Kleenheat Autogas v Orbit Group [2006] NSWSC 1020

New South Wales Supreme Court

CITATION : Kleenheat Autogas v Orbit Group [2006] NSWSC 1020

HEARING DATE(S) : 22 September 2006

JUDGMENT DATE : 29 September 2006

JURISDICTION : Common Law

JUDGMENT OF : Associate Justice Harrison

DECISION : (1) The appeal is dismissed; (2) The decision of Her Honour Magistrate O'Shane dated 20 April 2006 is affirmed; (3) The summons filed 17 May 2006 is dismissed; (4) The plaintiffs are to pay the defendant's costs as agreed or assessed.

LEGISLATION CITED : Civil Procedure Act 2005 - s 100 Local Courts Act 1982 - Division 3, Part 7, s 74

CASES CITED : John Briscoe v Securecam Pty Ltd [2006] NSWSC 794 Jones v Dunkel (1959) 101 CLR 298

PARTIES : Kleenheat Autogas Pty Ltd & Elgas Autogas Pty Ltd t/as Unigas - Plaintiffs Orbit Group Services Pty Ltd - Defendant

FILE NUMBER(S) : SC 12303/2006

COUNSEL : Mr D Bernie - Plaintiff Mr T O Bland - Defendant

SOLICITORS : Williams The Law Firm - Plaintiffs Harb Lawyers - Defendant

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 11431/2004

LOWER COURT JUDICIAL OFFICER : O'Shane LCM

LOWER COURT DATE OF DECISION : 10 April 2006

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 29 SEPTEMBER 2006

12303/2006 - KLEENHEAT AUTOGAS PTY LTD & ELGAS AUTOGAS PTY LTD t/as UNIGAS v ORBIT GROUP SERVICES PTY LTD

JUDGMENT (Appeal decision of Local Court Magistrate) 1 HER HONOUR: By summons filed 17 May 2006 the plaintiffs, Kleenheat Autogas Pty Ltd and Elgas Autogas Pty Ltd t/as Unigas (Unigas), seek orders, firstly, that pursuant to Division 3 Part 7 of the Local Courts Act 1982 (NSW) (the Act) an appeal is allowed from the decision dated 20 April 2006 to dismiss the plaintiffs' claim in the General Division of the Local Court at the Downing Centre, Sydney in proceedings 11431/2004 between the plaintiffs and the defendant, Orbit Group Services Pty Ltd (Orbit) before Her Honour O'Shane LCM; secondly, in the alternative, leave be granted pursuant to s 74 of the Act to appeal against the decision in the Local Court on the grounds that involve a question of mixed law and fact; thirdly, an order pursuant to s 75 of the Act that the decision in the Local Court be varied by entering judgment for the plaintiffs in the sum of $17,012.64 together with interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) (CPA) from 5 July 2004 to date; and fourthly, an order that the defendant pay the plaintiffs' costs of the Local Court proceedings as agreed or assessed. 2 The plaintiffs sought leave to appeal on questions of mixed fact and law. Section 74(1) of the Act provides that a party to proceedings under this part who is dissatisfied with the judgment or order of a Court sitting in its General Division may appeal to the Supreme Court on a ground that involves a question of mixed law and fact, but only by leave of the Supreme Court. 3 Section 75 of the Act provides that the Court may determine an appeal either (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Court for determination in accordance with the Supreme Court's directions, or (d) by dismissing the appeal.