Reda v Bear's Group Pty Limited - [2017] NSWSC 550

Supreme Court

New South Wales

Medium Neutral Citation: Reda v Bear’s Group Pty Limited [2017] NSWSC 550
Hearing dates: 6 April 2017
Date of orders: 05 May 2017
Decision date: 05 May 2017
Jurisdiction: Common Law
Before: Schmidt J
Decision:
(1)   The appeal be upheld;
(2)   The judgment given by the Local Court in relation to Mr Reda’s claim be set aside;
(3)   That claim be remitted to the Local Court to be dealt with according to law; and
(4)   Unless the parties approach to be heard within 14 days, that the defendants pay Mr Reda’s costs as agreed or assessed.

Catchwords: APPEAL – appeal against Local Court decision - whether primary judge erred in law by misconstruing the nature and effect of pleading admissions and non-admissions – error found – whether primary judge erred in law by ruling that business records were inadmissible – error found – appeal upheld – remittal to Local Court
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472
Beale v Government Insurance Office of NSW (1977) 48 NSWLR 430
Cakirgoz v Crouch [2008] NSWSC 1124
Pettit v Dunkley [1971] 1 NSWLR 376
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; [1985] HCA 14
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stoker v Adecco Gemvale Constructions P/L & Anor [2004] NSWCA 449
Category: Principal judgment
Parties: Ali Reda (Plaintiff)
Bear’s Group Pty Ltd (First Defendant)
Michael Karanfilovski (Second Defendant)
Spiro Lozeknovski (Third Defendant)
Steve Lozeknovski (Fourth Defendant)
Jenny Lozeknovski (Fifth Defendant)
John Lewis Douglas Rose (Sixth Defendant)
Representation:
Counsel:
Mr H Grace (Plaintiff)
Mr J Loxton (Defendants)
Solicitors:
One Group Legal (Plaintiff)
Gamble Law & Estate Planning (Defendants)

File Number(s): 2016/314908
Publication restriction: None
Decision under appeal

Court or tribunal:

Local Court of NSW

Jurisdiction:

Civil

Citation:

---

Date of Decision:

23 September 2016

Before:

Williams LCM

File Number(s):

2015/351922

Judgment

Mr Reda and Bear’s Group Pty Ltd were parties to a commercial lease for premises located at Helensburgh. Mr Reda brought proceedings in the Local Court to recover unpaid rent of some $37,542.81 from Bear’s Group and the other defendants. They brought a cross-claim seeking $10,000 for the cost of moving to new premises and loss of work and productivity. A hearing listed on 1 September 2016 was vacated and further directions given for the service of amended pleadings and evidence. While the amended pleadings were served, the parties did not serve their evidence.
Mr Reda lives overseas. Before the adjourned hearing took place on 8 September 2016, he advised the defendants that he would seek a further adjournment of the hearing. Mr Reda then served a notice of motion, supported by an affidavit sworn by his solicitor, Mr Ayache, which explained the parties’ failed settlement negotiations; that Mr Reda’s affidavit had been prepared, but not sworn; and that…

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 Reda v Bear's Group Pty Limited

Details

AGLC: Reda v Bear's Group Pty Limited [2017] NSWSC 550
Case: [2017] NSWSC 550
Decision Date: 05 May 2017

CaseChat Overview and Summary

Reda brought a proceeding against Bear's Group in the Local Court, alleging various breaches of statutory duty and common law negligence. The case was heard and determined by a magistrate, whose decision was subsequently appealed to the District Court. The appeal raised two key issues: whether the primary judge had erred in law by misconstruing the nature and effect of pleading admissions and non-admissions, and whether the primary judge had erred in law by ruling that business records were inadmissible. The appellant argued that the primary judge had misinterpreted the admissions and non-admissions in the pleadings, leading to an incorrect understanding of the facts. Additionally, the appellant contended that the primary judge had wrongly excluded relevant business records, which would have supported the appellant's case.

The District Court considered these issues and found that the primary judge had indeed erred in law in both respects. The court held that the primary judge had misconstrued the nature and effect of the pleading admissions and non-admissions, leading to an incorrect assessment of the facts. Furthermore, the court determined that the primary judge had wrongly excluded the business records, which were relevant and admissible. Given these errors, the District Court concluded that the appeal should be upheld, and the matter should be remitted to the Local Court for re-hearing. The District Court's decision underscores the importance of accurately interpreting pleadings and ensuring that relevant evidence is properly admitted in legal proceedings.

Orders