Borcherdt v Scott [2013] NSWCA 417 | Case summary

Judgment 1EMMETT JA: We have before us two applications. One is an application by notice of motion filed on 30 August 2013 seeking an order that an appeal be dismissed. The second is an application seeking leave to appeal by summons filed on 24 September 2013. The two proceedings are interrelated and arise out of proceedings in the Local Court at Grafton. 2Three proceedings were commenced in the Local Court by Mr Robert Borcherdt against Mr Coswald Scott. The three proceedings were heard together and a direction was given by the Local Court that the evidence in each be evidence in the others. The Local Court dismissed all three proceedings. 3Section 39 of the Local Court Act 2007 provides that a party to proceedings before the court sitting in its general division who is dissatisfied with a judgment or order of the court may appeal to the Supreme Court, but only on a question of law. Section 40 provides that a party to such proceedings who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court, but only by leave of the Supreme Court. 4By amended summons filed on 24 October 2012, Mr Borcherdt purported to appeal from the decision of the Local Court and sought leave to appeal to the extent that was necessary. Those proceedings were heard by Adamson J on 25 and 26 March 2013. On 3 April 2013, her Honour ordered that the appeal be dismissed and ultimately ordered Mr Borcherdt to pay Mr Scott's costs of those proceedings. 5The Local Court ordered that the three proceedings be heard together because there were factual matters that were common to all three proceedings. However, the proceedings before Adamson J were treated as a single proceedings, notwithstanding that Mr Borcherdt sought to appeal from orders made in three separate proceedings in the Local Court. Despite the proceedings before Adamson J been treated as a single proceeding, there were in truth three appeals, which should have been dealt with in separate proceedings. 6I should say something briefly about the issues in the three proceedings in the Local Court. In the first, Mr Borcherdt claimed repayment of moneys alleged to have been advanced to Mr Scott for the purchase of a Caterpillar D9 bulldozer (the bulldozer loan proceedings). Mr Scott denied the loan. He alleged that Mr Borcherdt and Mr Scott's two sons conducted a sawmilling business in partnership. He alleged that the partners in that business agreed to purchase the bulldozer and to transfer it to him once they had harvested timber to the value of the bulldozer from his property. He claimed that the partners had harvested 30 loads of logs and that that was sufficient to entitle him to the bulldozer under that arrangement. The amount claimed in those proceedings was $55,800 plus interest of $21,000, resulting in a net balance said to be owing of some $77,764. 7In the second proceedings, Mr Borcherdt claimed the return of goods alleged to belong to him, which were left at Mr Scott's property at Nymboida (the detained goods proceedings). He claimed in his statement of claim that the goods had an estimated replacement value of some $114,850. He also claimed that, as a result of the failure by Mr Scott to allow retrieval of the goods, he suffered financial loss from the inability to use them to generate income from his logging and sawmilling operation. In his defence, Mr Scott denied that he had possession or control of the goods and alleged that the dispute about the goods was between the members of the partnership to which I have referred. 8In the third proceedings, Mr Borcherdt claimed repayment of moneys alleged to have been advanced to Mr Scott to repay two loans, one to Westpac and one an Autocar truck loan (the loans proceedings). The claim in relation to the moneys allegedly lent in relation to the Westpac repayment was some $51,608. The claim in relation to the moneys allegedly lent in relation to the Autocar repayment was some $28,202. Both of those figures included interest. In total, Mr Borcherdt claimed some $79,810 in the third proceedings. In his defence, Mr Scott said that the loan from Westpac was a loan to Mr Glen Scott and Mr Thomas Scott and that the payments made by Mr Borcherdt were drawings made in respect of Glen Scott's share in the profits of the partnership. He also said that the Autocar truck was purchased by the partners. 9In addition, Mr Scott asserted that the detained goods proceedings and the loans proccedings that Mr Borcherdt's claim were statute-barred. That question was not raised in the present proceedings. 10The question raised by the two proceedings presently before us, the motion for dismissal of the appeal and the summons seeking leave to appeal, is whether there is an appeal as of right in relation to any of the three proceedings in the Local Court and, if not, whether leave should be granted. Section 101(1)(a) of the Supreme Court Act 1970 provides that, subject to that and any other Act, and subject to the Rules, an appeal lies to the Court of Appeal from any judgment or order of the Court in a Division. However, s 101(2)(r) provides that an appeal does not lie to the Court of Appeal except by leave of the Court of Appeal from a final judgment or order in proceedings of the Courts other than an appeal that involves a matter at issue amounting to or of the value of $100,000 or more or that involves directly or indirectly any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more. 11Clearly enough, the claims in the bulldozer loan proceedings and the loans proceedings do not satisfy the requirement of s 101(2)(r). However, there appears to be a question as to whether the claim in the detained goods proceedings satisfies that requirement. 12In the response to the application for leave to appeal filed on behalf of Mr Scott on 16 October 2013, it was said that, in the detained goods proceedings, Mr Borcherdt had claimed the return of goods alleged to belong to him and the total value of the goods was claimed to be $114,500. The response also said that the application for leave to appeal in relation to the other two proceedings should not be heard with the argument on the appeal in relation to the detained goods proceedings because the matters in issue in those other two proceedings, namely, the alleged Westpac, Autocar and bulldozer loans could be dealt with by a refusal of leave, leaving just the one matter relating to the detained goods to be the subject of any appeal as of right. Thus, the response conceded that Mr Borcherdt had an appeal as of right in respect of the detained goods claim. Counsel for Mr Scott initially indicated that he may seek leave to withdraw that concession but ultimately, and quite properly in the circumstances, made no such application. 13The Court is therefore faced with this situation. There are in effect three or possibly four, appeals or applications for leave to appeal. In respect of one, the detained goods proceedings, it is conceded that there was an appeal as of right. In respect of the other two, or possibly three, being the bulldozer loan proceedings and the loans proceedings, it is clear that leave is required. 14However, it is also clear that there was a great deal of common material involved in all of the proceedings in the Local Court. In particular, it appears all three proceedings involved questions as to the partnership relationship to which I have briefly referred. It would be most unfortunate if an appeal as of right proceeded, in which a determination was made that was inconsistent with the determination made by the Local Court in relation to the same matters in the other proceedings. Accordingly, it seems to me that, if an appeal is to proceed as of right, then leave should be given for appeals to proceed in respect of the other matters. 15It was put on behalf of Mr Scott that there is no appeal as of right even, if the amount claimed was in excess of $100,000, because no determination of the amount has been made. That is to say, if the Court upheld the appeal there would still be no entitlement on the part of Mr Borcherdt to judgment of a sum in excess of $100,000. 16However, the question is whether the realistic worth of Mr Borcherdt's claim exceeds $100,000. That is to say, the question is whether Mr Borcherdt would have a realistic prospect of obtaining $100,000 or more if he were to succeed in his appeal. In the light of the concession made in the response, to which I have referred, I am persuaded that, in the absence of anything further, there is such a prospect. In those circumstances, leave would not be required for Mr Borcherdt to prosecute his appeal insofar as it relates to the detained goods proceedings. It would therefore be appropriate that leave be granted in relation to the other matters, which are clearly interrelated. 17Since, on the present material before the Court, there is some question as to whether the claim involving the detained goods is in fact worth $100,000, the appropriate course in my view is to grant leave to the extent necessary for the proceedings by way of appeal from Adamson J's orders in relation to the detained property proceedings to continue under the notice of appeal and to grant leave to appeal in relation to the matters involved in the bulldozer loan proceedings and the loans proceedings. 18The notice of appeal filed on 2 July 2013 is in much the same form as the proposed notice of appeal in respect of which leave is sought. Both are quite unsatisfactory as a matter of form and are probably embarrassing in their present form, if not vexatious. There has been no application for the appeal or proposed notice of appeal to be struck out. Nevertheless, it will be incumbent upon the parties to ensure that a notice of appeal is formulated in a form that is satisfactory for hearing by the Court of Appeal. 19In the circumstances, I propose that, to the extent that leave to appeal is necessary, leave be granted in the proceedings and that the proceedings be listed before the Registrar for the purpose of directions in relation to the preparation of the appeal for hearing. 20SACKVILLE AJA: I agree with the orders proposed by the presiding judge and with his Honour's reasons.

Borcherdt v Scott

At a glance

Court

Decision date

Before

Source

Judgment (4 paragraphs)

Parties

Cases Cited (1)

Cited By (1)