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. Disputes exist in relation to the calculations of such charge, which have been reduced to writing and produced to the Court. Disputes certainly exist, at least in part, in relation to some of the charges in respect of periods when the appellant says that no notice of the charges was served. These are matters which were not litigated before Judge Downs. It is appropriate to enter judgment in the amount which is conceded, setting aside the summary judgment which was entered below. However, it is not appropriate for this Court to check the rates and charges and to resolve the other matters in dispute which have not been the subject of a hearing at first instance. 2 UNREPORTED JUDGMENTS In these circumstances, it appears to me that the judgment of Judge Downs should be set aside. In lieu of that judgment, judgment should be entered in the sum of $75,355.05. Such substituted judgment should take effect from the date of the summary judgment entered by Judge Downs. In respect of the balance of the amounts claimed principally for charges, they can be the subject of further litigation in the District Court. The respondent could, if on further checking there be no remaining dispute concerning them, proceed to seek summary judgment. If, however, there is a remaining dispute and if it is not possible to resolve that dispute by agreement having regard to the amounts involved, it is appropriate that such disputes should be resolved in the normal way - viz by trial on merits. The question remains as to the disposal of the costs before this Court. It is true that the appellant has succeeded in part. It has had the judgment of Judge Downs set aside and a judgment in a smaller amount entered. However, the appellant has failed to secure the relief which it sought in its entirety. It does appear, at least upon the material which has been placed before the Court, that a significant amount, if not most, and if not eventually the whole of the amount claimed for charges, is payable by the appellant to the respondent. In these circumstances, and having regard to all of the features of the case, it seems to me that the respondent should pay half only of the costs of the appellant of the hearing before this Court. ORDER Accordingly, the orders which I propose are:- 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 $75,355.05 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. Mahoney JA I agree. Clarke JA I also agree. KIRBY P: They are the orders of the Court. COUNSEL: Appellant: D FLAHERTY Respondent: J WHITTLE SOLICITORS: Appellant: FISHER & MECANSH Respondent: J D ODBERT