Automotive Retail Group Pty Ltd v Gregory John Torzillo

[2020] NSWSC 1080

Supreme Court

New South Wales

Medium Neutral Citation:

Automotive Retail Group Pty Ltd v Gregory John Torzillo [2020] NSWSC 1080

Hearing dates:

24 March 2020

Date of orders:

17 August 2020

Decision date:

17 August 2020

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

(1) The plaintiff is granted an extension of time to appeal.

(2) The appeal is dismissed.

(3) The decision of Magistrate Moody dated 16 September 2019 is affirmed.

(4) The summons dated 1 November 2019 is dismissed.

(5) The plaintiff is to pay the defendant’s costs as agreed or assessed.

Catchwords:

APPEAL – Local Court – Modest amount in dispute – No point of principle – Unpaid invoices

Legislation Cited:

Local Court Act 2007 (NSW), ss 39, 41

Uniform Civil Procedure Rules 2005 (NSW) 50.3(1)(c)

Cases Cited:

Acuthanv Coates (1986) 6 NSWLR 472 at 479 at 479; (1986) 24 A Crim R 304

Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165

Keith v Gal [2013] NSWCA 339

Mifsud v Campbell (1991) 21 NSWLR 725

Mitchell v Cullingral Pty Ltd [2012] NSWCA 389

Pettitt v Dunkley [1971] 1 NSWLR 376

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4

Category:

Principal judgment

Parties:

Automotive Retail Group Pty Ltd (Plaintiff)
Gregory John Torzillo (Defendant)

Representation:

Counsel:
M Wells (Plaintiff)
B Phillips (Defendant)

Solicitors:
Birchall Legal (Plaintiff)
Dettmann Longworth Lawyers (Defendant)

File Number(s):

2019/343553

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court NSW

Jurisdiction:

Civil – General Division

Date of Decision:

16 September 2020

Before:

Moody LCM

File Number(s):

2018/264116

Judgment

1. This is an appeal from a judgment and orders of a Magistrate of the Local Court.

2. By summons commencing an appeal filed 1 November 2019, the plaintiff seeks the following orders: firstly, that time to appeal be extended pursuant to r 50.3(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); secondly, that the appeal be allowed; thirdly, that the judgment and orders of Moody LCM (“the Magistrate”) of the Local Court made on 16 September 2019 be set aside; and finally, that the matter be remitted to the Local Court for retrial.

3. The plaintiff is Automotive Retail Group Pty Ltd (“Automotive Retail”). The defendant is Gregory John Torzillo (“Mr Torzillo”). As the plaintiff in this appeal was the defendant in the Local Court proceedings and the defendant in this appeal was the plaintiff in the Local Court proceedings, for convenience and ease of understanding, I shall refer to them by name. The parties relied on a court book.

Appeals generally

4. Section 39 of the Local Court Act 2007 (NSW) provides that a party who is dissatisfied with a judgment or order of the Local Court may appeal to the Supreme Court, but only on a question of law.

5. Section 41(1) of the Local Court Act provides that this Court may determine an appeal either (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court's directions, or (d) by dismissing the appeal.

6. In Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4, Gleeson CJ at [2] reiterated that in the common law system of civil justice, the trial process determines the issues between the parties. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal.

Background

7. By amended statement of claim filed in the Local Court on 26 February 2019, Mr Torzillo claimed the sum of $24,750 said to be owing under nine invoices. Mr Torzillo alleged that Automotive Retail had requested him to modify the chassis of certain vehicles it had supplied. He said that he carried out the work and issued invoices to Automotive Retail, but that it failed to pay the amounts owing. I shall refer to the pleadings in more detail later in this judgment.

8. The hearing took place over three days on 14, 15 May and 5 August 2019 in the Downing Centre Local Court before the Magistrate.

9. On 16 September 2019, the Magistrate delivered oral reasons for judgment. She ordered that judgment be entered in favour of Mr Torzillo against Automotive Retail in the sum of $17,050, and that Automotive Retail pay Mr Torzillo’s costs.

Extension of time

10. This appeal was brought out of time. Mr Torzillo does not oppose the plaintiff’s application for an extension of time.

11. Automotive Retail seeks an extension of time to appeal under UCPR 50.3(1)(c). The appeal should have been lodged by 14 October 2019, but the plaintiff did not file the summons to appeal until 1 November 2019.

12. Automotive Retail submitted that the reason for the delay was that the transcript of the Magistrate’s decision did not become available until 11 October 2019. In these circumstances, it is my view that the legal representative acting for Automotive Retail acted reasonably by filing its summons to appeal by 1 November 2019. Hence, I grant an extension of time to Automotive Retail to appeal up to and including 1 November 2019.

13. Before considering the grounds of appeal, it is convenient that I first set out the pleading framework and hearing in the Local Court.

The pleading framework in the Local Court

14. By amended statement of claim filed 26 February 2019, Mr Torzillo relevantly pleaded:

“3. Between February 2016 and April 2018, the defendant requested that the plaintiff modify the chassis of certain vehicles supplied by the defendant and have the vehicles registered (‘Chassis Modification and Registration’).

Particulars

The requests were made in Purchaser Orders provided by the defendant to the plaintiff (‘Purchase Orders’)

3A. The plaintiff carried out the Chassis Modification and Registration the subject of each purchase order.

...

5. The plaintiff has issued tax invoices to the defendant in respect of the Chassis Modification and Registration of which tax invoices 1128, 1134, 1135, 1136, 1137, 1138, 1139, 1140 and 1141 have not been paid (‘Unpaid Tax Invoices’). The Unpaid Tax Invoices total $24,750.

6. Despite the plaintiff’s demands the defendant neglects and refuses to pay the unpaid tax invoices and the outstanding amount of $24,750 owing to the plaintiff.

…”

The defence

15. By defence flied 15 March 2019, Automotive Retail relevantly alleged at paragraph [3]:

1. As to paragraph 3 of the Claim –

   …

   (b)   the defendant says that its dealings with the plaintiff required that any truck to be sold by the defendant to (or as directed by) the plaintiff would be sold on the basis of same being sold wholesale by the defendant as seller to (or as directed by) the plaintiff as buyer who was a reseller, with no modification/s unless specified on the tax invoice or contract for the sale of a new motor vehicle to be supplied by the defendant to (or as directed by) the plaintiff, and in the same form as such truck was sold to the defendant by the defendant’s own supplier (Mitsubishi-Fuso); and

   (c)   the defendant otherwise denies each and every allegation set out therein.”

   16. Automotive Retail repeated these allegations in respect of each of the six invoices: see [3A] and [5].

   17. Paragraph [3](b) of the defence appears to be directed at [3A] of the statement of claim, stating, “Automotive Retail has denied that Mr Torzillo carried out the chassis modification and registration of each purchase order and has also denied that Mr Torzillo issued specified tax invoices to Automotive Retail.”

   18. Before the hearing took place in the Local Court, Automotive Retail paid the three outstanding invoices. Hence, the amount in dispute at hearing in the Local Court was reduced to $17,050.

The hearing in the Local Court

19. The hearing in the Downing Centre Local Court took place over three days on 14 and 15 May and 5 August 2019 before the Magistrate. Mr Torzillo relied on his two affidavits dated 1 November 2018 and 6 March 2019. He was cross examined. Automotive Retail relied on the three affidavits of Richard Furnari, the director of Automotive Retail, dated 22 January 2019, 17 April 2019 and 26 July 2019. He was not cross examined

20. Below I have summarised what the Magistrate recorded as the issues in dispute.

21. In her judgment, the Magistrate explained how it was Mr Torzillo’s practice to operate both as a sole trader and though other corporate entities. Mr Torzillo ran a business called Flowcrete Group Pty Ltd (“Flowcrete”) from his premises. He is the sole director of Flowcrete. Flowcrete acquires trucks from manufacturers and distributors, fixes concrete pumping equipment to them and supplies trucks with the concrete pumps attached. The truck manufacturers and distributors pay Flowcrete to carry out these modifications, and Flowcrete pays for the modified truck. One of the manufacturers for whom Mr Torzillo did this work was Automotive Retail.

22. Between 2016 and April 2018, Mr Torzillo alleged that he received 26 purchase orders from Automotive Retail regarding chassis modifications for various trucks. His practice was that Automotive Retail would send a purchase order and deliver a truck to Mr Torzillo for him to modify. The truck remained at Mr Torzillo’s premises. Automotive Retail would then invoice Flowcrete for the modified truck, and Mr Torzillo would issue an invoice to Automotive Retail for the modifications. Mr Torzillo says that the modifications were carried out in accordance with the purchase orders, but that only 20 of the invoices were paid, with six still outstanding (T 2.5-23).

23. Automotive Retail asserted that it did not request Mr Torzillo to modify the vehicles, and that in any event, the work was not done. Automotive Retail stated that the invoices were not for chassis modification. Even though it was not pleaded in the defence, the Magistrate noted that Automotive Retail alleged that two of its employees, Peter Willigen and Andrew Stotz, mistakenly or wrongfully issued purchase orders to Mr Torzillo and procured invoices to be issued by him to Automotive Retail. This was to facilitate Flowcrete to purchase trucks through Mr Willigen and Mt Stotz, enabling them to obtain bonus payments and commission they would not otherwise receive (T 1.34-38; T 1.40-48).

The law – adequate reasons

24. The plaintiff referred to at least 15 cases on the adequacy of a decision maker’s reasons. It is not necessary to reproduce them here.

25. Rather, recently in Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 (“Alexandria Landfill”), Basten JA (with Macfarlane and Leeming JA agreeing) restated what will constitute adequate reasons, and in particular, at what level of detail the Court will require the process of reasoning to be recorded. In its decision in Alexandria Landfill, the Court of Appeal referred to Pettitt v Dunkley [1971] 1 NSWLR 376 at [19] and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at [21].

26. In Alexandria Landfill, Basten JA stated at [29] to [32] and [50]:

1. Where the process of fact finding is unreviewable except to the extent that it reveals an error of law, the reasons required must be sufficient to demonstrate that the legal limits of the process have not been contravened. Having regard to the purpose of giving reasons, the standard is properly identified negatively: it must be shown that the decision has not been reached capriciously or arbitrarily, but rationally. The reasons must thus reveal that all material factors have been identified and addressed, and that no prohibited considerations have been operative. If there is an available process of reasoning from the evidence to the outcome which has been adopted, either expressly or by implication, the appellate court should be slow to reach the conclusion that the function of the trial court has not been exercised according to law.

2. Despite the suggestion, frequent in recent years, that the reasons should disclose that the judge has “grappled with” the issues to be resolved, this is a metaphor which provides little guidance as to the intensity or nature of the intellectual process required as a matter of law. Further, the description seems directed to reasons as evidence of a failure to exercise jurisdiction, and not as a standard of disclosure of the process in fact adopted.

3. In any event, such language is inapt to impose a particular standard. The standard should not be set at a level which risks an appellate review involving an assessment of the evidence, a function which is conferred exclusively on the trial judge where the appeal is confined to questions of law.

4. So much is clear from the reasoning of the majority in Soulemezis. It is true that McHugh JA stated in Soulemezis that where there was no right of appeal against findings of fact, “a failure to state the basis of or even a crucial finding of fact, if it involves no legal standard, it will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done.” [34] However, the adage that “justice must not only be done, but be seen to be done”, whilst a way of identifying the obligation to give reasons as part of the principle of open justice, provides no further assistance in identifying the standard to be applied.

…

1. In most cases, the judge expressly or implicitly adopted the respondent’s submissions for a particular conclusion. This was not a case of unattributed adoption, as considered in LVR and Cojocaru. No authority was relied upon by the appellant for the proposition that adoption of one party’s submissions was inadequate to satisfy a judicial obligation to give reasons. In a multi-member court, it is common place for one judge to adopt the reasoning of another. To the extent that the setting out of reasons for a decision is conducive to good decision-making, there could be an objection to that practice, but it is not suggested that a judge who agrees with another judge has failed to provide reasons. On the other hand, the adoption of reasons will not provide an adequate compliance with the obligation to give reasons if the reasons adopted are themselves inadequate. Thus, if the reasons of one party adopted by the judge do not adequately engage with the other party’s case, they may not demonstrate that the judge has engaged with that case. Accordingly, it is necessary to look at the content of the adopted submissions in considering a ground of challenge to the adequacy of the reasons and so far as they are relied on to demonstrate a failure to exercise jurisdiction.”

   27. The Magistrate’s decision should be considered in the context of her Honour providing reasons for judgment in a busy Local Court. Any other approach imposes an intolerable burden on Magistrates: see Acuthan v Coates (1986) 6 NSWLR 472 at 479 at 479; (1986) 24 A Crim R 304 at 310 per Kirby P.

The grounds of appeal

28. In summary, Automotive Retail submitted that the appeal should be allowed for four reasons. They are that the Magistrate made an error of law in the following respects:

1. in first failing to give adequate reasons for her decision generally;

2. in failing to give adequate reasons for rejecting Mr Furnari’s evidence;

3. in failing to give adequate reasons why Mr Torzillo’s evidence was preferred to that of Mr Furnari; and

4. in failing to give adequate reasons in respect of whether there was a contract between the parties in relation to the chassis modifications the subject of each invoice.

   29. It is accepted that a failure to provide adequate reasons is an error of law.

   30. I will consider first Ground 1, followed by Grounds 2 and 3 together, and then finally Ground 4.

Ground 1

31. This ground of appeal is on the basis that the Magistrate made an error of law in failing to give adequate reasons for her decision generally.

Automotive Retail’s submissions

32. Counsel for Automotive Retail submitted that nowhere before or following her finding did the Magistrate reveal her reasoning on the point critical to the contest between the parties, which was whether there was a purchase order issued by Automotive Retail Group to Torzillo requesting it to carry out the work.

33. At the hearing of this appeal, counsel for Automotive Retail referred to the case summary and the statement of issues and the pleadings. It is the pleadings, not the case summary nor the statement of issues, that define the issues in dispute. I have briefly set out the pleadings in the statement of claim and defence earlier in this judgment.

34. Automotive Retail referred to Torzillo’s closing submissions and submissions in reply.

35. In his closing submissions, Torzillo stated:

“1. There are only two real issues in the proceedings: a) whether [Automotive Retail Group] requested that the work be done; and b) whether the work was in fact done.

2. In relation to the first of those issues, the position remains as set out in the plaintiff’s case summary: [Automotive Retail Group’s] own evidence shows that there was a purchase order provided by [Automotive Retail Group] in respect of each and every invoice. Accordingly, there can be no doubt that the [Automotive Retail Group] requested that the work in question be carried out.”

36. In its outline of submissions, Automotive Retail identified its case, relevantly, as follows: “[Automotive Retail’s] case is that it did not request [Torzillo] to perform chassis modification works...”. The issues in dispute included “whether [Automotive Retail] requested Torzillo to perform the chassis modification works on the trucks”.

37. In its reply submissions dated 9 August 2019, Torzillo stated:

“8. It is admitted by [Automotive Retail Group] (see for example the spreadsheet prepared by [Automotive Retail Group] itself that is Exhibit 5) that in respect of each invoice relied upon by [Automotive Retail Group], there was a corresponding purchase order.

9. The existence of the purchase order means that it does not matter whether the invoice for the sale of the truck specifically referred to its chassis as having been modified. ...”

38. Automotive Retail then submitted that it was necessary for the Magistrate to explain the basis of the critical finding of fact that each invoice had a corresponding purchase order by analysing each of the six invoices in dispute, and the corresponding purchase order identified in them, in order to expose her reasoning on that point critical to the contest between the parties. The Magistrate’s failure to reveal her reasoning on that point was consequential. Had the reasons adequately analysed each invoice together with the corresponding purchase order, or identified that an invoice did not have a corresponding purchase order, Automotive Retail submitted that it would have led inexorably to the conclusion that Automotive Retail Group did not request Torzillo to do the work.

Mr Torzillo’s submissions

39. Automotive Retail identified Mr Torzillo’s complaint as being that the Magistrate did not give adequate reasons for the finding that “each invoice has a corresponding purchase order”.

40. Mr Torzillo submitted that these submissions came as a surprise, as the plaintiff had never previously suggested that any of the six invoices did not have a corresponding purchase order. This could never properly have been in issue, because Automotive Retail’s own evidence was that each relevant invoice had a corresponding purchase order. A spreadsheet prepared by Automotive Retail’s director, Richard Furnari, and annexed to his affidavit (Ex 5) contained a list of each invoice received by Automotive Retail from Mr Torzillo. The third column of that spreadsheet contained the number of the purchase order that corresponded with each invoice received from Mr Torzillo, and the fourth column set out the date of the purchase order. The only invoice on the list that does not have a corresponding purchase order is Mr Torzillo's invoice number 1107, which was not one of the invoices relied upon by Mr Torzillo.

39. Having regard to the above, Mr Torzillo submitted that it is plain that the reasons given by the Magistrate in relation to this issue were adequate, and certainly were not so inadequate as to amount to an error of law.

Consideration

42. I will briefly refer to the evidence of Mr Torzillo and Mr Furnari as recorded by the Magistrate.

Mr Torzillo

43. Mr Torzillo’s evidence as referred to by the Magistrate can be summarised as follows: that Mr Torzillo orchestrated the modification, provided technical support to those assisting; that he personally did the work with the assistance of others; that his level of involvement depended on the specifics of the modification required; that he was qualified to do chassis modification, that they would be certified; that he was a motor mechanic by trade with a diploma of mechanical engineering; and that he had been working on trucks designing hydraulic systems since 1975. Further, the Magistrate referred to the fact that Mr Torzillo was qualified under the VSP Code of Practice and was assisted in the work by contractors who rendered invoices. He said that the invoices were not provided when they were asked for.

44. When taken to the invoices, Mr Torzillo stated that they were different because each was for a different model truck, so the scope of the work was different. In cross examination, Mr Torzillo agreed that the scope of the work was not indicated in each of the invoices (T 2.31-44 16/9/2019). The Magistrate accepted that it was clear from Mr Torzillo’s evidence that there was considerable cross over between the two entities, given both were owned by Mr Torzillo and were on the same site. The Magistrate said that it was entirely logical to hear that Mr Torzillo would have availed himself of assistance from the Flowcrete employees and the subcontractors. Mr Torzillo gave evidence that Flowcrete’s remuneration comes through the sale of the vehicles (T 7.10-15 16/9/2019).

45. Mr Furnari is the sole director of Automotive Retail Group. No objections were made to the contents of his affidavits. Mr Furnari was not required for cross examination. The gravamen of Mr Furnari’s evidence is that the invoices were issued pursuant to a fraudulent scheme between employees of both Automotive Retail and Mr Torzillo, whom he named as Mr Willigen and Mr Stotz (Aff 23 January 2019 at [11]-15]; T 4.38-43 16/9/2019). These allegations were not pleaded in the defence as they should have been. Neither Mr Willigen nor Mr Stotz filed evidentiary statements nor did they give evidence at the hearing. Hence, the Magistrate rejected the allegation that there was a fraudulent scheme afoot. I might add that it was never pleaded in the defence that the invoices were not for the corresponding purchase orders. It was not an issue in dispute. Nevertheless, the Magistrate dealt with that issue.

46. Mr Furnari’s affidavits also focussed on his explanation of the financial documentation. However, he was not personally involved in the issue of the purchase orders. These purchase orders were on Fuso Geelong letterhead and referred to as Australasian Trading Group Trust t/as Fuso Geelong. In his last affidavit dated 26 July 2019, Mr Furnari set out each of the tax invoices and other details relating to six trucks together with additional documentation.

47. At the hearing of this appeal, copies of five purchase orders addressed to Mr Torzillo from Fuso Geelong were tendered and marked as Ex 1 in this Court (the 6th invoice did not form part of Ex 1). Counsel for Automotive Retail took the same approach in this Court as it did in the Local Court, in that he took me through each particular of each of the unpaid five invoices, the purchase orders and other documents and asserted there were inconsistencies between the documents. I agree that there were inconsistencies. After that exercise was completed, counsel then took me through each invoice and compared it the corresponding entry in a schedule (CB 103) prepared by Mr Furnari and that there were inconsistencies between those documents.

48. In considering the evidence of Mr Torzillo and Automotive Retail, the Magistrate said that she was faced with some shoddy administration and that Mr Torzillo had some rather inefficient bookings in play (T 6.20-22). Both MAG (Murwillumbah Automotive Group Pty Ltd t/as Murwillumbah Truck Centre) and Automotive Retail suffered from similar inefficiencies in administration. The Magistrate made a finding that “It seems all round these people did not keep particularly efficient offices of administration, since these things had gone unnoticed on both sides of the coin.” (T 6.31-33; 6.43-45). In other words, her Honour’s task was difficult, if nigh impossible, in reconciling the invoices with Automotive Retail’s purchase orders and Mr Furnari’s other documentation.

49. However, the Magistrate did not accept that the purchase orders provided by the sales manager for Automotive Retail, Mr Stotz, were not authorised. They were under the defendant’s letterhead with individual reference numbers and accompanied by clarifying emails between Mr Stotz and Mr Torzillo. There was nothing to demonstrate that Mr Stotz did not have the authority to issue those purchase orders or that the plaintiff knew that he did not.

50. The Magistrate then referred to Mr Torzillo’s evidence that often, purchase orders were verbal, and that he stated that he runs a “gentlemanly business” in that where someone makes a purchase order, they honour it. Her Honour pointed out “what matters is that chassis were modified as requested by Automotive Retail in the purchase orders by Mr Torzillo.” Her Honour accepted Mr Torillo’s evidence that the chassis were modified as requested by Automotive Retail in the purchase orders. As previously stated, Mr Furnari was not personally involved in the issue of the purchase orders.

51. The Magistrate has explained her rational process of reasoning from the evidence to the outcome. Her Honour accepted Mr Torzillo’s evidence that he did the modifications as referred to in the purchase orders and issued invoices. The Magistrate provided adequate reasons. There is no error of law. This ground of appeal fails.

52. I shall refer to whether the Magistrate gave adequate reasons as to whether there was a contract under appeal ground 4.

Grounds 2 and 3 – Failure to give adequate reasons for rejecting Mr Furnari’s evidence and preferring Mr Torzillo’s evidence

53. These grounds of appeal are similar to ground 1.

Automotive Retail’s submissions

54. Mr Furnari was not cross examined at trial. Notwithstanding his evidence was unchallenged, the judgment contains no more than a passing reference to Mr Furnari’s evidence as follows: “The defendant did not give evidence other than his affidavit and he was not required for cross-examination. The defendant relies on the affidavit of the 23 January 2019, 17 April 2019 and 26 July 2019” (T 5.1-4). The consideration of Automotive Retail’s evidence as to the request is limited to that extent.

55. Counsel for Automotive Retail conceded that the Magistrate was not required to refer to every piece of evidence: see Mitchell at [2] (Allsop P, McColl JA agreeing). A failure to refer to some of the evidence does not necessarily indicate that a judge has failed to discharge the duty which rests upon him or her: see Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (Samuels JA, Clarke JA agreeing). However, the competing evidence directed or relevant to the central controversies put up for resolution by the parties must be analysed and resolved: see Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2] (Allsop P, McColl JA agreeing).

56. Automotive Retail submitted that the Magistrate failed to analyse and resolve the competing evidence.

57. Automotive Retail further submitted that there was no analysis of the competing evidence, no explanation in the judgment for rejecting Mr Furnari’s evidence, and no examination given as to why Mr Torzillo’s evidence was to be preferred to that of Mr Furnari. Her Honour explored the evidence adduced by Mr Torzillo in some detail over three pages of the transcript (T 1.50-4.30). However, Automotive Retail submitted that in the three lines in which her Honour referred to Automotive Retail’s evidence, she failed to analyse that evidence (T 5.1-4). Automotive Retail submitted that the Magistrate did not analyse evidence adduced by it that which was critical to the determination of the matter.

58. According to Automotive Retail, the Magistrate simply set out the evidence adduced by Mr Torzillo, mentioned the affidavits relied on by Automotive Retail, and then suggested that she preferred the evidence of Mr Torzillo. Automotive Retail submitted that this approach was inadequate, as it is not clear from the judgment that Automotive Retail’s evidence was considered. The absence of any reference to Automotive Retail’s evidence in substance demonstrates that the Magistrate erroneously overlooked it, failed to give consideration to it or discarded it: see Keith v Gal [2013] NSWCA 339 at [110] (Gleeson JA, Emmett JA and Simpson J agreeing). Automotive Retail submitted that the Magistrate’s reasons are deficient, as they fail to analyse Automotive Retail’s evidence and explain why Mr Torzillo's evidence did, and Automotive Retail’s evidence did not, lead to the ultimate conclusion.

Mr Torzillo’s submissions

59. Mr Torzillo submitted that the relevant obligation of a trial judge is to weigh up competing evidence.

60. There was no competing evidence in relation to the only real factual issue, which was whether or not modifications were made to the chassis on the invoiced six trucks. The key evidence was that of Mr Torzillo in [8] of his affidavit sworn 1 November 2018, in which he stated that “I personally but with the assistance of others carried out the requested modifications to the truck at the Mt Kuring-Gai complex”. Automotive Retail Group did not call any witness (such as the sales managers who actually arranged the chassis modifications in question) who could say anything about that issue, let alone contradict the evidence of Mr Torzillo. Instead, it merely served affidavits by its director, Mr Furnari, who annexed various documents and made submissions about them.

61. As such, Mr Torzillo submitted that this was not a case where the Magistrate was required to reject the evidence of Mr Furnari, as he had nothing to say on the key factual issue because he was not there and was not involved in the transactions in question.

62. Similarly, it was not a case where the Magistrate was required to, or did in fact, prefer the evidence of Mr Torzillo to that of Mr Furnari. Mr Furnari could not give any evidence that contradicted that of Mr Torzillo, so Mr Torzillo's evidence was accepted.

63. In light of the above, Mr Torzillo submitted that the reasons given by the Magistrate were adequate, and certainly not so inadequate as to amount to an error of law.

Consideration

64. The Magistrate recorded that the purchase orders by Automotive Retail were on Fuso Geelong letterhead. They had their own reference numbers. They were provided by sales managers. The Magistrate’s rational reasoning process is that there was no evidence that Mr Torzillo was ever made aware that Automotive Retails employees were not authorised. The sales managers were not called, there were no witnesses and there was no evidence that the trucks were unmodified (T 5.47-50; T 6.1-4). I have already referred to the Magistrate’s findings in relation to the invoices and purchase orders. Her Honour accepted Mr Torzillo’s evidence and made a finding that Mr Torzillo performed the modification on the chassis on the siz trucks. Mr Furnari was not able to give any evidence other than to allege that his employees wrongfully issued purchase orders and the discrepancies between the purchase orders and the invoices.

65. In light of the state of the evidence, the Magistrate has explained in her reasons why she rejected Mr Furnari’s evidence and accepted that given by Mr Torzillo. The Magistrate provided adequate reasons. There is no error of law. These grounds of appeal fail.

Ground 4 – Failure to give adequate reasons in respect of whether there was a contract between the parties

Automotive Retail’s submissions

66. In her judgment, the Magistrate concluded, “The contract was between [Mr Torzillo] and [Automotive Retail] and that any delegation of the work by [Mr Torzillo] is of no moment. There is no evidence that it was an implied term of the contract as [Mr Torzillo] points out, that [Mr Torzillo] performed the work personally” (T 8.1-6). Automotive Retail submitted that the Magistrate provided no reasoning supporting her conclusion. It appears that the Magistrate accepted and adopted uncritically the submissions made by Mr Torzillo in his reply submissions dated 9 August 2019 (which were lodged pursuant to leave granted at the end of final day of the trial on 5 August 2019), in which he stated at [12] and [14], “it could not be an implied term of the contracts between [Mr Torzillo] and [Automotive Retail] that the chassis modification work would be performed by [Automotive Retail] personally” and that “the contract was between [Mr Torzillo] and [Automotive Retail]”. Automotive Retail submitted that in adopting those submissions in that way, the Magistrate failed to make the requisite findings in respect of the formation of such a contract (or contracts) between the parties, or to undertake the necessary analysis and reasoning to support her conclusion that the contract was between Mr Torzillo] and Automotive Retail. The failure to provide reasons for making that finding of fact, and to expose her Honour's reasoning on that point, amounted to an error of law.

Mr Torzillo’s submissions

67. Mr Torzillo submitted that Automotive Retail never made any submission to the effect that the contract for the performance of the chassis modification work was between anyone other than Automotive Retail and Mr Torzillo. If such a submission was made at first instance, it is not in Automotive Retail’s submissions.

68. In any event, Mr Torzillo submitted that this issue could not properly have been in issue at first instance, because the other purchase orders were in evidence, and each one bore Automotive Retail’s name in print and was addressed to Mr Torzillo personally. As such, to the extent it was not an agreed fact that the relevant contracts were between Automotive Retail and Mr Torzillo, the purchase orders made clear that that was in fact the case.

69. In light of this evidence, Mr Torzillo submitted that the Magistrate’s “finding” in question is really no more than the repetition in the reasons of a fact agreed between the parties. To the extent it was a finding, it was a finding about a matter that was so uncontroversial that it did not require any additional reasons to those provided.

Consideration

70. In her judgment, the Magistrate accepted Mr Torzillo’s evidence that Automotive Retail was liable to Mr Torzillo, not Flowcrete. The compliance certificate tracks each case that had chassis modifications. There was no evidence from anyone other than Mr Torzillo that he performed the work. Mr Torzillo gave oral evidence and affidavit evidence that he did. Each invoice had a corresponding purchase order, which established that Mr Torzillo and Automotive Retail knew the truck in question would be one with a chassis modification. Automotive Retail has not demonstrated the work the subject of the purchase orders was not carried out by him. The Magistrate set out the above evidence, giving adequate reasons as to why she made a finding that there was no implied term of the contract. There is no error of law. This ground of appeal fails.

The result

71. All grounds of appeal have not been made out. The Magistrate did not err in law, and provided adequate reasons for her decision. The result is that the appeal is dismissed.

Costs

72. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs as agreed or assessed.

The Court orders that:

1. The plaintiff is granted an extension of time to appeal.

2. The appeal is dismissed.

3. The decision of Magistrate Moody dated 16 September 2019 is affirmed.

4. The summons dated 1 November 2019 is dismissed.

5. The plaintiff is to pay the defendant’s costs as agreed or assessed.

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Decision last updated: 17 August 2020