Chioatto v Sandona [2001] NSWSC 1002

New South Wales Supreme Court

CITATION : Chioatto v Sandona [2001] NSWSC 1002 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12489 of 2001 HEARING DATE(S) : 24 & 25 September 2001 JUDGMENT DATE : 8 November 2001

SANTE CHIOATTO (Plaintiff)

PARTIES : v

ONORINA SANDONA AS ADMINISTRATIX OF THE ESTATE OF THE LATE ADRIANO SANDONA (Defendant) JUDGMENT OF : Levine J

D Ash (Plaintiff) COUNSEL : R Brender (Defendant) Agostini Jarrett (Plaintiff) SOLICITORS : Beilby Poulden Costello (Defendant) CATCHWORDS : Appeal from Magistrate - error of law - Local Court (Civil Claims) Act 1970 s 69 Justices Act 1902 Part 5 Division 2 s 104(5) LEGISLATION CITED : Local Court (Civil Claims) Act 1970 s 69 Supreme Court Rules Abs v Matheson (1898) 104 LTJ 268 Commonwealth v Verwayen (1990) 17 CLR 394 CASES CITED : Coulton v Holcombe (1986) 162 CLR 1 In re Brookers (Aust). Limited (1986) 41 SASR 380 Ogilivie v Adams [1981] VR 101 Owen v Woolworths Properties Limited (1956) 96 CLR 154 DECISION : See paragraph 32

DLJ: 1 [2001] NSWSC 1002 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION 12489 of 2001

JUSTICE DAVID LEVINE

8 November 2001 SANTE CHIOATTO (Plaintiff)

v

ONORINA SANDONA AS ADMINISTRATIX OF THE ESTATE OF THE LATE ADRIANO SANDONA (Defendant) JUDGMENT (Appeal from Magistrate – error of law – Local Courts (Civil Claims) Act 1970 s 69) 1 His Honour: This is an appeal from a decision of a Magistrate exercising jurisdiction under the Local Courts (Civil Claims) Act 1970. It is an appeal as provided for by s 69 of that Act and in particular, (and on this there is no issue), s 69(2) which provides that a party to proceedings under the Act who is dissatisfied with the judgment or order of the Court as being erroneous in point of law may appeal to this Court. The appeal to the Supreme Court from the Local Court exercising the jurisdiction to which I have referred is otherwise acknowledged in the Justices Act 1902 Part 5, Division 2, s 104(5). 2 The mechanism for the institution of such appeals is provided by Pt 51B of the Rules of this Court. 3 By Summons filed on 9 August 2001 the plaintiff in this Court (the defendant in the Local Court) seeks relief as follows: "1. An order that the decision of His Worship Mr Gould in Local Court matter 3592/01 be set aside. 2. A declaration that the Magistrate erred in his defining of the construction of a contract between the parties. 3. A declaration that the Magistrate erred in his finding that the Limitation Act 1969 did not apply. 4. An order that the matter to returned ( sic) to His Worship Mr Gould to hear and determine the matter of the appeal. 5. The defendant to pay the plaintiff's costs". 4 Pursuant to Pt 51B r 8 a Statement of Grounds was filed by the plaintiff. Ultimately the third ground only was relied upon to the effect that assuming the learned Magistrate found correctly that the making of an actual demand was a condition precedent to a liability to pay and that no demand had ever been made, the learned Magistrate erred in law in finding that a cause of action existed at the time the claim was filed because the condition precedent was not satisfied. 5 The material before me (Exhibit A) comprised the pleadings in the Local Court, the exchange of correspondence in relation to particulars, an affidavit of the plaintiff's solicitor, Ms Shauna Jarrett exhibiting the affidavit of Mrs Sandona read in the Court below, the transcript of proceedings including the learned Magistrate's reasons and the affidavits of Denis Sandona and Sante Chioatto, both read in the Court below. 6 The proceedings and findings may be summarised as follows: 7 Sandona lent Chioatto amounts of money in the 1970s. The action in the Court below was by Sandona's executrix for recovery. Judgment was given for Sandona's executrix on 12 July 2001. No issue of fact is in dispute; the issue is one of law. The Magistrate made the following holdings (at Jarrett's affidavit, pp 92-93). "(a) that Chioatto had not repaid the whole sum due; (b) that as a matter of law, the moneys were repayable not immediately but on upon a demand in accordance with the terms of the agreements (p 93.33-38); and