Isaac v Benjamin [2011] NSWSC 348

Supreme Court New South Wales

Medium Neutral Citation: Isaac v Benjamin [2011] NSWSC 348 Hearing dates: 4 March 2011 Decision date: 29 April 2011 Jurisdiction: Common Law Before: Hislop J Decision: Amended summons dismissed. Plaintiff to pay the defendant's costs Catchwords: Local court - appeal - contract - no question of law - appeal dismissed Legislation Cited: Local Court Act 2007 Cases Cited: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Mifsud v Campbell (1991) 21 NSWLR 725 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Azzopardi v Tasman UEB Industries Limited (1995) 4 NSWLR 139 Category: Principal judgment Parties: Henrick Isaac (Plaintiff) Joseph Benjamin (Defendant) Representation: Counsel: K Andronos (Plaintiff) R Francois (Defendant) Counsel: Demir Legal (Plaintiff) Brown Wright Stein (Defendant) File Number(s): 2010/237830

Judgment

Introduction 1On 30 July 2009 the plaintiff filed a statement of claim in the Local Court claiming the sum of $33,355.17 as moneys loaned by the plaintiff to the defendant and not repaid by him. An alternative cause of action for money had and received (unjust enrichment) was also pleaded. 2The defendant, in his defence, denied the claim and cross-claimed for $18,400.00 being the balance of an allegedly unpaid loan of $20,000.00 made by him to the plaintiff less a credit of $1,600.00 being bond money which the defendant had retained as part repayment of the loan. 3The proceedings were heard by Magistrate Bradd. His Honour found verdicts for the defendant on the claim and cross-claim, the latter for $18,400.00. 4The plaintiff has appealed from that decision. The appeal is limited to questions of law (s 39(1)) of the Local Court Act 2007). The plaintiff did not seek leave pursuant to s 40 of that Act. 5There are four grounds of appeal. They are set out in the amended summons filed by leave at the hearing. The grounds are: "1. The Magistrate failed to provide reasons or adequate reasons. 2. The Magistrate erred in law in finding a binding agreement between the plaintiff, the defendant and a third party, Mr Fudor Manso the terms of which required the plaintiff to provide legal services to them on the basis that he would personally indemnify them for costs if unsuccessful in the proceedings in which they were plaintiffs. 3. The Magistrate failed to consider the plaintiff's claim for unjust enrichment. 4. The Magistrate denied the plaintiff procedural fairness by: (a) Rejecting the tender of evidence relevant to the existence of a costs agreement between the plaintiff, Mr Benjamin and Mr Manso, and (b) Finding that the plaintiff's account was not credible for reasons which included that the plaintiff's demand for payment in April 2009 was motivated by a desperate need for money when such an allegation had not been put in the plaintiff in the course of the trial."