Prieston v Warwick John Williams Pty Ltd - [2017] NSWSC 1577

Supreme Court

New South Wales

Medium Neutral Citation: Prieston v Warwick John Williams Pty Ltd [2017] NSWSC 1577
Hearing dates: 12 May 2017
Date of orders: 21 November 2017
Decision date: 21 November 2017
Jurisdiction: Common Law
Before: Bellew J
Decision:
1. The proceedings are dismissed.
2. Absent agreement as to costs, the parties are to provide written submissions, not exceeding two pages in length, by 28 November 2017.
Catchwords: APPEAL – Appeal from decision of Magistrate in the Local Court in proceedings involving a dispute over a management agreement – Whether grounds raised questions of law or questions of mixed fact and law – Where appellant asserted in respect of some of the grounds that there was no evidence to support the Magistrate’s findings – No ground of appeal made out - Proceedings dismissed
Legislation Cited: Civil Liability Act 2002 (NSW)
Local Court Act 2007 (NSW)
Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Azzopardi v Tasman UBE Industries Pty Limited (1985) 4 NSWLR 139
Insurance Australia Limited v O’Shannessy [2015] NSWSC 1047; (2015) 72 MVR 1
L & B Linings Pty Limited v WorkCover Authority of New South Wales [2012] NSWCA 15
Panayiotou v Prieston [2013] NSWADT 273
State Rail Authority v Earthline Constructions (1999) 160 ALR 588; [1999] HCA 3
Category: Principal judgment
Parties: Anna Prieston – Appellant
Warwick John Williams Pty Limited - Respondent
Representation:
Counsel:
E Chrysostomou – Appellant
T E O’Brien - Respondent
Solicitors:
Argus Lawyers – Appellant
Torq Murray Law – Respondent

File Number(s): 2016/389119
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court of NSW

Jurisdiction:

Civil

Date of Decision:

6 December 2016

Before:

Magistrate Atkinson

File Number(s):

2016/364190

Judgment

INTRODUCTION

By a summons filed on 23 December 2016, Anna Prieston (“the appellant”) seeks orders in the following terms arising from a determination of Magistrate Atkinson in the Local Court on 6 December 2016:

appeal allowed;

judgment of the Court below be set aside;

an order that that (sic) the respondent pay the appellant $53,820.62;

in the alternative, that this Court assess damages;

in the alternative, the matter be returned to the Local Court of NSW for re-hearing in respect of quantum only;

the respondent pay the appellant’s costs.

The summons was supported by an affidavit of Stephen Pirintji of 3 July 2017 which was read without objection. A Court Book containing the entirety of the relevant material was admitted and marked Exh. A.
Counsel for the appellant before this Court acknowledged that the terms in which the summons had been pleaded were fundamentally deficient. In particular, no order for leave was sought, in circumstances where (at least in respect of some of the grounds relied upon) leave was arguably required. In these circumstances, counsel for the respondent invited me to dismiss the summons as on the basis that it was incompetent. Ultimately, the hearing proceeded on the basis that the appellant’s primary position was that each of the grounds relied…

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: [2017] NSWSC 1577
Decision Date: 21 November 2017

CaseChat Overview and Summary

In the Local Court of New South Wales, the matter of Prieston v Warwick John Williams Pty Ltd was heard. The dispute centred on a management agreement between the parties, with the appellant, Prieston, challenging the decision of the Magistrate. The appeal sought to overturn the Magistrate's ruling on the basis of alleged errors in the application of law and mixed questions of fact and law. Prieston argued that some findings made by the Magistrate lacked evidentiary support.

The court was required to determine whether the grounds of appeal raised questions purely of law, mixed questions of fact and law, or whether they were purely questions of fact. Specifically, the court needed to consider whether the Magistrate had erred in the application of law or in the assessment of evidence. Prieston contended that there was insufficient evidence to support certain findings made by the Magistrate. The court's task was to evaluate the validity of these contentions.

The court found that none of the grounds of appeal established a substantial miscarriage of justice or an error of law sufficient to warrant intervention. The evidence presented to the Magistrate was deemed sufficient to support the findings made. The court held that the appeal did not raise questions of law but rather involved the assessment of evidence, which is a matter for the original trier of fact. Consequently, the appeal was dismissed with no orders for costs.

Orders