Marks v Thompson - [2023] VSC 716

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 04875

IN THE MATTER of section 109 of the Magistrates’ Court Act 1989

STEVE MARKS (also known as Stephen Mark O’Neill)	Appellant
v
NIALL ROBERT THOMPSON	First Respondent
MARIE JOSEPHINE THOMPSON	Second Respondent

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 March 2023
DATE OF JUDGMENT:	4 December 2023
CASE MAY BE CITED AS:	Marks v Thompson
MEDIUM NEUTRAL CITATION:	[2023] VSC 716

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APPEAL – Appeal from Magistrates’ Court – Where appellant claims he was denied procedural fairness – Issues not raised in pleadings – Incomplete nature of findings of fact – Error of law established – Appeal granted - Proceeding remitted for reconsideration and further determination – Limitation of Actions Act 1958 ss 5(7), 20(1) – Magistrates’ Court Act 1989 s 109 – Magistrates’ Court General Civil Procedure Rules 2020 r 13.02(3) and r 13.02(5) – Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356 – Chan v Liu [2020] VSCA 28.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Black	Goldsmiths Lawyers
For the Respondents	Mr P Agardy with Ms T Saville	Pointon Partners

HIS HONOUR:

This is an appeal under s 109 of the Magistrates’ Court Act 1989 from an order made by the Magistrates’ Court on 28 October 2022 in which, amongst other things, declarations were made that no monies were owed by the respondents to the appellant pursuant to a mortgage, and that the respondents were entitled to a discharge from that mortgage.

The proceeding in the Magistrates’ Court was commenced on 12 April 2021 by the respondents who sought the removal of a mortgage registered by the appellant over a property in Golden Square, a suburb of Bendigo (the property), of which the respondents were joint proprietors (the mortgage). The respondents contended that they were entitled to orders for the removal of the mortgage because there was no money owing to the appellant.

The appellant brought a counterclaim, alleging that he had entered into an agreement with the respondents in June 2009 to provide them with services to deal with financial difficulties they were then experiencing. He alleged that, because the respondents did not have funds to pay his fees (initially said to be agreed at $25,000 and then later $50,000), he took security for payment of his fees by the respondents entering into the mortgage over the property. The appellant sought orders for possession of the property and an order for payment of monies said to be owing under the agreement said to be secured by the mortgage, being for an amount of $299,126.30.

Although the sum claimed in the counterclaim exceeded the jurisdictional limit of the Magistrates’ Court, the proceeding was heard in that court by consent between the parties.

Proceeding in the Magistrates’ Court

The proceeding in the Magistrates’ Court was heard over five days between 24 August 2022…

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.

Continue reading Marks v Thompson

Details

AGLC: Marks v Thompson [2023] VSC 716
Case: [2023] VSC 716
Decision Date: 4 December 2023

CaseChat Overview and Summary

The appellant, Marks, sought to appeal a decision of the Magistrates' Court, contending that he was denied procedural fairness during the proceedings. The case involved a dispute over a contract and the subsequent proceedings in the Magistrates' Court. Marks argued that various procedural errors occurred, which resulted in a denial of procedural fairness.

The legal issues before the court included whether the appellant had properly raised his concerns about procedural fairness in the Magistrates' Court and whether the findings of fact were sufficiently detailed. The court also had to determine if there was an error of law that warranted an appeal and, if so, whether the proceeding should be remitted for reconsideration and further determination.

In examining these issues, the court found that the appellant had not raised the claims of procedural unfairness in the Magistrates' Court, which meant they were not properly before the appellate court. However, the court identified an error of law in the way the Magistrates' Court handled the case. The findings of fact were deemed incomplete, and the court concluded that this warranted an appeal. Consequently, the appeal was granted, and the proceeding was remitted for reconsideration and further determination in line with the relevant statutes and rules.

The court's final orders included the granting of the appeal, the remittal of the proceeding to the Magistrates' Court for reconsideration, and the instruction for the Magistrates' Court to address the identified errors of law and ensure that all findings of fact were complete. The court relied on several legislative provisions, including sections 5(7) and 20(1) of the Limitation of Actions Act 1958, section 109 of the Magistrates' Court Act 1989, and rules 13.02(3) and 13.02(5) of the Magistrates' Court General Civil Procedure Rules 2020. Additionally, the court referenced the cases of Betfair Pty Ltd v Racing New South Wales and Chan v Liu for guidance.

Orders