DUNLOP and ANOR v CUSTOM CREDIT CORPORATION LTD [1991] NSWCA 83

DUNLOP v CUSTOM CREDIT CORPORATION LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE J 30 September 1991

[1991] NSWCA 83

Clarke JA This is a motion brought by an opponent, the successful plaintiff in the court below, seeking an order that the appeal be dismissed as incompetent and consequential cost orders.

The basis of the application is that, in broad terms, the amount in issue is less than $10,000.

The motion raises an interesting question as to the interpretation of s130(1)(a) of the District Court Act. The only relevant subsection in that section is subs(iv) which reads as follows:

"130(1). An application under s127 may be made so an appeal under s128(1) or $128(2)A lies

(a) where the application or appeal involves directly or indirectly any claim, demand or question to or respecting any property or any civil right amounting to or of the value of (iv) in the case of an action commenced on or after 1 April 1983 and in respect of which a verdict or judgment has not been given before the commencement of schedule 1(3) to the District Court (Amendment) Act, 1990 $10,000 or upwards."

In this case the claimant sued the opponents as guarantors seeking to recover an amount outstanding, I assume at the time of the statement of claim, of $7,087.68. The trial judge found in favour of the claimant, which also sought interest. Although the trial judge was reluctant to award the claimant interest he felt that he was bound by authority to do so and he awarded interest at the rate specified in the lease agreement under which the guarantee arose.

The total of the interest allowed was $3,300. Accordingly the trial judge entered judgment for the claimant against the opponent in the sum of $10,387.68.

The essential question at issue is whether the court has regard only to the substantive claim in determining whether an amount in issue of more than $10,000 is involved, or whether one has regard to the amount of the judgment against which the appeal is brought.