Murdaca v Accounts Control Management Services Pty Limited - [2006] NSWSC 68

CITATION: Murdaca v Accounts Control Management Services Pty Limited [2006] NSWSC 68

HEARING DATE(S): 17 February 2006

JUDGMENT DATE :
24 February 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Malpass at 1

DECISION: The summons is dismissed; the plaintiff is to pay the costs of the summons.

CATCHWORDS: Litigant in person in Local Court - rehearing - no entitlement to rehearing - validity of assignment not placed in issue - attempt to challenge its validity and the finding of the magistrate on appeal - evidence may have been led if placed in issue - amount involved not significant - not expedient or in the interests of justice to allow challenge to be agitated in the appeal - duty of court to litigant in person.

LEGISLATION CITED: Local Court (Civil Claims) Rules 1988, Pt 9 r 1(4)

CASES CITED: Chilcotin Pty Ltd & Anor v Cenelage Pty Ltd & Ors [1999] NSWCA 11
Chouman v Margules (1993) 17 MVR 144
Rajski v Scitec Corporation Pty Limited (unreported, NSWCA, 16 June 1986)

PARTIES: Anthony Murdaca (Plaintiff)
Accounts Control Management Services Pty Limited (Defendant)

FILE NUMBER(S): SC 13877/05

COUNSEL: Mr W Annis-Brown (Solicitor) (Plaintiff)
Mr C Evans (Defendant)

SOLICITORS: Lincoln Smith & Company (Plaintiff)
Leonard Legal (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 74569/03

LOWER COURT JUDICIAL OFFICER : Deputy Chief Magistrate Syme

- 9 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

24 February 2006

13877 of 2005 Anthony Murdaca v Accounts Control Management Services Pty Limited

JUDGMENT

1 His Honour: The plaintiff obtained a loan from Avco Financial Services Limited (Avco). A copy of the relevant documentation is Exhibit A. It describes itself as a “Credit contract”, having an account no. 40281. It was signed and accepted on 6 November 1997. It contained the following provision:-

12.4 If AVCO becomes entitled to demand payment under clause 12.2 it may then (subject to the Credit Code or any other legislation applicable) enforce its rights over the mortgaged property, including repossessing and selling the Goods and applying the sale proceeds towards satisfaction of your liability under this contract.

2 The loan was secured by a motor vehicle. The plaintiff defaulted. The motor vehicle was repossessed and sold. There was a shortfall.

3 Avco effected an assignment in favour of the defendant. The defendant then took steps to recover the debt.

4 The defendant sued the plaintiff in the Local Court to recover what remained owing under the loan. The sum claimed was less than $10,000. The proceedings were defended. The plaintiff appeared in person.

5 There seems to be some confusion as to whether or not the proceedings were in the Small Claims Division or the General Division of the Local Court. In any event, it seems as though they were dealt with on the basis that the proceedings were in the General Division.

6 Initially, the dispute was referred to arbitration. As I understand the position, the plaintiff 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.

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Details

Case: [2006] NSWSC 68
Decision Date: 24 February 2006

CaseChat Overview and Summary

In the matter of Murdaca v Accounts Control Management Services Pty Limited, the appellant, Murdaca, appeared as a litigant in person in the Local Court. The dispute involved a claim against Accounts Control Management Services Pty Limited for debt collection practices. The court was asked to determine whether the appellant was entitled to a rehearing of his case. The appellant argued that the validity of the assignment of the debt was not contested in the initial hearing and sought to challenge this aspect on appeal.

The court considered the appellant's contention that the validity of the assignment was not in issue during the original proceedings and that this oversight should allow for a rehearing. The court examined whether it was appropriate to allow the appellant to challenge the validity of the assignment and the magistrate's findings on this matter on appeal, despite it not being raised during the initial hearing. The court noted that while the evidence regarding the assignment may have been led if it was contested, the amount involved in the case was not significant, and the appellant did not demonstrate that it would be expedient or in the interests of justice to permit such a challenge.

Consequently, the court held that the appellant was not entitled to a rehearing on the basis of the validity of the assignment. The court emphasised its duty to litigants in person to ensure that justice is served fairly and efficiently, and that such litigants are not unduly advantaged by procedural oversights if they do not significantly impact the outcome. The appeal was dismissed, and no further orders were made.

Orders