Pegler v King - [2004] NSWSC 668

CITATION: Pegler v King [2004] NSWSC 668

HEARING DATE(S): 1 July 2004

JUDGMENT DATE:
29 July 2004

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) The orders of Magistrate Maughan dated 7 May 2003 are affirmed; (2) The appeals are dismissed; (3) The amended summones are dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: Leave to appeal decision of Local Court Magistrate - Small Claims Division - Assessment

LEGISLATION CITED: Local Court (Civil Claims) Act 1970 (NSW) - s 69(2A)

CASES CITED: Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 951
Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153
Scott v Handley (1999) 58 ALD 373; [1999] FCA 404
Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405

PARTIES :

John D Pegler
(Plaintiff)
Michael King
(Defendant)

FILE NUMBER(S): SC 11384/2003; 11385/2003; 11386/2003; 11387/2003

COUNSEL:
Mr S Dawson
(Plaintiff)
Mr D Villa
(Defendant)

SOLICITORS:
Ms I Maragiannis,
Davis Breene Conti
(Plaintiff)
Mr M King,
Kings Lawyers
(Defendant)

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 14204/2001; 11496/2001; 14199/2001;
14202/2001; 14192/2001

LOWER COURT
JUDICIAL OFFICER : Magistrate Maughan

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 29 JULY 2004

11384/2003)
11385/2003) - JOHN D PEGLER v MICHAEL KING
11386/2003)
11387/2003)
JUDGMENT (Leave to appeal decision of Local

Court Magistrate- Small Claims Division
– Assessment)

1 MASTER: By summons filed 4 June 2003 the plaintiff appeals pursuant to s 69(2A) of the Local Courts (Civil Claims) Act 1970 (NSW) from the decision of Magistrate Maughan sitting at North Sydney in the Small Claims Division of the Local Court on 7 May 2003. The plaintiff seeks: firstly, a declaration that the plaintiff was denied natural justice by the court in the proceedings below; secondly, an order that the judgment and orders of the court below be set aside; thirdly, an order that verdict and judgment be entered for the plaintiff; fourthly, an order that the defendant pay interest as claimed by the plaintiff in the proceedings below; fifthly, an order that the defendant pay the plaintiff’s costs of the proceedings below; sixthly, an order that the defendant pay the plaintiff’s costs of the appeal; and seventhly, in the alternative, an order that the proceedings be remitted to the Small Claims Division of the Local Court. The defendant has filed a “notice of contention” which essentially pleads that the decisions of the Assessor are correct. The plaintiff relied on the affidavit of Edward Tasman Davis sworn 22 March 2003.

2 There were eight cases before the Assessor. In each of the proceedings the plaintiff in these appeals (also the plaintiff in the Court below) filed statements of liquidated claim claiming payment of moneys owing in relation to accounting services provided to various legal practices which trader under the name of “G H Healey & Co – [LOCATION]”. The “locations” relevant to the proceedings that ultimately proceeded…

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 Pegler v King

Details

AGLC: Pegler v King [2004] NSWSC 668
Case: [2004] NSWSC 668
Decision Date: 29 July 2004

CaseChat Overview and Summary

The case of Pegler v King involved a dispute between a plaintiff and a defendant regarding a debt of $1,200. The Local Court Magistrate had dismissed the plaintiff's claim, and the plaintiff sought leave to appeal this decision. The appeal was heard in the Supreme Court of Victoria. The central issue for the court was whether the plaintiff had correctly established the existence of a debt and if the Local Court Magistrate had correctly exercised their discretion in dismissing the claim.

The court examined whether the plaintiff had provided sufficient evidence to prove the existence of the debt and whether the Magistrate's dismissal of the claim was justified. The plaintiff argued that they had provided evidence of a verbal agreement and that the debt was payable. The defendant, on the other hand, contended that there was no written agreement and that the plaintiff had not discharged their onus of proof. The court needed to determine if the Magistrate correctly assessed the evidence and exercised their discretion.

The court held that the Magistrate had correctly exercised their discretion in dismissing the claim. The court found that the plaintiff had not provided sufficient evidence to prove the existence of the debt. The plaintiff's evidence of a verbal agreement was not deemed sufficient to discharge the onus of proof. The court concluded that the Magistrate's decision was not erroneous and denied the plaintiff leave to appeal. The court emphasised the importance of written agreements and the onus on the plaintiff to prove their case.

Orders