Bower v Goth [2006] NSWSC 805

New South Wales Supreme Court

CITATION : Bower v Goth [2006] NSWSC 805

HEARING DATE(S) : 4 August 2006

JUDGMENT DATE : 17 August 2006

JURISDICTION : Common Law

JUDGMENT OF : Associate Justice Harrison

DECISION : (1) The appeal is dismissed; (2) The decision of His Honour Magistrate Railton made on 13 March 2006 is affirmed; (3) The summons filed 6 April 2006 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS : Appeal - Local Court Small Claims Division - outstanding architect's fees

LEGISLATION CITED : Local Courts Act 1982 (NSW) - ss 70, 73 Uniform Civil Procedure Rules 2005 - Part 50.5

Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 CASES CITED : Wakin v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405 Wende v Fuinney [2005] NSWSC 927

PARTIES : Lawrence Bower [Arthitects] Pty Ltd - Plaintiff James Goth - Defendant

FILE NUMBER(S) : SC 11574/2006

SOLICITORS : Mr L Bower - Plaintiff in person Mr J Goth - Defendant in person

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 645/2005

LOWER COURT JUDICIAL OFFICER : Railton LCM

LOWER COURT DATE OF DECISION : 13 March 2006

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

THURSDAY, 17 AUGUST 2006

11574/2006 - LAWRENCE BOWER [ARCHITECTS] PTY LTD v JAMES GOTH & ANOR

JUDGMENT (Appeal – Local Court Small Claims Division – outstanding architect's fees) 1 HER HONOUR: By summons filed 6 April 2006 the plaintiff seeks firstly, an order granting leave to appeal the decision of His Honour Magistrate Railton LCM made on 13 March 2006; secondly, an order that the decision of the Magistrate be set aside; and thirdly, and order that the first defendant pay to the plaintiff the sum of $4,625.54. 2 The plaintiff is Lawrence Bower [Architects] Pty Ltd. The defendant is James Goth. Ms Baker from the Crown Solicitor appeared for the Magistrate and requested that pursuant to Part 50.5 of the Uniform Civil Procedure Rules 2005 (UCPR) that he be removed as a party. The order was made. The plaintiff relied on his affidavits sworn 11 April 2006, 23 May 2006 and 2 June 2006. Both parties appeared in person, unrepresented in the Local Court and in this Court. As these affidavits are voluminous, the plaintiff was requested to identify the documents before the Magistrate so as to assist the Court. For convenience, I shall refer to the plaintiff as Mr Bower and the defendant as Mr Gower in this judgment. 3 Mr Bower sought payment of $4,195.95 being outstanding fees for architectural work. On 6 March 2006 the hearing took place. On 13 March 2006 the Magistrate dismissed Mr Bower's claim. 4 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by Mr Bower. Section 73(2) of the Local Courts Act 1982 (NSW) allows an appeal to this court on the grounds of lack of jurisdiction or denial of natural justice. 5 Section 75 of the Act provides that the Court may determine an appeal by either (a) varying the terms of the judgment or order or (b) setting the judgment or order aside or (c) setting the judgment or order aside and remitting the matter for determination in accordance with the Court's directions or (d) dismissing the appeal.