Singh v Doulakis - [2008] NSWSC 987

CITATION: Singh v Doulakis [2008] NSWSC 987

HEARING DATE(S): 19 September 2008

JUDGMENT DATE :
23 September 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison J

DECISION: Judgment varied but proceedings otherwise dismissed

CATCHWORDS: LOCAL COURTS – appeal on question of law pursuant to s 73 of the Local Courts Act 1982 – whether magistrate failed to give adequate reasons for decision to award damages for loss of rent following damage to premises by tenant – whether evidence capable of supporting findings – no error of law – whether award of damages for loss of rent for a small period when landlord entitled to receive rent from another tenant amounted to double counting and an error of law – error of law found – judgment varied pursuant to s 75(a) Local Courts Act 1982.

LEGISLATION CITED: Local Courts Act 1982

CATEGORY: Principal judgment

CASES CITED: Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126
Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139
US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWSC 705

PARTIES: Manpreet Singh and Labh Sing (Plaintiffs)
Peter Doulakis and Maria Doulakis (Defendants)

FILE NUMBER(S): SC 10368/2008

COUNSEL: J F Heazlewood (Plaintiffs)
D D Knoll (Defendant)

SOLICITORS: Hemant Prakash & Associates (Plaintiffs)
Konstan Lawyers (Defendants)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 12400/06

LOWER COURT JUDICIAL OFFICER : Bradd LCM

LOWER COURT DATE OF DECISION: 9 October 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

23 September 2008

10368/08 Manpreet Singh and Labh Singh v Peter Doulakis and Maria Doulakis
JUDGMENT

1 HIS HONOUR: By their further amended summons the plaintiffs appeal to this Court pursuant to s 73 of the Local Courts Act 1982 against the decision of Magistrate Bradd in the Local Court of New South Wales on 9 October 2007. The plaintiffs, being dissatisfied with the judgment, are entitled as of right to appeal against the judgment but only as being erroneous in point of law. The plaintiffs seek an order pursuant to s 75 of that Act varying the terms of the judgment in certain specified respects.

Background

2 The plaintiffs conducted an Indian restaurant from premises in King Street, Newtown. The defendants were at all material times the owners of the premises. In 1999 the defendants leased the premises to the plaintiffs for a term commencing on 18 February 1999 and expiring on 17 February 2003. The plaintiffs paid a rental bond of $6,667. The plaintiffs remained in occupation of the premises after the expiration of the original term holding over as tenants from month to month and finally vacated the premises on 31 October 2004. No issue arises with respect to that fact alone.

3 The plaintiffs' sole claim in the Local Court was for the return of their rental bond. It is common ground between the parties that the premises had been left in a damaged and untidy state by the plaintiffs and that the plaintiffs had carried…

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 Singh v Doulakis

Details

AGLC: Singh v Doulakis [2008] NSWSC 987
Case: [2008] NSWSC 987
Decision Date: 23 September 2008

CaseChat Overview and Summary

The appellant, Singh, appealed against a decision of the Local Court of New South Wales in relation to a dispute with the respondent, Doulakis, regarding damages for loss of rent following damage to premises by Doulakis. The appeal was heard on a question of law pursuant to section 73 of the Local Courts Act 1982. The primary issue before the court was whether the magistrate erred in awarding damages for loss of rent to Singh following damage to the premises by Doulakis. A secondary issue was whether the evidence was capable of supporting the findings made by the magistrate.

The court found that there was no error of law in the magistrate's decision to award damages for loss of rent. The evidence presented was deemed sufficient to support the findings made by the magistrate. However, the court found an error of law in the magistrate's decision to award damages for loss of rent for a small period when Singh was entitled to receive rent from another tenant. The court held that this amounted to double counting and an error of law. Consequently, the judgment was varied pursuant to section 75(a) of the Local Courts Act 1982.

Orders