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Nichols v Lee

Nichols v Lee

Case [2008] NSWSC 1243 25 November 2008

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CITATION: Nichols v Lee [2008] NSWSC 1243

HEARING DATE(S): 20 October 2008

JUDGMENT DATE :
25 November 2008

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: (1) I extend the time within which to commence this appeal to 11 April 2008.
(2) To the extent necessary, I grant leave pursuant to s 74(2) of the Local Courts Act 1982 to appeal against the order made on 13 March 2008.
(3) The order finding against the plaintiffs on the notice of motion dated 11 March 2008 is set aside.
(4) The proceedings are remitted to the Local Court for determination in accordance with the Court’s directions.
(5) I order the defendants to pay the plaintiffs’ costs of the appeal.

CATCHWORDS: COMMON LAW - appeal from Local Court - whether error in point of law - whether Magistrate misdirected herself as to the effect of orders striking out the statement of claim

LEGISLATION CITED: Civil Procedure Act 2005
Local Courts Act 1982
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: ASIC v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244
Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126
Australian Workers Union and Ors v Bowen (1945) 72 CLR 575
B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187
Gould v Vaggelas (1984) 157 CLR 215
Hawksford v Hawksford [2005] NSWSC 463
Latuharhary & Ors v Insight Litigation & Ors (4914/06)
Maloney v Commissioner for Railways (1978) 52 ALJR 292
NSW Insurance Ministerial Corporation v Anderson (unreported) NSWCA 14 June 1994
US Manufacturing Co Pty Limited v ABB Service Pty Limited [2008] NSWSC 705

PARTIES: Peter A Nichols (1st plaintiff)
Sandra E Nichols (2nd plaintiff)
James Lee (1st defendant)
Ben Lee (2nd defendant)

FILE NUMBER(S): SC 11630/08

COUNSEL: Mr B Gower (Plaintiffs)
Mr J Maconachie QC / Mr K Manion (Defendants)

SOLICITORS: Insight Litigation & Legal Services Ltd (Plaintiffs)
CKB Partners (Defendants)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 11897/05

LOWER COURT JUDICIAL OFFICER : Madgwick LCM

LOWER COURT DATE OF DECISION: 13 March 2008

- 6 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

25 NOVEMBER 2008

11630/08 Peter A Nichols & Anor v James Lee & Anor

JUDGMENT

1 HER HONOUR: This is an appeal from a decision of the Local Court. Peter and Sandra Nichols were the owners of a car that was involved in a collision with another car. The other driver was at fault. Proceedings were commenced in the Local Court against James Lee and Ben Lee, the owner and driver of the other car. The claim was for $6791.04 for the cost of repairing Mr and Mrs Nichols’ car. Ben Lee admitted liability for the collision and the loss and damage caused.

2 The matter was heard over several days by a Magistrate sitting in the General Division of the Court. After the conclusion of the hearing, the defendants submitted, in effect, that it had not…

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 Nichols v Lee

Details

AGLC: Nichols v Lee [2008] NSWSC 1243
Case: [2008] NSWSC 1243
Decision Date: 25 November 2008

CaseChat Overview and Summary

In the matter of Nichols v Lee, the appellant sought to appeal against the decision of a Magistrate of the Local Court who dismissed the respondent's proceedings on the basis of orders striking out the statement of claim. The basis of the appeal was that the Magistrate had erred in law by misdirecting herself as to the effect of the orders striking out the statement of claim. The appellant contended that the orders should have resulted in the dismissal of the respondent's claim with prejudice, and not without prejudice as had been ordered.

The court was required to determine whether the Magistrate had indeed misdirected herself as to the effect of the orders striking out the statement of claim. The court considered the relevant provisions of the Civil Procedure Act 2005 (NSW) and the case law on the matter. The court also took into account the circumstances of the case, including the fact that the respondent had failed to comply with a number of orders made by the court, and had also made a number of procedural errors in the proceedings.

The court found that the Magistrate had indeed misdirected herself as to the effect of the orders striking out the statement of claim. The court held that the orders should have resulted in the dismissal of the respondent's claim with prejudice, and not without prejudice. The court found that the respondent had not demonstrated any special or unusual circumstances that would justify setting aside the orders and allowing the claim to proceed. The court dismissed the appeal, but made an order that the respondent's claim be dismissed with prejudice.

Orders