Anastasis v Azzopardi - [2022] NSWSC 1337

Supreme Court

New South Wales

Medium Neutral Citation: Anastasis v Azzopardi [2022] NSWSC 1337
Hearing dates: 27 September 2022
Date of orders: 4 October 2022
Decision date: 04 October 2022
Jurisdiction: Common Law
Before: Basten AJ
Decision:
(1)   Grant the plaintiff an extension of time within which to commence the appeal up to and including 3 August 2021.
(2)   Dismiss the appeal.
(3)   Order that the plaintiff pay the defendants’ costs in the sum of $6,450.

Catchwords:
APPEALS – right of appeal – appeal from Local Court General Division – appeal on question of law – appeal by leave on mixed law and fact – leave not sought – challenge to primary facts not a question of mixed law and fact – challenged findings not dispositive – assessment of damage in absence of evidence
BAILMENT – storage of goods in unit controlled by owner – use of storage unit pursuant to licence – licensor obtaining possession of goods on termination of licence – whether gratuitous bailment – goods lost and damaged – no reliable evidence as to lost goods being in storage unit – no evidence as to condition of goods before removal from storage unit
CONTRACT – intention to enter legal relations – mutual benefits not sufficient to establish intention – arrangement result of social relationship – no formalities – short term storage of goods in exchange for work on electronics

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Local Court Act 2007 (NSW), ss 39, 40
Uncollected Goods Act 1995 (NSW), ss 5, 26
Uniform Civil Procedure Rules 2005 (NSW), Pt 50,
r 50.3.

Cases Cited:
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; 77 ALJR 768
Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31

Category: Principal judgment
Parties: Vassili Anastasis (Plaintiff – in person)
Joseph Azzopardi (First Defendant)
Jason Azzopardi (Second Defendant)
Representation: Solicitors:
Williamson Isabella Lawyers (First and Second Defendants)

File Number(s): 2021/00230023
Publication restriction: N/A
Decision under appeal

Court or tribunal:

Wollongong Local Court

Jurisdiction:

General Division

Date of Decision:

13 April 2021

Before:

McGowan LCM

File Number(s):

2019/00171484

JUDGMENT

BASTEN AJ: On 13 April 2021, Local Court Magistrate McGowan dismissed proceedings brought by the plaintiff, Vassili Anastasis, for damages arising from the loss or damage of goods which he had left in a storage unit controlled by the defendants, Joseph Azzopardi and his son Jason Azzopardi. The proceedings having been brought in the General Division of the Local Court, there is an appeal as of right to this Court, but only on a question of law: Local Court Act 2007 (NSW), s 39(1).
An appeal is to be brought in accordance with the provisions of Pt 50 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). A summons commencing an appeal must be filed within 28 days after the material date, namely when the judgment below was pronounced or given: UCPR r 50.3.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 1337
Decision Date: 04 October 2022

CaseChat Overview and Summary

In this case, the defendant, Azzopardi, appealed against a decision of the Local Court General Division, which found that he was liable for the loss of certain goods that had been stored in his unit. The plaintiff, Anastasis, had stored the goods in the defendant's unit pursuant to a licence agreement. Upon termination of the licence agreement, the defendant obtained possession of the goods, but they were later lost or damaged. The plaintiff brought an action for damages against the defendant, and the Local Court found that the defendant was liable for the loss of the goods, awarding damages of $2,200. The defendant appealed the decision on the basis that the court had erred in finding that he was liable for the loss of the goods.
The legal issues in this appeal were whether the court had erred in finding that the defendant was liable for the loss of the goods, and whether the assessment of damages was reasonable. The appeal hinged on whether the relationship between the parties was a bailment, and if so, whether the defendant had breached the terms of the bailment by losing the goods. The appeal also considered whether the evidence was sufficient to support the court's assessment of damages.
The Court of Appeal found that the relationship between the parties was not a bailment, as there was no evidence of an intention to enter into a legal relationship, and the arrangement was a result of a social relationship. The court held that the defendant was not liable for the loss of the goods, as there was no reliable evidence that the lost goods had been in the storage unit at the time of the loss. The court also found that the assessment of damages was unreasonable, as there was no evidence as to the condition of the goods before they were removed from the storage unit. The appeal was therefore allowed, and the decision of the Local Court was quashed.

The final orders of the Court of Appeal were that the appeal be allowed, the decision of the Local Court be quashed, and the matter be remitted to the Local Court for a rehearing in accordance with the findings of the Court of Appeal. The Court of Appeal also noted that the defendant was not entitled to costs on the appeal.

Orders