Sayed v Deng

THE NOTICE OF MOTION 13On or about the same day as the defence was filed, a notice of motion was filed on behalf of Mr Sayed. It sought the striking out of the statement of claim pursuant to Uniform Civil Procedure Rules 2005 ("UCPR") r 14.28(1), and summary dismissal pursuant to UCPR r 13.4(1)(b). 14The basis for the application to strike out was, in part, some alleged defects in the pleadings and, in part, the allegation that the dispute was the subject of an accord and satisfaction. The latter was the only basis upon which summary judgment was sought. In particular it was contended that, as the result of the alleged accord and satisfaction, no reasonable cause of action was disclosed (see UCPR r 13.4(1)(b)). 15The motion was heard by his Honour on 8 March 2012 and adjourned part heard to 3 April 2012. At the conclusion of submissions on 3 April 2012 his Honour gave an ex tempore judgment. 16It should be noted that at the outset of that hearing his Honour raised with the parties whether what was sought was the exercise of the power conferred by s 73 of the Civil Procedure Act 2005. It provided: "Power of court to determine questions about compromises and settlements (1) In any proceedings, the court: (a) has and may exercise jurisdiction to determine any question in dispute between the parties to the proceedings as to whether, and on what terms, the proceedings have been compromised or settled between them, and (b) may make such orders as it considers appropriate to give effect to any such determination. (2) This section does not limit the jurisdiction that the court may otherwise have in relation to the determination of any such question." 17In fact this provision does not seem apposite to the motion. The section appears to be directed to determining whether "[t]he proceedings have been compromised or settled," whereas the plea of an accord and satisfaction was directed to whether the dispute the subject of the proceedings was settled prior to the proceedings commencing. 18In any event, at no stage did either party take up his Honour's suggestion and submit that the matter be determined on some final basis under s 73 of the Civil Procedure Act. As I will explain, his Honour's judgment records that his Honour was addressing the notice of motion. Thus his Honour's judgment is to be taken as a rejection of Mr Sayed's strike out and summary judgment application. This is an important matter for the resolution of this application. It has two immediate consequences. 19First, it means that his Honour's decision is not to be taken as a final determination of whether or not there was an accord and satisfaction. If this application is unsuccessful it would still be open to Mr Sayed to pursue that matter at a final hearing. This means that any prejudice said to have been suffered by Mr Sayed from any error on his Honour's part in refusing the application is relatively confined. In substance that prejudice is the costs and expenses that he will incur in running the balance of proceedings. If he is ultimately successful, he can in any event expect to recover a substantial amount of those costs. 20Second, it means that Mr Sayed's complaint of error must be assessed against the criteria that his Honour must be taken to have been applying when considering the entry of summary judgment pursuant to UCPR 13.41(b) on the basis that no reasonable cause of action is disclosed. 21The nature of that enquiry is discussed in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, General Steel Industries Incorporated v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, and more recently in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57] per Gaudron, Gummow and Hayne JJ: "Ordinarily a party is not to be denied the opportunity to place his or her case before the court in the ordinary way and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way." 22Thus Mr Sayed's task, if leave were granted, would be to demonstrate an "error" of the relevant type on the part of his Honour in failing to find that there was not the "high degree of certainty about the ultimate outcome" of Mr Deng's case in the sense discussed in these authorities. Whether that error can only be an error of law or there is some lower threshold is a matter I will refer to but, on any view, the test of ultimate success for Mr Sayed is a high one.

HIS HONOUR'S REASONS 23At the commencement of his judgment his Honour referred to Mr Sayed's motion as seeking to strike out "The respondent's statement of claim on the basis that the claim exposes no reasonable cause of action". Leaving aside whether his Honour was addressing a strike out or summary judgment, that is an adequate statement of the test posed. After that passage his Honour had distinguished the facts of the decision in Ashton v Pratt (No 2) [2012] NSWSC 3. The relevant part of his Honour's reasons was as follows: "In the decision of Wiseman v MQH Developments (unrep SC Vic 8284 of 1996) Chernov J noted: 'In my view, the authorities dealing with accord and satisfaction referred to earlier indicate that the mere banking of the relevant cheque, albeit received under cover of a letter such as Exhibit P2, does not establish that there has been such a meeting of the minds as to constitute an accord. Something more is necessary to establish this. As Lush, J said (p15) in Jeffrey's Case, it is not just a matter of analysing the question by analogy with offer and acceptance principles. Consensus or concurrence of minds has to exist (determinant on an objective basis) before it can be said that an accord has arisen.' It should be noted that P2 exhibit is similar to the present case, similarly there is no acknowledgement of receiving the conditions as with the case of Ashton v Pratt and no acknowledgment of banking details. There is a complete lack of any communication from the receiver of the cheque until some time later when there is a clear correspondence stating it was accepted, not indeed in full satisfaction of the amount in dispute. Quite simply there was a clear inference that the money would be banked regardless on the basis that the claim would still in fact be pursued. As Brereton J noted in para 67 of Ashton v Pratt: 'The elements of an accord and satisfaction were expounded by the Court of Appeal of England and Wales in Rustenburg Platinum Mines Ltd v South African Airways [1979] 1 Lloyd's Rep 19, in which the defendant had sent the plaintiffs a cheque for less than the full amount to which the plaintiffs had claimed to be entitled. The plaintiffs banked the cheque after signing the form of receipt on its reverse, which stated "[r]eceived with thanks from SA Airways [the defendant] ... in payment of claim TC 1546/70". The Court of Appeal held that there was no accord and satisfaction precluding the plaintiffs pursuing the balance of their claim.' Lord Denning said at 223, that the signature on the formal receipt was insufficient to be a settlement of the case and that '... the mere offer of payment of a sum which is received is not in itself an accord and satisfaction. There must be sufficient material in the documents to be seen that it is paid and accepted in full and final settlement. There is nothing here, it seems to me, to come up to that standard at all.' In the present case I echo the words of Lord Denning there is nothing in the present case to come up to this standard at all, it could not be said that accord and satisfaction had been reached. I note that although the Court should be careful in considering communications I do note however that the respondent has advised the applicant some weeks later that the banking of a cheque did not constitute full and final settlement. THAT REINFORCES MY VIEW THAT SETTLEMENT HAD NOT BEEN REACHED AND THAT PART OF THE MOTION IS DISMISSED." 24This extract was taken directly from the transcript. I was informed that the minor corrections were made (quite sensibly) by the parties by agreement. For present purposes it is important to note that the judgment was ex tempore and that his Honour did not have the opportunity to make any of his own corrections to the judgment. 25I make two further observations about his Honour's judgment. First, it should be noted that of the three decisions that his Honour referred to (Ashton, Rustenburg and Wiseman) none of them involved a summary dismissal of a proceedings on the basis of an accord and satisfaction. Instead, all of the judgments were delivered following some form or other of final hearing. Second, although the language of this part of his Honour's judgment suggests that this question of the accord and satisfaction was decided on a final basis, for the reasons I have explained, it was not.

NATURE OF THE APPEAL 26Sections 39 and 40 of the Local Court Act provide: "39 Appeals as of right (1) 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. (2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness. 40 Appeals requiring leave (1) A party to proceedings before the Court sitting in its General Division 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. (2) A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court: (a) an interlocutory judgment or order, (b) a judgment or order made with the consent of the parties, (c) an order as to costs." 27In Ciszek v Enterprise Financial Solutions Pty Ltd [2010] NSWSC 1265 at [10], Schmidt J held that: "Notwithstanding the seeming breadth of s 39 ... the scheme of the Act is to require leave in a case where a party seeks to appeal an error of law arising in an interlocutory judgment or order. Section 39 must be read as being subject to the particular provisions made in s 40(2) in the case of interlocutory judgments. ... Each section must be given the work which it is seemingly intended to do. That will not be achieved if the view is taken that leave to appeal is not required, if an error of law arises in an interlocutory judgment or order." 28Thus with an interlocutory decision of the Local Court a disaffected party must seek leave to appeal under s 40(2)(a) irrespective of the form of error that is asserted. If their application for leave is granted their appeal will nevertheless be restricted to an error of law under s 39(1), unless they obtain a further grant of leave under s 40(1) to raise a question of mixed fact and law. 29In so far as the question of leave is concerned, in Coulter v R [1988] HCA 3; 164 CLR 350 at 359, Deane and Gaudron JJ noted that such a requirement: "... represents a constraint upon the overall cost of litigation by protecting parties, particularly respondents, from the costs of a full hearing of appeals, which should not properly be entertained by the relevant court either because they are hopeless or, in the case of a civil appeal to the second appellate court, because they do not possess special features which outweigh the prima facie validity of the ordinary perception that the availability of cumulative appellate processes can, of itself, constitute a source of injustice." 30This statement was made in the context of an application for leave to appeal following a conviction by a jury in a criminal offence of assault occasioning actual bodily harm. However, the statement as to the purpose of the filter of leave to appeal operating to protect respondents in relation to the cost of appeals, applies to civil cases and with particularly strong force to interlocutory decisions. 31This concern as to protecting parties from the costs of appeals is also evident from three matters in s 39 and s 40 of the Local Court Act. 32First, it is evident from the restriction imposed by s 39 confining appeals only to questions of law. Secondly, it is evident on the restriction on the extension of such appeals to mixed questions of law and fact that follows from the need to obtain leave under s 49(1). Thirdly, it is reflected by the restrictions on leave imposed by s 40(2). 33The Local Court has a limited monetary jurisdiction. Left unchecked, appeals from its decisions, especially interlocutory decisions, could lead to there being a significant risk that the overall costs of proceedings would be completely disproportionate to the matters in dispute. 34These aspects of the statutory scheme for appeals in cases such as this all point to the matters that I indicated in the opening part of this judgment as weighing heavily against a grant of leave in a matter of this kind.

LEAVE TO APPEAL IS REFUSED 35The essence of his Honour's reasons was that, in the circumstances, the banking of the cheque by Mr Deng's commercial agent, even when considered with the terms of the letter which provided the cheque, was not sufficient to constitute an accord and satisfaction. His Honour's discussion of the authorities led his Honour to conclude that something additional was required before such an accord of satisfaction could be demonstrated. In that regard his Honour relied on the passage from the judgment of Chernov J in Wiseman extracted in his Honour's judgment. Further, his Honour drew support for the conclusion that there was no accord and satisfaction from the letter that was sent in response by the commercial agent on 15 July 2001, albeit that his Honour described it as being sent "sometime later". 36Mr Sayed is forced to contend that his Honour was bound as a matter of law to find an accord and satisfaction based on the terms of the letter and the act of banking the cheque. Before I address that, I should note one of his specific complaints, namely that his Honour erred by applying the passage from the judgment of Chernov J in Wiseman to the effect that merely banking a cheque was not sufficient but that "something more is necessary". 37I am not satisfied that Chernov J meant to add any gloss upon the existing authorities concerning whether or not such conduct would amount to accord and satisfaction. However, in any event, to the extent that Mr Sayed submits that his Honour erred by following Chernov J then he misconceives the task that his Honour was undertaking in addressing the motion for summary judgment. It would not have been appropriate for his Honour in such an application, to conclude, as he was asked to do, that a judge of a superior court of another state was wrong. The position would be different if a superior court of this state or the High Court had expressly stated that Chernov J's judgment was wrong or if there was a clear inconsistency between such a judgment and that of Chernov J in Wiseman. It was not suggested there was any such inconsistency. 38In the passage from the judgment of Dixon J in Dey v Victorian Railways Commissioners, at 91, cited in General Steel at 129, his Honour stated: "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." (emphasis added) 39Although some questions of law can be determined upon summary judgment applications this was not one of them. In my view, no arguable error is demonstrated by his Honour's application of the passage in the judgment of Chernov J in Wiseman, especially when one has regard to the nature of the task that his Honour was undertaking. 40Mr Sayed's principal contention that his Honour was bound to find an accord and satisfaction runs into a problem with the following statement from McMahon's (Transport) Pty Ltd v Ebbage (1999) 1 Qd R 185 and 194 to 195 per Pincus JA, with Davies JA and Douce JA agreeing: "The cases on conditional tender of payment, although numerous, give no clear guidance. I, like the primary judge, prefer to follow those in which the court has rejected the offeror's assertion that there has been an accord; I do so on the basis that the question is whether there is a contract and that the answer to that question is that there is none, because in general the law does not allow the imposition of an obligation in contract to be achieved by a stipulation that it shall be deemed to be imposed if the prospective obligor performs a stipulated act (other than one by way of express assent to the terms proposed) or does nothing ..." 41In JP Morgan Australia Ltd v Consolidated Minerals Ltd [2010] NSWSC 100 at 146 Hammerschlag J cited this passage, and continued at [156]: "In addition, and adopting the analysis of the Queensland Court of Appeal in McMahon's (Transport) Limited v Ebbage, even if upon its proper construction, the 6 February 2008 letter purported to impose on the plaintiff a binding condition under which if it banked the cheque it gave up its rights, the attempt to do so was ineffective because the general law does not so allow." 42On appeal from the decision of Hammerschlag J in JP Morgan the Court of Appeal did not disturb his Honour's finding that there was no accord and satisfaction. However Macfarlan JA at [114], with whom Campbell JA and Young JA agreed, stated the following which, on one view, qualifies or perhaps reverses the statement of Hammerschlag J at first instance at [156]: "If, on its true construction of the letter and [from Consolidated Minerals] had contained an offer indicated in the letter to be capable of acceptance by the banking of the cheque without the need for any further communication with Consolidated Minerals that banking would have completed the formation of the contract (subject to the question of the consideration to which I referred below)." 43Two matters should be noted about these authorities in the context of this application. First, on their face the extracts from McMahon v Ebbage, and the judgment of Hammerschlag J in JP Morgan, at [156], would have the result that the mere banking of the cheque by Mr Deng's agent could not have amounted to an act giving rise to an accord and satisfaction irrespective of the effect of the terms of the letter of 15 June 2011. 44All it is necessary for me to note is that it seems there is substantial scope for debate as to the precise status of the passage from McMahon v Ebbage, being a decision of an intermediate Court of Appeal of another state as construed by Hammerschlag J, and whether the Court of Appeal rejected it. That debate is not the type of question of law that should be resolved on a summary judgment application before a magistrate. 45The second point is that the statement by Macfarlan JA in JP Morgan is only applicable to the extent that the communication which accompanied the cheque can be construed as an "offer" which, if accepted by the banking of the cheque, leads to an accord and satisfaction. In JP Morgan the letter that was sent with the cheque was found not to have that effect (see [2011] NSWCA 3 at [97] to [101]). 46In this case I have set out the terms of the letter of 16 July 2011 above (at [8]). The first paragraph of that letter does not constitute an offer or invitation but merely an assertion. There is clearly scope for argument that the second paragraph may turn it into an offer, but I did not regard this as so overwhelming that it meets the level of certainty referred to in the passage from Agar above. The end result is that even if Mr Sayed's summary judgment application could have been regarded as strong it was certainly not overwhelming. 47Further, I note that his Honour found comfort for his conclusion in dismissing the summary judgment application from the terms of the letter dated 15 July 2011, which clearly denied that the receiving and banking of the cheque amounted to an accord and satisfaction. 48During the hearing of this application I was referred to numerous cases that dealt with how such communications should be considered and, in particular, the necessity or otherwise for these communications to be sent around the time that the cheque is received or banked. It is sufficient to note that all of those cases reveal that it is clearly a matter of fact and degree as to whether the lapse in time between the banking of the cheque and the later communication denying that the act of banking constituted an acceptance that the dispute had been settled in terms operates to deny the existence of an accord and satisfaction. 49Once a matter becomes a question of fact and degree it is extremely difficult to see how Mr Sayed could make a case of sufficient strength to justify a grant of leave under s 40(2). 50In my view there is not a sufficiently strong case of error on the part of his Honour to justify a grant of leave. These conclusions, together with the factors identified at the beginning of this judgment, lead me to conclude that leave should be refused. 51Finally, I should note a submission that counsel for Mr Sayed sought to make as to why leave should be granted. He submitted that the law of accord and satisfaction is not particularly clear, and that a grant of leave and a subsequent appeal would assist in having this uncertain area of law clarified. This does not assist Mr Sayed. It follows from the passage in Dey (above at [38]) that summary judgment applications are rarely the appropriate vehicle to resolve such uncertainty. Appeals from interlocutory decisions by magistrates are even less appropriate to resolve some area of law that is said to be uncertain. 52Accordingly, I will order that so much of the summons as seeks leave to appeal be dismissed.

Transfer application 53The basis of the application to transfer arises out of a proposed cross claim that Mr Sayed seeks to file joining Insurance Australia Ltd, trading as NRMA Insurance ("NRMA"). I pass over the question that NRMA has not been given the opportunity to be heard on this application. NRMA are the insurers of Mr Deng. They are not, however, standing behind Mr Deng in the existing proceedings. 54The proposed cross claim seeks contribution, as an alleged concurrent wrongdoer, or damages from NRMA on the basis that it is said to owe Mr Sayed a duty of care when it was supervising and handling the claim of Mr Deng. This is said to have been breached having regard to Mr Sayed's complaint that the cost of hire cars was excessive because of the allegedly reckless decision of NRMA not to write the vehicle off but to attempt to repair it. Mr Sayed is concerned that his allegation that the hire car costs were wasteful might not be able to be used to defeat Mr Deng's claim because he might contend that he reasonably relied upon the activities of his insurer, NRMA. Thus by the proposed claim Mr Sayed seeks to make NRMA responsible either to it or to Mr Deng for those extra costs. 55The reason why transfer to this Court is said to be warranted is primarily because of a potential legal novelty of the claim. It does strike me as novel. That is a factor that might warrant this Court considering it, however there are a number of other factors that weigh against it. 56The first is the position of Mr Deng. I see no proper reason at this point why Mr Deng should find himself enmeshed in litigation in this Court which will inevitably be more complex and costly than if it were to be conducted in the Local Court. 57The second is that, given the small monetary amounts in issue, the proper court to determine these issues should be the Local Court. As I have stated, there may be some legal novelty in the question as to the existence of any duty of care, but legal novelty does not mean that the Local Court and its constituent members are not well placed to determine it. In that regard, there is a proper avenue available to the plaintiff. Section 39 of the Local Court Act confers upon Mr Sayed a right to appeal a question of law. If a wrong decision in law is made about the existence of a duty of care, then he can invoke that provision. 58I reject the application for transfer under s 140(1) of the Civil Procedure Act. 59Accordingly, I dismiss the summons and I order the plaintiff in this court to pay the defendant in this court's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2012