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Bryce v Goggin [2026] NSWSC 912 | Case summary | Zoe

NSWNSWSC

Bryce v Goggin

[2026] NSWSC 912

Supreme Court of NSW|2026-07-31|Before: Harrison AJ

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-07-31

Before

Harrison AJ

Catchwords

APPEALS – Local Court – where dispute concerned characterisation of a cash payment – where defendant below was self-represented – whether the judge erred in application of the rule in Browne v Dunn – whether the judge erred in providing inadequate reasons

Source

Original judgment source is linked above.

Catchwords

APPEALS – Local Court – where dispute concerned characterisation of a cash payment – where defendant below was self-represented – whether the judge erred in application of the rule in Browne v Dunn – whether the judge erred in providing inadequate reasons

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Bryce v Goggin [2026] NSWSC 912

Hearing dates: 14 July 2026

Date of orders: 31 July 2026

Decision date: 31 July 2026

Jurisdiction: Common Law

Before: Harrison AJ

Decision: (1) Extend until 19 January 2026 the time for filing the summons.
(2) To the extent necessary, grant leave to appeal from the whole of the decision below.
(3) Allow the appeal and set aside the judgment of the Court below.
(4) Remit the proceedings to the Local Court of New South Wales to be dealt with according to law.
(5) Order that the cost of the proceedings in this Court abide the result of the rehearing.

Catchwords: APPEALS – Local Court – where dispute concerned characterisation of a cash payment – where defendant below was self-represented – whether the judge erred in application of the rule in Browne v Dunn – whether the judge erred in providing inadequate reasons

Legislation Cited: Local Court Act 2007 (NSW), s 39(1)

Cases Cited: Bauskis v Liew [2013] NSWCA 297
Browne v Dunn (1893) 6 R 67
Caldwell v J A Neilson Investments Pty Ltd (2007) 69 NSWLR 120
Eastman v The Queen (1997) 76 FCR 9
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134
Hadid v Redpath [2001] NSWCA 416
Hamod v New South Wales [2011] NSWCA 375
Landbridge Transport Pty Ltd v Buckley [2014] NSWSC 1379
Madden’s Stable Bedding Pty Ltd v Reid [2014] NSWSC 554 Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 Mohareb v Local Court of New South Wales [2024] NSWCA 235 MWJ v The Queen (2005) 80 ALJR 329 Payless Superbarn (NSW) Pty Ltd v O’Gara (1990) 19 NSWLR 551 R v Birks (1990) 19 NSWLR 677 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 West v Mead [2003] NSWSC 161 Zhang v Zhang [2022] NSWSC 924 Zong v Lin [2022] NSWCA 136

HIS HONOUR: These proceedings raise a not uncommon issue of whether money paid in cash by a home owner to a builder, whose company had contracted to build his house, was paid by the home owner to the builder’s company in accordance with a formal written contract and as part of the agreed contract price or was alternatively paid to the builder in his personal capacity as a separate contract in order to secure a reduced price for part of the contracted works. As is usually the case, the issue attains significance here because the builder’s company failed to complete the construction of the house before it went into liquidation owing money to creditors.
In proceedings in the Local Court, Craig Goggin sued Kitt Bryce to recover $90,000 that he maintained was paid to Mr Bryce personally, and not to Bryce Built Constructions Pty Ltd, the company with which Mr Goggin and his wife had contracted to build their house. Although it was never clearly articulated in the lower court pleadings or in the course of the hearing before his Honour, it is reasonably apparent, and the parties accept, that Mr Goggin sued upon an alleged total failure of consideration for the payment. Judge Clisdell gave judgment for Mr Goggin for the full amount plus costs.
Mr Bryce appealed to this Court from the whole of the decision below by summons filed on 19 January 2026. He relies upon seven grounds of appeal as follows:
The learned judge made an error of law in finding that the Court was required to accept as accurate, or to give more weight to, any part of Mr Goggin’s evidence about which no questions were asked in cross-examination.
The learned judge made an error of law in failing to provide adequate reasons for his finding that Mr Bryce in his personal capacity entered into a binding legal agreement with Mr Goggin.
The learned judge made an error of law in finding that Mr Bryce in his personal capacity entered into a binding legal agreement with Mr Goggin because the admissible evidence was not capable of supporting a finding that the parties intended to enter into binding legal relations with each other.
Alternatively, the learned judge made an error involving a mixed question of fact or law in finding that Mr Bryce in his personal capacity entered into a binding legal agreement with Mr Goggin because the Court ought to have held that, on the admissible evidence, it could not be satisfied that the parties intended to enter into binding legal relations with each other.
The learned judge made an error of law in finding that no payments had been made in respect of plastering work prior to Mr Bryce’s company going into liquidation because the admissible evidence was not capable of supporting such a finding.
The learned judge made an error of law in permitting Mr Goggin to adduce new evidence-in-chief and tender new documents at the hearing in circumstances where this amounted to a denial of procedural fairness.
The learned judge made an error of law in permitting Mr Goggin to adduce hearsay in his evidence-in-chief in circumstances where this amounted to a denial of procedural fairness.

It appears clearly that his Honour was here referring to the rule in Browne v Dunn. On that assumption, Mr Morris submitted that his Honour misapprehended or misstated the effect of the rule or alternatively applied it when there was no basis for doing so. He relied upon a consistent line of appellate authority rejecting the proposition that evidence that is unchallenged by cross-examination must be accepted by a court. There is no rule of law that requires acceptance of unchallenged evidence: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586-8. See also Caldwell v J A Neilson Investments Pty Ltd (2007) 69 NSWLR 120 at [96]; Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 at [105]; Zong v Lin [2022] NSWCA 136 at [53]. Mr Morris submitted that his Honour’s dispositive reasoning therefore proceeded on the basis of an incorrect understanding of the law. This amounted to a material error of law that justified allowing the appeal and remitting the matter to the Local Court.
Mr Morris then submitted that the rule in Browne v Dunn did not apply in any event in a way that required Mr Bryce to cross-examine Mr Goggin about the January 2024 conversation. Mr Goggin alleged that that conversation was the foundation for the contract between him and Mr Bryce in his personal capacity. Mr Bryce denied Mr Goggin’s version of that conversation and instead provided a competing account which he verified on oath. In those circumstances, Mr Goggin would have been well aware that the terms of that conversation were disputed and would have been able to prepare his statement in light of that knowledge. No unfairness arose. Mr Goggin had sufficient notice that his account of the conversation was disputed so that there was no requirement for him to be cross-examined about it: Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 at [51]; West v Mead [2003] NSWSC 161 at [94]-[99]; Masterton Homes at [105]; Zong v Lin at [49]-[52].
Mr Morris also submitted that even if the rule in Browne v Dunn did apply, the manner in which it was treated by his Honour denied Mr Bryce procedural fairness. That was said to be because, if his Honour considered the rule applied, he should have explained it to Mr Bryce and its significance at the outset, or at least before Mr Goggin’s cross-examination concluded. Additionally, his Honour could have recalled Mr Goggin for further cross-examination. These have been regarded as available and appropriate steps to take even when a party is represented by counsel: Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236-7; Payless Superbarn (NSW) Pty Ltd v O’Gara (1990) 19 NSWLR 551 at 555-6; R v Birks (1990) 19 NSWLR 677 at 688-9; MWJ v The Queen (2005) 80 ALJR 329 at [40].
Mr Morris emphasised that, having regard to the fact that Mr Bryce was self‑represented, and it became clear that he might fail to comply with the rule, procedural fairness required his Honour to alert Mr Bryce to the existence of the rule, the potential consequences of that failure, and to give him the opportunity to remedy it, either immediately during the cross-examination, or by recalling Mr Goggin at a later point in the hearing. To do otherwise gave rise to the risk that the proceedings might be determined on the basis of a failure to comply with a substantive legal rule of which Mr Bryce was unaware and which could easily have been remedied. Mr Morris contended that his Honour’s failure to do so has resulted in an outcome that cannot be procedurally fair: Hamod v New South Wales [2011] NSWCA 375 at [309]-[316]; Bauskis v Liew [2013] NSWCA 297 at [66]-[70]; Mohareb v Local Court of New South Wales [2024] NSWCA 235 at [37]. See also Eastman v The Queen (1997) 76 FCR 9 at 88-9 and Zhang v Zhang [2022] NSWSC 924 at [182(15)]-[182(19)].
Mr Southwick of counsel, who appeared for Mr Goggin, submitted that the quoted passage from his Honour’s judgment was “the only finding [he] could make in the circumstances, there being no competing explanation of the cash payment”. Mr Southwick also somewhat curiously proffered the unarguable proposition that the Court may accept unchallenged evidence. It was Mr Southwick’s contention that the learned judge was not even dealing with the rule in Browne v Dunn in the course of the remarks in question.
With respect to Mr Southwick, his submissions do not seem to me to engage with Mr Morris’s case that his Honour was clearly referencing the rule in Browne v Dunn and that he was expressing the view that he was in effect bound to accept Mr Goggin’s unchallenged evidence, not merely that he was entitled to do so. It is particularly troubling in my view that his Honour’s reason for accepting Mr Goggin’s evidence is said to be “because it was not challenged”. His Honour also emphasised later in his judgment that “what Mr Goggin has given evidence about and he was not challenged on was that there was a conversation where he could save about $18,500 if he paid the plasterers cash”. It would have been entirely proper for his Honour to have prayed in aid as an additional reason for accepting Mr Goggin’s evidence the fact that Mr Bryce did not cross-examine him on the contested version of the important conversation as part of a balancing exercise in assessing who to believe or who to accept. However, his Honour did not engage in any such exercise. His judgment contains no comparative assessment of the competing evidence of the protagonists about whose version he preferred or why. Indeed, his Honour’s singular reliance upon Mr Bryce’s failure to cross-examine or challenge Mr Goggin as the reason to accept his version (“because it was not challenged”) would appear inadvertently or otherwise to have foreclosed the need in terms to assess or consider Mr Bryce’s own evidence on the point. It is sufficient in this respect to observe that his Honour does not say, as he should have said, that he prefers the version given by Mr Goggin and why or that he rejects the version given by Mr Bryce and why.
Mr Bryce also submitted that the learned judge erred in failing to provide adequate reasons for his finding that Mr Bryce entered into a binding legal agreement with Mr Goggin in his personal capacity. A failure to provide adequate reasons can raise a “question of law” for the purposes of s 39(1) of the Local Court Act 2007: Hadid v Redpath [2001] NSWCA 416 at [53]; Madden’s Stable Bedding Pty Ltd v Reid [2014] NSWSC 554 at [13]-[18]; Landbridge Transport Pty Ltd v Buckley [2014] NSWSC 1379 at [37]-[45].
Mr Southwick maintained that there was such a binding legal agreement, based on the January 2024 conversation. His Honour’s finding to this effect was based on his acceptance of Mr Goggin’s account of that conversation over Mr Bryce’s account. However, his Honour’s reasons do not explain why he preferred Mr Goggin’s account and do not consider Mr Bryce’s account at all, and thus leaves undetermined the central factual dispute at the hearing. The reasons of Bellew J in Landbridge at [39] are apt: