Zappia v Grant Baines Transport Pty Ltd [2008] NSWSC 608

New South Wales Supreme Court

CITATION : Zappia v Grant Baines Transport Pty Ltd [2008] NSWSC 608

HEARING DATE(S) : 8 May 2008

JUDGMENT DATE : 18 June 2008

JURISDICTION : Common Law Division

JUDGMENT OF : Hislop J

DECISION : (1) The judgment in favour of the defendant, Grant Baines Transport Pty Ltd, be set aside and the matter be remitted to the Newcastle Local Court to be redetermined. (2) Leave to appeal against the costs order made on 1 June 2007 is refused. (3) Each party is to bear his or its costs of this appeal.

LEGISLATION CITED : Corporations Act, 2001 (Cth) Local Courts Act, 1982

CASES CITED : Oshlack v Richmond River Council (1998) 193 CLR 72

PARTIES : John Zappia (Plaintiff) Grant Baines Transport Pty Ltd (Defendant)

FILE NUMBER(S) : SC 13242/07

COUNSEL : J.T. Johnson (Plaintiff) M. Holmes (Defendant)

SOLICITORS : Hall Partners (Plaintiff) Perry Legal (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 240/2006

LOWER COURT JUDICIAL OFFICER : Magistrate M. Morahan

LOWER COURT DATE OF DECISION : 11 September 2007

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HISLOP J

Wednesday 18 June 2008

13242/07 JOHN ZAPPIA v GRANT BAINES TRANSPORT PTY LTD

JUDGMENT

Introduction 1 In February 2004 Grant Baines Transport Pty Ltd ("Transport") reached an agreement with Zaps Logistics Pty Ltd ("Zaps") for the provision of transport services. Between 30 December 2004 and 14 March 2005 Transport rendered a number of invoices for such services to Zaps, totalling $53,504.58 which remained unpaid. On 13 July 2005 an administrator was appointed to Zaps and on 7 September 2006 a liquidator was appointed. Zaps later changed its name to Quez Removals Pty Ltd. 2 Transport brought proceedings in the Local Court at Newcastle pursuant to s 588M of the Corporations Act, 2001 (Cth) to recover the outstanding $53,504.58 from John Zappia, a director of Zaps at the time the invoices fell due. In a reserved judgment dated 11 September 2007 the learned magistrate gave judgment for Transport in the sum claimed plus interest. 3 Mr Zappia, by his further amended summons filed on 24 October 2007, has appealed to this court from that judgment and also from an earlier decision of 1 June 2007 in which he was ordered to pay the costs of an adjournment on an indemnity basis. 4 The Local Courts Act, 1982 provides for appeal as of right to this court where a party alleges a judgment is erroneous in point of law (s 73(1)). However, a party may only appeal to this court by leave of the court from an order as to costs (s 74(2)).