Winkler v Omega Kitchens NSW Pty Limited - [2006] NSWSC 671

CITATION: Winkler v Omega Kitchens NSW Pty Limited [2006] NSWSC 671

HEARING DATE(S): 29 June 2006

JUDGMENT DATE :
5 July 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Malpass at 1

DECISION: The appeal fails. The Summons is dismissed. The Plaintiff is to pay the costs of the Summons.

CATCHWORDS: Alleged error in point of law - Magistrate finds that Plaintiff was a party to alleged contract - challenge to interlocutory decisions - no application for or grounds for granting leave - no error in point of law.

PARTIES: Maurizio Winkler (Plainitff)
Omega Kitchens NSW Pty Limited (Defendant)

FILE NUMBER(S): SC 10147/06

COUNSEL: In person (Plaintiff)
G Van Der Vlag (Defendant)

SOLICITORS: Not represented (Plaintiff)
Levit Robinson, Solicitors (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 132/2005

LOWER COURT JUDICIAL OFFICER : Prowse LCM

LOWER COURT DATE OF DECISION: 15 December 2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

Wednesday, 5 July 2006

10147 of 2006 Maurizio Christopher WINKLER v OMEGA KITCHENS NSW PTY LIMITED
JUDGMENT

1 His Honour: The Plaintiff was the Director and Secretary of Estrenc Pty Limited (the “company”). The company may be no longer trading because of financial difficulties.

2 The company was involved in a project at Bishopthorpe Manor at Goulburn. One aspect of the project involved was the supply and fitting of a kitchen in the Rose Cottage. The Defendant performed that work between about March 2004 to June 2004 at a cost of $11,512.00.

3 An invoice was directed to the company in the sum of $10,360.00 (being the cost of the work less a deposit paid by the company). The sum has not been paid.

4 Ultimately, proceedings were brought in the Local Court (General Division). In those proceedings, the company was named as the First Defendant and the Plaintiff was named as the Second Defendant.

5 The cause of action was expressed in the following terms:-

“DESIGN, SUPPLY AND FIT OF A TIMBER COTTAGE KITCHEN BY THE PLAINTIFF AT THE REQUEST OF THE DEFENDANT TO THE ROSE COTTAGE AT BISHOPTHORPE MANOR, GOULBURN IN MARCH, 2004.”

6 A defence was filed on behalf of both the Plaintiff and the company. It was in the following terms:-

“1. In relation to paragraph 1, the First Defendant agrees that it, in its capacity as agent of Bishopthorpe Manor (“

Bishopthorpe

”), requested the Plaintiff to design, supply and fit a timber cottage kitchen to the Rose Cottage at Bishopthorpe Manor in Goulburn in March 2004, for the benefit of Bishopthorpe.

2. Bishopthorpe operates a boutique guesthouse located at 1 Bishopthorpe Lane Goulburn NSW 2580.

3. Huka Investments Pty Ltd (“

Huka

”) trades as Bishopthorpe Manor and is the correct named Defendant in these proceedings.

4. The First and Second Defendants deny that any work was done on their behalf and deny that they are liable to the Plaintiff as alleged or at all.

5. The Second Defendant is neither a Director…

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 Winkler v Omega Kitchens NSW Pty Limited

Details

AGLC: Winkler v Omega Kitchens NSW Pty Limited [2006] NSWSC 671
Case: [2006] NSWSC 671
Decision Date: 5 July 2006

CaseChat Overview and Summary

In the matter of Winkler v Omega Kitchens NSW Pty Limited, the court was tasked with addressing a challenge to interlocutory decisions made by a magistrate. The plaintiff, Winkler, sought to appeal against the magistrate's findings that they were a party to the contract in question and that there was no error in the magistrate's interpretation of the law. The case was heard and determined in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the magistrate had erred in finding that the plaintiff was a party to the alleged contract, and whether there was an error in the magistrate's interpretation of the law. The court had to consider whether the plaintiff had made out a case for leave to appeal against the interlocutory decisions, and whether there were grounds for granting such leave. The court also had to consider whether the magistrate's findings were correct and whether there was any error in the interpretation of the law.

The court found that the plaintiff had not made out a case for leave to appeal against the interlocutory decisions, as there was no application for or grounds for granting leave. The court held that the magistrate's findings were correct and that there was no error in the interpretation of the law. The court found that the plaintiff was indeed a party to the contract in question, and that the magistrate's decision was supported by the evidence. The court held that there was no error in point of law, and dismissed the appeal.

The court's decision was final, and no further appeals were possible. The orders of the court were that the appeal be dismissed, and that the plaintiff pay the defendant's costs of the appeal.

Orders