New South Wales Supreme Court CITATION : Winkler v Omega Kitchens NSW Pty Limited [2006] NSWSC 671 HEARING DATE(S) : 29 June 2006 JUDGMENT DATE : 5 July 2006 JURISDICTION : Common Law Division JUDGMENT OF : Associate Justice Malpass at 1 DECISION : The appeal fails. The Summons is dismissed. The Plaintiff is to pay the costs of the Summons. CATCHWORDS : Alleged error in point of law - Magistrate finds that Plaintiff was a party to alleged contract - challenge to interlocutory decisions - no application for or grounds for granting leave - no error in point of law. PARTIES : Maurizio Winkler (Plainitff) Omega Kitchens NSW Pty Limited (Defendant) FILE NUMBER(S) : SC 10147/06 COUNSEL : In person (Plaintiff) G Van Der Vlag (Defendant) SOLICITORS : Not represented (Plaintiff) Levit Robinson, Solicitors (Defendant) LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 132/2005 LOWER COURT JUDICIAL OFFICER : Prowse LCM LOWER COURT DATE OF DECISION : 15 December 2005 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Associate Justice Malpass Wednesday, 5 July 2006 10147 of 2006 Maurizio Christopher WINKLER v OMEGA KITCHENS NSW PTY LIMITED JUDGMENT 1 His Honour: The Plaintiff was the Director and Secretary of Estrenc Pty Limited (the "company"). The company may be no longer trading because of financial difficulties. 2 The company was involved in a project at Bishopthorpe Manor at Goulburn. One aspect of the project involved was the supply and fitting of a kitchen in the Rose Cottage. The Defendant performed that work between about March 2004 to June 2004 at a cost of $11,512.00. 3 An invoice was directed to the company in the sum of $10,360.00 (being the cost of the work less a deposit paid by the company). The sum has not been paid. 4 Ultimately, proceedings were brought in the Local Court (General Division). In those proceedings, the company was named as the First Defendant and the Plaintiff was named as the Second Defendant. 5 The cause of action was expressed in the following terms:- "DESIGN, SUPPLY AND FIT OF A TIMBER COTTAGE KITCHEN BY THE PLAINTIFF AT THE REQUEST OF THE DEFENDANT TO THE ROSE COTTAGE AT BISHOPTHORPE MANOR, GOULBURN IN MARCH, 2004." 6 A defence was filed on behalf of both the Plaintiff and the company. It was in the following terms:- "1. In relation to paragraph 1, the First Defendant agrees that it, in its capacity as agent of Bishopthorpe Manor (" Bishopthorpe "), requested the Plaintiff to design, supply and fit a timber cottage kitchen to the Rose Cottage at Bishopthorpe Manor in Goulburn in March 2004, for the benefit of Bishopthorpe. 2. Bishopthorpe operates a boutique guesthouse located at 1 Bishopthorpe Lane Goulburn NSW 2580. 3. Huka Investments Pty Ltd (" Huka ") trades as Bishopthorpe Manor and is the correct named Defendant in these proceedings. 4. The First and Second Defendants deny that any work was done on their behalf and deny that they are liable to the Plaintiff as alleged or at all. 5. The Second Defendant is neither a Director nor Shareholder of Huka. 6. The Statement of Liquidated Claim does not disclose a cause of action as required under Part 5 Rule 2 of the Local Court (Civil Claims) Rules 1988 (" the Rules ")." 7 The matter came on for hearing at Goulburn on 15 December 2005. It was heard by Mr Prowse LCM. The parties were legally represented. 8 A contested hearing took place. The Defendant relied on an affidavit of Karen Skillman. She was a Director and Secretary of the Plaintiff. She was not cross-examined. It seems that no challenge was made to any of the material set forth therein because the Plaintiff had taken the view that its contents supported his case. The Court also had before it a document entitled Statement of Agreed Facts and Issues. The Plaintiff chose to put no evidence whatsoever before the Court. 9 During the hearing, the Plaintiff and the company applied to have the Statement of Liquidated Claim struck out. The thrust of the submission in support of this application was said to be that it did not particularise the claim in accordance with the rules. The Defendant applied to have the defence struck out. After hearing submissions on these applications, the Magistrate struck out the defence. He did not strike out the Statement of Liquidated Claim. 10 The Magistrate could have than entered default judgment. Instead, he continued with the hearing. 11 As neither legal representative wished to make further submissions, the Magistrate delivered his judgment. In that judgment, he appears to have dealt with the matter on the basis that the Defendant had to prove its case. The question dealt with by him embraced the thrust of the defence that the Plaintiff and the company were not parties to the alleged contract. In so doing, he had regard to the evidence that the Plaintiff was happy to have before the Court. The Magistrate found for the Defendant against both the Plaintiff and the company. 12 The Plaintiff commenced proceedings in this Court on 11 January 2006. He was then legally represented. The Summons contained the following grounds of appeal:- "The Court erred in Law: a. In striking out the Plaintiff's defence to the Statement of Liquidated Claim. b. In finding that the Statement of Liquidated Claim disclosed a cause of action especially in circumstances where the defence to the Statement of Liquidated Claim specified that it did not plead a cause of action. c. In finding that there was a contractual relationship between the Plaintiff and Defendant in circumstances where there was no evidence to support that finding. d. In finding that there was a contractual relationship between the Plaintiff and Defendant in circumstances where the facts inferred by the Court below and supported by the evidence from the respondent were incapable of justifying the finding of fact based upon those inferences." 13 The appeal was heard on 29 June 2006. The Plaintiff appeared in person. The company was not represented. There is no challenge made to the judgment entered against it. The Defendant was represented by counsel. 14 The appeal that is brought by the Plaintiff alleges error in point of law. He bears the onus of satisfying the Court that there has been such error and that it justifies the disturbing of the decision of the Magistrate. 15 The appeal not only seeks to disturb the ultimate decision, it also seeks to disturb two prior interlocutory decisions. There is no appeal as of right from those two interlocutory decisions. A challenge is only maintainable by leave. No application for leave has been made. No grounds for the granting of leave have been made out. Be that as it may, I shall for completeness make some brief observations concerning these two decisions. 16 It may be said that the Statement of Liquidated Claim had shortcomings. What was pleaded appears to have had in mind a common money count. Its contents appear to have not left the Plaintiff in any doubt as to what case was being alleged against him. His legal advisors did not move first to have it struck out. Rather, they chose to plead over any pleading shortcomings by filing a defence. 17 It may be thought to be somewhat unclear what the basis was upon which the Magistrate came to strike out the defence. He appears to have been swayed by the fact that there was no evidence adduced to support the pleading. Perhaps, he had in mind that it was therefore doomed to failure and an abuse of process. It is unnecessary to explore whether this decision was correct or otherwise as the Magistrate still proceeded to deal with the question of whether or not the Plaintiff was a party to the alleged contract. He satisfied himself that there was evidence to support a finding that inter alia the Plaintiff was a party to the contract. 18 In this appeal, the Plaintiff seeks to challenge that finding. He can only successfully do so if he was able to demonstrate that there was no evidence whatsoever to support the finding. In my view, he has failed to discharge that onus. 19 It is necessary for the Plaintiff to bear in mind that mere unhappiness with a decision is not a basis for disturbing it. The Court has no such power to do so. 20 Whilst the evidence may not have been overpowering, indisputably there was evidence before him to support a finding that the Plaintiff was a party to the contract. 21 The alleged contract was one said to arise from conduct. There was conduct inter alia on the part of the Plaintiff that supported the finding. I shall briefly mention some of the material that was before the Magistrate. In so doing, I am not intending to exhaustively record all of the material that was available to support his finding. 22 The Defendant forwarded a standard form of contract. The party named therein was Estrenc Pty Ltd ("Estrenc"). The contract was not executed by the company. A document (which may or may not form part of the contract) has the name of the Plaintiff on it and a signature which could have been regarded by the Magistrate as the signature of the Plaintiff (there was no evidence to say that it was not his signature). Work was performed thereafter on instructions given by the Plaintiff. He played an active role in the dealings with the Defendant. Subsequent to the completion of the work, conversations were had with the Plaintiff. There were conversations which could have been regarded by the Magistrate as inter alia constituting admissions made by him. 23 The appeal fails. The Summons is dismissed. The Plaintiff is to pay the costs of the Summons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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