Britt v Parcell [2021] NSWDC 464

District Court New South Wales

Medium Neutral Citation: Britt v Parcell [2021] NSWDC 464 Hearing dates: 13-14 May 2021 Date of orders: 14 May 2021 Decision date: 14 May 2021 Jurisdiction: Civil Before: Neilson DCJ Decision: Appeal dismissed. Order applicant pay respondent's costs on an indemnity basis. Catchwords: Appeal – From Small Claims Division of Local Court – Limited right of appeal: only if Local Court acted without jurisdiction or denied procedural fairness – Consideration of statutory scheme – Claim commenced by respondent to appeal, plaintiff in Local Court – Claims for moneys had and received by the defendant to the use of the plaintiff ($9,497) and for the return of a dog, "Harold" – Plaintiff/respondent wholly successful in Local Court. (1) Animals – a dog is a chattel personal and Local Court had power to order the return of the dog. (2) Torts – Detinue – elements of demand for return of goods and refusal to comply. Admitted on pleadings. Not argued in Local Court. Could not be an appeal. (3) Appeal – arguments not raised in Court below. Should not be raised on appeal. Neither errors of law or errors of fact raised an argument about jurisdiction or raise a question of denial of procedural fairness. (4) Domestic Relationships – as domestic relationship between parties had not persisted for 2 years, no Federal jurisdiction available, and property rights could not be adjusted between parties by any court. Jurisdiction of ordinary courts not affected. (5) Costs – when appeal should not have been made. Legislation Cited: Civil Procedure Act 2005 Companion Animals Act 1988 Dog Act 1966 Dog and Goat Act 1898 Family Law Act 1975 Goods Act 1958 (Vic) Local Court Act 2007 Sale of Goods Act 1893 (UK) Sale of Goods Act 1895 (SA) Sale of Goods Act 1895 (WA) Sale of Goods Act 1896 (Qld) Sale of Goods Act 1896 (Tas) Sale of Goods Act 1908 (NZ) Sale of Goods Act 1923 Sale of Goods Ordinance 1954 (ACT) Cases Cited: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Limited (No 2) [2009] NSWCA 12 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 Davenport v Davenport (No 2) [2020] FCCA 2766 Di Gergorio v Ohanessian [2021] NSWDC 100 Downey v Beale [2017] FCCA 316 Edwards v Gilliespie [2020] NSWDC 475 Hatch v Wood-Davies [2006] NSWDC 96 Kojima v Australian Chinese Newspapers [2000] NSWSC 1153 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 Tonab Investments Pty Ltd v Optima Developments Pty Ltd [2015] NSWCA 287 Texts Cited: Bullen & Leake & Jacob's Precedents of Pleadings (Sweet and Maxwell, 13th ed, 1990) Megarry and Wade, The Law of Real Property (Stevens, 3rd ed, 1966) Proverbs 26:11 Sutton, the Law of Sale of Goods in Australia and New Zealand (The Law Book Co., 1st ed, 1971) Category: Principal judgment Parties: Applicant – Nathan Britt Respondent – Blaine Parcell Representation: Counsel: Applicant – M. Fantin Respondent – P. Boncardo instructed by M. Nott (Goldman Lawyers) File Number(s): 2020/003262232 Publication restriction: Nil.