Charles George Roth v Secret Gardens of Sydney Pty Ltd [2012] NSWSC 342

Supreme Court New South Wales

Medium Neutral Citation: Charles George Roth v Secret Gardens of Sydney Pty Ltd [2012] NSWSC 342 Hearing dates: 11 March 2011 Decision date: 12 April 2012 Jurisdiction: Common Law Before: Hidden J Decision: Appeal dismissed Catchwords: LOCAL COURT - appeal against decision of magistrate in civil claim - no question of principle Legislation Cited: Local Court Act 2007 Cases Cited: Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 Burke v State Bank of NSW (1994) 37 NSWLR 53 Category: Principal judgment Parties: Charles George Roth (plaintiff) Secret Gardens of Sydney Pty Ltd (defendant) Representation: Counsel: B Zipser (plaintiff) M Bonanno (defendant) Solicitors: Charles G Roth Solicitor (plaintiff) Mark Bonanno, Mills Oakley Lawyers (defendant) File Number(s): 2010/374475

Judgment 1This is an appeal under the Local Court Act 2007 against the decision of a magistrate in a civil claim. The appeal is brought primarily under s 39 of the Act, which provides for an appeal as of right on a question of law alone. To extent that any of the grounds might be characterised as involving a question of mixed law and fact, leave is sought in the initiating summons to appeal under s 40. However, at the hearing counsel for Mr Roth, Mr Zipser, set out to characterise each ground as asserting an error of law and disavowed a submission that any of them raised a question of mixed fact and law. 2At the relevant time the plaintiff in this court, Charles Roth, was the joint owner with his wife of a property at Vaucluse. In 2008 he engaged the defendant, Secret Gardens of Sydney Pty Ltd, to provide landscaping and maintenance services on the property. Certain work was undertaken and, for the most part, was paid for. However, an amount of roughly $28,000 remained outstanding, and in May 2009 Secret Gardens commenced proceedings in the Local Court to recover it. Mr Roth filed a defence and a cross-claim, in which, among other things, it was alleged that aspects of the work were unsatisfactory and required rectification. The learned magistrate gave judgment for Secret Gardens in the amount claimed, and Mr Roth succeeded in the cross-claim to a limited extent only. 3Thus, the status of the parties as plaintiff and defendant in the Local Court was the reverse of their status in this court. I shall refer to them as Mr Roth and Secret Gardens. Mr Zipser had not appeared in the Local Court. Secret Gardens was represented by its solicitor, Mr Bonanno, in the Local Court and in this court. 4Judgment in the Local Court was given on 10 August 2010. It was not until 3 months later, on 10 November 2010, that Mr Roth filed the summons instituting the appeal. Accordingly, the appeal was lodged well outside the 28 day period provided by UCPR r 50.3, and Mr Roth requires leave to pursue it. That leave was opposed by Mr Bonanno, although he acknowledged that in considering that discretion it was appropriate that I consider the merits of the grounds of appeal. Six grounds were notified in the summons originally filed. On the day of the hearing in this court, Mr Zipser sought leave to file an amended summons adding a seventh ground. That leave also was opposed. 5The six original grounds of appeal set out in the summons are expressed at considerable length. I do not propose to reproduce them in this judgment. I shall simply refer to the disputed issue giving rise to each ground and the way in which it is said the magistrate fell into error. In so doing, I shall refer to the evidence of Mr Roth, of his wife, Ms Brigitte Friedman, and of Mr Peter Glass, a landscape architect and horticulturalist who gave expert evidence in Mr Roth's case, together with evidence of Mr Matthew Cantwell, a director of Secret Gardens.