Venus Adult Shops Pty Limited v Lanier (Australia) Pty Limited [2006] NSWSC 63

New South Wales Supreme Court

CITATION : Venus Adult Shops Pty Limited v Lanier (Australia) Pty Limited [2006] NSWSC 63

HEARING DATE(S) : 16 February 2006

JUDGMENT DATE : 23 February 2006

JURISDICTION : Common Law

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : The judgment of the Local Court of 6 April 2005 is set aside; I propose to direct the entry of judgment for the defendant in respect of the claims which have been earlier identified in this judgment; the parties are to identify the precise sum in respect of which that judgment should be entered; I have been asked to reserve the question of costs and do so; the defendant is to prepare short minutes.

CATCHWORDS : Appellate grounds raise matters not in issue before Local Court - challenge to adequacy of reasons - error in quantum of judgment - judgment entered in favour of defendant for lesser sum.

PARTIES : Venus Adult Shops Pty Limited (Plaintiff) Lanier (Australia) Pty Limited (Defendant)

FILE NUMBER(S) : SC 12253/05

COUNSEL : Ms M Gerace (Plaintiff) Mr B Burke (Defendant)

SOLICITORS : I & T Solicitors (Plaintiff) Shaw McDonald (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 84183/2003

LOWER COURT JUDICIAL OFFICER : Maloney LCM

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

Associate Justice Malpass

23 February 2006

12253 of 2005 Venus Adult Shops Pty Limited v Lanier (Australia) Pty Limited

JUDGMENT 1 His Honour: Dispute arose between the parties concerning business equipment supplied by the defendant. The dispute made its way to the Local Court. It was heard by Maloney LCM on 6 April 2005. His Honour found in favour of the defendant (who was the plaintiff in the proceedings) in the sum of $35,821.53 together with interest and costs. 2 Although the claim had originally been presented on alternative bases, what was ultimately run was a claim for money due under a contract (in respect of use and purchase of equipment). An agreement dated 22 May 2003 had been made between the parties (the agreement). The agreement had been admitted by the plaintiff in the pleadings. It made provision for the payment of 48 monthly instalments by the plaintiff in respect of the use of equipment. The plaintiff also admitted the supply of equipment. 3 At the time of the commencement of the proceedings in the Local Court, 21 monthly payments had fallen due. The plaintiff had paid only two of them. Subsequent to the commencement of the proceedings, the defendant regained possession of certain of the equipment. 4 In the proceedings, the defendant did not restrict its claim to the 21 payments. It sought to recover what it saw as its full entitlement under the agreement. It is now conceded that a cause of action in respect of 21 payments only had accrued at the time of the commencement of the proceedings. 5 The judgment of the magistrate allowed for the 46 payments, together with a sum of $1,464.43 owing for toners and service fees. 6 The plaintiff has brought an appeal in this court. It seeks the setting aside of the judgment of the Local Court on the basis of error of law. It does not dispute the plaintiff's entitlement to the sum of $1,464.43. 7 The summons has been the subject of a number of amendments. The plaintiff presently proceeds on a further amended summons filed on 8 December 2005. It seeks, inter alia, an order that the judgment of the Local Court be set aside. There is no express reference to relief in respect of interest and costs. The summons contains ten grounds of appeal. 8 The appeal was heard on 16 February 2006. During the hearing, there was a change of position and many of the grounds were abandoned. Ultimately, the plaintiff relied only on grounds 1, 2, 5, 6 and 7. 9 Counsel for the parties prepared detailed written submissions. These were supplemented by oral argument. 10 A significant component of the written submissions relied on by the plaintiff concerned a contention that the Magistrate had failed to make findings concerning what was said to be the legal status of the agreement. One aspect of this contention was an alleged failure to determine whether the agreement was on foot or had been terminated. Another aspect was said to be a failure to determine whether there had been a repudiation and an acceptance of that repudiation. 11 It was not open to the plaintiff to argue such matters in the appeal. They had not been in issue before the Magistrate and were matters upon which the parties may have wished to adduce evidence. 12 I should mention that counsel for the plaintiff took the court to the transcript and the few references to termination that appear therein. These references fail to assist the plaintiff in this appeal. Termination was not an issue that the Magistrate was called upon to determine. The agreement was presented by the parties and dealt with by the Magistrate on the basis that it was on foot at the time of the commencement of the proceedings. 13 Some discussion also took place concerning mitigation. This matter was irrelevant and not pursued before the Magistrate because the defendant did not press an alternative claim for damages. 14 The Magistrate had before him a statement of agreed facts and issues. By the time it came on for hearing, the only matters left in issue by the plaintiff were:-