanding amount of $38,883.44 to the plaintiff, together with interest and costs.

Orders