Mark Peter Wilson v Warren O'Rourke

Case [2013] NSWSC 989

Supreme Court

New South Wales
Case Title: Mark Peter Wilson v Warren O'Rourke
Medium Neutral Citation: [2013] NSWSC 989
Hearing Date(s): 16 May 2013
Decision Date: 30 July 2013
Before: Bellew J
Decision:

(1)The amended summons is dismissed.

(2)The plaintiff is to pay the defendant's costs.
Catchwords: APPEAL - appeal from decision of Magistrate in the Local Court on a question of law - where plaintiff sued for damages for breach of agreement - where defendant pleaded a different agreement and alternatively pleaded that no agreement had been reached - where Magistrate found that the parties were not ad idem and that no agreement had been reached between them - whether Magistrate was in error in so finding in view of the pleadings - whether the Magistrate was obliged to inform the plaintiff of the possibility of such a finding prior to delivering judgment - whether the Magistrate's failure to do so constituted a denial of procedural fairness
Legislation Cited: Local Court Act 2007
Cases Cited: Allesch v Maunz (2000) 203 CLR 172
Australian Gas Light Company v the Valuer-General (1940) 40 SR (NSW) 126
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139
Baird Textile Holdings Limited v Marks and Spencer PLC [2002] 1 All E R (Comm) 737
Banque Commerciale (SA) (in liq) v Aklul
Holdings Limited (1990) 169 CLR 279
Beveridge v Dontan Pty Limited (1991) 23 NSWLR 13
Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389
Commissioner for ACT Revenue v Alpha One Pty Limited (1994) 49 FCR 576
Dare v Pulham (1982) 148 CLR 658
Hope v Bathurst City Council (1980) 144 CLR 1
Loudoun-Shand and anor v Jadasi
Investments Pty Limited (2007) NSWCA 316Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1
Vale v Sutherland (2009) 237 CLR 638
Category: Principal judgment
Parties: Mark Peter Wilson - Plaintiff
Warren O'Rourke - Defendant
Representation
- Counsel: Mr T Stuart - Plaintiff
Mr D A Allen - Defendant
- Solicitors: Proctor and Associates - Defendant
File Number(s): 2012 / 302230
Decision Under Appeal
- Court / Tribunal: Local Court
- Before: Magistrate T Keady
- Date of Decision:  03 September 2012
Publication Restriction: Nil

JUDGMENT

INTRODUCTION

  1. By an amended summons filed on 5 November 2012, the plaintiff appeals from a decision of Mr T Keady, Magistrate, delivered in the Local Court of New South Wales on 3 September 2012. In the proceedings heard by the Magistrate, the plaintiff had sued the defendant for breach of contract arising from the sale of an aeroplane. The defendant defended the proceedings and brought a cross-claim against the plaintiff.

  2. The Magistrate entered a verdict for the defendant in respect of the case pleaded in the statement of claim, and entered a verdict for the defendant (cross-claimant) in the sum of $16,000.00 on the cross-claim.

  3. The plaintiff brings the appeal pursuant to the provisions of s. 39 of the Local Court Act 2007 ("the

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Mark Peter Wilson v Warren O'Rourke [2013] NSWSC 989
Case
[2013] NSWSC 989
Decision Date

CaseChat Overview and Summary

In the case of Mark Peter Wilson v Warren O'Rourke, the plaintiff sued the defendant for damages due to an alleged breach of agreement. The defendant countered by asserting that a different agreement was in place or that no agreement had been reached at all. The Magistrate in the Local Court ruled that the parties had not reached a mutual understanding (ad idem) and that no agreement had been established between them. The plaintiff subsequently appealed, questioning whether the Magistrate erred in this determination, whether the Magistrate was required to inform the plaintiff of the possibility of such a finding before delivering judgment, and if the Magistrate's failure to do so constituted a denial of procedural fairness.

The court examined whether the Magistrate's finding that the parties had not reached an agreement was a factual matter or involved a question of law. The court noted that the Magistrate did not explicitly find that the defendant's payment of $16,000 was a tactical move, as the plaintiff had claimed. Instead, the Magistrate was considering different possibilities regarding the purpose of the payment. The court also found that the Magistrate's conclusion that parts of the objective evidence contradicted the existence of a binding agreement was reasonable, particularly given that the last conversation between the plaintiff and Mr Elliott ended with Mr Elliott indicating that he would seek further instructions, and there was no evidence of further discussions after that point. Additionally, the court observed that contractual intention is typically determined by an objective test rather than subjective intentions, and such intention can be negated by other evidence, which supported the Magistrate's conclusion.

The court concluded that the Magistrate's determination was within their authority and that there was no procedural unfairness. The appeal was dismissed, and the plaintiff was ordered to pay the defendant's costs.

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

Counsel for the defendant submitted that the Magistrate's finding in this respect was a factual one which did not involve any question of law. Consideration and conclusion In my view the submissions of the plaintiff in support of these grounds should be similarly rejected. Firstly, the assertion in ground (9) that the Magistrate "found" that the payment of $16,000.00 by the defendant was a "tactical or pre-emptive move" fails to have regard to the terms in which paragraph [67] of the Magistrate's judgment was expressed. On a fair reading of that paragraph the Magistrate was doing nothing more than giving consideration to competing possibilities in terms of the purpose of the payment. He made no finding at all in the terms asserted in ground (9). Secondly, paragraph [65] of the Magistrate's judgment makes it clear that he took the view that parts of the objective evidence tended against the conclusion that any binding agreement had been reached. In my view, that conclusion was well open to him. In particular, and on the plaintiff's own evidence, the last conversation he had with Mr Elliot concluded with Mr Elliott indicating that he would obtain further instructions. As the Magistrate properly pointed out, there was no evidence that Mr Elliott had any further discussions with the plaintiff after that time. Those circumstances are at odds with a conclusion that an agreement had been reached. Thirdly, the plaintiff's reliance upon the evidence of the defendant referred to in [49] above overlooks two important considerations. The first is that irrespective of what the defendant might have thought or intended, issues of contractual intention are normally determined by the application of an objective, as opposed to a subjective, test (see generally Baird Textile Holdings Limited v Marks and Spencer PLC [2002] 1 All E R (Comm) 737). The second is that such intention is capable of being impliedly negatived by other evidence (see Baird Textile Holdings Limited (supra)). In the present case, that other evidence included the intervention of Mr Elliott, and the terms of the discussions which took place between he and the plaintiff after the payment of $16,000.00 was made. Such evidence clearly supported the Magistrate's ultimate conclusion. For the forgoing reasons I make the following orders:(1)The amended summons is dismissed.(2)The plaintiff is to pay the defendant's costs.**********