Shelton v Hansel

[2000] NSWSC 357

CITATION:	SHELTON v. HANSEL [2000] NSWSC 357
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC No. 12990 of 1999
HEARING DATE(S):	2/5/2000
JUDGMENT DATE:	2 May 2000
PARTIES :	SHELTON, David William v. HANSEL, Detlef
JUDGMENT OF:	Greg James J at 1

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	312/99
LOWER COURT JUDICIAL OFFICER :	M. Shepherd

COUNSEL :	Plaintiff: E.N. Gramelis Defendant: P.M. Friedlander
SOLICITORS:	Plaintiff: T.P. Boyle & Associates Defendant: Hermann & Green
LEGISLATION CITED:	Local Courts (Civil Claims) Act 1970 Justices Act 1902 Sale of Goods Act 1923 Suitors Fund Act
DECISION:	Appeal allowed

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

No. 12990 of 1999

GREG JAMES, J.

TUESDAY 2 MAY 2000

DAVID WILLIAM SHELTON v. DETLEF HANSEL

JUDGMENT

1 HIS HONOUR: Appeal has been brought to this court pursuant to s.69 of the Local Courts (Civil Claims) Act 1970, from a judgment in proceedings in the Local Court at Fairfield in detinue in respect of a motor vehicle. 2 The plaintiff in this court, being dissatisfied with the judgment or order of the Local Court as being erroneous in point of law (s.69(2)) has activated the machinery for the appeal provided for by s.69(3), which applies the provisions of Part 5 of the Justices Act 1902. 3 Those provisions, relevantly, are comprised in s.104. Section 104(1), provides that an appeal may be brought to this court:-

"(a) on a ground that involves a question of law alone;

...

(c) the ground that the ... cannot be supported having regard to the evidence."

4 The section also provides for an appeal on mixed fact and law, but only with leave. The plaintiff has disclaimed seeking leaving or relying on a ground of mixed fact and law. 5 In support of the appeal there have been filed a statement under Part 51B, Rule 8, a summons seeking that the proceedings be set aside and that the proceedings below be dismissed, or such further or other order as the court thinks fit, and the affidavit of Terence Patrick Boyle sworn 3 February 2000, to which is annexed a typescript of the tape recorded oral evidence and the magistrate's reasons, which comprises annexure A, and a further annexure comprising copies of the documentary material provided to the magistrate, comprising annexure B. 6 There has been no issue before me as to that material and it is accepted by both parties that that material sets out the relevant evidence before the magistrate and the magistrate's findings. 7 Unfortunately, because of the procedure in the Local Court whereby cassettes of recorded material are made available to the parties to have typed up, it would appear that the transcript of evidence and of the magistrate's reasons are not entirely free from transcription or typographical error. Nonetheless, before me both counsel have, with commendable succinctness and precision, stated from the bar table the precise matters, without dispute or real issue, that arise from the evidence and from the reasons of the learned magistrate. 8 In particular, it is contended that the learned magistrate fell into error, particularly in that he failed to give consideration to a relevant question of whether or not ostensible authority or estoppel or the application of s.26(1) of the Sale of Goods Act 1923 arose on the material as before him. 9 The proceedings concerned a claim by the defendant in this court in detinue against the plaintiff in respect of a 1989 Toyota Landcruiser motor vehicle, and it seems common ground that that vehicle was, at least originally, owned by the defendant herein. The defendant herein, the plaintiff before the magistrate, sought the return of the vehicle and/or damages. The learned magistrate held that the defendant before him was liable to the plaintiff in the sum of $19,000, together with some disbursements and professional costs totalling a sum of $21,226, and entered judgment for that sum accordingly. 10 Both parties accept that particularly the issue before the learned magistrate was whether or not a person enjoying some relationship with the owner, the plaintiff before the magistrate, had actual or ostensible authority to sell the car in question, it being sold to the present plaintiff for $19,000, which $19,000 appears to have been banked to the credit of the owner in his bank account, or whether that person, not having actual authority, had ostensible authority, or whether s.26(1) of the Sale of Goods Act, applied or whether an estoppel applied so that the plaintiff before the magistrate was precluded from succeeding in the action in any event. 11 Other grounds are asserted, in particular as to whether the magistrate erred in finding that there was not actual authority or as to whether the order was otherwise so irregular, illegal or against good faith that it was liable to be set aside. It was, however, conceded in argument that the evidence was such that it was open to the magistrate to hold that there was no actual authority and that that finding was not challengeable as being unavailable as a matter of law. A question still remained however as to the way in which the magistrate reached that conclusion. 12 As to the issue of whether the magistrate's judgment was irregular, illegal or against good faith, that seemed to be based upon the proposition that the defendant, already having paid $19,000 for the vehicle, should not be compelled to pay again, particularly if the plaintiff had had the benefit of the $19,000, it being deposited in his bank account. It was submitted that this was in excess of any compensatory principle. 13 It is not necessary to resolve that latter matter because the issue of whether the plaintiff had the benefit of those monies plainly goes not only whether the plaintiff was estopped; whether the actual vendor had ostensible authority; whether s.26(1) of the Sale of Goods Act applied or whether the contract was in fact ratified by acceptance of the purchase price by the actual owner, but would also go to affect, or might well be considered as going to affect, the questions the magistrate might have been expected to consider in addition to the other evidence on the issue of actual authority. It hardly seems that it would be a matter to which regard should be had independently of such questions. 14 The parties, and both of them concede and accept that the magistrate did not turn to consider the questions of estoppel, ratification, s.26(1) and ostensible authority specifically in his reasons for judgment. Plainly, those matters were raised before him. It is conceded that the absence of consideration of those matters amounts to error of law on the part of the magistrate. However it be particularly described and whether or not it be expressed in any particular terms in the grounds of appeal which have been asserted, clearly the substance of the error is sufficiently raised and, in particular, by the helpful written submissions filed by both the plaintiff and the defendant, with which I have been provided. 15 A failure to consider the legal basis of the defence by limiting his consideration only to whether or not there has been proof of actual authority in my view goes to taint the whole of the magistrate's decision. In those circumstances I must turn to the question of whether or not an order should be made under s.109 of the Justices Act, having regard to the matters raised in s.110. Section 109 provides that the court has power, after hearing the appeal, to determine the appeal by dismissing the appeal or by taking a number of steps prescribed by that section, including setting aside the decision or any part of it, increasing or reducing the judgment, making such other order as is just or remitting the matter to the magistrate to hear and determine. 16 Section 110, however, provides that the court is not to take such a course if it appears to the court that there were sufficient grounds before the magistrate to have authorised the judgment, free from such error as has been raised on appeal. 17 The application of the language of ss.109 and 110 to civil proceedings and a civil judgment is not without difficulty. It is not entirely clear what is meant in s.110(1) by the phrase "but there were sufficient grounds before the magistrate to have authorised". Mr. Friedlander of counsel appearing for the defendant in these proceedings (the plaintiff before the magistrate) has strongly argued that there was evidence before the magistrate upon which, in his submission, the magistrate was bound to find that no ratification, estoppel, ostensible authority or factual basis for the application of s.26 (1) of the Sale of Goods Act existed; and that therefore it is pointless to remit the matter to the magistrate for determination. 18 Both parties have agreed that in the resolution of this appeal and, in particular, in the resolution of that question, it is not necessary for me to read in detail the material before the magistrate, as I can rely on what both counsel have put to me from the bar table that material contains. That material, I am told, contains a statement by the plaintiff below (the defendant in these proceedings) denying the existence of any authority, and some evidence from which, if it were accepted, one could hold that he had not so armed the actual vendor or so dealt with the proceedings of sale such that he should be precluded from recovery in detinue. 19 It is, however, conceded that there was evidence to the contrary and particularly evidence, by way of statement, from the actual vendor, albeit there was another statement which, at its best, can be put as failing to confirm, but shedding doubt upon, the original statement in which that vendor says she had authority. At least, however, she expressly refers to the matters which could lead to the implication of ostensible authority. 20 It is conceded by both counsel that questions of credit for the actual witnesses who gave oral evidence arose, and indeed I was invited to have regard to the magistrate's findings where the magistrate, on some matters, expressed dissatisfaction with the credit of the plaintiff before him (but on the issue of actual authority) but resolved that matter against the defendant before him, apparently on the basis that he was not entirely satisfied that the onus had been discharged, having regard to the two statements of the actual vendor to which I have referred. 21 In all of those circumstances it does not appear to me that this is a case in which the Supreme Court should stay its hand pursuant to s.110, or attempt to dispose of this matter here. The appeal has been brought within a very narrow compass, that compass being that the magistrate failed to deal with matters which were before him on which specific submissions were made before him and upon which the defendant before him could well have succeeded entirely. Those matters were matters which could go, independently of the question of actual authority, to success on the defendant's part, or which could have been matters to which the magistrate could have had regard on the factual question of finding actual authority. 22 In those circumstances I do not consider that I should make any further order in upholding the appeal as to the disposition of the matter in question, other than setting aside the magistrate's judgment under s.109(a) and remitting the matter to the magistrate under s.109(d). 23 The guidance the magistrate might require as to what course he should then take is given by the terms of the statute itself and the matters that have been raised on this appeal. It will be for the magistrate, in the context of what he has already heard and determined, to decide for himself what course he should take by way of further hearing or re-consideration and as to what issues, if any, he may have to revisit in the context of the determination I make that he fell into error in failing to consider the matters raised in questions two and three as expressed in the statement under Part 51B, Rule 8. 24 It is to be noted that the appeal before me has proceeded upon the basis that those questions were to be regarded as the crucial matters to be examined on the appeal, rather than the propositions set out under the heading "Grounds" in that statement which were, in essence, arguments as to how the questions earlier expressed in the document might be resolved in favour of the plaintiff. 25 In those circumstances I am of the view that the appeal should succeed. Order that the judgment of the learned magistrate be set aside in accordance with order 1 as sought in the summons. Order that the matter be remitted to the magistrate pursuant to s.109(d) of the Justices Act. 26 There being no real argument to the contrary, the defendant is to pay the plaintiff's costs of these proceedings and to have a certificate under s.6 of the Suitors Fund Act.

Last Modified: 09/25/2000