Shiels v Dyson Austen & Co [2003] NSWSC 370

Shiels v Dyson Austen & Co [2003] NSWSC 370

No error of law was demonstrated. In the context of how the Local Court hearing was conducted, the Magistrate's reasoning was sufficient for the appeal, the plaintiff was in no doubt about the findings made, and it was open on the material to find by implication that the alleged agreement was made during the second telephone conversation. The additional arguments about conditions and non-communication of acceptance were neither pleaded nor litigated and could not properly be raised on appeal.

Jurisdiction
Australia
Judgment Date
02 May 2003
Procedural Posture
Appeal From Local Court / Summons Dismissed
Outcome
The appeal fails; the Summons is dismissed.
Legal Topics
['appeal From Local Court' 'error of Law' 'adequacy of Reasons and Findings' 'amendment of Grounds of Appeal' 'guarantee or Personal Undertaking' 'forbearance to Sue']
['civil Procedure' 'contract Law'] ['appeal From Local Court' 'error of Law' 'adequacy of Reasons and Findings' 'amendment of Grounds of Appeal' 'guarantee or Personal Undertaking' 'forbearance to Sue']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal From Local Court / Summons Dismissed

Legal Issues

  1. 1 ['Whether the Local Court Magistrate erred in law in finding that the second telephone conversation could constitute a guarantee or personal undertaking to pay the debt owed by RJRR Pty Limited.' 'Whether the Magistrate erred by failing to make determinations about whether the facsimiles dated 24 June 1999 and 22 July 1999 constituted a guarantee.' 'Whether the plaintiff could depart from or amend the grounds of appeal to argue inadequacy of reasons, lack of material findings, unfulfilled conditions, and non-communication of acceptance.' 'Whether any demonstrated error of law justified disturbing the Local Court decision.']

Ratio Decidendi

No error of law was demonstrated. In the context of how the Local Court hearing was conducted, the Magistrate's reasoning was sufficient for the appeal, the plaintiff was in no doubt about the findings made, and it was open on the material to find by implication that the alleged agreement was made during the second telephone conversation. The additional arguments about conditions and non-communication of acceptance were neither pleaded nor litigated and could not properly be raised on appeal.

Court Disposition

The appeal fails; the Summons is dismissed.

Orders

  • ['The Summons is dismissed.' 'The plaintiff is to pay the costs of the Summons.' 'The Exhibits may be returned.']