Xu v Georges - [2013] NSWSC 880

Supreme Court

New South Wales

Medium Neutral Citation: Xu v Georges [2013] NSWSC 880
Hearing dates: 4 December 2012
Decision date: 04 July 2013
Before: Latham J
Decision:
1. Leave to appeal is refused.
2. Up to and including 18th October 2011 costs as agreed or [on the ordinary basis] are to be paid by the plaintiff to the defendants
3. Indemnity costs thereafter are to be paid by the plaintiff to the defendants

Catchwords: APPEAL - appeal from Local Court to Supreme Court - no appeal from Local Court to Supreme Court on questions of fact - leave to appeal refused - indemnity costs granted
Legislation Cited: Local Court Act 2007
Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Carr v Neill [1999] NSWSC 1263
Gangemi Holdings Pty Ltd v Salter [1999] NSWSC 1004
Haines v Leves & Anor.(1987) 8 NSWLR 442
Mahoney v Industrial Registrar of New South Wales & Anor. (1986) 8 NSWLR 1
Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419
R v District Court: Ex Parte White (1966) 116 CLR 644
State Rail Authority v Smith [2000] NSWSC 334
Category: Principal judgment
Parties: Cui Mian XU - Plaintiff
Farah Georges - Defendants
Representation: Counsel
P Folino-Gallo - Plaintiff
FFF Salama - Defendants
Solicitors
Mark Rahme and Associates - Plaintiff
Paramonte Legal - Defendants

File Number(s): 2011/00299457-1

Judgment

The plaintiff in these proceedings appeals against a decision of Magistrate Pearce in the Local Court on 19 August 2011. The plaintiff commenced proceedings in the General Division of the Local Court against the defendants claiming the sum of $30,000.00, which she had paid to the defendants under a contract for the preparation and lodgement of a development application by the defendants relating to the plaintiff's brothel.

The history of the relationship between the parties, the scope of the agreement between them, and the reasons for the failure of that contractual arrangement occupied a considerable number of hearing days. At the conclusion of the hearing, the magistrate gave an ex tempore judgment which, not surprisingly, did not refer in detail to all of the evidence. The magistrate made a number of findings of fact which were essentially based on an acceptance of the defendants' evidence in preference to that of the plaintiff.

The jurisdiction of this Court to entertain an appeal from the Local Court is based on ss 39 and 40 of the Local Court Act 2007. In short, an appeal lies as of right on questions of law, and only by way of leave on questions of mixed law and fact. The plaintiff does not contend that this appeal is based on anything other than questions of mixed law and fact. However, when one has regard to the plaintiff's grounds of appeal, it is apparent that the appeal is an attempt to revisit findings of fact unfavourable to the plaintiff…

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 Xu v Georges

Details

AGLC: Xu v Georges [2013] NSWSC 880
Case: [2013] NSWSC 880
Decision Date: 04 July 2013

CaseChat Overview and Summary

In the matter of Xu v Georges, the Supreme Court of New South Wales was presented with an appeal from the Local Court decision. The appellant, Xu, sought to appeal the Local Court's judgment in a matter pertaining to a dispute between Xu and the respondent, Georges, over a debt. Xu argued that the Local Court had made an error in its application of the law, which resulted in an unjust outcome. The Local Court had found in favour of Georges, dismissing Xu's claim for the recovery of the debt.

The central legal issue before the Supreme Court was whether it had jurisdiction to hear an appeal from the Local Court, particularly given that the appeal was premised on questions of fact. The court was required to determine if it could overrule the Local Court's findings on the facts, or if it was bound by those findings. The court also needed to decide if there were any exceptional circumstances that warranted granting leave to appeal despite the general prohibition against such appeals on questions of fact.

The Supreme Court held that it did not have jurisdiction to hear the appeal on questions of fact, reaffirming the well-established principle that the Supreme Court cannot overrule the Local Court's findings on the facts unless there is a clear error of law. The court found no such error in this case, and therefore, refused the leave to appeal. However, recognising the appellant's persistence in pursuing the matter, the Supreme Court granted indemnity costs to Xu. This decision underscores the importance of adhering to the jurisdictional limits between the Local Court and the Supreme Court, while also ensuring that litigants who pursue their claims in good faith are not unduly penalised.

Orders