World Avenue Pty Ltd v Tsunashima - [2013] NSWSC 502

Supreme Court

New South Wales

Medium Neutral Citation: World Avenue Pty Ltd v Kenichiro Tsunashima [2013] NSWSC 502
Hearing dates: 3 May 2013
Decision date: 10 May 2013
Jurisdiction: Common Law
Before: Harrison J
Decision:
Summons dismissed with costs.

Catchwords: APPEAL - leave to appeal - appeal from decision of Local Court Magistrate - no question of principle and no issue of general public importance - court cannot engage in fact-finding process on the merits of the case - leave refused
Legislation Cited: Local Court Act 2007
Cases Cited: A Team Diamond headquarters Pty Ltd v Main Road Property Group Pty Ltd [2009] VSCA 208; (2009) 25 VR 189
B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2009) 74 NSWLR 481
Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ion v Danutz [2012] NSWSC 941
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Ken Wolf Real Estate Pty Ltd v O'Halloran [2012] NSWSC 993
Nichols v Lee [2008] NSWSC 1242
Young v Kruger [2012] NSWSC 628
Category: Principal judgment
Parties: World Avenue Pty Ltd (Plaintiff)
Kenichiro Tsunashima (Defendant)
Representation: Counsel:
M W Young SC (Plaintiff)
J H Stephenson (Defendant)
Solicitors:
Dixon Holmes du Pont Lawyers (Plaintiff)
Yukio & Huyashi Associates (Defendant)

File Number(s): 2012/396960
Publication restriction: Nil

Judgment

HIS HONOUR: Mr Tsunashima originally commenced working for World Avenue on about 13 March 2006 as a diving instructor on a casual basis located at Cairns. He became a full-time employee on 13 September 2006. Mr Tsunashima and his family later moved to Perth where World Avenue employed him as a marketing assistant manager and subsequently as a branch manager in accordance with a written agreement dated 26 January 2007.

According to the terms of a statement of claim filed by World Avenue in the Local Court on 20 February 2012, Mr Tsunashima abandoned that employment with World Avenue on or about 22 December 2011. World Avenue sued to recover $24,626.60 from Mr Tsunashima that it claimed was due by him as the result of events that had occurred and obligations that had arisen during the course of his employment. World Avenue's claim comprised $6,131 for damage allegedly caused by Mr Tsunashima to a motor vehicle owned by World Avenue, $2,036 for property that Mr Tsunashima allegedly sold but for the proceeds of which he failed to account, $91.60 for the cost of personal international phone calls made by Mr Tsunashima using World Avenue's phone, $9,368 for monies expended by World Avenue to sponsor Mr Tsunashima's application for permanent residency in Australia and $7,000 representing the value of chattels wrongfully detained by Mr Tsunashima.

The proceedings came on for hearing before his Honour Magistrate Barko on 1 November 2012. They proceeded into the following day and were ultimately concluded on 13 December 2012. On…

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: [2013] NSWSC 502
Decision Date: 10 May 2013

CaseChat Overview and Summary

In the case of World Avenue Pty Ltd v Tsunashima, the plaintiff sought leave to appeal from a decision made by a Local Court Magistrate. The underlying dispute involved a dispute related to a commercial transaction, although the specifics of the transaction are not detailed in the text. The plaintiff was seeking to challenge the decision made by the Local Court Magistrate through an appeal to a higher court. The matter was before the court to determine whether the plaintiff should be granted leave to appeal the decision of the Local Court Magistrate.

The primary legal issue the court had to decide was whether there was a question of principle or an issue of general public importance that warranted the court engaging in a fact-finding process on the merits of the case. Additionally, the court had to consider whether the appeal had prospects of success. The court was required to balance the need for a final resolution of disputes against the potential for an appeal to unnecessarily prolong litigation.

The court found that there was no question of principle involved and no issue of general public importance that would justify the court engaging in a fact-finding process on the merits of the case. The court held that it could not engage in such a process on the basis of the appeal, as it would be inappropriate to do so without a full record of the proceedings before the Local Court Magistrate. Consequently, the court concluded that the appeal did not have prospects of success and refused the plaintiff's application for leave to appeal. The court's decision was based on the need to prevent unnecessary prolongation of litigation and to ensure that appeals were only granted in cases where there was a clear need for the higher court to review the decision of the lower court.

Orders