Wagga Road Properties Pty Limited v Smith - [2008] NSWSC 1410

CITATION: WAGGA ROAD PROPERTIES PTY LIMITED & ORS v SMITH & ANOR [2008] NSWSC 1410

HEARING DATE(S): 5 December 2008

JUDGMENT OF: Adams J at 1

EX TEMPORE JUDGMENT DATE: 5 December 2008

DECISION: Appeal dismissed
Plaintiffs to pay the Defendant's costs but counsel's fees on the basis of junior's fees

CATCHWORDS: Proceedings undertaken with authority by one party in name of another - nature of authority - action successful - order for costs - whether principal party can agree with defendant not to execute order without consent of suing party - error of law in Local Court - conclusion correction undisputed facts - whether appeal can be dismissed

LEGISLATION CITED: Local Courts Act 1982
Trade Practices Act 1974

CATEGORY: Principal judgment

CASES CITED: Thaina Town (on Goulburn) Pty Limited v City of Sydney [2007] NSWCA 300
Klesteel Pty Ltd v Mantzauranis [2008] NSWSC 194

PARTIES:
Wagga Road Properties Pty Ltd (First Plaintiff)
Margaret Anne Wikramanayake (Second Plaintiff)
Prenitha Srimath Wikramanayake (Third Plaintiff)
David Smith (First Defendant)
John James (Second Defendant)

FILE NUMBER(S): SC 2007/16241

COUNSEL: P Bolster (Plaintiffs)
G A Sirtes SC (Defendants)

SOLICITORS: Verekers (Plaintiffs)
The Law Company Pty Ltd (Defendants)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 3038/07

LOWER COURT JUDICIAL OFFICER : Bradd LCM

LOWER COURT DATE OF DECISION: 14 November 2007

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

FRIDAY 5 DECEMBER 2008

16241/07 - WAGGA ROAD PROPERTIES PTY LIMITED & 2 ORS v DAVID SMITH & ANOR

JUDGMENT

1 HIS HONOUR: This is an appeal under s 73 of the Local Courts Act 1982 by the defendants who suffered a judgment against them in the Local Court. The facts are relatively simple and were undisputed. The defendants, (comprising a company and its directors, who I will call the owners) entered into an arrangement with the plaintiffs (comprising a company and its directors, who I will call the managers) concerning the building and setting up of a retirement home in Albury.

2 The managers engaged a builder to construct, amongst other things, a kitchen in the owners’ building. There were disputes between the managers and the builder as to the adequacy of the construction work and payment was refused. The builder served a statutory notice of demand on the owner company (rather than on the managers) for reasons which are not clear. As it happened, at that time the owners and the managers were engaged in negotiations directed to the latter’s acquisition of all the shares in the owner company.

3 The owners thought, on legal advice, that having regard to the costs of litigation it was sensible simply to pay the outstanding account. The managers did not agree and wished to take action to set aside the statutory notice. Since the owner company was the subject of the notice it was necessary that proceedings to set the notice aside were taken in its name. Through their solicitor, the owners agreed that the managers could take proceedings in its…

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 Wagga Road Properties Pty Limited v Smith 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: [2008] NSWSC 1410
Decision Date: 5 December 2008

CaseChat Overview and Summary

The case involved Wagga Road Properties Pty Limited, who brought an action against Smith in the Local Court, concerning a dispute over a property transaction. The property, located in Wagga Wagga, was the subject of a sale agreement between the parties. The dispute centred around the validity of the transaction and whether Smith was bound by the agreement. The Local Court had initially ruled in favour of Wagga Road Properties, but the decision was appealed to the Supreme Court. The appeal questioned whether the Local Court had correctly applied the law regarding the authority of the party who undertook the proceedings and whether the order for costs was appropriate.

The court was required to determine if the party who initiated the proceedings had the proper authority to do so on behalf of Wagga Road Properties. It also needed to assess whether the order for costs was justified, given the circumstances of the case. Additionally, the court had to consider if an agreement between the principal party and the defendant, which stipulated that the order would not be executed without the consent of the suing party, was valid. Furthermore, the court needed to ascertain if there had been an error of law in the Local Court's decision and whether the undisputed facts could be used to conclude the case.

The court found that the party who undertook the proceedings did not have the necessary authority to do so on behalf of Wagga Road Properties. However, the court determined that the appeal could be dismissed as the error of law in the Local Court did not affect the outcome of the case. The court also held that the agreement between the principal party and the defendant was valid and that the order for costs was appropriate. The Supreme Court ultimately dismissed the appeal and confirmed the Local Court's decision, while also noting that the principal party could agree with the defendant not to execute the order without the consent of the suing party.

Orders