Cohen & Anor v The Christian Brothers (trading as St Edwards Christian College) [2006] NSWSC 688

New South Wales Supreme Court

CITATION : Cohen & Anor v The Christian Brothers (trading as St Edwards Christian College) [2006] NSWSC 688

HEARING DATE(S) : 4 July 2006

JUDGMENT DATE : 7 July 2006

JURISDICTION : Common Law

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : The appeal fails. The Summons is dismissed. The Plaintiffs are to pay the costs of the Summons. The Exhibits may be returned.

CATCHWORDS : Appeal from decision of Local Court - judgment for unpaid School fees in a modest sum - unmeritorious defence and appeal - unjustified allegations of bias - unrealistic allegations of denial of procedural fairness - no error in point of law - need for the limiting of appeals brought to this Court.

Phillip Cohen (First Plaintiff) PARTIES : Jennifer Cohen (Second Plaintiff) The Christian Brothers (trading as St Edwards Christian College) (Defendant)

FILE NUMBER(S) : SC 14518/05

COUNSEL : In Person (First Plaintiff) G Young (Defendant)

SOLICITORS : Not represented (First and Second Plaintiffs) Heidtman & Co Lawyers (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 119234/04

LOWER COURT JUDICIAL OFFICER : Sweeney LCM

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

Friday, 7 July 2006

14518 of 2005 Phillip Cohen & Anor v The Christian Brothers (trading as St Edwards Christian College)

JUDGMENT 1 His Honour: Ben Cohen is the stepson of the Plaintiffs. On 27 January 1999, the Plaintiffs signed an enrolment application for St Edwards Christian College (the "School"). The Defendant conducts the School. 2 The stepson attended the School between 27 January 1999 and the end of 2004 (he progressed from Year 7 to Year 12). During that time, School fees were unpaid. 3 On 22 January 2004, the Defendant commenced proceedings in the Local Court in its Small Claims Division (the "Campbelltown/Gosford claim"). The Defendant claimed School fees in the sum of $7,715.40. The particulars of claim contain inter alia the following:- "Monies owing for unpaid school fees due by April 2002 by the defendant to the plaintiff's school being The Christian Brothers, St Edwards Christian College T/as St Edward's Christian College, full particulars of which have been supplied to the defendant." 4 The Defendant relied on a Statement of Evidence from Mr Featheston (he was the Defendant's business manager). It set out a history of the indebtedness of the Plaintiff (up to 16 September 2004). The total was then said to be $12,513.70. 5 Paragraph 6 of the Statement contained the following:- "On 31 January 2002 a Family Transaction History was prepared by the plaintiff on behalf of the defendant, showing the debit at that stage to be $3,437.50. A copy of this document is annexed hereto and marked " D "." 6 Paragraphs 7 to 12 thereof set out the subsequent history of the indebtedness. In those proceedings, the Plaintiffs maintained the stance that what was said in paragraphs 7 to 12 was not relevant as it fell outside the period of the subject claim. 7 The proceedings were defended. The hearing resulted in a judgment in favour of the Defendant in the sum of $3,467.50 plus interest. 8 On 18 November 2004, the Defendant brought further proceedings in the Local Court in its General Division (the "Downing Centre claim"). School fees in the sum of $10,369.80 were claimed. The particulars of claim contain inter alia the following:- "Monies owing for unpaid school fees due by From April 2002 by the defendant to the plaintiff's school being The Christian Brothers t/as St Edward's Christian College full particulars of which have been supplied to the defendant." 9 These proceedings were also defended. The original defence put in issue a question of the existence of a Contract to pay the School fees. The proceedings were adjourned to allow the Plaintiffs to file an Amended Defence which raised an additional issue of estoppel. 10 The defended proceedings were heard on 5 September 2005 by Sweeney LCM (as she then was). The hearing took about a day. It resulted in a judgment for the Plaintiffs in the sum of $8,682.00 plus interest.