EX-SERVICEMAN'S CAR LAUNDRY PTY LIMITED v THE COUNCIL OF THE CITY OF SYDNEY [1988] NSWCA 45

EX-SERVICEMAN'S CAR LAUNDRY PTY LIMITED vy THE COUNCIL OF THE CITY OF SYDNEY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA 8 June 1988, 8 June 1988

[1988] NSWCA 45

DISTRICT COURT — summary judgment — appeal — unpaid rates owing to local government authorities — dispute about charges — matter not litigated below — held: in the circumstances, summary judgment should be set aside — judgment in the undisputed sum of acknowledged rates entered — disputed sums for charges should be remitted to be tried in District Court — appellant to pay half the costs of the appeal.

Local Government Act 1919, s158. ORDERS 1. Appeal allowed; 2. Summary judgment entered by Judge Downs set aside;

3. In lieu thereof direct the entry of judgment in favour of the respondent in the sum of $75,35505 to take effect from 18 March 1988;

4. As to the remaining matters in dispute between the parties in connection with the charges claimed by the Council, remit that dispute to the District Court to be determined by that Court in accordance with law.

5. The respondent to pay half of the appellant's costs of and Incidental to the appeal.

Kirby P The history of this case is partly set out in the judgment which the Court gave on 16 May 1988. That judgment was given in an application by the present respondent for an order that the purported appeal lodged by the appellant be dismissed as incompetent. The application failed for the reasons given variously by the members of the Court, as it was then constituted. The Court ordered the expedition of the hearing of the appeal. That appeal came on for hearing today.

After argument, it was finally conceded by counsel for the appellant, properly in my view, that an amount of $75,355.05 was owing in rates by the appellant to the respondent Council. It was further agreed by both counsel that the judgment which was entered below by Judge Downs should, if set aside, be entered in that sum. The balance of the dispute between the parties relates to the charges which were levied by the respondent Council under s158 of the Local Government Act 1919 upon the outstanding rates.