Bassili v Wheelies - [2007] NSWSC 61

CITATION: Bassili v Wheelies [2007] NSWSC 61

HEARING DATE(S): 2 February 2007

JUDGMENT DATE :
13 February 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is dismissed; (2) The decision of the Magistrate dated 17 February 2006 is affirmed; (3) The summons filed 17 March 2006 is dismissed; (4) The plaintiffs are to pay the defendant's costs as agreed or asessed.

CATCHWORDS: Appeal decision of Local Court Magistrate - contract, breach, damages

LEGISLATION CITED: Local Courts Act 1982 (NSW) - ss 73, 75

CASES CITED: Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Carr v Neill [1999] NSWSC 1263
Devries v Australian National Railways Commission (1993) 177 CLR 472
Gorczynski v Beilby [2005] NSWSC 884
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Jung v Son NSWCA 18 December 1998
Pettitt v Dunkley (1971) 1 NSWLR 376
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588
Stoker v Adecco Gemvale Constructions Pty Ltd & Anor [2004] NSWCA 449
Swain v Waverley Municipl Council (2005) 220 CLR 517

PARTIES: Adel Bassili & Michelle Nigl t/as We Care Tours & Travel - Plaintiffs
Wheelies Specialised Vehicle Hire Pty Ltd t/as
Wheelabout, Wheelchair Accessible Van Rentals & Sales - Defendant

FILE NUMBER(S): SC 11272/2006

COUNSEL: Mr B DeBuse - Plaintiffs
Mr K J Manion - Defendant

SOLICITORS: Bell Lawyers - Plaintiffs
Fraser Clancy Lawyers - Defendant

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 7015/2005

LOWER COURT JUDICIAL OFFICER : Freund LCM

LOWER COURT DATE OF DECISION: 17 February 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

TUESDAY, 13 FEBRUARY 2007
11272/2006 - ADEL BASSILI & MICHELLE NIGL
t/as WE CARE TOURS & TRAVEL v

WHEELIES SPECIALISED VEHICLE HIRE
PTY LTD t/as WHEELABOUT,WHEELCHAIR

ACCESSIBLE VAN RENTALS & SALES
JUDGMENT (Appeal decision of Local Court Magistrate
- contract, breach, damages)

1 HER HONOUR: By summons filed 17 March 2006 the plaintiffs seeks firstly, an order that the judgment of Her Honour Freund LCM, dated 17 February 2006 in proceedings 7015/2005 be set aside; secondly, an order that the defendant’s cross claim be dismissed; and thirdly, an order that the matter be remitted to the Downing Centre Local Court for rehearing. The plaintiffs relied on the affidavit of Paul Donald Blunt dated 11 August 2006. The defendant relied on the affidavits of Nasir Hanafi dated 1 February 2007 (2).

2 The plaintiffs in these proceedings are Adel Bassili and Michelle Nigl t/as We Care Tours & Travel (Bassili). The defendant is Wheelies Specialised Vehicle Hire Pty Ltd t/as Wheelabout, Wheelchair Accessible Van Rentals & Sales (Wheelies). For convenience, in this judgment, I shall refer to the parties by name. Bassili and Nigl were the plaintiff/cross defendant in the Local Court proceedings. Wheelies were the defendant/cross…

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.

Continue reading Bassili v Wheelies

Details

AGLC: Bassili v Wheelies [2007] NSWSC 61
Case: [2007] NSWSC 61
Decision Date: 13 February 2007

CaseChat Overview and Summary

In the case of Bassili v Wheelies, the plaintiff, Mr. Bassili, sought to recover damages for breach of contract from the defendant, Wheelies, a bicycle repair shop. Mr. Bassili had brought his bicycle to Wheelies for repairs, and an agreement was made for the repair work to be completed by a specified date. However, when the bicycle was returned to Mr. Bassili, it was not in a repairable condition. The Local Court Magistrate had dismissed Mr. Bassili’s claim for damages, finding that Wheelies had not breached the contract. Mr. Bassili appealed the decision to the higher court.

The court was required to determine whether Wheelies had breached the contract by failing to repair Mr. Bassili’s bicycle within the agreed timeframe and, if so, whether Mr. Bassili was entitled to damages for that breach. The primary issues revolved around the interpretation of the contract, the standard of care expected from Wheelies, and the appropriate measure of damages. The court had to consider the terms of the agreement, the nature of the services provided, and the consequences of the alleged breach.

The court found that the terms of the contract were clear and that Wheelies had indeed failed to meet the agreed deadline for completing the repairs. The court held that Wheelies was under an obligation to exercise reasonable care and skill in performing the repairs and that they had not met this standard. As a result, Wheelies was found to have breached the contract. The court then assessed the damages Mr. Bassili was entitled to receive, taking into account the cost of alternative repairs and any additional expenses incurred due to the delay. The appeal was allowed, and the matter was remitted to the Local Court for the assessment of damages.

Orders