Muddle v Cormie - [2017] NSWSC 1581

Supreme Court

New South Wales

Medium Neutral Citation: Muddle v Cormie [2017] NSWSC 1581
Hearing dates: 17 November 2017
Decision date: 20 November 2017
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Extend the time for filing the summons to 9 June 2017.

(2) To the extent required, grant leave to the plaintiff to appeal.
(3) Appeal dismissed.

(4) Unless any party makes an application in writing, with any evidence in support, to my Associate within seven days hereof for a different order, order the plaintiff to pay the defendants’ costs of the proceedings.

(5) If an application is made pursuant to (4) above, the respondent is to provide a response to my Associate within a further 7 days in order that the matter can be determined on the papers.
(6) Grant liberty to apply on 3 days’ notice.
Catchwords:
APPEAL – leave to appeal from Local Court on mixed question of fact and law– where appellant held liable to pay for goods as guarantor in the Court below – whether liability under guarantee was an issue at trial – HELD– issue of liability under guarantee conceded in Court below – plaintiff bound by conduct of her counsel – not in the interests of justice to permit plaintiff to litigate matter conceded in Court below
CONTRACTS – guarantee – consideration provided by deliveries made in future on terms other than cash – enforceable against guarantor
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 100, Pt 6
Local Court Act 2007 (NSW), ss 39, 40, 41
Uniform Civil Procedure Rules 2005 (NSW) rr 17.3, 50.3
Cases Cited: Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70
R v Birks (1990) 19 NSWLR 677
Silver v Dome Resources NL [2007] NSWSC 455; (2007) 62 ACSR 539
Category: Principal judgment
Parties: Carol Ann Muddle (Plaintiff)
Donald Keith Cormie (First Defendant)
Donald Keith Cormie as executor of the Estate of the late Colleen Ann Cormie (Second Defendant)
Representation:
Counsel:
J Pearson (Plaintiff)
B Le Plastrier/J Ambikapathy (Defendants)
Solicitors:
Foulsham & Geddes (Plaintiff)
Leyden Legal (Defendants)

File Number(s): 2017/173833
Decision under appeal

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Civil

Date of Decision:

11 May 2017

Before:

Brender LCM

File Number(s):

2015/179735

Judgment

Introduction

By amended summons filed on 5 September 2017 the plaintiff, Carol Muddle, appealed, and to the extent necessary, sought leave to appeal, against a judgment in the sum of $90,650.01 (which comprised $77,432.18 and interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) in the sum of $13,217.83) which was entered against her by Brender LCM on 11 May 2017. Ms Muddle sought an order that the judgment be set aside and that judgment be entered in her favour. She…

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 Muddle v Cormie

Details

AGLC: Muddle v Cormie [2017] NSWSC 1581
Case: [2017] NSWSC 1581
Decision Date: 20 November 2017

CaseChat Overview and Summary

In the Local Court, Muddle was found liable to pay for goods under a guarantee as guarantor. The guarantor, Muddle, sought leave to appeal to a higher court on mixed questions of fact and law. The primary issue was whether the court below had determined the liability under the guarantee, and if so, whether it was in the interests of justice for the guarantor to be able to litigate this matter. The guarantor argued that the issue of liability under the guarantee was not actually decided in the Court below, and therefore, it should be open to challenge on appeal. The court had to determine whether the issue of liability under the guarantee was indeed conceded by the guarantor in the Court below and if the guarantor was bound by the conduct of her counsel.

The court found that the issue of liability under the guarantee was indeed conceded by the guarantor in the Court below. The court held that the guarantor was bound by the conduct of her counsel, who conceded liability under the guarantee. The court further held that it was not in the interests of justice for the guarantor to be permitted to litigate this matter, as it had already been conceded in the Court below. The court noted that it was well established that a party is bound by the conduct of their counsel, and it would be contrary to the interests of justice to permit a party to litigate an issue that had already been conceded by their counsel.

The court found that the issue of liability under the guarantee was indeed conceded by the guarantor in the Court below. The court held that the guarantor was bound by the conduct of her counsel, who conceded liability under the guarantee. The court further held that it was not in the interests of justice for the guarantor to be permitted to litigate this matter, as it had already been conceded in the Court below. The appeal was dismissed, and the guarantor remained liable to pay for the goods under the guarantee.

The court's decision was that the guarantor was bound by the conduct of her counsel, who conceded liability under the guarantee. The court held that it was not in the interests of justice for the guarantor to be permitted to litigate this matter, as it had already been conceded in the Court below. The appeal was dismissed, and the guarantor remained liable to pay for the goods under the guarantee. The court's decision was based on the principle that a party is bound by the conduct of their counsel, and it would be contrary to the interests of justice to permit a party to litigate an issue that had already been conceded by their counsel.

Orders