Zutic v Bubalo - [2005] NSWSC 1272

CITATION:
Zutic v Bubalo [2005] NSWSC 1272

HEARING DATE(S): 23 November 2005

JUDGMENT DATE :

9 December 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Associate Justice Harrison

DECISION:
(1) The appeal is dismissed; (2) The decision of her Honour Magistrate Schurr dated 23 March 2005 is affirmed; (3) The amended summons filed 22 September 2005 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS:
Appeal decision of Local Court Magistrate - s 9 Contracts Review Act, Cross Claim, sufficiency of reasons

LEGISLATION CITED:
Contracts Review Act 1980 (NSW) - s 9
Local Courts Act 1982 (NSW) - ss 73 & 75

CASES CITED:
Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Beale v GIO (1997) 38 NSWLR 430
Carr v Neill [1999] NSWSC 1263
Devries v Australian National Railways Commission (1993) 177 CLR 472
Gorczynski v Beilby [2005] NSWSC 884
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Pettitt v Dunkley (1971) 1 NSWLR 376
R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588
Swain v Waverley Municipal Council [2005] HCA 4

PARTIES:
Bozidar Zutic
(Plaintiff)
Slobodan Bubalo
(Defendant)

FILE NUMBER(S):
SC 11477/2005

COUNSEL:
Ms B Obradovic
(Plaintiff)
Mr T Wolf
(Defendant)

SOLICITORS:
McDermott & Associates
(Defendant)

LOWER COURT JURISDICTION:
Local Court

LOWER COURT FILE NUMBER(S):
10008/2004

LOWER COURT JUDICIAL OFFICER :
Her Honour Magistrate Schurr

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 9 DECEMBER 2005

11477/2005 - BOZIDAR ZUTIC v SLOBODAN BUBALO
JUDGMENT (Appeal decision of Local Court Magistrate

- s 9 Contracts Review Act, Cross claim, sufficiency of reasons)

1 HER HONOUR: By amended summons filed 22 September 2005 the plaintiff seeks firstly, an order setting aside the judgment and orders of her Honour Magistrate Schurr made on 23 March 2005 at the Downing Centre, Local Court, in file number 10008/2004; and secondly an order remitting the matter to the Local Court to be heard and determined in accordance with law.

2 The plaintiff (defendant in the Local Court proceedings) is Bozidar Zutic. The defendant (plaintiff in the Local Court proceedings) is Slobodan Bubalo. The plaintiff relied on his affidavits sworn 31 August 2005, 13 September 2005 and 13 October 2005. For convenience, I shall refer to the parties by name in this judgment.

3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73 of the Local Courts Act 1982 (NSW) (the Act) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a…

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 Zutic v Bubalo

Details

AGLC: Zutic v Bubalo [2005] NSWSC 1272
Case: [2005] NSWSC 1272
Decision Date: 9 December 2005

CaseChat Overview and Summary

The appeal by Zutic against the decision of Bubalo was heard by the District Court. The original dispute was between the parties, who were neighbours, concerning the sale of a section of land. Bubalo claimed that Zutic had entered into a contract to purchase a portion of Bubalo's land, and that Zutic had failed to pay the purchase price. Zutic denied the claim and Bubalo brought an action against Zutic in the Local Court. Zutic appealed the decision of the Local Court Magistrate to the District Court, seeking to overturn the decision that Bubalo had proved the contract and that Zutic was liable to pay the purchase price.

The legal issues before the District Court included whether the appeal was valid under section 9 of the Contracts Review Act and whether the reasons provided by the Local Court Magistrate were sufficient. The District Court also considered whether Bubalo's cross-claim against Zutic was valid.

The District Court found that the appeal was valid under section 9 of the Contracts Review Act, and that the reasons provided by the Local Court Magistrate were sufficient. The court found that Bubalo had proved the existence of the contract and that Zutic was liable to pay the purchase price. The court also found that Bubalo's cross-claim against Zutic was valid, as it related to the same transaction as the original claim. The District Court therefore dismissed the appeal and upheld the decision of the Local Court Magistrate.

The final orders of the court included that the appeal be dismissed and that the decision of the Local Court Magistrate be upheld. The court also found that Bubalo's cross-claim against Zutic was valid and ordered that the matter be referred to mediation.

Orders