New South Wales Supreme Court CITATION : Matthews v Busy Bees [2001] NSWSC 581 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 10798 of 2001 HEARING DATE(S) : 27 June 2001 JUDGMENT DATE : 12 July 2001 Gordon Douglas Matthews (Plaintiff) PARTIES : v Busy Bees Property & Maintenance Pty Ltd (Defendant) JUDGMENT OF : Master Malpass LOWER COURT Local Court JURISDICTION : LOWER COURT 98/99 FILE NUMBER(S) : LOWER COURT Mr I McRae LCM JUDICIAL OFFICER : COUNSEL : Mr A Rogers (Plaintiff) Mr R Weaver (Defendant) SOLICITORS : Haille & Paine (Plaintiff) Kevin E Worthington (Defendant) CATCHWORDS : Appeal - error of law - past consideration - point not taken at first instance - not available in the circumstances of this case. LEGISLATION CITED : N/A CASES CITED : Chilcotin Pty Ltd & Anor v Cenelage Pty Ltd & Ors [1999] NSWCA 11. In re Casey's Patents. Stewart v Casey. [1892] 1 Chancery 104. DECISION : See Paragraph 17. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS THURSDAY 12 JULY 2001 10798 of 2001 GORDON DOUGLAS MATTHEWS v BUSY BEES PROPERTY & MAINTENANCE PTY LTD JUDGMENT 1 Mr & Mrs Spies have carried on business using the corporate vehicle known as Busy Bees Property & Maintenance Pty Ltd (the defendant). The plaintiff and the defendant had been engaged in business together. In 1995, they decided to enter into a business arrangement involving the hiring of videos. 2 The plaintiff leased premises at Moss Vale. The plaintiff was to supply the videos and the defendant was to run the business. There was agreement as to a profit sharing arrangement. There was also agreement that work was to be done both by way of renovating the leased premises and reconditioning the videos. In relation to that work, the defendant was to supply the labour for which it was to be remunerated by the plaintiff. 3 A discussion took place in the office of a solicitor (Mr Boyce). There was agreement that the defendant was to receive $22.50 per hour for renovation work and $16.50 per hour for reconditioning of tapes. 4 The defendant carried out renovation work. It was in the order of three or four weeks work involving twelve to sixteen hours per day. The shop opened for business on 25 August 1995. It closed on Anzac Day 1999, when the plaintiff locked out the defendant. 5 It is the defendant's case that the remuneration for the work done came to be fixed by agreement in the sum of $25,000. There is a written document which bears the date 1 September 1995. It contains the following provision:- "7. In recognition of the operators in put (sic) for the structural leasehold inprovements (sic), the proprietor will agree to having a liability in the sum of $25,000 to the Operators." The defendant says that this document was in fact executed in 1997 (after the sum had been fixed orally). 6 In 1999, the defendant filed an Ordinary Statement of Claim in the Local Court. It pleaded an agreement dated 1 September 1995. It claimed a number of sums totalling $26,938.90 (the principal part of which was the claim for $25,000). The plaintiff filed Notice of Grounds of Defence which inter alia denied any agreement whereby a liability would be assumed in the sum of $25,000. 7 The case went to hearing. The hearing took a number of days before Mr McRae LCM. The written document dated 1 September 1995 was tendered as Exhibit 2. Oral evidence was given inter alia by Mr & Mrs Spies and the plaintiff. He denied the making of the alleged agreement (in particular, he said that it was not his signature which appeared on it). On 9 February 2001, the learned Magistrate delivered judgment. 8 In the judgment, the learned Magistrate found in favour of the Defendant. He made adverse findings as to the credibility of the plaintiff. 9 The plaintiff has brought an appeal to this Court. It is common ground that the appeal is limited to an error of law. 10 Mr Rogers of counsel has appeared for the plaintiff. Mr Weaver of counsel has appeared for the defendant. 11 The conduct of the appeal was restricted to one ground only. The ground was expressed in the following terms:- "The claimed contractual entitlement for payment of $25,000 was void as an arrangement supported by past consideration". It appears that this ground was first ventilated in a document which although entitled "Summons" was in effect an Amended Summons. The court has been told this document was filed after Mr Rogers came into the matter. 12 The defence of past consideration was not expressly raised in the Notice of Grounds of Defence. It appears that it was not raised as a defence or argued in any way during the hearing before the learned Magistrate. 13 Generally speaking, the parties are bound by the course adopted during the hearing at first instance and an appellate court is loath to grant relief to an appellant when the point that is sought to be argued on the appeal has not been taken in the hearing at first instance ( Chilcotin Pty Ltd & Anor v Cenelage Pty Ltd & Ors [1999] NSWCA 11). It seems to me that this general approach has application in the present case. It may be added that if the point had been agitated at first instance a different course may have been taken in relation to the evidence placed before the court. 14 In any event, it seems to me that a defence of past consideration was not applicable on the circumstances of this particular case. 15 The case that was conducted in the Local Court saw departure from the formal pleadings. The evidence demonstrated that work was done. It was intended that the defendant be remunerated for it in a monetary sum. There was evidence that after the work had been performed a figure was struck which fixed the amount of the remuneration for that work. The learned Magistrate preferred the version of the agreement proffered by the defendant. The cases demonstrate that the promise to pay the price so fixed may be treated either as an admission or as a positive bargain ( In re Casey's Patents. Stewart v Casey. [1892] 1 Chancery 104 at 115 - 116). I may add (although it was not argued) that it may have been open to the defendant to present a case on an account stated. 16 The plaintiff bears the onus of demonstrating an error of law. In my view, that onus has not been discharged. Accordingly, the appeal fails. 17 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. 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