Knight v Bell & Anor [2000] VSCA 48
[2000] VSCA 48
At a glance
Source factsCourt
Court of Appeal (Vic)
Decision date
2000-04-07
Before
ORMISTON, PHILLIPS and BATT, JJ.A.
Source
Original judgment source is linked above.
Judgment (13 paragraphs)
- For the reasons I have given I think that the appeal must be allowed. In the circumstances all the orders made below on 24 August 1998 should be set aside. There was no error, I think, in the judge's decision to bring to an end summarily the appellant's principal claim (i.e., the claim against the respondent in relation to the so-called lending ratio of 66.67 per cent); that was fatally flawed. The respondents do have a complete answer to that claim, and it may be said to be vexatious for the appellant to be pursuing it (thus attracting Rule 23.01 in relation to that claim). The balance of the proceeding is the claim for damages in respect of chattels and livestock (if that is what the appellant intends by paragraph 32 of the present pleading when coupled with paragraph 35). That claim should not have been the subject of judgment; nor should it be stayed permanently, were it not for two other considerations.
- First, the amount involved in the claim over chattels and livestock is small - too small to justify the action continuing in this court. The appellant told us from the Bar Table that, although he was not certain of the details, there were perhaps 100 sheep involved which should have fetched some $15 each; instead they had been sold, he thought for $6. Mr. Elliott told us they had been sold for $900 which suggests that there were perhaps 150 sheep involved. As for the chattels (or other chattels) their worth was said to be about $5,000 so that, whether or not due credit has been given by the respondents to the appellant for the amount realised on sale of these items, the appellant's claim is proper for the Magistrates' Court. I would therefore be strongly disposed to include, if necessary, among the orders we make now by way of substitution for those made below, an order under of the for the transfer of this proceeding to the Magistrates' Court for any further hearing and determination.