Automotive Detailing Pty Ltd v Drummoyne Municipal Council

[1999] NSWCA 55

CITATION:	AUTOMOTIVE DETAILING PTY LTD v DRUMMOYNE MUNICIPAL COUNCIL [1999] NSWCA 55
FILE NUMBER(S):	CA 40240/98
HEARING DATE(S):	15 March 1999
JUDGMENT DATE:	15 March 1999
PARTIES :	Automotive Detailing Pty Ltd - A Drummoyne Municipal Council - R
JUDGMENT OF:	Sheller JA; Beazley JA; Fitzgerald JA

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	413/97
LOWER COURT JUDICIAL OFFICER:	Bowden DCJ

COUNSEL:	P M Hall QC/C Sandrasegara - A M J Joseph SC/I Isuzu - R
SOLICITORS:	Craddock Murray Newmann - A McCabes - R
CATCHWORDS:
ACTS CITED:	Supreme Court Act 1970
DECISION:	Dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40240/98
DC 413/97

SHELLER JA
BEAZLEY JA
FITZGERALD JA

15 March 1999

AUTOMOTIVE DETAILING PTY LIMITED v DRUMMOYNE MUNICIPAL COUNCIL

JUDGMENT

1 SHELLER JA: This appeal is dismissed with costs. The Court is of the unanimous opinion that the appeal does not raise any question of general principle. Pursuant to s45 (4) of the Supreme Court Act 1970, the Court's reasons for decision in short form are as follows.
2 The appellant's claim in the District Court was for a false or misleading representation claimed to have been made by an officer of the respondent Council. The evidence of that representation was evidence given by the managing director of the appellant about an oral conversation said to have taken place with an officer of the Council in August 1995.
3 The trial Judge, Bowden DCJ, in substance accepted that a conversation had taken place but rejected the account of it given by the managing director which went to the representations. The trial Judge reached that conclusion after carefully weighing the evidence that was given. Having reached it, the appellant's proceedings were dismissed. This appeal has been brought against that decision.
4 The bases upon which this Court can interfere on an appeal in a case where a trial Judge rejects evidence are well known. In this case, the heart of the appeal turns upon the submission that the trial Judge either ignored or gave insufficient weight to a letter written on behalf of the appellant to an officer of the potential lessor of the premises on 11 August 1995. A passage in that letter is relied upon in the following terms:
"I have had preliminary discussions with Drummoyne Council regarding the zoning and we are quite sure the proposal fits the criteria stipulated by council."
5 On the basis of what is said in the passage that I have just read in the context of the letter to which I have referred, it is submitted that it was not open to the trial Judge to reject the managing director's account of the representations he said had been made.
6 Of this it must be said, firstly, that the letter was not ignored in the reasons for judgment given below. In fact it was referred to and a comment made about it, which seems to me to have been entirely apposite. Secondly, it must be said that the form of that part of the letter which I have read is entirely consistent with the ultimate conclusion to which the trial Judge came. It does not tell against the conclusion and certainly is not evidence of a sort that would lead one to the conclusion that the rejection of the managing director's account of the representations must be accepted.
7 For that reason, in short form, that submission must be rejected.
8 The appellant also submitted that the trial Judge, in analysing the evidence and weighing up other parts of the managing director's evidence in determining the weight that should be given to the evidence he gave as a whole, erred. It is difficult to understand quite what is meant by this submission. It is answered by saying that, read as a whole, the reasons for judgment take the form that one would expect in a case of this sort. The evidence has been carefully weighed and for what, on their face, appear to be sound reason the conclusion was come to. This basis of appeal should also be rejected.
9 Reference was made to the fact that the Council officer, during the course of the conversation, had indicated that the appropriate form of application was one made under SEPP4 and that this was incorrect. This submission depends entirely upon what was said by the managing director about the use that was to be made of the land in question. In light of the conclusion that was come to about that conversation, it is impossible to found an argument, even if the matter were pleaded in this way, that there was any misrepresentation or negligence involved in the Council officer referring to the SEPP4 approach as the approach which the appellant should take.
10 It is for these reasons that as I have said the appeal should be dismissed with costs. Those are the unanimous reasons of the Court.

*****