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Sarina v Mackay

Sarina v Mackay

Case [2021] NSWSC 269 22 March 2021

Appeal

Contract Formation

Mistaken Findings of Fact

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Sarina v Mackay [2021] NSWSC 269
Hearing dates: 16 February 2021
Date of orders: 22 March 2021
Decision date: 22 March 2021
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:
(1) The further amended summons filed 13 August 2020 is dismissed.
(2) The plaintiff is to pay the defendant’s costs on an ordinary basis.

Catchwords:
APPEAL — Appeal from Local Court — Contract dispute — Questions of fact — Whether agreement document was original or copy — Terms of agreement — Findings were perverse or illogical — Whether mistaken findings of fact reveal basic misunderstanding of the case — Questions of law — Whether Magistrate reversed onus of proof — Appeal dismissed

Legislation Cited:
Evidence Act 1995 (NSW), s 140
Local Court Act 2007 (NSW), ss 39, 40, 41

Cases Cited:
Attorney General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Azzopardi v Tasman UEB Industries Pty Ltd (1985) 4 NSWLR 139
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26
Dranitchnikov v Minister of Immigration and Cultural Affairs [2003] HCA 26; 77ALJR 1088
Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32
R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256
Sand Ground Engineering Pty Ltd v Super Render Pty Ltd [2020] NSWSC 458
Sayed v Deng [2012] NSWSC 851
State Super SAS Trustee Corp v Cornes [2013] NSWCA 257
Tolson v Roads and Maritime Services [2014] NSWCA 161
Yousif v Commonwealth Bank of Australia (2010) 193 IR 212; [2010] FCAFC 8

Category: Principal judgment
Parties: Clinton Sarina (Plaintiff)
Stewart Mackay (Defendant)
Representation:
Counsel:
C Bolger (Plaintiff)
T Crispin (Defendant)
Solicitors:
Pure Legal (Plaintiff)
Lloyd & Lloyd Solicitors (Defendant)

File Number(s): 2019/343943
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Civil

Date of Decision:

4 October 2019

Before:

Barko LCM

File Number(s):

2017/381549

Judgment

HER HONOUR: This an appeal from the orders and decision of a Local Court Magistrate dated 4 October 2020 and 8 November 2020 in the Local Court.
By further amended summons filed 13 August 2020, the plaintiff seeks that:

insofar as some grounds of appeal raise questions of fact or mixed questions of fact and law, leave be granted to appeal from the whole of the decision below;

the appeal be allowed;

the Magistrate’s judgment be set aside;

judgment be granted in favour of the plaintiff with respect to his defence and cross claim filed in the Local Court proceedings; and

in the alternative to order 4, this Court remit the matter to the Local Court in accordance with directions.

The plaintiff is Clinton Sarina, who was the defendant/cross claimant in the Local Court proceedings. The defendant is Stuart Mackay, who was the plaintiff/cross defendant in the Local Court proceedings. For ease…

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 Sarina v Mackay

Details

AGLC: Sarina v Mackay [2021] NSWSC 269
Case: [2021] NSWSC 269
Decision Date: 22 March 2021

CaseChat Overview and Summary

Sarina v Mackay involved a contract dispute between two parties, Sarina and Mackay, which was appealed from the Local Court. The primary issue was the nature and authenticity of an agreement document that was central to the contract between the parties. Sarina alleged that the document was a copy and not the original, while Mackay argued it was the original. Additionally, the terms of the agreement were contested, with Sarina asserting that the terms had been misrepresented. The appeal questioned whether the Magistrate had erred in making findings that were perverse or illogical, particularly concerning the authenticity of the document and the terms of the agreement.

The court was tasked with determining whether the findings of the Local Court were indeed perverse or illogical, which would require a re-evaluation of the facts and evidence presented. The court also needed to consider whether the Magistrate had mistakenly applied the onus of proof. This involved scrutinising whether the Magistrate had reversed the burden of proof, which is a significant legal error in contract disputes. These questions of fact and law were critical in deciding whether the appeal should be upheld or dismissed.

The appellate court found that the findings of the Local Court were not perverse or illogical, and there was no evidence of a basic misunderstanding of the case. The court held that the Magistrate had correctly assessed the evidence and had not reversed the onus of proof. The authenticity of the agreement document and the terms of the agreement were determined to be accurately assessed by the Local Court. Consequently, the appeal was dismissed, affirming the decisions made by the Local Court.

No further orders were made beyond the dismissal of the appeal. The appellate court confirmed that the Local Court's findings were well-founded and did not require any additional judicial intervention.

Orders