Owen Bogg v Safe N Sound Pty Limited [2015] NSWSC 930

Supreme Court New South Wales

Medium Neutral Citation: Owen Bogg v Safe N Sound Pty Limited [2015] NSWSC 930 Hearing dates: 30 April 2015 Date of orders: 15 July 2015 Decision date: 15 July 2015 Jurisdiction: Common Law Before: Adams J Decision: Summons be dismissed with costs Catchwords: APPEAL – appeal against Local Court decision – Local Court Act 2007 s 39 – unrepresented party – departure from procedures – refusal of adjournment – admissibility of statement when witness not available – leave to argue facts on appeal Legislation Cited: Local Court Act 2007 (NSW), ss 39, 40 Category: Principal judgment Parties: Owen Bogg (Plaintiff) Safe N Sound Pty Limited (Defendant) Representation: Counsel: In person (Plaintiff) Mr A. D. Justice (Defendant)

Solicitors: In person (Plaintiff) Hunter Legal (Defendant) File Number(s): 2014/00170287 Publication restriction: None

Judgment

Introduction 1. The plaintiff stored various items with the defendant. He stopped paying the monthly storage fees after several months and, when this situation continued for about 10 months, the defendant sold the goods, realising an amount substantially below the outstanding debt. The defendant commenced proceedings in the Local Court claiming $1989.00 plus interest and filing fees. This claim was in the Small Claims Division but, on the application of the plaintiff, who put on a cross-claim, the matter was transferred to the General Division. Judgment was given for the defendant on its action and the cross-claim was dismissed. The cross-claim had been, as I understand it, produced in a somewhat informal way to in the Local Court at the hearing but was not, however, part of the documents provided by the plaintiff to this Court. The matter proceeded before me upon the basis that it was agreed the cross-claim alleged, in substance, that it was an implied term of the storage contract that the defendant would not sell the plaintiff's property without first finding a buyer to pay a reasonable price for that property and that the goods were sold at a gross undervalue, the defendant's power of sale being exercised in an unfair or unconscionable manner under what was said to be the "Australian Consumer Law". The defendant pleaded in its defence, in substance, that it had acted in accordance with the contract and with industry practice and, having put the goods out to tender, had sold them to the highest bidder. 2. The plaintiff, who was unrepresented both in the Local Court and in this Court, appeals against the dismissal of his cross-claim on the following grounds – [The Magistrate] erred in law by failing to take into account relevant considerations when she made the decision to dismiss the cross claim, namely that the plaintiff was an unrepresented plaintiff [who] had experienced difficulties in obtaining material on subpoena. In the alternative, [the Magistrate] erred in fact when she made the decision to dismiss the cross claim by failing to rely upon the facts as presented by the plaintiff. [The Magistrate] erred in law in exercising her discretion to dismiss the cross claim in circumstances where to do so was unjust. [The Magistrate] erred in law when she made the decision to dismiss the cross claim contrary to procedural fairness. 1. The jurisdiction of this Court in respect of judgments of the Local Court is governed by the Local Court Act 2007 (NSW), s 39 of which gives a right of appeal on a question of law, whilst s 40 permits appeals on a ground involving a question of mixed law and fact, but only by leave of the court. Leaving aside other issues with the grounds of appeal, it is evident that grounds 2 and 3, at least, require leave.