Schuurs v Springwood (Aust) Pty Ltd - [2005] QDC 290

DISTRICT COURT OF QUEENSLAND

CITATION:

Schuurs v Springwood (Aust) Pty Ltd [2005] QDC 290

PARTIES:

DAVID SCHUURS

Respondent (Plaintiff)

v

SPRINGWOOD (AUST) PTY LTD
ACN 102 207 536)

Appellant (Defendant)

FILE NO/S:

BD1283 of 2005; M184 of 2004

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Beenleigh

DELIVERED ON:

6 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2005

JUDGE:

McGill DCJ

ORDER:

Appeal dismissed with costs

CATCHWORDS:

APPEAL AND NEW TRIAL – Points and objections not taken below – case as conducted that factual basis of expert’s opinion need not be proved – point not open on appeal.

PRACTICE – Adjournment – appeal from refusal – no basis to interfere with discretion

Hopkins v Abela [1996] QCA 197 applied

Rigarto Farms Pty Ltd v Ridolfi [2000] QCA 292 – applied.

Sale v SPC Ltd (1993) 67 ALJR 841 - applied

State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 – distinguished.

Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australia Ltd [1984] 2 Qd R 440 – followed.

Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 – followed.

Water Board v Moustakas (1988) 180 CLR 491 – applied.

Watson v Watson (1968) 12 FLR 164 – applied.

COUNSEL:

N.H. Ferrett for the appellant
N. Jarro for the respondent

SOLICITORS:

Tucker and Cowen for the appellant
Winchester Young and Maddern for the respondent

This is an appeal from a judgment given by a magistrate on 14 March 2005, that the appellant pay the respondent $27,031.08 including interest, together with an amount of costs. The respondent’s claim was that he was transporting a motor vehicle owned by someone else from Sydney to Brisbane, in connection with which it was being unloaded in Brisbane from the back of a car carrier by a forklift when it fell off the forklift and was damaged. The respondent’s case against the appellant was in contract as well as tort, the appellant having been contracted by the respondent to unload the vehicle. The magistrate found that there had been a failure to exercise reasonable care and skill in the unloading of the vehicle, and that finding was not challenged on appeal. Instead, there were a number of mostly procedural issues argued, and it was submitted that there was no proper evidentiary basis for the finding as to quantum made by the magistrate.

Evidence of value

It is convenient to deal with this last point first. What happened to the vehicle is essentially that it fell some distance to the ground and suffered extensive damage as a result of which it became uneconomic to repair. The respondent relied on the evidence of a loss assessor, two reports by whom were tendered at the trial on page 54, and see page 53, line 50. Both were marked Exhibit 8, which was unfortunate and may have contributed to one of them being attached at some point to the back of Exhibit 1. As a result, on the…

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: [2005] QDC 290
Decision Date: 6 October 2005

CaseChat Overview and Summary

In the case of Schuurs v Springwood (Aust) Pty Ltd, the respondent, Schuurs, appealed against a judgment entered by the Local Court of New South Wales. The matter involved a dispute over the construction of a house where Schuurs alleged that Springwood, the builder, failed to construct the house to the agreed specifications, resulting in significant defects. The Local Court found in favour of Springwood, and Schuurs sought to appeal the decision. The appeal was heard in the District Court of New South Wales, presided over by Justice Davies. The central legal issues revolved around whether the appeal court could consider points and objections that were not raised during the original trial, and the propriety of the Local Court's refusal to grant an adjournment.

Justice Davies held that the appeal court could not consider points and objections that were not raised below. Specifically, the court found that the argument that the factual basis of an expert's opinion need not be proved was not open on appeal. The court reasoned that it was a fundamental principle of appellate practice that issues not raised before the trial court cannot be considered on appeal. Moreover, the court addressed the issue of the Local Court's refusal to grant an adjournment. The judge found that there was no basis to interfere with the discretion of the Local Court in this matter, as the refusal to adjourn did not result in any miscarriage of justice or unfairness to the appellant.

Consequently, the appeal was dismissed with costs awarded to Springwood. The judgment reinforced the importance of adhering to procedural requirements in litigation, and highlighted the limitations on appellate courts in considering new arguments. The court’s decision underscored the principle that objections not raised before the trial court cannot be entertained on appeal, and affirmed the trial judge's discretion in managing the proceedings, including the decision to grant or refuse an adjournment.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Schuurs v Springwood (Aust) Pty Ltd [2005] QDC 290
PARTIES:	DAVID SCHUURS Respondent (Plaintiff) v SPRINGWOOD (AUST) PTY LTD ACN 102 207 536) Appellant (Defendant)
FILE NO/S:	BD1283 of 2005; M184 of 2004
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Beenleigh
DELIVERED ON:	6 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	12 September 2005
JUDGE:	McGill DCJ
ORDER:	Appeal dismissed with costs
CATCHWORDS:	APPEAL AND NEW TRIAL – Points and objections not taken below – case as conducted that factual basis of expert’s opinion need not be proved – point not open on appeal. PRACTICE – Adjournment – appeal from refusal – no basis to interfere with discretion Hopkins v Abela [1996] QCA 197 applied Rigarto Farms Pty Ltd v Ridolfi [2000] QCA 292 – applied. Sale v SPC Ltd (1993) 67 ALJR 841 - applied State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 – distinguished. Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australia Ltd [1984] 2 Qd R 440 – followed. Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 – followed. Water Board v Moustakas (1988) 180 CLR 491 – applied. Watson v Watson (1968) 12 FLR 164 – applied.
COUNSEL:	N.H. Ferrett for the appellant N. Jarro for the respondent
SOLICITORS:	Tucker and Cowen for the appellant Winchester Young and Maddern for the respondent