Australian Partners Pty Ltd v Kerr - [2018] QDC 148

DISTRICT COURT OF QUEENSLAND

CITATION:

Australian Partners Pty Ltd v Kerr [2018] QDC 148

PARTIES:

AUSTRALIAN PARTNERS PTY LTD
ACN 156 107 452
(plaintiff/appellant)

v

WENDY KERR
(defendant/respondent)

FILE NO/S:

Appeal No 4925 of 2017
MC No 50308 of 2016

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

7 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

31 July 2018

JUDGE:

Rosengren DCJ

ORDER:

1. Appeal dismissed.

2. The plaintiff pay the costs of the appeal. If an alternate order as to costs is sought, the parties are to provide written submissions by 4pm on 17 August 2018.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDING OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY – where the plaintiff was unsuccessful in a claim for damages in relation to a Commodore which was damaged in a collision with the defendant’s vehicle for which liability was admitted – where the learned magistrate made adverse findings as to the credibility of the plaintiff and the plaintiff’s witnesses – where the learned magistrate relied upon primary facts to support the conclusions as to credibility – where the learned magistrate found that the plaintiff was not the owner of the Commodore at the relevant time – where the learned magistrate found that the Plaintiff did not have an entitlement to damages for replacement vehicle hire costs - whether the learned magistrate erred in fact and law

Magistrates Court Act 1921 (Qld) s 45
Transport Operations Road Use Management – Vehicle Registration) Regulation 2010, regulation 18(8)(b)
Sales of Goods Act 1896 (Qld) s 20

JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272, cited
Teelow v Commissioner of Police [2009] QCA 84, cited
Guirguis Pty Ltd U Anor v Michel’s Patisserie System Pty Ltd & Ors [2017] QCA 83, cited
Fox v Percy [2003] HCA 22, cited
Munce v Vinidex [1974] 2 NSWLR 235, cited
Johnson v Triple C Furniture & Electrical Pty Ltd [2012] 2 Qd R 337, cited

COUNSEL:

D G Sushames (sol) for the appellant
A S Kitchin for the respondent

SOLICITORS:

Harris Sushames for the appellant
ULR Lawyers for the respondent

On 29 October 2015, a Commodore motor vehicle (‘the Commodore’) was damaged beyond economical repair in an accident. The plaintiff brought a claim in the Magistrates Court for damages comprised of the pre-market value of the car, towing and storage of it, costs of valuations, costs associated with a replacement hire car and legal costs incurred prior to the commencement of the proceedings.
The defendant admitted liability for the accident, but disputed that the plaintiff is entitled to damages on the basis that it was not the owner of the Commodore at the time.
The trial came on before a magistrate at Brisbane on 11 July 2017 and the learned magistrate delivered reasons for judgment on 11 December 2017.
This appeal is against that decision.
The plaintiff filed…

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: [2018] QDC 148
Decision Date: 7 August 2018

CaseChat Overview and Summary

In the case of Australian Partners Pty Ltd v Kerr, the plaintiff sought damages for a Commodore vehicle that was damaged in a collision with the defendant's vehicle, for which liability was admitted. The plaintiff, represented by Australian Partners Pty Ltd, was unsuccessful in their claim for damages. The case was heard in the Magistrates Court and subsequently appealed to a higher court.

The central legal issue before the court was whether the learned magistrate erred in fact and law when making adverse findings regarding the credibility of the plaintiff and the plaintiff’s witnesses. The magistrate concluded that the plaintiff was not the owner of the Commodore at the relevant time and, therefore, did not have an entitlement to damages for replacement vehicle hire costs. The appeal hinged on whether the magistrate's findings of fact, particularly those related to credibility, were properly based on the evidence and whether any errors in fact or law justified interference with these findings.

The court considered the principles governing appellate interference with findings of fact, emphasising that such interference is rare, especially when the findings are based on the assessment of credibility. The magistrate had relied on primary facts to support the conclusions about the credibility of the plaintiff and the witnesses. The appellate court found that the magistrate's reasoning was sound and that there was no basis to interfere with the credibility findings. Consequently, the appeal was dismissed, and the plaintiff was ordered to pay the costs of the appeal. If the parties wished to seek an alternate order regarding costs, they were instructed to submit written arguments by a specified deadline.

Orders

Orders of the court

1. Appeal dismissed.

2. The plaintiff pay the costs of the appeal. If an alternate order as to costs is sought, the parties are to provide written submissions by 4pm on 17 August 2018.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Australian Partners Pty Ltd v Kerr [2018] QDC 148
PARTIES:	AUSTRALIAN PARTNERS PTY LTD ACN 156 107 452 (plaintiff/appellant) v WENDY KERR (defendant/respondent)
FILE NO/S:	Appeal No 4925 of 2017 MC No 50308 of 2016
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	7 August 2018
DELIVERED AT:	Brisbane
HEARING DATE:	31 July 2018
JUDGE:	Rosengren DCJ
ORDER:	1. Appeal dismissed. 2. The plaintiff pay the costs of the appeal. If an alternate order as to costs is sought, the parties are to provide written submissions by 4pm on 17 August 2018.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDING OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY – where the plaintiff was unsuccessful in a claim for damages in relation to a Commodore which was damaged in a collision with the defendant’s vehicle for which liability was admitted – where the learned magistrate made adverse findings as to the credibility of the plaintiff and the plaintiff’s witnesses – where the learned magistrate relied upon primary facts to support the conclusions as to credibility – where the learned magistrate found that the plaintiff was not the owner of the Commodore at the relevant time – where the learned magistrate found that the Plaintiff did not have an entitlement to damages for replacement vehicle hire costs - whether the learned magistrate erred in fact and law Magistrates Court Act 1921 (Qld) s 45 Transport Operations Road Use Management – Vehicle Registration) Regulation 2010, regulation 18(8)(b) Sales of Goods Act 1896 (Qld) s 20 JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd [2010] QDC 272, cited Teelow v Commissioner of Police [2009] QCA 84, cited Guirguis Pty Ltd U Anor v Michel’s Patisserie System Pty Ltd & Ors [2017] QCA 83, cited Fox v Percy [2003] HCA 22, cited Munce v Vinidex [1974] 2 NSWLR 235, cited Johnson v Triple C Furniture & Electrical Pty Ltd [2012] 2 Qd R 337, cited
COUNSEL:	D G Sushames (sol) for the appellant A S Kitchin for the respondent
SOLICITORS:	Harris Sushames for the appellant ULR Lawyers for the respondent