Livanis v Corner Office Carlingford Pty Ltd - [2009] NSWDC 38

CITATION: Livanis v Corner Office Carlingford Pty Ltd [2009] NSWDC 38

HEARING DATE(S): 6 March 2009

JUDGMENT DATE:
16 March 2009

JURISDICTION: Civil

JUDGMENT OF: Goldring DCJ

DECISION: 1. I allow the appeal, set aside the decision of the assessor, and vary the decision.
2. I find a verdict for the plaintiff in each claim.

CATCHWORDS: ADMINISTRATIVE LAW - Jurisdictional error - LOCAL COURT - Small Claims Division - whether court or tribunal - LOCAL COURT - Small Claims Division - Procedure

LEGISLATION CITED: Courts and Crimes Legislation Amendment Act 2008
Local Courts Act 1982
Practice Note No 2/2005 (Small Claims Division)
Local Courts (Civil Procedure) Rules
Civil Procedure Act 2005

CASES CITED: Kioa v West (1985) 159 CLR 550
Wakim v Mathiew Pty Ltd [2002] NSWSC 405; BC200202361
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
Craig v South Australia (1995) 184 CLR 163
Arnoldus-Lewis v Murphy [2008] NSWSC 1103
Minister for Immigration and Muticultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323; 180 ALR 1; 75 ALJR 1105
Ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 64 WN(NSW) 107,109

PARTIES: Dino Livanis trading as Five Star Complete Services (Plaintiff)
Corner Office Carlingford Pty Ltd (First Defendant)
Milka Milutinovic previously trading as Mortgage House Strata Management (Second Defendant)
Sashtron Pty Limited trading as National Andrews Real Estate (Third Defendant)
Corner Office Pty Limited tradng as Elders Real Estate Harris Park (Fourth Defendant)

FILE NUMBER(S): 4318 of 2008

COUNSEL: M A Robinson (Plaintiff)
J Weaver, solicitor (First, Second, Third and Fourth Defendant)

SOLICITORS: Barrak Lawyers (Plaintiff)
Cumberland Frank Commercial & Litigation Lawyers (First, Second, Third and Fourth Defendant)

JUDGMENT

1 This matter comes before this Court because the plaintiff originally appealed to the Supreme Court against the decision of the Local Court at Parramatta, Small Claims Division. By order of 9 September 2008, pursuant to the amendments made by the Courts and Crimes Legislation Amendment Act2008, the matter was transferred to this Court.

2 The plaintiff contends that the decision of the Local Court either was made without jurisdiction or that there was a denial of procedural fairness, to the extent that the appeal should be allowed, the decision set aside, and that I should determine the matter myself.

Relevant legislation

3 Some provisions of the Local Courts Act 1982 are relevant to this appeal:

70 Procedure generally in Small Claims Division
(1) The jurisdiction conferred by or under this Act on a Court sitting in its Small Claims Division is to be exercised by a Magistrate or an Assessor .
(2) Proceedings in a Court' s Small Claims Division are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(3) The rules of evidence do not apply to proceedings being heard or other proceedings in…

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: [2009] NSWDC 38
Decision Date: 16 March 2009

CaseChat Overview and Summary

The appeal was brought by the plaintiff, Livanis, against the decision of an assessor in the Local Court's Small Claims Division, which had dismissed Livanis's claims against Corner Office Carlingford Pty Ltd. Livanis sought to recover money for services rendered, late payment penalties, and interest. The primary issue before the court was whether the Local Court, in its Small Claims Division, had jurisdiction to hear and determine the matter or whether it should have been referred to another tribunal.

The court examined whether the claims were of a type that should have been heard by a different tribunal. The court found that the claims were not so complex or specialised that they required referral to another tribunal. Instead, the claims were straightforward and within the scope of the Local Court's jurisdiction. The court concluded that the Local Court, in its Small Claims Division, had the authority to hear and determine the matter. It found that the Local Court had not made a jurisdictional error in hearing the case.

Consequently, the court allowed the appeal, set aside the decision of the assessor, and varied the decision. The court found a verdict for the plaintiff in each claim, ordering Corner Office Carlingford Pty Ltd to pay the plaintiff the amounts claimed, along with any applicable penalties and interest. This decision underscores the importance of determining the appropriate tribunal for a case and highlights the Local Court's capacity to handle certain types of claims effectively.

Orders

Orders of the court

1. I allow the appeal, set aside the decision of the assessor, and vary the decision. 2. I find a verdict for the plaintiff in each claim.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Livanis v Corner Office Carlingford Pty Ltd [2009] NSWDC 38
HEARING DATE(S):	6 March 2009
JUDGMENT DATE:	16 March 2009
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	1. I allow the appeal, set aside the decision of the assessor, and vary the decision. 2. I find a verdict for the plaintiff in each claim.
CATCHWORDS:	ADMINISTRATIVE LAW - Jurisdictional error - LOCAL COURT - Small Claims Division - whether court or tribunal - LOCAL COURT - Small Claims Division - Procedure
LEGISLATION CITED:	Courts and Crimes Legislation Amendment Act 2008 Local Courts Act 1982 Practice Note No 2/2005 (Small Claims Division) Local Courts (Civil Procedure) Rules Civil Procedure Act 2005
CASES CITED:	Kioa v West (1985) 159 CLR 550 Wakim v Mathiew Pty Ltd [2002] NSWSC 405; BC200202361 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Muin v Refugee Review Tribunal (2002) 76 ALJR 966 Craig v South Australia (1995) 184 CLR 163 Arnoldus-Lewis v Murphy [2008] NSWSC 1103 Minister for Immigration and Muticultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323; 180 ALR 1; 75 ALJR 1105 Ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 64 WN(NSW) 107,109
PARTIES:	Dino Livanis trading as Five Star Complete Services (Plaintiff) Corner Office Carlingford Pty Ltd (First Defendant) Milka Milutinovic previously trading as Mortgage House Strata Management (Second Defendant) Sashtron Pty Limited trading as National Andrews Real Estate (Third Defendant) Corner Office Pty Limited tradng as Elders Real Estate Harris Park (Fourth Defendant)
FILE NUMBER(S):	4318 of 2008
COUNSEL:	M A Robinson (Plaintiff) J Weaver, solicitor (First, Second, Third and Fourth Defendant)
SOLICITORS:	Barrak Lawyers (Plaintiff) Cumberland Frank Commercial & Litigation Lawyers (First, Second, Third and Fourth Defendant)