Borcherdt v Scott [2014] NSWCA 339

Borcherdt v Scott [2014] NSWCA 339

The appeals were dismissed because the appellant's grounds challenged factual and credibility findings made by the Magistrate on conflicting evidence. Those findings, including that the respondent was not a partner, that the alleged loans were not proved, that the goods claim was uncertain and misdirected against the respondent, and that the appellant's business records were unreliable, were supported by evidence and disclosed no error of law or mixed fact and law. The indemnity costs order followed from the rejected complying offer of compromise under the UCPR.

Jurisdiction
Australia
Judgment Date
03 October 2014
Procedural Posture
Civil Appeal / NSW Court of Appeal Appeal From Dismissal by the Supreme Court of Appeals From Grafton Local Court Proceedings; Leave to Appeal Had Been Granted for the Dozer Proceedings and Westpac Proceedings, With the Goods Proceedings Treated as an Appeal as of Right
Outcome
Appeals dismissed with costs.
Legal Topics
['appeal Limited to Errors of Law or Errors of Mixed Fact and Law' 'no Evidence Ground' 'credibility Findings' 'partnership Property' 'detinue' 'offer of Compromise and Indemnity Costs' 'limitation Defence']
['civil Procedure' 'appeals' 'partnership' 'costs'] ['appeal Limited to Errors of Law or Errors of Mixed Fact and Law' 'no Evidence Ground' 'credibility Findings' 'partnership Property' 'detinue' 'offer of Compromise and Indemnity Costs' 'limitation Defence']

Case Brief

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Procedural Posture

Civil Appeal / NSW Court of Appeal Appeal From Dismissal by the Supreme Court of Appeals From Grafton Local Court Proceedings; Leave to Appeal Had Been Granted for the Dozer Proceedings and Westpac Proceedings, With the Goods Proceedings Treated as an Appeal as of Right

Legal Issues

  1. 1 ['Whether the Magistrate made any error of law or mixed fact and law in finding that the respondent was not a partner in the sawmilling business.' "Whether the appellant established loan agreements with the respondent concerning the D9 dozer, Westpac loan and Autocar loan, or any legal error in the Magistrate's rejection of those claims." 'Whether the Magistrate erred in resolving credibility and business records issues against the appellant.' "Whether indemnity costs were properly ordered after the appellant rejected the respondent's offer of compromise." "Whether the appellant established entitlement to return or value of goods left on the respondent's property."]

Ratio Decidendi

The appeals were dismissed because the appellant's grounds challenged factual and credibility findings made by the Magistrate on conflicting evidence. Those findings, including that the respondent was not a partner, that the alleged loans were not proved, that the goods claim was uncertain and misdirected against the respondent, and that the appellant's business records were unreliable, were supported by evidence and disclosed no error of law or mixed fact and law. The indemnity costs order followed from the rejected complying offer of compromise under the UCPR.

Court Disposition

Appeals dismissed with costs.

Orders

  • ['Appeals dismissed with costs.' "The appellant must pay the respondent's costs in this Court."]