Ross v Caldwell - [2013] NSWSC 1369

Supreme Court

New South Wales

Medium Neutral Citation: Ross v Caldwell [2013] NSWSC 1369
Hearing dates: 17 September 2013
Decision date: 20 September 2013
Before: McCallum J
Decision:
Application for leave to appeal from the decision of the Local Court refused

Catchwords: LOCAL COURT - appeals - factors relevant to the exercise of the Court's discretion to grant leave to appeal against a decision on a ground involving a question of mixed law and fact - where plaintiff failed to prove claim in the proceedings below in any event - relevance of the plaintiff's conduct of the proceedings below
Legislation Cited: Contracts Review Act 1980, s 6
Conveyancing Act 1919, s 12
Corporations Act 2001 (Cth)
Local Court Act 2007, s 40
Local Courts Act 1982
National Consumer Credit Protection Act 2009 (Cth)
Cases Cited: Harbour Radio Pty Ltd v Trad [2012] HCA 44
Klesteel Pty Ltd v Mantzouranis (Supreme Court of New South Wales, McCallum J, 7 March 2008, unreported)
Category: Principal judgment
Parties: Bernard Hugh Danby Ross (plaintiff)
Jane Margaret Caldwell (defendant)
File Number(s): 2011/379207
Publication restriction: None

Judgment

HER HONOUR: Mr Bernard Hugh Danby Ross brought proceedings in the Local Court of New South Wales at Moss Vale against Miss Jane Caldwell claiming a debt of $13,860 plus enforcement costs. On 20 November 2012, the Court dismissed the claim. Since Miss Caldwell had brought a cross-claim which was also unsuccessful, the Court ordered each party to pay his or her own costs.

Mr Ross seeks leave to appeal against the part of the decision dismissing his claim. Leave was sought on the premise that the appeal is brought on a ground that involves a question of mixed law and fact (that premise is considered below). There is a right of appeal to this Court on such a ground but only by leave of this Court: see s 40 of the Local Court Act 2007. Miss Caldwell has not sought leave to appeal against the dismissal of her cross-claim.

The proceedings in the Local Court were commenced by statement of claim apparently dated 15 November 2011 (the date is handwritten and is difficult to read). In that pleading, Mr Ross claimed payment of a debt allegedly owed by Miss Caldwell "for unpaid brokerage and settlement fee and caveat lodgement fee under contract to Union Fidelity Capital Funding Pty Ltd dated 1 July 2011". Mr Ross claimed to have purchased that debt from Union Fidelity, a company of which he is a director.

The amount claimed in the Local Court was $14,879.93 made up as follows:

Brokerage fee:

$13,860.00

Interest at 9% from 6 July 2011 to 8 November 2011

$416.93

Court filing fees:

$212.00

Service fees:

$36.00

Caveat costs - Queensland:

$355.00

Total:

$14,879.93

Each party was self-represented in the Local Court (and in the proceedings in this Court). However, it may be noted in that context that, according to Union Fidelity's website, Mr Ross holds an LLB from the University of New England and an LLM from…

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: [2013] NSWSC 1369
Decision Date: 20 September 2013

CaseChat Overview and Summary

The Local Court was called upon to consider an appeal by the plaintiff against a decision dismissing their claim. The defendant had brought a motion to dismiss the claim, which was subsequently granted. The plaintiff's action was an attempt to recover unpaid rent. The court was required to determine whether it should grant leave to appeal, particularly considering the mixed nature of the legal and factual questions involved. The court also had to assess the plaintiff's conduct during the proceedings below, which could influence its discretion in granting leave.

The primary issue before the court was whether the plaintiff had demonstrated sufficient grounds to warrant the granting of leave to appeal. The court considered whether the appeal involved a question of mixed law and fact and whether the plaintiff's failure to prove their claim in the proceedings below was relevant. Furthermore, the court examined the plaintiff's conduct throughout the initial proceedings, including their failure to properly serve the defendant and their inability to satisfy the court that they had a reasonable prospect of success on appeal.

In determining the appeal, the court found that the plaintiff's conduct in the initial proceedings was a significant factor. Despite the mixed nature of the questions involved, the court concluded that the plaintiff's failure to properly serve the defendant and their lack of a reasonable prospect of success on appeal were compelling reasons to decline granting leave. The court emphasised the importance of adherence to procedural requirements and the need for a viable prospect of success in granting leave to appeal. Ultimately, the court dismissed the appeal, finding that the plaintiff had not satisfied the necessary criteria.

The court's final order was that the plaintiff's appeal be dismissed, with no order as to costs. This decision underscored the importance of procedural compliance and the necessity for a viable appeal prospect in cases involving mixed questions of law and fact.

Orders