Thomas v Laundy (Exhibition) Pty Ltd - [2016] NSWSC 1395

Supreme Court

New South Wales

Medium Neutral Citation: Thomas v Laundy (Exhibition) Pty Ltd [2016] NSWSC 1395
Hearing dates: 27 September 2016
Date of orders: 27 September 2016
Decision date: 27 September 2016
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Order that the proceedings in the District Court of New South Wales be transferred under s 140(3)(b)(i) of the Civil Procedure Act 2005 (NSW).
(2) Order the plaintiff to pay the defendants’ cost of the application for transfer to this Court.
Catchwords: PRACTICE AND PROCEDURE – application for transfer of proceedings from District Court to Supreme Court – if plaintiff successful amount awarded likely to exceed jurisdictional limit of District Court – order made
Legislation Cited: Civil Procedure Act 2005 (NSW), s 140
Category: Procedural and other rulings
Parties: Mark Thomas (Plaintiff)
Laundy (Exhibition) Pty Ltd (Defendant)
Michael John Cutajar (Second Defendant)
Mark Malloy (Third Defendant)
Representation:
Counsel:
R Chia (Plaintiff)
M Wilson (First and Third Defendants)
T Davy (Second Defendant)
Solicitors
Brydens Lawyers Pty Limited (Plaintiff)
HBA Legal (First and Third Defendants)
Henry Davis York (Second Defendant)

File Number(s): 2016/277518

Judgment – EX TEMPORE

The plaintiff, Mr Thomas, filed a summons on 15 September 2016, seeking that District Court proceedings commenced on his behalf in 2014 be transferred to this Court. Mr Wilson, who appears on behalf of the first and third defendants, and Ms Davy, who appears for the second defendant, neither consent nor oppose the transfer.
Section 140 of the Civil Procedure Act 2005 (NSW) relevantly provides:

Transfer of proceedings to higher court
(1) The Supreme Court may, of its own motion or on application by a party to proceedings before the District Court or the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the Supreme Court.
(2) The District Court may, of its own motion or on application by a party to proceedings before the Local Court, order that the proceedings, including any cross-claim in the proceedings, be transferred to the District Court.
(3) Proceedings in the District Court on a claim for damages arising from personal injury or death are not to be transferred to the Supreme Court under this section unless the Supreme Court is satisfied:
. . .
(b) in any other case:
(i) that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court,

. . .

The basis of the plaintiff’s application is that the amount to be awarded to the plaintiff, if successful, is likely to exceed the jurisdictional limit of the District Court: s 140(3)(b)(i) of the Civil Procedure Act.
The plaintiff claims damages against the owner and licensee of the North Wollongong Hotel (the first and third defendants) and a person employed in connection with the hotel (the second defendant). It is alleged by the plaintiff that he was assaulted by the second defendant and suffered serious injury as a result. He claims to have suffered a substantial…

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: [2016] NSWSC 1395
Decision Date: 27 September 2016

CaseChat Overview and Summary

The matter in Thomas v Laundy (Exhibition) Pty Ltd involved an application by the plaintiff, Thomas, for the transfer of proceedings from the District Court to the Supreme Court. The dispute arose from a claim for damages for breach of contract and negligence. The primary concern was whether the likely amount of damages, should the plaintiff succeed, would exceed the jurisdictional limit of the District Court, which is $750,000.

The court was required to determine whether the claim's monetary value, if awarded, would surpass the District Court's jurisdictional limit, thereby justifying a transfer to the Supreme Court. The central legal issue was the assessment of the potential damages and whether they were likely to exceed the statutory threshold that would necessitate a transfer. This involved an analysis of the evidence provided by the plaintiff regarding the nature and extent of the damages claimed, and the potential financial implications of the alleged breaches.

In delivering the judgment, the court considered the evidence and submissions presented by both parties. It found that the amount of damages claimed, if substantiated, was likely to exceed the District Court's jurisdictional limit. Consequently, the court determined that the application for the transfer of proceedings should be granted. The reasoning was that to avoid potential injustice and ensure the plaintiff's right to a full and fair hearing of the claim, it was appropriate to transfer the matter to the Supreme Court. The final orders included the transfer of the proceedings to the Supreme Court and directions for the continuation of the case.

Orders