CRANE DISTRIBUTION LIMITED v HUNTER [2003] NSWSC 120

New South Wales Supreme Court

CITATION : CRANE DISTRIBUTION LIMITED v HUNTER [2003] NSWSC 120 HEARING DATE(S) : 22-23/04/2002 JUDGMENT DATE : 13 March 2003

JUDGMENT OF : Dowd J DECISION : Appeal upheld; Magistrate's order as to costs vacated; plaintiff to have costs of Local Court proceedings; plaintiff to have costs of these proceedings.

CATCHWORDS : Order for costs consequent upon a civil claims judgment - judicial discretion - contention that discretion miscarried. LEGISLATION CITED : Local Court (Civil Claims) Act 1970 Local Court (Civil Claims) Rules 1988 CASES CITED : House v The King (1936) 55 CLR 499 Ritter v Godfrey [1920] 2 KB 47 PARTIES : Crane Distribution Ltd (formerly GE Crane & Sons Ltd) (ACN 000 003 832) (Plaintiff) Robert James Hunter (Defendant) FILE NUMBER(S) : SC 13825/01 COUNSEL : A Ridley (Plaintiff) H Gulpers (Defendant) SOLICITORS : S Rogers, Holman Webb (Plaintiff) M Bellantonio, Bellantonio & Rees (Defendant)

LOWER COURT Local Court JURISDICTION : LOWER COURT 120334/97 FILE NUMBER(S) : LOWER COURT Barkell LCM JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DOWD J

Thursday 13 March 2003

13825/01 CRANE DISTRIBUTION LIMITED v ROBERT JAMES HUNTER

JUDGMENT 1 HIS HONOUR: This is an appeal, by way of summons, from an order made by Barkell LCM on 26 November 2001 as to costs, in respect of a claim determined by her brought by the plaintiff. Crane Distribution Limited (formerly G E Crane & Sons Ltd) being the plaintiff in the proceedings below, seeks the following orders: i. An order vacating the order of Magistrate Barkell made 26 November 2001 whereby her Worship ordered the plaintiff to pay three-quarters of the defendant's costs from 26 May 1997, as agreed or assessed. ii. An order that the defendant pay the plaintiff's costs of both the Local Court proceedings and these proceedings as agreed within 28 days of the date hereof or as assessed. iii. Such further or other relief as the nature of the matter may require. 2 The defendant, Robert James Hunter, was the second defendant in the proceedings below, the first defendant being R J Hunter Plumbing and Drainage Pty Ltd. ("Hunter Plumbing"). 3 The original proceedings before the learned Magistrate were pursuant to an Amended Statement of Claim for the sum of $35,554.00, for goods sold and delivered to Hunter Plumbing and under two guarantees provided by the defendant to secure the debts of Hunter Plumbing for that same sum. Hunter Plumbing is in liquidation and did not defend the action. 4 The plaintiff is a wholesaler supplying plumbing equipment. Hunter Plumbing carried out plumbing work. The defendant and his wife were directors of and the defendant was the principal of Hunter Plumbing. 5 In her Worship's judgment on liability delivered on 13 September 2001, her Worship found there was no real dispute as to the debt on the pleadings, there being no defence from Hunter Plumbing and the defendant's defence stated that the goods were sold to Hunter Plumbing, but this statement did not remove the plaintiff's need to establish the quantum of goods sold to Hunter Plumbing. The hearing, in part, involved a dispute about the nature of the plaintiff's business records. 6 The plaintiff relied on the statement signed by the defendant which showed that he acknowledged some $23,000.00 of the amount that was owing by Hunter Plumbing. 7 Her Worship found, notwithstanding problems about the documentation, that Hunter Plumbing was indebted to the plaintiff for the amount of $23,183.06, being the amount shown as owing in the account of Hunter Plumbing. 8 The balance of the debt claimed was recorded as unofficial credit extended to Hunter Plumbing by the plaintiff's Penrith store manager, recording goods supplied, but described as being a "quotation" and on pieces of paper kept under the plaintiff's counter. As money was paid, the unofficial purchases were then entered on the plaintiff's computer and an invoice was generated. The manager of the Penrith store destroyed all documents, including his original list, and the only records of goods supplied to Hunter Plumbing were the "quotations". 9 Her Worship did not find the plaintiff could prove the quantum of the debt under the unofficial credit trading which the quotes purported to record and, therefore, her Worship found that Hunter Plumbing only owed the plaintiff $23,183.06 for goods sold and delivered. Her Worship then found that, for the reasons set out in her judgment, the guarantee by the defendant applied to the debt created by Hunter Plumbing. 10 There was an argument advanced by the defendant in the hearing that the defendant was incapable of understanding his actions in signing a guarantee in 1993, an issue which consumed a significant part of the hearing, her Worship finding that the medical issues and evidence adduced did not support the defendant's contention that he was suffering from unsoundness of mind and not capable of contracting, thus Her Worship found the defendant liable under the terms of the guarantee for the goods sold and delivered to Hunter Plumbing.