Shiels v Dyson Austen & Co [2003] NSWSC 370

New South Wales Supreme Court

CITATION : Shiels v Dyson Austen & Co [2003] NSWSC 370 HEARING DATE(S) : 22 April 2003 JUDGMENT DATE : 2 May 2003 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned.

CATCHWORDS : Appeal from Local Court - inadequacy of reasons and findings - amendment of grounds of appeal - attempt to litigate matters not ventilated in Local Court - no error of law. LEGISLATION CITED : N/A CASES CITED : N/A Roger Kenneth Shiels (Plaintiff) PARTIES : v Dyson Austen & Co Pty Limited (Defendant) FILE NUMBER(S) : SC 13023 of 2002 COUNSEL : Mr N Newton (Plaintiff) Mr D H Murr SC/Mr P Stitz (Defendant) SOLICITORS : Macedone Christie Willis (Plaintiff) Helliars City Solicitors (Defendant)

LOWER COURT Local Court JURISDICTION : 1594 of 2000 Level 5 The Downing Centre; LOWER COURT Sydney. FILE NUMBER(S) :

LOWER COURT C Haskett LCM JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

Friday 2 May 2003

13023 of 2002 Roger Kenneth Shiels v Dyson Austen & Co Pty Limited

JUDGMENT 1 MASTER: The plaintiff was the second defendant in proceedings brought by the defendant in the Local Court to recover a monetary judgment. The defendant had provided services (the valuation of a property) to RJRR Pty Limited (the first defendant in those proceedings). The claim was for the sum of $10,000 together with interest. 2 Default judgment was entered against the first defendant. It went into liquidation. The proceedings were prosecuted against the second defendant. 3 The claim was heard by Haskett LCM. Judgment was delivered on 8 October 2002. The defendant was successful in its claim. 4 The relationship between the two defendants remains far from clear. The second defendant presented himself as being a consultant. It may be that his wife was a director of the first defendant. He was involved in certain of the first defendant's projects. The claim arose out of a project at Point Piper. It did not proceed. There was also a project at Albion Park. 5 The defendant instructed solicitors to take action to recover the debt. Communications then took place between the plaintiff and the defendant. There were telephone conversations and facsimile transmissions. Thereafter, for about 6 months, no further action was taken to recover the debt and no payment was made. 6 There was a telephone conversation which was followed by a facsimile transmission of 24 June 1999 from the plaintiff. There was a telephone conversation (the second conversation) which preceded a facsimile transmission of 22 July 1999 from the plaintiff. 7 Apart from documentary material, oral evidence was given by Mr Rooke (on behalf of the defendant) and the plaintiff. There was a dispute concerning the second telephone conversation. The plaintiff maintained that it had not taken place. There was a dispute concerning a facsimile transmission said to have been made by the plaintiff on 31 July 1999. It was said to not have been sent. 8 Mr Rooke gave inter alia the following evidence concerning the second telephone conversation:- "………I had a telephone call from Mr Shiels in which he said : Why get lawyers involved? I am too honest to be a developer. Don't take proceedings I have given you my assurance. There is no point ripping up trees or forests you will be paid. I will see you set. You have my personal undertaking it will be paid." ………………………………………………………………….." 9 He gave inter alia the following further evidence:- "………………………………………………………………….. 9. I instructed my solicitor to take no further action with respect to this debt as Mr Shiels had personally assured that the money would be paid. It was not so paid after what I consider to have been a more than reasonable time. …………………………………………………………………….." 10 The learned Magistrate considered the evidence and made findings on credit. The evidence of Mr Rooke was preferred. The plaintiff was found to have given evidence that was not credible and lacked candour. 11 The claim was pleaded as an agreement made by the second defendant to personally pay the moneys owed by the first defendant. The consideration was said to be the forbearing to take action against the first defendant. The pleading referred to the facsimile transmissions of 24 June 1999 and 22 July 1999. It did not refer to the second telephone conversation. 12 The case was opened as being a dispute over a personal guarantee or undertaking. It was said to be evidenced by two facsimiles with a telephone conversation in between. 13 The judgment of the learned Magistrate contained the following:- "ACCORDINGLY I FIND THAT THE PHONE CALL AS ALLEGED BY MR ROOKE WAS MADE AND THAT THE FAX OF 31 JULY 1999 WAS NOT SENT AND SO I FIND JUDGMENT FOR THE PLAINTIFF. That is in the sum of $10,000 together with interest as calculated?" 14 It is common ground that this passage determined the two principal matters of fact litigated during the hearing. 15 The plaintiff does not seek to disturb the findings of fact made by the learned Magistrate. These were dependent on the findings made as to credit. 16 These proceedings were commenced by Summons filed on 5 November 2002. An appeal is brought against the decision of the learned Magistrate. The grounds of appeal are as set forth in an Amended Summons filed in court on 11 February 2003. They are as follows:- " Grounds of Appeal: 1. The Magistrate, Mrs Haskett LCM, found that a telephone call had been made between the 2nd Defendant in the Local Court Proceedings, Roger Shiels ('Shiels'), and Colin Rooke on behalf of the Plaintiff in the Local Court Proceedings, Dyson Austen & Co Pty Limited ('Dyson'). 2. Based upon the above determination, the Magistrate determined that Shiels had guaranteed to pay a debt owed to Dyson by RJRR Pty Limited. 3. The Magistrate erred in finding that the telephone call could at law constitute a guarantee. 4. In the alternative, the Magistrate erred in failing to make a determination as to whether the telephone call could at law constitute a guarantee. 5. In the alternative, the Magistrate erred in not making a determination as to whether the facsimiles dated 24 June 1999 and 22 July 1999 each or in combination constituted a guarantee. " 17 The avenue of appeal open to the plaintiff is by way of error of law. The plaintiff bears the onus of satisfying the court that there was an error of law which justified the disturbing of the decision. 18 It is common ground that an appellant is confined to the grounds of appeal nominated in his process. Usually, he will not be able to agitate matters by way of appeal which were not litigated in the lower court (inter alia he will not be allowed to raise fresh matter where evidence may have been called on it and that evidence might have affected the result). 19 During his presentation of the appeal, counsel for the plaintiff sought to substantially depart from the grounds of appeal. The matters that were sought to be argued are set forth in the written Plaintiff's Outline Submissions. Generally speaking, the matters involved inter alia an attack on the adequacy of the reasons, an attack on the lack of material findings and a failure to deal with certain questions. One was a question of the agreement being the subject of conditions which were not fulfilled. Another was a question of non communication of acceptance of what was said to be the offer made in the second telephone conversation. 20 An application to amend the grounds of appeal was belatedly made during reply. The application was opposed by the defendant and refused by the court. For completeness, I should add that an allowing of the amendment would not have seen a different result in this appeal. 21 The grounds of appeal proceed on the basis that the learned Magistrate had found that the second telephone conversation had been made between the parties and that it constituted a guarantee to pay the debt owed by the first defendant. It was asserted that it was erroneous to determine that it could at law constitute a guarantee and that it was erroneous not to make determinations in relation to the facsimiles of 24 June 1999 and 22 July 1999. 22 At first glance, the expression of reasoning process and of the findings made appear to be economical in nature. The learned Magistrate could have been more expansive. However, what has been said must be seen in the context in which this litigation was conducted. 23 There was departure from what was pleaded in the Statement of Liquidated Claim. The case underwent change during the hearing. This was done without complaint. 24 It appears that the arguments put by the parties concentrated on the question of the respective credit of Mr Rooke and the plaintiff. Upon deciding that question, the learned Magistrate determined the two principal matters of fact in issue. 25 The grounds of appeal demonstrate that the plaintiff was in no doubt as to what findings had been made. He had no difficulty in enunciating the grounds of appeal that he proposed to prosecute. The disclosure of reasoning process was sufficient for the purposes of dealing with this appeal. 26 The two facsimile transmissions were not in dispute. The learned Magistrate, by implication, found that the alleged agreement was made during the second telephone conversation. It was a finding that was open on the material. Such agreement was in the simplest of terms and judicial elaboration was not required. For present purposes, it is unnecessary to determine whether or not it can be properly categorised as a guarantee. The question of whether or not the agreement was the subject of conditions which had not been fulfilled was neither pleaded nor litigated. In the light of the finding made by the learned Magistrate, it was not a question that had to be decided. The question of whether or not acceptance of the offer made by the plaintiff was not communicated to him was also neither pleaded nor litigated. Both of these questions were matters upon which evidence may have been called and that evidence might have affected the result. 27 In my view, no error of law has been demonstrated and certainly no error of law that justifies the disturbing of the decision. Accordingly, the appeal fails. 28 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned. **********