Todarello v Martin & Luscombe Pty Limited [2002] NSWSC 71

New South Wales Supreme Court

CITATION : Todarello v Martin & Luscombe Pty Limited [2002] NSWSC 71 CURRENT JURISDICTION: Supreme Court of New South Wales FILE NUMBER(S) : SC 13509/2001 HEARING DATE(S) : 11 February 2002 JUDGMENT DATE : 20 February 2002

PARTIES : Mr. Anthony Todarello and Mrs. Maria Todarelllo Martin & Luscombe Pty Limited JUDGMENT OF : Sully J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT 969/2000 FILE NUMBER(S) : LOWER COURT Magistrate S D K Hyde JUDICIAL OFFICER :

COUNSEL : D. Charles - Plaintiffs K. Smark - Defendant SOLICITORS : William J. Player - Plaintiffs McPhee Kelshaw - Defendant Local Courts (Civil Claims) Act 1970 (NSW) LEGISLATION CITED : Contracts Review Act 1980 (NSW) Trade Practices Act 1974 (C'th) CASES CITED : Re Spenborough Urban District Council's Agreement [1968] Ch. 139 DECISION : Judgment of Local Court affirmed; Summons dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SULLY J

Wednesday 20 February 2002

13509/01 - TODARELLO v MARTIN & LUSCOMBE PTY LIMITED

JUDGMENT 1 SULLY J: By a summons filed on 13 November 2001 Mr. Anthony Todarello and his wife Mrs. Maria Todarello as Plaintiffs seek against Martin & Luscombe Pty Limited as Defendant an order setting aside a judgment and order of a Local Court Magistrate made on 17 October 2001 in certain proceedings in the Local Court at Penrith, in which proceedings Mr. and Mrs. Todarello were, also, plaintiffs, and Martin & Luscombe Pty Limited was, also, defendant. Such an appeal to this Court lies pursuant to section 69 of the Local Courts (Civil Claims) Act 1970 (NSW). That section provides, relevantly: "69.(1) Subject to sub-section (2), all judgments and orders of a court exercising jurisdiction under this Act shall be final and conclusive. (2) A party to proceedings under this Act who is dissatisfied with the judgment or order of the court as being erroneous in point of law, may appeal to the Supreme Court therefrom. (2A)…………. (not applicable) (3) The provisions of section 101 to section 115, both sections inclusive, of the Justices Act 1902 , apply, to the extent to which they are applicable, to appeals under sub-section (2) in the same way as they apply to appeals to the Supreme Court under those provisions." 2 The proceedings in the Local Court were commenced by a Statement of Claim, the ultimate form of which, after amendment, claimed a sum of $19,000, pleading as follows the causes of action: "1. Moneys due and owing by the Defendant to the Plaintiff in respect of accountancy fees paid in advance under an agreement subsequently cancelled. IN THE ALTERNATIVE: 2. Damages under section 51AC of the Trade Practices Act ; OR: 3. Relief from an alleged contract between the parties dated on or about 19 June 1999 pursuant to the Contracts Review Act 1980 , to the extent that the amount claimed be repaid to the Plaintiffs." 3 A lengthy and elaborate Defence was pleaded; but it is not necessary to say more about it than that it put in issue each and every one of the claims for relief pleaded in the Amended Statement of Claim. 4 In the Local Court, and again on the hearing of the appeal in this Court, certain matters of fact were not in dispute. The agreed facts can be summarised as follows: