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Mond v Lipshut

Mond v Lipshut

Case [1999] VSC 103 8 April 1999

Appeal

Breach of Contract

Discovery & Disclosure

Civil Litigation & Procedure

Contract Law

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SUPREME COURT OF VICTORIA

CAUSES JURISDICTION Send for Reporting

Not Restricted

No. 6340 of 1998

IN THE MATTER of an appeal under Section 109 of the Magistrates' Court Act 1989

HARRY MOND Appellant
v

REGINA LIPSHUT Respondent

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JUDGE: Ashley J
WHERE HELD: Melbourne
DATE OF HEARING: 19 February 1999
DATE OF JUDGMENT: 8 April 1999
CASE MAY BE CITED AS: Mond v. Lipshut
MEDIA NEUTRAL CITATION: [1999] VSC 103

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Appeal - Appeal on a question of law - Whether questions of law identified by Master's
order raised a point argued on the hearing of the appeal - Application of the principle
in Suttor v. Gundowda Pty Ltd (1950) 81 CLR - Whether a particular question of law
was involved in the order appealed from.
Bills of exchange - Bearer cheque - Cheque undated but subsequently filled up -
Whether authority to fill up - Whether filled up within a reasonable time.
Magistrates' Court Act 1989, Section 109.
Cheques Act 1986 (Cth) Sections 18, 49.

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APPEARANCES: Counsel Solicitors
For the Appellant Mr S. Marantelli Alan Sheppet & Associates
For the Respondent Mr J.R. Dixon S. Wolski & Co

HIS HONOUR:

This is an appeal from a final order of the Magistrates' Court made at Melbourne on 5 June 1998 by which the appellant, Harry Mond, was ordered to pay the respondent, Regina Lipshut, the sum of $5,000 plus interest and costs.
On 3 July 1998 a Master made an order under Rule 58.09 of Chapter 1 of the Rules. The order identified no less than nine questions of law shown to be raised by the appeal. Three of them had multiple parts. In all, fourteen questions of law were identified.
Mr S. Marantelli, the appellant's counsel, made very able and attractive submissions on the appellant's behalf. At the outset he sensibly abandoned nine of the fourteen questions to which I referred a moment ago. He concentrated upon two issues which, he submitted, were raised by the appeal - in the one instance by questions (d) and (e), and in the other by questions (f)(i) and (ii) and (g). The first issue, he submitted, concerned s.49 of the Cheques Act 1986 (Cth) (The Act); the second, s.18 of the Act.
It is convenient to set out the questions relied upon. Thus:

"(d)

The learned Magistrate erred in law in concluding and it was not reasonably open for her to conclude that the Respondent was the bearer of the cheque dated 1 March 1997 which was the subject-matter of the Complaint;

(e)

The learned Magistrate erred in law in concluding that the Respondent had standing to bring the Complaint;

(f)

The learned Magistrate erred in law in upholding the Respondent's claim by finding that:

(i)

the Respondent or her husband, Clive Lipshut, was authorised by the Appellant to insert the date on the cheque pursuant to Section 18(1) of the Cheques and Payment Orders Act 1986;

(ii)

a reasonable time had not elapsed from the time that the cheque was…

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 Mond v Lipshut

Details

AGLC: Mond v Lipshut [1999] VSC 103
Case: [1999] VSC 103
Decision Date: 8 April 1999

CaseChat Overview and Summary

In Mond v Lipshut, the dispute arose between the appellant, Mond, and the respondent, Lipshut, concerning the validity of a cheque that had been filled up after being issued as a bearer cheque. The case was heard in the Supreme Court of Victoria. Mond sought to recover the amount of the cheque from Lipshut, who had been the drawee bank, arguing that the cheque was valid despite being undated and subsequently filled up. Lipshut contended that the cheque was not valid as it was filled up after the reasonable time allowed under the Cheques Act 1986 (Cth).

The central legal issues the court had to decide were whether the questions of law identified by the Master's order raised points that were argued during the appeal and whether a particular question of law was involved in the order appealed from. The court needed to determine if the cheque was valid under the Cheques Act 1986 (Cth) and the principles established in Suttor v Gundowda Pty Ltd. Specifically, the court had to assess whether the cheque was filled up within a reasonable time and if there was authority for the filling up of the cheque.

The court held that the appeal was limited to the questions of law identified in the Master's order. It applied the principle from Suttor v Gundowda Pty Ltd, confirming that an appeal on a question of law must involve a point argued in the lower court. The court found that the cheque was filled up within a reasonable time and that there was authority for the filling up, thus making the cheque valid. Consequently, the court determined that the cheque was valid, and the appeal was dismissed.

No further orders were made by the court beyond dismissing the appeal.

Orders