Coshott & Anor v Shipton Lodge Cobbitty Pty Ltd [2006] NSWCA 316 | Case summary

ROBERT GILBERT COSHOTT AND LJILJANA COSHOTT v SHIPTON LODGE COBBITTY PTY LIMITED Ex Tempore Judgment 1 McCOLL JA: The court has before it an application for leave to appeal from Justice Johnson's decision to dismiss an appeal from two Local Court decisions referred to respectively in his Honour's judgment as "the first proceedings", which I will describe as the "agistment case" and the "second proceedings", which I will describe as the "bailment case": Coshott v Shipton Lodge Cobbity Pty Ltd [2006] NSWSC 556. 2 The claims before the Local Court concerned the agistment of horses at the Cobbitty premises of the opponent, on behalf of the first appellant, Mr Robert Coshott. The magistrate concluded in the agistment case that the opponent had established a contract arising from a course of dealing between the parties pursuant to which the opponent provided agistment and other services including services provided by farriers drenching and veterinary services. 3 The magistrate found that it was undisputed before him that prior to 1 January 1999 the claimant had been making payments to the opponent for services provided in accordance with invoices but from that date he stopped making those payments: see primary judgment at [28]. He concluded that the opponent had clearly established the existence of a contract between the parties having regard to the course of dealing of the parties over the years and that the first claimant was in breach of that contract. Accordingly, he awarded the opponent the full amount outstanding for the services which led to the entry of judgment in the sum of $27,194.32, court costs of $113 and interest of $5,411.77, being in total an amount of approximately $32,000 to which his Honour added an award of some $45,000 on account of professional costs, leading to a total judgment of $77,829.64. 4 The appeal to this court from that decision was confined to error of law (see s 69 of the Local Court (Civil Claims) Act 1970 and s 73 of the Local Courts Act 1982). The claimants relied on a number of grounds before Justice Johnson to seek to demonstrate that error of law. As the argument has developed in this court on the application for leave to appeal, the claimant has confined his complaint about Justice Johnson's decision to his Honour's failure to accept the submission that no contract had been established in the circumstances. This was because, the claimant submitted, the magistrate had not made a finding as to the terms of the contract, and therefore, had made no findings as to the term or terms which were breached which gave rise to an entitlement or damages. 5 In the course of the hearing before the magistrate his Honour had given the opponent leave to increase the quantum of the amount claimed from time to time to reflect the increasing fees being incurred because of the continued agistment of the claimant's horses on the opponent's property. The claimant also seeks leave to challenge Justice Johnson's decision that to rely on those matters the claimant required leave, a matter I would interpolate was common ground before his Honour, and, further, that Justice Johnson erred in concluding (at [54]) in relation to that matter that the claimants had not demonstrated any error of law or a mixed law and fact on the part of the magistrate, and thus refused the claimants leave to rely upon that ground. 6 I return to the first and substantive matter relied upon by the claimants in support of the application to appeal. In my view the claimants have not demonstrated that Justice Johnson erred in concluding (at [40] and following) that the claimants had not identified any error of law or of mixed law and fact, if that were necessary under s 74 of the Local Courts Act. 7 Before Justice Johnson Mr Bradford had submitted that no error of law was identified, there having been evidence to support the magistrate's findings in that the terms of the contract sufficiently identified the parties and the sums to be paid by the claimants to the opponent on the basis of their continuing agistment of the two horses. 8 Mr Seymour, who appears for the claimants, submits that an error of law was identified in that the magistrate had failed to identify a point in time when, as I understand the position, the parties were ad idem as to the terms of any contract between them. 9 In my view, Justice Johnson was entitled to accept Mr Bradford's submissions concerning the terms of what was in the circumstances a relatively straightforward contract. A finding that a contract was constituted by such conduct was well open on the law as stated in many cases including Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 at 534. I would refuse leave to appeal in relation to the agistment case. 10 The bailment case involved a claim by the claimants against the opponent in relation to the death of a horse, Silver Palm 96, which had apparently been placed in the opponent's care, presumably pursuant to the agistment relationship. Justice Johnson noted (at [65]) that the horse had been valued at $2,000. That finding was not challenged before Justice Johnson. 11 Justice Johnson noted (at [60] and [73]) that the hearing of this claim had been conducted on the basis that the opponent bore the onus of proof that the horses had been reasonably cared for whilst in its custody. The magistrate had concluded that the opponent had discharged that burden. The claimants sought to challenge the magistrate's decision before Justice Johnson on the basis that the magistrate had made no finding as to the standard of care in the circumstances which was taken, nor reached a conclusion that the care taken was appropriate. Justice Johnson concluded (at [73]) that he was satisfied that a question of law was not identified in the grounds of appeal, there having been a factual determination on the balance of probabilities in relation to what was the standard of care agreed to by the parties as being that appropriate to determine the matter. 12 Mr Seymour has submitted that the opponent was under a duty of utmost care relying upon the decision in Coggs v Bernard (1703) 2 Ld Raym 909; 92 ER 107 at 111. As Justice Basten has pointed out in the course of argument, more recent authority, including Hobbs v Petersham (1971) 124 CLR 220 at 233-4 demonstrates that the magistrate proceeded on the correct basis that the standard of care was one of reasonable skill and care. In my view no error of law that would warrant a grant of leave to appeal has been established. The fact that the matter involves a trifling sum in the circumstances of $2,000 would also in my view militate against granting leave to appeal. The application for leave to appeal should be dismissed. 13 BASTEN JA: I agree with her Honour in relation to the application for leave. I would only add that as a formal matter the notice of appeal should be dismissed as incompetent, pursuant to s 101(2)(r) of the Supreme Court Act 1970. A final judgment or order in proceedings in the Court other than an appeal requires leave unless the matter at issue involves a value of $100,000 or more. His Honour having declined leave in relation to each of the appeals sought to be brought from the Local Court, this is not a matter which involves an appeal for the purposes of the paragraph to which I referred. In addition, the amounts involved do not exceed or equal $100,000. 14 That is because, first, the two matters at issue are separate, and in my view should not be accumulated. Secondly, ignoring costs, the amount involved in relation to the agistment contract is less than $40,000 and the only value of the horses which was not challenged was an amount of approximately $2,000. That the amount of costs should be excluded was held by this Court in Gurr v Robinson (Supreme Court of NSW, Court of Appeal, unreported, 10 February 1986) (Kirby P), in which this Court was concerned with a similar requirement in s 130 of the District Court Act 1973. The President explained that the reference to "the matter" to which the value must be attached is to the substantive matter in issue in the proceedings and not a matter which includes the costs of the proceedings. That decision was followed by a Court comprising Gleeson CJ and Clarke and Meagher JJA in Harbrett Pty Limited v Susanne Ruth Butler (Supreme Court of NSW, Court of Appeal, unreported 14 December 1989); see also Built Interiors Pty Ltd v Three Dinosaurs Pty Ltd [2003] NSWCA 290 at [35] (Mason P, Meagher and Ipp JJA agreeing). 15 Those authorities conclusively establish that the amount of any costs awarded must be excluded from the calculation. It is for that reason that the appeal was incompetent and the appeal as well as the application for leave to appeal should be dismissed with costs. 16 McCOLL JA: The application for leave to appeal and the appeal are dismissed. The claimants are to pay the opponent's costs in this Court.

Coshott & Anor v Shipton Lodge Cobbitty Pty Ltd

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