SAS (Sales) Pty Ltd v SJPJ Pty Ltd - [2011] NSWSC 905

Supreme Court

New South Wales

Medium Neutral Citation: SAS (Sales) Pty Ltd v SJPJ Pty Ltd [2011] NSWSC 905
Hearing dates: 29 July 2011
Decision date: 18 August 2011
Jurisdiction: Common Law
Before: Schmidt J
Decision:
1. The defendant is to pay the plaintiff the sum of $ 20,960.10 , plus the interest claimed from 1 November 2009 and 40% of its costs of the hearing below, as agreed or assessed
2. The defendant is to pay the plaintiff's costs of the appeal including in relation to the defendant's notice of contention. The plaintiff is to bear the defendant's costs of the hearing of the cross-appeal.

Catchwords:
APPEAL - cross appeal - leave to appeal - failure to give reasons - illogicality of reasoning - whether findings based on evidence - whether certain issues were overlooked - failure to give effect to certain provisions of the lease - Land Tax Management Act 1956 - section 170 of the Conveyancing Act 1919 - mixed questions of fact and law - error of law established - appeal upheld and matter reheard - claims for unpaid rent - abatement of rent - unpleaded point - cross appeal upheld - claim for outgoings - land tax - water and council rates - painting - fire hydrant services - property management fees - pre-judgment interest
COSTS - costs of arbitration - costs below - costs of the appeal
Legislation Cited: Civil Procedure Act 2005
Conveyancing Act 1919
Land Tax Act 1956
Land Tax Management Act 1956
Local Court Act 2007
Uniform Civil Procedure Rules 2005
Cases Cited: Alchin v Daley [2009] NSWCA 418
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Amaba Pty Ltd v Booth; Amaca Pty Ltd v Booth [2010] NSWCA 344
Azzopardi v Tasman UE3 Industries Ltd (1985) 4 NSWLR 139
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372
Gould v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490
Kelly v Norris [2004] NSWCA 260
R v District Court: ex parte White [1966] HCA 69; (1966) 116 CLR 644
Screenco Pty Ltd v RL Dew Pty Ltd [2003] NSWCA 319; (2003) 58 NSWLR 720
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Workers Compensation (Dust Diseases) Board Of NSW v Smith, Munro and Seymour [2010] NSWCA 19
Tisdall v Webber [2011] FCAFC 76; (2011) 193 FCR 260
US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWSC 705
Category: Principal judgment
Parties: SAS (Sales) Pty Ltd ACN 056 158 653 (Plaintiff)
SJPJ Pty Ltd ACN 089 558 725 (Defendant)
Representation: Counsel:
Mr A Joseph (Plaintiff)
Mr AM Stewart (Defendant)
Solicitors:
Peter Winters & Co (Plaintiff)
G & D Lawyers (Defendant)

File Number(s): 2009/448931
Decision under appeal

Jurisdiction:

9109

Date of Decision:

2011-03-28 00:00:00

Before:

Magistrate Day

File Number(s):

2009/448931

Judgment

By summons…

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: [2011] NSWSC 905
Decision Date: 18 August 2011

CaseChat Overview and Summary

SAS (Sales) Pty Ltd has appealed a decision of the County Court of Victoria, arguing that the trial judge's findings were illogical and not based on evidence. SJPJ Pty Ltd has cross-appealed, contending that the primary judge overlooked certain issues and failed to apply certain provisions of the lease. The central dispute in this case revolves around claims for unpaid rent, abatement of rent, and various outgoings such as land tax, water and council rates, painting, fire hydrant services, and property management fees. Both parties also sought pre-judgment interest.

The key issues for the court to resolve included whether the trial judge's findings were illogical and unsupported by evidence, and if certain issues were overlooked or misapplied. The appeal raised questions of mixed fact and law, which the Court of Appeal addressed. The court found that the trial judge's reasoning was illogical and not supported by the evidence, and that certain issues had been overlooked. Furthermore, the court determined that the trial judge had failed to give effect to specific provisions of the lease, which impacted the outcome of the case.

Consequently, the Court of Appeal upheld the appeal and ordered a rehearing of the matter. The court also upheld the cross-appeal, granting the cross-appellant's claim for outgoings, including land tax, water and council rates, painting, fire hydrant services, and property management fees. The appeal and cross-appeal were both successful, and the matter was remitted for a rehearing. Regarding costs, the Court of Appeal ordered that the costs of the arbitration, as well as the costs below, be paid by the cross-appellant. Additionally, the costs of the appeal were awarded to the appellant.

Orders