Jia v GJKR Pty Ltd - [2017] NSWSC 629

Supreme Court

New South Wales

Medium Neutral Citation: Jia v GJKR Pty Ltd [2017] NSWSC 629
Hearing dates: 12 May 2017
Date of orders: 12 May 2017
Decision date: 12 May 2017
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) The Amended Summons filed 2 March 2017 is dismissed.
(2) The plaintiff is to pay the first and second defendant's costs of the proceedings.

Catchwords: LOCAL COURT APPEAL – alleged agreement to vary rent payable under a lease – no written or oral judgment – magistrate did not decide issue because plaintiff conceded claim for rent untenable – no error of law in acting on concession – appeal dismissed
Legislation Cited: Civil Procedure Act 2005
Conveyancing Act 1919
Local Court Act 2007
Retail Leases Act 1994
Uniform Civil Procedure Rules 2005
Cases Cited: Phillips v Ellinson Brothers Pty Limited (1941) 65 CLR 221
Category: Principal judgment
Parties: Li Hong Jia (Plaintiff)
GJKR Pty Ltd (First Defendant)
Geoffrey Zhi-Xing Zhang (Second Defendant)
Jessica Eun Nyeon Jin (Third Defendant)
Representation:
Counsel:
CD Wood (Plaintiff)
N Allan (First and Second Defendants)
No Appearance (Third Defendant)
Solicitors:
Brighton Lawyers (Plaintiff)
Ziman and Ziman (First and Second Defendants)
No Appearance (Third Defendant)

File Number(s): 2016/304785
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Date of Decision:

12 October 2016

Before:

Magistrate Pierce

File Number(s):

2014/35514

EX TEMPORE Judgment

HIS HONOUR: The plaintiff in these proceedings, Li Hong Jia, obtained a judgment in the Local Court on 14 September 2006 against three defendants in the sum of $14,017.50. The first of the three defendants, GJKR Pty Ltd (“GJKR”) was the former tenant of retail premises owned by Ms Jia in Flinders Street, Surry Hills (the “premises”). The other two defendants, Geoffrey Zhi‑Xing Zhang and Jessica Eun Nyeon Jin, were guarantors of GJKR's obligations. In this Court, Ms Jin has not been served with any summons. She has not taken part in the appeal, even though she is named as a defendant.
Ms Jia now appeals against the Local Court judgment. She seeks an increase in the amount of the judgment to just over $51,000.
Appeals from the Local Court to this Court in civil proceedings are governed by ss 39 to 41 of the Local Court Act2007 which relevantly provide:

39 Appeals as of right
(1)   A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.
…
40 Appeals requiring leave
(1)   A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.
…
41 Determination of appeals
(1)   The Supreme Court may determine an appeal made under section 39 (1) or 40:
(a)   by varying…

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: [2017] NSWSC 629
Decision Date: 12 May 2017

CaseChat Overview and Summary

In this case, the appellant, Jia, pursued a legal claim against the respondent, GJKR Pty Ltd, in the Local Court of New South Wales, arguing for a variation in the rent payable under a lease. The claim was based on an alleged agreement to alter the rent terms, but the respondent maintained that no such agreement existed. The matter was heard by a magistrate, who ultimately did not make a judgment on the merits of the claim because the appellant conceded that the claim for rent was untenable. Dissatisfied with the outcome, the appellant appealed to the Supreme Court, arguing that the magistrate had erred in not deciding the issue of the agreement to vary the rent.

The primary legal issue before the court was whether the magistrate erred in not making a judgment on the issue of the agreement to vary the rent, despite the appellant's concession. The appellant contended that the magistrate should have proceeded to decide the issue, as it was within their jurisdiction to do so. The respondent argued that the concession by the appellant effectively removed the claim from the court's consideration, and there was no error of law in acting on the concession.

The court found that the magistrate did not commit any error of law in proceeding on the appellant's concession. The court reasoned that once a party concedes that a claim is untenable, the court is not obliged to decide the merits of the claim, as the concession effectively removes it from consideration. The court held that the magistrate's decision was in accordance with the law and the principles of justice, and there was no error of law that warranted an appeal. Consequently, the appeal was dismissed, and the decision of the Local Court was upheld.

Orders