Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Saini v Nachatter [2011] NSWCA 240 Hearing dates: On the papers Decision date: 18 August 2011 Before: Allsop P at 1; Basten JA at 1 Decision: Leave to appeal refused with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COSTS - appeal - leave required - no order as to trial costs - limited success - main head of damage not awarded - Uniform Civil Procedure Rules 2005 (NSW) Rule 42.1 PROCEDURE - civil - leave to appeal -error of fact finding by primary judge - amount in issue small - costs disproportionate to the amount in dispute - prospect of success not strong Legislation Cited: District Court Act 1973 (NSW), s 127 Uniform Civil Procedure Rules 2005 (NSW), r 51.15 Category: Principal judgment Parties: Lakhvir Singh Saini - First Applicant Saini Pty Ltd - Second Applicant Sarto Nachatter - Respondent Representation: Counsel: D A Lloyd - Applicants S E Loomes - Respondent Solicitors: Byrnes & Cox Lawyers - Applicants Fishburn Watson O'Brien, The Law - Respondent File Number(s): CA 2009/339609 Decision under appeal Date of Decision: 2010-12-16 00:00:00 Before: McLoughlin DCJ File Number(s): DC 2009/339609 Judgment 1THE COURT : The applicants seek leave to appeal from a judgment of McLoughlin DCJ delivered in the District Court at Port Macquarie on 16 December 2010. The applicants received a judgment in an amount of $3,873 plus interest, but with no order as to the costs of the proceedings. The proposed appeal seeks, in place of the damages assessed in the District Court, a judgment in the applicants' favour in the amount of $28,774 plus interest, together with an order that the respondent pay the applicants' costs in the District Court. 2The amount in issue on the proposed appeal being less than $100,000, the applicants require leave: District Court Act 1973 (NSW), s 127(2)(c). The parties consent to the application being dealt with on the papers, pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 51.15. 3There are three factors which weigh heavily against a grant of leave in this proceeding: (a) the amount involved is small; (b) the disposition of the case involves no issue of legal principle, and (c) the case turns on findings of fact resulting from the assessment by the trial judge of the oral evidence of three witnesses. 4In favour of a grant of leave, the applicants contend that there was a clear error in the manner in which the primary judge dealt with the most significant item of financial loss in dispute, which, if reversed, would carry with it not merely an increase in the amount of damages awarded, but also an order for payment of costs. 5To explain why that is so, a brief description of the nature of the case is required. 6The first applicant, Mr Lakhvir Singh Saini, was, until early 2003, the husband of the respondent, Ms Sarto Nachatter. The first applicant, possibly through the second applicant, being a company which he controlled, ran Indian restaurants by the name of "Maharaja" in Port Macquarie and Woolgoolga, and, prior to 1999, in Coffs Harbour. In late 2003 the respondent sought the assistance of her former husband in reopening the Coffs Harbour restaurant under the name "An Indian Affair". They reached an oral agreement, pursuant to which the applicants would supply certain food and equipment and the services of a chef, Mr Paramjit Singh. Disputes arose as to the financial arrangements flowing from the agreement, as a result of which proceedings were commenced in the District Court in 2009. (The claim, as originally pleaded, was for an amount in excess of $60,000, and was thus outside the jurisdiction of the Local Court at that time.) 7The issue as to the liability for the wages of Mr Paramjit Singh depended on a number of factors, including the hours which he worked, the period over which he worked for the respondent and the setting off of wages paid by the applicant to Mr Paramjit Singh against the repayment of a loan which had been made by the respondent to the applicant to help purchase a property. 8To succeed in his claim in the District Court, the applicant had to persuade the trial judge that he was owed money. The trial judge described the evidence of the applicant and Mr Paramjit Singh as "totally contradictory": judgment, p 4. He preferred the evidence of Mr Paramjit Singh in respect of the work he had done for the applicant and the respondent. His Honour stated: "I am not satisfied on any of the evidence before me, that on probability the first named plaintiff has made out a claim in relation to the wages paid to Mr Paramjit Singh and more so when I do not accept the evidence of the first named plaintiff and I do not propose to allow any of the figures which have been claimed in relation to Mr Paramjit Singh because of Mr Paramjit Singh's evidence he did much work for the second named plaintiff which was not conceded by the first named plaintiff and much of the monies paid by the second named plaintiff to Mr Singh were in fact labour and cheffing work provided by Mr Paramjit Singh to and on behalf of the second named plaintiff." 9The applicants assert in their summary of argument that the respondent had conceded liability, at least in part, for the wages of Mr Paramjit Singh. However, read as a whole, there was no concession that this was a debt owing and payable. There were amounts to be set off against that debt (and others which were conceded) leaving a balance in favour of the respondent of $9,094. 10It is apparent that his Honour did not accept in full the position of either party. However, to extract a supposed "concession" from one part of the submissions, taken out of context, and assert error on the part of the trial judge in not acting on the concession is not permissible. The error could only be established, if it were an error, by an analysis of the whole of the evidence and the submissions. That exercise is not justified in the circumstances of the case. The costs involved in permitting such a claim to be agitated would be disproportionate having regard to the amount in dispute. The prospects of success could not be said to be strong. 11Accordingly, leave to appeal is refused. The applicants must pay the respondent's costs of the application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 August 2011