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New South Wales |
Case Name: | Liu v Cooper |
Medium Neutral Citation: | [2017] NSWSC 1490 |
Hearing Date(s): | 1 September 2017 |
Date of Orders: | 2 November 2017 |
Decision Date: | 2 November 2017 |
Jurisdiction: | Common Law |
Before: | Wilson J |
Decision: | 1. The amended summons dated 1 September is dismissed. |
Catchwords: | CIVIL LAW – appeal from decision of the Local Court Small Claims Division original dispute over $12,000 – question of law alone – asserted denial of procedural fairness – asserted failure to assist unrepresented litigant – question of adequacy of reasons – no error established – no point of principle |
Legislation Cited: | Civil Procedure Act 2005 (NSW) |
Cases Cited: | Abram v Bank of New Zealand (1996) ATPR 41-507 |
Category: | Principal judgment |
Parties: | Dejiang Liu – Plaintiff |
Representation: | Counsel: |
File Number(s): | 2016/00228670 |
Publication Restriction: | None |
Decision under appeal: | |
Court or Tribunal: | Local Court NSW |
Jurisdiction: | Civil |
Date of Decision: | 01 July 2016 |
Before: | Railton LCM |
File Number(s): | 2015/230108 |
JUDGMENT
HER HONOUR: This is an appeal against a decision made in the Local Court at Toronto on 1 July 2016 by Magistrate Railton. The decision generally relates to a contractual dispute between Barry Cooper, the defendant in these proceedings, and Dejiang Liu, the plaintiff, over the sale of a business.
Mr Cooper commenced proceedings in the Local Court against Mr Liu, with Mr Cooper seeking payment of the balance due to him under an agreement for the sale of a service station business made on 13 February 2015. The claimed amount was $12,000, together with interest and costs. Mr Liu was both the defendant, and cross-claimant in those proceedings, he having cross-claimed for damages alleged to have arisen from misrepresentations made by Mr Cooper in connection with the sale. The damages sought were in the order of $100,000.
Mr Liu did not contest the claim by Mr Cooper for the monies unpaid on the contract, but pressed his cross-claim by way of a set off.
Proceedings were heard in the Local Court over three non-consecutive days…
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- AGLC
- Liu v Cooper [2017] NSWSC 1490
- Case
- [2017] NSWSC 1490
- Decision Date
CaseChat Overview and Summary
The central legal issues in this case were whether the magistrate erred in denying Mr Liu's application for an adjournment and whether there was a failure to provide procedural fairness and adequate assistance to an unrepresented litigant. Additionally, the court had to assess whether the reasons provided by the magistrate were sufficient.
The court found that the magistrate's decision was based on a proper assessment of the credit of the witnesses and findings of fact. The magistrate considered several factors in denying the adjournment, including the closure of the court-ordered time for filing evidence, the plaintiff's previous adjournments, difficulties in obtaining financial records, and the substantial legal costs already incurred. The court held that the magistrate's approach was practical, considering the disproportionate costs relative to the amount in dispute. The court concluded that no error was established, and there was no point of principle in the appeal.
The appeal was dismissed, and the decision of the Local Court Small Claims Division was upheld. The court emphasised the importance of considering the proportionality of legal costs to the dispute amount and the need for litigants to carefully consider whether pursuing litigation is the best course of action.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
It is argued that the magistrate failed to express findings of fact or to determine whose evidence should be accepted.Consideration It is not irrelevant to note that these proceedings commenced over a dispute concerning an unpaid debt of $12,000. At the conclusion of the second day of hearing before the Local Court the magistrate noted that the costs for each party to that point were in the vicinity of $40,000. To bring the matter before this Court as an appeal is likely to at least have doubled those costs. That such a dispute has been permitted to proceed in the manner that this matter has should give everyone – the litigants and their respective lawyers – pause for serious thought. Whilst litigants are entitled to seek the intervention of the courts to adjudicate in business and other disputes that cannot be reasonably settled in any other way, sometimes the best advice a lawyer can give a client is not to take that course. This is such a case. Although Mr Liu contends they are obscure, it is evident to me that the conclusions of the learned magistrate were based upon his Honour’s assessment of the credit of the respective witnesses, (and in particular, his conclusion that Mr Liu was not a reliable witness in some material respects) and upon his findings of fact. That assessment, and those findings, informed his decision not to grant Mr Liu’s application for an adjournment, and not to facilitate his desire to secure taxation and other records from Mr Cooper. Having considered the evidence, together with the transcript of the proceedings, I am not persuaded that the magistrate fell into error. He took a practical approach to a matter in which the costs involved were in danger of far exceeding the quantum of the dispute, even accepting that Mr Liu’s claim for $100,000 in damages was anything like a reasonable estimate of actual loss. For the reasons noted below, this appeal must be dismissed.Ground 1 The refusal of the magistrate to grant Mr Liu’s adjournment application was based upon a number of considerations, all of which were proper matters to be taken into account. His Honour had regard to:(1)The court ordered time for filing evidence had closed months previously.(2)The fact that Mr Liu had already been granted two adjournments (on days 1 and 2) to secure the viva voce evidence of Mr Mottershead, together with material that could sustain his opinions, and, despite the allowance of that time, nothing had been done by the plaintiff to this end.(3)There were difficulties for Mr Liu in obtaining Mr Cooper’s banking, taxation, and other financial records. As the magistrate observed, a subpoena could be issued for the material (necessarily with leave, as the magistrate correctly observed), but that did not guarantee that Mr Liu would get access to the documents, or that they would be of assistance to him.(4)Mr Liu had already completed his evidence, having been called, and re-called, and been cross-examined. As his Honour noted, “You can’t then file another [affidavit] to make up for the fact that you weren’t happy with what you said” (at T5:26 of 24.3.2016).(5)A day of court time, a valuable public resource, that had been set aside for the hearing of the matter, would be wasted.(6)The quantum of the costs thrown away if the matter could not proceed, in the context of a matter where substantial legal costs had already been incurred, were costs disproportionate to the quantum of the dispute.(7)If the plaintiff was permitted to recast his case at such a late stage, further delay and costs would follow.(8)Mr Cooper opposed the application: he had to take time off work each day the matter was listed, and there were difficulties in securing the attendance of Mrs Cooper and Mr Holmes for further dates due to the work commitments of each.(9)Litigation was stressful, and a further adjournment exacerbated the stress.(10)Mr Liu had made a choice to dismiss his lawyers only a matter of days before the matter was due to resume, in circumstances where he had had since 21 January 2015 to resolve the issue.(11)His Honour saw no real disadvantage to Mr Liu in refusing the adjournment.