Dave Lahood Motors v Telstra Corporation Limited trading as Trading Post [2011] NSWSC 1555

Supreme Court New South Wales

Medium Neutral Citation: Dave Lahood Motors v Telstra Corporation Limited trading as Trading Post [2011] NSWSC 1555 Hearing dates: 1 December 2011 Decision date: 14 December 2011 Before: Simpson J Decision: 1. The appeal is dismissed; 2. The plaintiff (Dave Lahood Pty Ltd) is to pay the defendant's costs of the appeal. Catchwords: APPEAL - appeal against Local Court decision - s 39 Local Court Act 2007 - appeal limited to questions of law - grounds of appeal assert error in application of law concerning amendment of named party and refusal of application to set aside default judgment - no error of law identified - appeal dismissed with costs Legislation Cited: Local Court Act 2007 Cases Cited: Adams v Kennick Trading (International) Limited (1986) Simpson v Alexander (1926) 26 SR(NSW) 296 at 301; 43 WN 76 Category: Principal judgment Parties: Dave Lahood Motors (Plaintiff) Telstra Corporation (Defendant) Representation: Counsel F Levy (Solicitor) (Plaintiff) MJ Murray (Defendant) Solicitors Forbes-Smith and Company (Plaintiff) AstonReid Legal (Defendant) File Number(s): 2011/132200 Decision under appeal Jurisdiction: 9109 Citation: N/A Date of Decision: 2011-03-25 00:00:00 Before: Magistrate Marsden File Number(s): 11/132200

Judgment 1By summons filed on 21 April 2011 the plaintiff, identified in the summons as "Dave Lahood Motors" purports to appeal from the decision of a magistrate in the Local Court (given on 25 March 2011), refusing an application by "Dave Lahood Motors" that a judgment against it in favour of the defendant, Telstra Corporation Limited trading as Trading Post, ("Telstra"), of 28 January 2011 be set aside. I have identified the plaintiff as I have because there is considerable confusion revealed in the documentation concerning the correct identification. 2The appeal purports to be brought under s 39 of the Local Court Act 2007, which provides for an appeal limited to questions of law. I will return in due course to the grounds upon which the appeal is said to be based. Because the parties to an appeal under s 39 are given the nomenclature "plaintiff" and "defendant", the same nomenclature as used in the Local Court proceedings, it will be best, to avoid confusion, to refer to the parties by their abbreviated names. As will become apparent, there are various entities associated with the "Dave Lahood" name, and the variations have some significance. At times I will refer to them as "the Lahood interests" or "the Lahood entities". 3The appeal was heard on 1 December 2011. The evidence in the appeal consisted of affidavits sworn by Mr David Lahood on 1 June 2011 and Francis Laurence Levy, affirmed on 2 June 2011 (both asserted that they were filed on behalf Dave Lahood Motors; and an affidavit of Angela Coombs, sworn 21 June 2011, to which was exhibited a considerable bulk of documentary material, including various documents filed in the Local Court, and documentary material that was before the magistrate who made the decision under appeal. The documentary material included evidentiary statements of a Mr Will White, and a Ms Mary Hohns, both employees of Telstra, to which were attached various business records of Telstra.