Pressguard Pty Ltd v Revro Pty Ltd [2001] NSWSC 240

New South Wales Supreme Court

CITATION : Pressguard Pty Ltd v Revro Pty Ltd [2001] NSWSC 240 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC 12370/00 HEARING DATE(S) : 6 February 2001 JUDGMENT DATE : 6 February 2001

PARTIES : Pressguard Pty Ltd (Plt) Revro Pty Ltd (Def) JUDGMENT OF : McClellan J

LOWER COURT Local Court JURISDICTION : LOWER COURT 4720/99 FILE NUMBER(S) : LOWER COURT G Johnson SM JUDICIAL OFFICER :

COUNSEL : G A Sirtes (Plt) G Maddox (Def) SOLICITORS : Price & Company (Plt) Andrew Frank & Co Lawyers (Def) CATCHWORDS : Justices Act 1902 s 104 - Local Court (Civil Claims) Act 1970 s 69 - contract - whether magistrate erred in finding that the plaintiff intended to enter into a binding contract with the defendant LEGISLATION CITED : Local Court (Civil Claims) Act 1970 DECISION : Summons dismissed

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCLELLAN J

TUESDAY, 6 FEBRUARY 2001

12370/00 - PRESSGUARD PTY LTD v REVRO PTY LTD

JUDGMENT

1 HIS HONOUR: This matter comes before me by way of an appeal brought under s 104 (5) of the Justices Act. That subsection provides that an appeal may be brought to the Supreme Court in any proceedings under the Local Court Civil Claims Act as provided for by s 69 of that Act. Section 69 of the Local Court Civil Claims Act (1970) provides in s 69 (1) that all judgments and orders of the Local Claims Court shall be final and conclusive. However, provision is made for an appeal by a party who is dissatisfied with the judgment or order of the Court as being erroneous in point of law. The appeal provided by s 69 (2) is to the Supreme Court. 2 It was submitted by the plaintiff in the matter before me that I had jurisdiction to deal with questions framed as mixed questions of fact and law if error was revealed in the decision of the magistrate on such a matter. Reliance was placed on s 104 (1). In my opinion, that submission is not correct. Section 104 (1) is confined to an appeal by a person against whom any conviction or order was made or sentence imposed by a magistrate in summary proceedings. In my opinion this is not a reference to a determination made in civil proceedings. Civil proceedings are dealt with exclusively by s 104 (5). 3 The plaintiff is a company which formed part of a group with common directors and shareholders. Mortlake Welding Co. Pty Ltd was another of the companies in the group. Mr and Mrs Lever are directors of the defendant company. Mr Evans was a director of the plaintiff and also of Mortlake Welding Co. Pty Ltd. All of these persons gave evidence before the magistrate. In short, that evidence indicated that Mr Lever was contacted by Mr Evans and asked whether he could assist in meeting an order which Mr Evans had attained from a company, F Muller Pty Ltd. I understand the nature of the work sought to be undertaken involved the supervision or checking of the safety equipment at various industrial premises. 4 The essential dispute which emerged before the magistrate was whether the contract which was discussed between Mr Evans and Mr Lever was one between the plaintiff and the defendant or between Mortlake Welding Co. Pty Ltd and the defendant. 5 It appears that Mortlake Welding Co. Pty Ltd has gone into liquidation and accordingly if the contract was with that company it is likely that the debt cannot be met. The total sum claimed before the magistrate was $17,222. 6 In a carefully reasoned judgment the magistrate in the Civil Claims Court examined the evidentiary material before him. He identified the evidence favourable to the plaintiff, and the evidence favourable to the defendant. Critical to his analysis and ultimate finding was the fact that the defendant invoiced the plaintiff and although cheques were drawn on Mortlake Welding Co. Pty Ltd it was never suggested that the invoices were incorrectly drawn. He also placed great reliance on a conversation between Mrs Lever and Mr Anderson after problems had emerged with payment. He records that conversation in the following terms: "It was her evidence that she said to Mr Anderson, 'Rod, who are we dealing with?' She said that his reply was, 'You are dealing with Pressguard Pty Ltd'. She asked, 'Then why are we receiving Mortlake Welding Co. cheques?' She said he replied, 'the cheques come from whichever account has the money in it.'" 7 The magistrate added in brackets: "(it will be remembered that Mr Evans was involved in Mortlake Welding Co., Walker and Gibson and Walker and Gibson Sales Pty Ltd.) Mrs Lever noted in the contact report of 13 August 1997. He said we were dealing with Pressguard Pty Ltd." 8 Mr Anderson apparently denied there was ever such a conversation. The magistrate did not accept his evidence. 9 In the proceedings before me, the plaintiff filed a lengthy document in the form of a summons urging many grounds of appeal. The summons categorizes the errors allegedly made by the Magistrate as either errors of law or errors of fact and law. However, it appears to me that the grounds agitated before me amount to no more than claims that the Magistrate erred in fact. 10 The oral submission by the plaintiff's counsel refined the grounds upon which the attack was made upon the magistrate's decision. As I understand the submission, it has three limbs. Firstly, it is submitted that the magistrate gave weight to subjective matters, not objective matters and that this constituted an error of law. Secondly, it is submitted that in making certain factual determinations there were errors of law either because factual findings were made in the absence of evidence or because the magistrate allowed conjecture to influence his decision. A global submission was made that there was no evidence before the magistrate evincing an intention by the plaintiff to enter into a contract with the defendant. 11 Plaintiff's Counsel also submitted that the magistrate erred by accepting the evidence of Mrs Lever and rejecting the evidence of Mr Anderson in circumstances where the latter was not tested about his denial of the relevant conversation. In my opinion this submission should be rejected for it was clear that both in chief and in cross-examination Mr Anderson was given an opportunity to deal with the matter. I am satisfied it was open to the magistrate to reject Mr Anderson on this point. 12 In my opinion the magistrate correctly approached the task before him. He examined the relevant evidence, including the evidence of each of the major participants and the correspondence and other documentary material which was tendered before him. He did not merely rely upon the stated belief of the defendant through its officers but looked to the objective facts. Although he may have allowed himself to conjecture as to the reasons for some of the actions of Mr Evans, including that his apparent matrimonial difficulties may have influence his companies affairs, it is not apparent that this has influenced the magistrates decision in an impermissible manner. 13 In my opinion there was evidence from the circumstances of the original negotiation with Mr Evans and through his dealings between the parties upon which the magistrate could base a finding that the plaintiff intended to enter into a binding contract with the defendant. In my opinion the magistrate appropriately tested the stated belief of Mr and Mrs Lever that they contracted with the plaintiff by considering other relevant evidence. 14 I am of the opinion that the plaintiff has not identified any error of law and accordingly the summons is dismissed. I order the plaintiff to pay the defendant's costs.