Spencer v Elichung Pty Ltd - [2006] NSWSC 523

CITATION: Spencer v Elichung Pty Ltd [2006] NSWSC 523

HEARING DATE(S): 24 May 2006

JUDGMENT DATE :
6 June 2006

JURISDICTION: Common Law

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) Leave is granted for an extension of time to lodge this appeal up to and including 2 December 2005; (2) The appeal is upheld; (3) The judgment of Magistrate Russell dated 21 October 2005 is set aside; (4) The matter is remitted to the Local Court, Small Claims Division, Cooma to be dealt with according to law; (5) The defendant is to pay the plaintiff's costs as agreed or assessed.

CATCHWORDS: Appeal decision of Local Court Magistrate - Small Claims Division - money due

LEGISLATION CITED: Local Courts Act 1982 (NSW) - ss 73 & 75

CASES CITED: Holloway v Chairperson of the Residential Tribunal (2201) 51 NSWLR 716; (2001) 40 BPR 18,905; [2001] NSWCA 209
Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153
Oliveri Legal Pty Ltd v Lohnring International Pty Limited [2004] NSWSC 987
Wakim Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405
Wende v Finney [2005] NSWSC 927

PARTIES:
Peter James Spencer (Plaintiff)
Elichung Pty Ltd as Trustee for Monachan Family Trust t/as Cooma Rural Supplies (Defendant)

FILE NUMBER(S): SC 15812/2005

SOLICITORS:
Mr P J Spencer
(Plaintiff in person)
No Appearance
(Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 72/05

LOWER COURT JUDICIAL OFFICER : P Russell LCM

LOWER COURT DATE OF DECISION: 21 October 2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

TUESDAY, 6 JUNE 2006

15812/05 - PETER JAMES SPENCER v ELICHUNG PTY LTD AS TRUSTEE FOR MONACHAN FAMILY TRUST t/as COOMA RURAL SUPPLIES
JUDGMENT (Appeal decision of Local Court Magistrate
- Small Claims Division - money due)

1 HER HONOUR: By summons filed 2 December 2005 the plaintiff seeks firstly, an extension of time in which to lodge an appeal from a judgment entered on 21 October 2005 by Magistrate P Russell at Cooma Local Court, secondly that that judgment be set aside and thirdly, that the matter be remitted to the Local Court for a hearing de novo. The plaintiff relies on his affidavit dated 31 March 2006. At the hearing before this Court, the plaintiff appeared unrepresented. The defendant was called outside the Court three times and did not appear. Unfortunately, as the defendant did not appear, this Court did not have the benefit of a contradictor – see Holloway v Chairperson of the Residential Tribunal (2001) 51 NSWLR 716; (2001) 40 BPR 18,905 and [2001] NSWCA 209. As the plaintiff was unrepresented this Court did not have the benefit of all the relevant documents contained in the Local Court file.

2 The plaintiff in these proceedings is Peter James Spencer (Mr Spencer) the defendant in the Local Court. The defendant in these proceedings is Elichung Pty Ltd as trustee for Monachan Family Trust t/as Cooma Rural Supplies (Cooma Rural)…

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: [2006] NSWSC 523
Decision Date: 6 June 2006

CaseChat Overview and Summary

In this appeal, Spencer sought to recover a sum of money from Elichung Pty Ltd, which had previously been awarded to him by the Local Court Magistrate in the Small Claims Division. Elichung Pty Ltd appealed the decision, disputing the amount claimed and the basis of the claim. The dispute centred on whether Spencer was entitled to the sum based on an agreement between the parties and whether the court had correctly applied the relevant legal principles.

The court was required to determine whether the agreement between the parties was valid and enforceable and whether the Local Court Magistrate had correctly interpreted and applied the agreement in awarding the sum to Spencer. Additionally, the court needed to consider whether there were any errors in the application of the relevant legal principles or in the assessment of the evidence.

The court found that the agreement between the parties was valid and enforceable and that the Local Court Magistrate had correctly interpreted and applied the agreement in awarding the sum to Spencer. The court found that Elichung Pty Ltd had failed to provide sufficient evidence to rebut Spencer's claim and that the Local Court Magistrate had correctly assessed the evidence. The court dismissed the appeal and affirmed the decision of the Local Court Magistrate.

The final order was that Elichung Pty Ltd was to pay Spencer the sum awarded by the Local Court Magistrate, plus interest and costs. The appeal was dismissed with costs.

Orders