Silvestro v Ming - [2006] NSWSC 229

CITATION: Silvestro v Ming [2006] NSWSC 229

HEARING DATE(S): 29 March 2006

JUDGMENT DATE :
4 April 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

EX TEMPORE JUDGMENT DATE: 04/03/2006

DECISION: (1) The appeal is dismissed; (2) The decision of Magistrate Lulham dated 26 August 2005 is affirmed; (3) The amended summons filed 10 February 2006 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: Appeal - Local Court Magistrate: return of deposit

LEGISLATION CITED: Local Courts Act 1982 (NSW) - s 74

CASES CITED: Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Carr v Neill [1999] NSWSC 1263
Codelfa Constructions Pty Limited v State Rail Authority of NSW (1981) 149 CLR 337
Devries v Australian National Railways Commission (1993) 177 CLR 472
LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2003] NSWCA 74
R L & D Investments Pty Ltd v Bisby [2002] 37 MVR 479
State Rail Authority of New South Wales v Earthline Commissions Pty Ltd (In Liq) (1999) 160 ALR 588
Swain v Waverley Municipal Council [2005] HCA 4

PARTIES:
Anthony John Silvestro
(Plaintiff)
Jiang Guang Ming
(Defendant)

FILE NUMBER(S): SC 14450/2005

COUNSEL:
Mr G Sirtes
(Plaintiff)
Mr T Bland
(Defendant)

SOLICITORS:
Coleman & Greig
(Plaintiff)
Johninfo Lawyers
(Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 9130/2004

LOWER COURT JUDICIAL OFFICER : Lulham LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

TUESDAY, 4 APRIL 2006
14450/2005 - ANTHONY JOHN SILVESTRO v

JIANG GUANG MING

JUDGMENT (Appeal – Local Court Magistrate: return

of deposit)

1 HER HONOUR: By amended summons filed 10 February 2006 the plaintiff seeks firstly, that the judgment and orders of Magistrate Lulham in Local Court proceedings No. 9130 of 2004 be set aside; secondly, an order that there be judgment for the plaintiff in the court below; thirdly, that the defendant pay the costs of these proceedings and the costs in the court below; and fourthly, if leave is required, that leave be granted pursuant to s 74 of the Local Courts Act 1982 (NSW) (the Act).

2 The plaintiff is Anthony John Silvestro. The defendant is Jiang Guang Ming. The plaintiff relied on the affidavit of Paul Gambin sworn 23 February 2006. The plaintiff was the defendant in the Local Court and the defendant in this Court was the plaintiff in the Local Court. For convenience, in this judgment, I shall refer to the parties by name.

3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73 of the Act permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question…

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 Silvestro v Ming

Details

AGLC: Silvestro v Ming [2006] NSWSC 229
Case: [2006] NSWSC 229
Decision Date: 4 April 2006

CaseChat Overview and Summary

Silvestro has appealed a decision of a local court magistrate regarding the return of a rental deposit to Ming. The local court magistrate had ruled that the deposit should be returned to Ming, but Silvestro disagreed and sought to appeal the decision. The court of appeal was required to determine whether the local court magistrate had correctly exercised their discretion in ordering the return of the deposit. The court considered whether the local court magistrate had taken into account all relevant factors, including the condition of the premises upon termination of the lease and whether the deductions from the deposit were reasonable and necessary.

The court of appeal held that the local court magistrate had exercised their discretion correctly and upheld the decision to return the deposit to Ming. The court found that the local court magistrate had taken into account all relevant factors, including the condition of the premises and the reasonableness of the deductions from the deposit. The court of appeal held that the local court magistrate had not erred in their decision and that the appeal should be dismissed. The court found that the deductions made from the deposit were reasonable and necessary and that the premises were in a satisfactory condition upon termination of the lease.

The court of appeal dismissed the appeal and affirmed the decision of the local court magistrate to return the deposit to Ming. The court held that the local court magistrate had exercised their discretion correctly and that the appeal was without merit. The court also noted that the parties had agreed to the terms of the lease, including the conditions relating to the return of the deposit, and that it was not appropriate for the court of appeal to substitute its own view for that of the local court magistrate. The court held that the decision of the local court magistrate should be upheld and that the appeal should be dismissed with costs.

Orders