Ross v Caldwell [2013] NSWSC 1369

Supreme Court New South Wales

Medium Neutral Citation: Ross v Caldwell [2013] NSWSC 1369 Hearing dates: 17 September 2013 Decision date: 20 September 2013 Before: McCallum J Decision: Application for leave to appeal from the decision of the Local Court refused Catchwords: LOCAL COURT - appeals - factors relevant to the exercise of the Court's discretion to grant leave to appeal against a decision on a ground involving a question of mixed law and fact - where plaintiff failed to prove claim in the proceedings below in any event - relevance of the plaintiff's conduct of the proceedings below Legislation Cited: Contracts Review Act 1980, s 6 Conveyancing Act 1919, s 12 Corporations Act 2001 (Cth) Local Court Act 2007, s 40 Local Courts Act 1982 National Consumer Credit Protection Act 2009 (Cth) Cases Cited: Harbour Radio Pty Ltd v Trad [2012] HCA 44 Klesteel Pty Ltd v Mantzouranis (Supreme Court of New South Wales, McCallum J, 7 March 2008, unreported) Category: Principal judgment Parties: Bernard Hugh Danby Ross (plaintiff) Jane Margaret Caldwell (defendant) File Number(s): 2011/379207 Publication restriction: None

Judgment 1HER HONOUR: Mr Bernard Hugh Danby Ross brought proceedings in the Local Court of New South Wales at Moss Vale against Miss Jane Caldwell claiming a debt of $13,860 plus enforcement costs. On 20 November 2012, the Court dismissed the claim. Since Miss Caldwell had brought a cross-claim which was also unsuccessful, the Court ordered each party to pay his or her own costs. 2Mr Ross seeks leave to appeal against the part of the decision dismissing his claim. Leave was sought on the premise that the appeal is brought on a ground that involves a question of mixed law and fact (that premise is considered below). There is a right of appeal to this Court on such a ground but only by leave of this Court: see s 40 of the Local Court Act 2007. Miss Caldwell has not sought leave to appeal against the dismissal of her cross-claim. 3The proceedings in the Local Court were commenced by statement of claim apparently dated 15 November 2011 (the date is handwritten and is difficult to read). In that pleading, Mr Ross claimed payment of a debt allegedly owed by Miss Caldwell "for unpaid brokerage and settlement fee and caveat lodgement fee under contract to Union Fidelity Capital Funding Pty Ltd dated 1 July 2011". Mr Ross claimed to have purchased that debt from Union Fidelity, a company of which he is a director. 4The amount claimed in the Local Court was $14,879.93 made up as follows: Brokerage fee: $13,860.00 Interest at 9% from 6 July 2011 to 8 November 2011 $416.93 Court filing fees: $212.00 Service fees: $36.00 Caveat costs - Queensland: $355.00 Total: $14,879.93