Rob Nichol Pty Ltd v Australia NID Pty Ltd [2002] NSWSC 371

Reported Decision : (2002) NSW ConvR 56-026

New South Wales Supreme Court

CITATION : Rob Nichol Pty Ltd v Australia NID Pty Ltd [2002] NSWSC 371 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11200/98 HEARING DATE(S) : 24 April 2002 JUDGMENT DATE : 6 May 2002

PARTIES : Rob Nichol Pty Ltd Australia NID Pty Ltd JUDGMENT OF : Davies AJ at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT 34/96 FILE NUMBER(S) : LOWER COURT Wakely LCM JUDICIAL OFFICER :

COUNSEL : Mr R Harper for the Appellant Mr C Bruge for the Respondent SOLICITORS : Edmunds & Co Solicitors for the Appellant Jason Li Lawyers for the Respondent CATCHWORDS : Landlord and tenant - commercial lease - appeal from decision of Local Court by way of stated case - whether respondent entitled to exclusive possession of the whole of the premises - whether sufficient evidence to support Magistrate's finding that lease agreement repudiated by conduct of appellant LEGISLATION CITED : Justice Legislation Amendment (Appeals) Act 1998 Local Courts (Civil Claims) Act 1970, s69 CASES CITED : D T R Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 DECISION : Appeal dismissed with costs.

- 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Davies AJ

Monday, 6 May 2002

11200 / 98 Rob Nichol Pty Ltd v Australia NID Pty Ltd

Judgment 1 His Honour: This appeal, from the judgment of Magistrate R Wakely in the Local Court at Raymond Terrace, given on 17 April 1997, was instituted prior to the amendments introduced by the Justice Legislation Amendment (Appeals) Act 1998. Accordingly, it was instituted by the procedure of case stated. As has happened so often in the past, the adoption of that procedure unduly complicated the presentation and consideration of the appeal. 2 Section 69 of the Local Courts (Civil Claims) Act 1970 confines the appeal to a point of law. The stated case enunciated points of law which the appellant sought to raise under seven paragraphs, which, being divided into sub-paragraphs, raised a total of 17 points. These points, in one way or another, attacked the findings of fact of the Magistrate. 3 On the hearing of the appeal, three points of law were relied upon by counsel for the appellant. They are: