Starr v William Goard and Associates - [2005] NSWSC 124

CITATION:
Starr v William Goard & Associates [2005] NSWSC 124
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 23 February 2005

JUDGMENT DATE :

3 March 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Master Harrison

DECISION:
(1) The appeal is dismissed; (2) The order of Magistrate Still dated 3 August 2004 is affirmed; (3) The summons filed 25 August 2004 is dismissed. ; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS:
Appeal decision of Local Court Magistrate - amend plaintiff's name after default judgment

LEGISLATION CITED:
Local Courts (Civil Claims) Act 1970 (NSW) - s 69(2)
Local Court (Civil Claims) Rules 1988 (NSW) - Part 16

CASES CITED:
Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Devries v Australian National Railways ?Commission (1993) 177 CLR 472
RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588
Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446

PARTIES:
Michael Starr (Stoeski)
(Plaintiff)
William Goard & Associates
(Defendant)

FILE NUMBER(S):
SC 12774/2004

COUNSEL:
Ms K Leotta
(Defendant)

SOLICITORS:
Mr P Livers
Slattery Thompson
(Plaintiff)
Mr E Takchi
Takchi & Associates
(Defendant)

LOWER COURT JURISDICTION:
Local Court

LOWER COURT FILE NUMBER(S):
760/1997

LOWER COURT JUDICIAL OFFICER :
Magistrate Still

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 3 MARCH 2005

12774/2004 - MICHAEL STARR (STOESKI) v
WILLIAM GOARD & ASSOCIATES
JUDGMENT (Appeal decision of Local Court Magistrate
- amend plaintiff’s name after default

judgment)

1 MASTER: By summons filed 25 August 2004 the plaintiff seeks an order that the decision made on 3 August 2004 by Local Court Magistrate Still be set aside. The plaintiff relied on two affidavits of Peter Livers sworn 3 September 2004 and 11 November 2004. The plaintiff is Michael Starr (Stoeski). The defendant is William Goard & Associates.

2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW) 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 of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156 and two more recent cases, namely Carr v Neill [1999] NSWSC 1263 and R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082. It cannot be said that the Tribunal member acted on evidence inconsistent with facts incontrovertibly established by the evidence…

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.

Keep reading for free

Create a free CaseChat account to read Starr v William Goard and Associates and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWSC 124
Decision Date: 3 March 2005

CaseChat Overview and Summary

The case involved Starr, the plaintiff, who sought to amend the name on a summons following a default judgment against them in the Local Court. William Goard and Associates, the defendants, opposed the application. The Local Court had previously entered a default judgment in favour of the defendants due to Starr's failure to appear. Starr sought to have the default judgment set aside and to amend the name on the summons, arguing that the summons had been served to the wrong address.

The court was required to determine whether Starr's application to amend the name on the summons and set aside the default judgment was within the proper jurisdiction of the Local Court and whether the application was made within a reasonable time. The court also needed to consider the merits of the application, including whether there was a sufficient explanation for the delay in making the application and whether the amendment of the name would cause injustice to the defendants.

The court held that the Local Court did have the jurisdiction to hear the application to set aside the default judgment and amend the name on the summons. The court found that Starr had provided a reasonable explanation for the delay in making the application and that there was no evidence of bad faith or contumelious conduct. The court also found that the amendment of the name would not cause injustice to the defendants as they were aware of the identity of the plaintiff and had not been misled by the error. The court set aside the default judgment and allowed the application to amend the name on the summons.

The court ordered that the default judgment entered against Starr be set aside and that the name on the summons be amended to reflect the correct name of the plaintiff. The court further ordered that the matter be listed for further hearing to determine the merits of the dispute between the parties.

Orders