Bentancur v Mammoliti

[2024] NSWDC 201

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Bentancur v Mammoliti [2024] NSWDC 201

Hearing dates:

21-24 May 2024

Date of orders:

4 June 2024

Decision date:

04 June 2024

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph [253]

Catchwords:

CONTRACTS – supply by specialist automotive mechanic of services for restoration of Mercedes Benz 230 SL Pagoda motor vehicle – scope of the works – parties agree that, as a minimum, scope of works included supplier rebuilding engine to the vehicle – implied term to complete rebuild of works within a reasonable time – whether contract validly terminated by customer for delay in performance – whether cost of third party’s services to install substitute engine in vehicle was compensable – whether loss caused by breach – whether loss too remote – whether costs not reasonably incurred – asserted damage to paintwork whilst vehicle was in supplier’s possession

DAMAGES – customer engages third party to install a substitute engine into Vehicle – loss of bargain damages – whether monies paid to supplier recoverable as wasted expenditure – whether damage to external paintwork compensable

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 3B, 5A

Civil Procedure Act 2005 (NSW)

Cases Cited:

Arsalan v Rixon (2021) 274 CLR 606

Baltic Shipping Co v Dillon (1993) 176 CLR 344

Carr v JA Berriman (1953) 89 CLR 327

Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17

Glebe Island Terminals v Continental Seagram Pty Ltd (1993) 40 NSWLR 206

Hadley v Baxendale (1854) 156 ER 145

In the matter of Qenos Pty Ltd (Administrators Appointed) [2024] NSWSC 482

Koompahtoo Local Aboriginal Land Council v Sanpine (2007) 233 CLR 115

Krupowicz & Anor v CTTT & Anor [2003] NSWSC

Laurinda Pty Ltd v Capalba Park Shopping Centre Pty Ltd (1989) 166 CLR 623

Luna Park (NSW) Limited v Tramways Advertising Proprietary Limited (1938) 38 SR (NSW) 632

Robinson v Harman (1848) 154 ER 363

Sanpine v Koompahtoo Local Aboriginal Land Council [2006] NSWCA 291

Sindel v Georgiou (1984) 55 ALR 1

Topaloglu v UPS SCS (Australia) Pty Ltd [2011] QSC 217

Texts Cited:

J Carter, Breach of Contract (LexisNexis Butterworths, 2011)

Category:

Principal judgment

Parties:

Mr Danys Bentancur (Plaintiff)
Mr Giovanni John Mammoliti (Defendant)

Representation:

Counsel:
Mr T Cleary (Plaintiff)
Ms C Langford (Defendant)

Solicitors:
Matthews Folbigg Lawyers (Plaintiff)
Aubrey F Crawley & Co. (Defendant)

File Number(s):

2022/00368002

Publication restriction:

Nil

REASONS FOR JUDGMENT

Introduction

1. The plaintiff, Mr Danys Bentancur, is the owner of a Mercedes-Benz 230 SL Pagoda (registration AUD 15X and VIN 11304222009187) (the ‘Vehicle’) which he acquired in 2000. The defendant, Mr Mammoliti, describes himself as a qualified automotive engineer and fitter, and licensed motor vehicle repairer.

2. In August or September 2014, Mr Bentancur and Mr Mammoliti entered into a verbal agreement. There is an issue about the scope of that agreement, however it is common ground that: (a) Mr Mammoliti was required to supply and install parts to the Vehicle; (b) the Vehicle (whether or not it was missing certain parts) was delivered to Mr Mammoliti’s workshop; (c) two invoices were issued by or at the behest of Mr Mammoliti in September 2014 and December 2014 relating to parts required for the Vehicle and (d) both invoices were (fully) paid by Mr Bentancur. Communications (by email and by text) were exchanged between Mr Bentancur and Mr Mammoliti from 2014 to February 2022. It is also common ground that Mr Mammoliti was obliged to complete a rebuild of the engine of the Vehicle.

3. The main disputes were whether, by reason of Mr Mammoliti’s delay in that engine rebuild, Mr Bentancur validly terminated the agreement in early 2022 and what, if any, heads of damage claimed were recoverable in damages.

Identifying the issues

4. Neither party supplied the Court with a statement of issues (a conventional pre-hearing requirement in civil hearings in this Court) although outlines of submissions (MFIs 1 and 2) were exchanged and supplied to the Court at the outset of the hearing in which issues could, with the benefit of some further verbal exchanges, be teased out. The parties also relied upon closing submissions from their Counsel which were partly written (MFIs 5 and 6) and partly oral.

The cause of action relied upon

5. In his opening address (after I had partially refused an application to amend brought on the eve of the commencement of the hearing), Counsel for Mr Bentancur indicated that the plaintiff’s claim was singularly brought solely in contract.

The terms of the contract

6. The parties acknowledged that this was an informal contract. Counsel for the plaintiff identified the following express terms, with which Counsel for the defendant did not disagree. These express terms were as stated by Mr Bentancur in his first affidavit (paragraph 8), as modified by evidence he gave in Court:

1. Mr Mammoliti would refurbish and recondition (‘reassemble and rebuild’) the Vehicle;

2. No express stipulation (or even estimate) of time, or date for completion of the works, was given for performance by Mr Mammoliti. In lieu of such stipulation it was implied that Mr Mammoliti was to be given a reasonable period of time to complete the Works;

3. Invoices were to be issued to Mr Mammoliti and paid by Mr Bentancur progressively, without express criteria such as designated milestones;

4. Mr Mammoliti would charge on an hourly basis for time spent on the Vehicle (there being no fixed price); and

5. Mr Mammoliti was entitled to charge Mr Bentancur for parts for the Vehicle he purchased on Mr Bentancur’s behalf.

The heads of damages claimed

7. Further, Counsel for the plaintiff identified the following heads of damages:

1. loss of monies in respect to Works comprising: (a) the parts of the Vehicle which Mr Bentancur paid for but which were never received and (b) the installation of a rebuilt engine in the Vehicle, which never occurred;

2. the cost to repair the external paint of the Vehicle damaged when it was within Mr Mammoliti’s possession; and

3. costs associated with Mr Bentancur getting a third party (Mr Tsolakis) to install the engine of the Donor Vehicle in the Vehicle, in lieu of Mr Mammoliti installing the original engine in the Vehicle ^[1] .

1. An earlier claimed head of damages – loss of resale value on the Vehicle – which had been brought at a point in time when the Vehicle had not been returned to the plaintiff, was abandoned after the Vehicle’s return in February 2024, about 3 months before the commencement of the hearing.

The issues

8. By his opening address, the plaintiff’s Counsel identified the following issues as arising for the Court’s adjudication:

1. Whether Mr Mammoliti was entitled to receive payment for the sums of money that he issued invoices for;

2. Whether Mr Mammoliti received payment for works that he not did not complete;

3. Whether Mr Mammoliti caused damage to the Vehicle in the course of his possession of it;

4. What damages Mr Mammoliti was liable to pay to remedy that damage; and

5. Whether the claim was statute barred.

9. The defendant did not appear to dispute this identification of the issues, at least with any real vigour; although his Counsel said that the plaintiff’s articulation of the issues gave rise to further sub-issues. These were:

1. Was the scope of the works substantially the restoration of the Vehicle or restoration of the engine to the Vehicle?

2. Were the ‘Works’ the subject of the invoices that Mr Bentancur paid Mr Mammoliti actually performed?

3. Was it a breach of duty to delay the return of the Vehicle? Whether Mr Mammoliti was relieved of returning the Vehicle after the termination of the contract (which Mr Mammoliti contended was repudiated by Mr Bentancur and which repudiation was accepted by him)

4. Whether Mr Mammoliti performed the promised performance?

5. Whether the heads of damages claimed amounted (fundamentally) to damages for a loss of bargain (as Mr Mammoliti contended), or wasted expenditure (as Mr Bentancur contended) ^[2] ?

   2. Counsel for the defendant accepted that damage to the paintwork on the Vehicle was legally compensable.

The Facts

10. The parties assembled a joint chronology (Exhibit A). Some facts were agreed, and some were disagreed. In what follows below, I will initially identify those facts which the parties agreed to.

11. The key (which I have slightly modified) contained the following terms:

“Vehicle”: Mercedes-Benz 230 SL Pagoda with registration AUD15X and VIN 11304222009187

“Mr Mammoliti’s Workshop”: 90 Brolen Way, Cecil Park NSW 2178

“Works”: To reassemble and rebuild the Vehicle from the components either to be (a) supplied by Mr Bentancur or (b) obtained by Mr Mammoliti (from third parties) on behalf of Mr Bentancur on terms agreed and discussed between Mr Bentancur and the Defendant.

Agreed facts

Date	Description
Around late 2013	Mr Bentancur contacted Mr Mammoliti regarding proposed works on the Vehicle
Around early 2014	Mr Bentancur and Mr Mammoliti entered into a verbal agreement to complete the Works.
In January 2014	Mr Bentancur delivered some parts of the Vehicle, being the original engine block and various mechanical parts, to Mr Mammoliti’s Workshop.
20.01.2014	Mr Mammoliti, by email, provided a list of parts received and parts missing; and informed Mr Bentancur of some parts that were missing
In or about mid 2014	Mr Bentancur delivered the stripped-down painted car body with car body parts disassembled on a stand and later the car body components, doors, bonnet etc
01.05.2014	Mr Bentancur confirms missing car seats and other interior components when Vehicle at upholsterer
08.09.2014	Mr Mammoliti issued Invoice 99 to Mr Bentancur in the amount of $9,053.00 for parts and associated labour of the Works
13.11.2014	Mr Mammoliti provides progress report of work to Mr Bentancur
25.11.2014	Mr Mammoliti requested Mr Bentancur order a full interior kit and advised of progress with the Works and requested payment of outstanding invoice
14.12.2014	Mr Mammoliti issued Invoice 35 issued to Mr Bentancur in the amount of $16,214.00 to “rebuilt engine & suspension”
December 2014	Mr Bentancur attended Mr Mammoliti’s Workshop to inspect the progress of the Vehicle
20.02.2015	Mr Bentancur provided a contact to Mr Mammoliti for required parts
Around late 2021 to early 2022	Mr Bentancur collected the Vehicle from Mr Mammoliti’s Workshop, excluding the original engine block and some parts of the Vehicle
2022	Mr Bentancur provided the Vehicle to MB Classics to complete the Works
15.08.2022	Mr Bentancur’s solicitors sent a letter of demand to Mr Mammoliti demanding return of the original engine and parts of the Vehicle which were within Mr Mammoliti’s possession and payment towards Mr Bentancur’s loss.
1.09.2022	Mr Mammoliti received a telephone call from Mr Bentancur’s solicitor; seeking a reply to Mr Bentancur’s letter of demand and requesting collection of the remaining parts of the Vehicle in Mr Mammoliti’s possession including the original engine block
06.12.2022	Mr Bentancur commenced these proceedings against Mr Mammoliti
13.06.2023	Meeting held to inspect the Vehicle between Mr Mammoliti, Alessandro Bentancur, John Tsolakis and the parties, legal representatives
29.02.2024	Mr Dylan Bentancur, on behalf of Mr Bentancur, attended Mr Mammoliti’s Workshop and collected the remaining parts of the Vehicle, including the original engine of the Vehicle, within Mr Mammoliti’s possession
13.03.2024	Mr Dylan Bentancur, on behalf of Mr Bentancur, attended Mr Mammoliti’s Workshop and returned 2 jackstands to Mr Mammoliti

Disputed facts

12. Within the same chronology the parties indicated that the following facts were contested as to whether:

1. between January and September 2014 Mr Mammoliti carried out part of the Works on the Vehicle;

2. between 2014 and 2015:

1. Mr Mammoliti informed Mr Bentancur of missing parts of the Vehicle;

2. Mr Bentancur informed Mr Mammoliti that certain parts had already been provided to Mr Mammoliti, but had been displaced by Mr Mammoliti, and Mr Bentancur would buy a second-hand car for the parts

3. between 2014 and 2018 Mr Bentancur contacted Mr Mammoliti on numerous occasions, via telephone and text messages, requesting an update on the Works;

4. between 2015 and 2018, Mr Mammoliti repeatedly advised Mr Bentancur of the need for parts in order to complete the Works;

5. between 2018 and June 2022, Mr Bentancur contacted Mr Mammoliti on numerous occasions, via telephone and text messages, requesting an update on the Works and to organise collection of the Vehicle;

6. on 25 March 2019, Mr Bentancur attended Mr Mammoliti’s workshop to attempt to collect the Vehicle;

7. in 2020 Mr Bentancur attended Mr Mammoliti’s workshop on numerous occasions to attempt to inspect the Vehicle and make arrangements to collect it.

Lay evidence

Evidence for Mr Bentancur

Danys Bentancur’s evidence

13. Danys Bentancur swore two affidavits (the latter being in reply).

Works by Hills & Co Customs: condition of the Vehicle prior to delivery to Mr Mammoliti

14. In his first affidavit (8 August 2023) Mr Bentancur deposed that when he purchased the Vehicle in 2000, the Vehicle’s engine and chassis were the factory original and had matching VIN numbers. In 2008, he recalled that a panel beater (later effectively identified as the Taree firm, Hills & Co Customs), had resprayed the Vehicle’s external paintwork.

15. Under cross-examination, he accepted that Hills & Co Customs had performed extensive works (a ‘full body restoration’) on the Vehicle from the period December 2007 to September 2013. An invoice dated 17 December 2007(Exhibit C, CB 296) indicated that Hills & Co Customs had towed the Vehicle from Sydney. (He hired another person to tow it to Mr Mammoliti’s workshop in May 2014). Mr Bentancur deposed that the cost of the works completed was $25,625.08.

16. A large number of photos in Exhibit C were photos which Mr Bentancur said he received from Hills & Co Customs indicating the progress of restoration works that firm had made. Mr Bentancur could not recall whether the Vehicle had been delivered with the wheels off and/or whether the engine was in the Vehicle. However, once he was referred to several invoices issued by Hills & Co Customs (Exhibit C, CB 296-298), he indicated that he thought that the engine was in the Vehicle. He also interpreted one of the invoices as suggesting that Hills & Co Customers had taken the engine to a machine shop. He did not understand that Hills & Co Customs itself had placed the engine back into the Vehicle.

17. Nor could he recall whether the Vehicle had been loaded onto the truck. In cross-examination, he identified:

• The photos at CB 258 and 292 indicated the absence of any locking mechanism on the side door;

• The photos at CB 234 and 235 depicted the chassis and indicated that Hills & Co Customs had, in its possession, the gear box, the rear differential, hoses, fuel line, and tail sheet; and

• The photo at CB 236 was the body of the car with the chassis (he could not identify any other parts).

Dealings with Mr Mammoliti: 2014-2015

18. Mr Bentancur deposed to several topics of a conversation he had with Mr Mammoliti in February 2014. At this time, he said in his cross-examination, he expected that Mr Mammoliti would have an initial inspection to see for himself that he was capable to restore the works and said he did not expect Mr Mammoliti, by that point, to know what parts were actually needed (it was not an occasion for him to take an inventory). Those topics included: (a) whether Mr Mammoliti could do the restoration work; (b) his experience in working on classic cars; (c) the price of the restoration works, and basis of the charge (on an hourly basis). He expressed a qualified acceptance to the proposition put to him under cross-examination that he would supply the parts: he said he would source parts (if he was not then in a position to provide them himself) or help Mr Mammoliti to source them.

19. He deposed that in or around early 2014, he delivered the shell of the Vehicle (on a trailer), including the original parts, to Mr Mammoliti’s workshop. Those original parts that were not installed on the Vehicle were put into separate boxes that were delivered to the workshop. He acknowledged that he did not break down, by a written list, what parts were put into boxes. Mr Bentancur indicated that when Mr Mammoliti came to his factory office, the body of the Vehicle and all parts were stored. The Vehicle was not on wheels, and the body had a plastic drop sheet over it; with old sheets underneath that.

20. From January to December 2014, Mr Bentancur recalled some conversations with Mr Mammoliti. He deposed to discussion about specific requirements for the restoration works: (a) setting up the engine and determining further parts required to fully rebuild the engine; (b) sourcing any additional parts required for the rebuild of the engine; (d) sourcing the engine block acid dipped and cleaned; (e) sourcing cylinder head away to be stripped clean and pressure tested; (f) rebuilding of the front brake callipers; (g) installation of seats (which Mr Bentancur accepted he was to source); and future works to be completed in relation to the fuel injection pipes, front suspension, steering components and bushes, and a full interior or kit (which he asserted were parts which Mr Mammoliti was to source). Mr Bentancur also asserted that, in addition to these works, Mr Mammoliti was required to source the seats.

21. One of the documents in Exhibit B (CB 39-40) was an email Mr Mammoliti had sent to Mr Bentancur on 20 January 2014. Its content was as follows:

“Hello Danny

okay this is where im at and what ive done..

Ive gone thru the engine parts and what I can see all is not there.

What I dont have is

Timing Chains and guide

Crankshaft

Oil pump, water pump

Oil pump pick up pump

Fuel Injectors

Timing cover and brackets..

This the main parts for now but I spoke to Nassar today

and he will look in the car if there is more parts, if not il go

down to factory myself

I have sent the Engine Block away today to get acid dipped and cleaned

so I can measure piston bore and condition and crankshaft tunnel.

I have sent the cylinder head away to stripped cleaned and pressure tested.

then camshaft alignment be checked and valve seat condition

(Danny this will be a full engine rebuild and be done once and once only)

I have taken the fuel injection pipes off as they will

be nickel coated like factory and there will be more to send away

so when I think I have enough il send all off. I will strip the fuel injection pump

and it will be rebuilt and calibrated to factory spec,s

The fuel side of this car is critical so all fuel related components if there

not up to spec they will be replaced with new parts.

Ive looked at the front suspension and all steering components and bushes will be replaced.

The brake calipers will be rebuilt so during the next week or so il strip suspension

and see what needs to be painted/zinc coated.

At leave rest of running gear at this point for now until I start to get more on what is needed.

Then when I know it will start to move along il start the transmission side

and rear suspension.

il send you photos on the before and after stage so you can see progress.

If you have any doubts or questions let me know.

Regards”

22. Mr Bentancur was closely cross-examined about his understanding of most of the matters referred to in this email. He said that sometime after the email, he arranged to have the Vehicle and “most” of the parts delivered to Mr Mammoliti; although he did not retain a list of those parts. As to missing parts, Mr Bentancur agreed that the proposal was that he and ‘Nassar’ would try to find them.

23. Another document in Exhibit B was the invoice (99) that Mr Mammoliti issued to Mr Bentancur on 8 September 2014 (CB 42). This was for $9,053 (incl GST). For present purposes, it is material to note the description of the works the subject of the invoice. (I will add numbering alongside each item having regard to the sequencing of questioning of the witness under cross-examination) This was:

“1.Complete Short Block

2.Serviced Cylinder Head

3.Engine Casket kit

4.Front Doors

5.Right Pads

8.Front Brake Hoses

9.Wheel Bearing Kit

7. Front Brake Calipers Reconditioned

With New Pistons

6.Parts that have been Chromed”

24. On the face of the invoice, it was indicated that the aggregate sum of these “Parts” was $6430. Underneath the same invoice, there was a further entry, described as “Labour” in the sum of $1800. Further down, a handwritten insertion of $823 within the provision made for GST. This yielded a total sum of $9053 (incl GST).

25. Under cross-examination, Mr Bentancur grouped items 1 and 2 together, 3 to 5 together (which betokened the cost of purchasing parts for Mr Bentancur), identified 6 (relating to the cost of chroming certain car parts), identified 7 (relating to reconditioning front brakes and callipers with new pistons) and grouped items 8 and 9 as relating to parts purchased after the Vehicle had been sent away for chroming. He understood, in summary, that some of the items related to some parts bought by Mr Mammoliti; some represented the cost of third parties doing works; and some things that Mr Mammoliti had done himself. But Mr Bentancur drew a line in relation to “Labour”. He implied that there was a clear distinction on the face of the invoice between the costs of ‘parts’ and the cost of ‘labour’.

26. Mr Bentancur deposed to his previous experience of engaging individuals to conduct restoration works on other vehicles that he owned and expected that these works would take a reasonable period of time; up to 18 months. He deposed, in particular, to working in Uruguay in the period from 1 May to 13 November 2014. He said in his evidence that the longest period of absence overseas in 2014 was for a month (for the years 2016 – 2019, there were shorter periods of absences outside Australia). As it was, he expected the restoration works to be completed by Christmas 2014. In re-examination, he said that when he was in South America, he retained several forms of contact with Mr Mammoliti: by email messages, mobile phone calls and text messages.

27. On 13 November 2014, at 7:33am, Mr Mammoliti sent an email to Mr Bentancur (Exhibit B, CB 44). The content of that email was:

“Hello Dany,

I havnt forgotten about you the work is moving along

with your car..

This is what is done so far.,.

I have brought a second hand engine a short block

which includes the complete bottom end in which i can use

the parts that are missing in your engine.

I Stripped engine down and measured all main parts that I need and all is in spec

So you still keep your engine number

Your cylinder head we can use.

I welded the crack in it and sent it away to get

pressured tested, serviced.

I stripped Front suspension and rear is and I sent away to get cleaned

it should be back in a week or so then I can replace

what bushes need replacing then il send it

away to powder coat parts

Front brake calipers have been rebuilt

All your chrome parts that need to be redone is also

some of it has been done he has more to go

Any questions let me know

Regards”

28. Mr Bentancur was also closely cross-examined on his understandings about the contents of this email.

29. On 17 November 2014 Mr Bentancur emailed Mr Mammoliti (Exhibit B, CB 93), explaining that an order needed to be placed from the United States for parts that were needed for the interior. He acknowledged that that would take time. In the same email he promised to have Mr Mammoliti’s account paid by the end of the month. He also asked Mr Mammoliti whether the works would be completed by Christmas.

30. On 26 November 2014, Mr Mammoliti emailed Mr Bentancur (Exhibit B, CB 43) in which, amongst other things, he advised Mr Bentancur to go ahead and order the ‘full interior kit’.

31. In or around early December 2014, Mr Bentancur went around to the workshop to inspect the Vehicle. Mr Mammoliti was present. He deposed to observing that the Vehicle was missing several components.

32. He deposed that in or around middle of 2016 he experienced significant difficulties in obtaining particular non-mechanical replacement parts for the Vehicle.

33. On 14 December 2014, another invoice was issued to Mr Bentancur (Exhibit 2). He understood that, as the line description indicated, it related to a ‘rebuilt engine and suspension’. On the other hand, he did not understand the costs represented to Mr Mammoliti buying parts for him. The invoice was issued to a related company (XL Precast) at Mr Bentancur’s request.

Works performed by third parties

34. I referred earlier to works performed by Hills & Co Custom between 2007 and 2013.

35. On 1 May 2014, at 3:11pm, Mr Bentancour sent an email to David Latham (which was cc’d to Mr Mammoliti). Mr Latham was associated with Buz Benz. Materially, he indicated to Mr Latham that he was restoring the Vehicle, but that all of the interior was missing as the upholsterer took everything to the latter’s closed shop and had disappeared. Mr Bentancur said in his evidence that a friend of his (‘Rob’ from Franks Auto) had taken the interior out of the car and had taken it to an upholster in Sydney (near Parramatta) before 1 May 2014 (he could not be any more specific). Mr Bentancur received contact details and went to collect the interior, but discovered that the business had closed down.

36. It was put to, but denied by Mr Bentancur, that by the time the Vehicle had been delivered to Mr Mammoliti, it was not in need of a full rebuild. This was so, notwithstanding that Hills & Co Custom had been engaged to do a full restoration.

37. Mr Bentancur was questioned in cross-examination as to how the Vehicle was towed, or transported, on the multiple occasions he was involved: to Taree; to Yenora; and to Mr Tsolakis. He estimated that there were about eight such occasions (the last being this year).

The Donor Vehicle

38. Mr Bentancur deposed that around this time, he became aware that a lot of the parts that he had initially provided to Mr Mammoliti had been displaced. He explained that it was for this reason that he purchased a left-hand drive Mecedes-Benz 230 SL Pagoda for Mr Mammoliti to use for parts in the future restoration of the Vehicle. This was, to reiterate, the vehicle known throughout the proceeding as the ‘Donor Vehicle’. It was purchased on 6 June 2018 and shipped to Australia in 2019 (and paid for in late December 2019). But Mr Bentancur did not give this vehicle to Mr Mammoliti since, he deposed, he begun to lose confidence in the latter’s work. He could not recall whether or not he told Mr Mammoliti about the Donor Vehicle.

39. Mr Bentancur was taken through an invoice he received from Bud’s Benz Inc dated 29 October 2018. This was contained within Exhibit 1. He identified parts of works done in the Donor Vehicle, including re-upholstering. Some items had not, however been installed. He agreed that of the few loose parts, he did not later provide them to Mr Mammoliti.

40. Mr Bentancur was also taken to an invoice dated 28 October 2018 (also within Exhibit 1). Again, some parts were installed in the Donor Vehicle whilst others were not. Of those that were not installed, again, they had not been provided to Mr Mammoliti.

41. An invoice of 10 December 2018 partly concerned items relating to labour and partly concerned works performed on the Donor Vehicle. Mr Bentancur accepted that one of the items that had not been installed – a Radio speaker – had not been passed on to Mr Mammoliti.

42. In or around early 2019, Mr Bentancur deposed (paragraph 39) to intending to begin placing pressure upon Mr Mammoliti to complete the restoration works. He believed that those works had not progressed, so he sought to retrieve the Vehicle from the workshop.

43. He said that on several occasions, from 2019 onwards, he rang Mr Mammoliti in order to obtain updates about the works and to organise collection of the Vehicle. He also said that he sent text messages. On six or seven occasions in the middle of 2020, he attended the workshop to inspect and collect the Vehicle, but was unable to collect the Vehicle (paragraphs 40-43). He said that he saw the Vehicle had been kept outside of the workshop, uncovered and exposed to the elements.

Terminating the contract

44. Mr Bentancur deposed (paragraph 52) that in around February 2022, he inspected the Vehicle, he observed that: (a) the original engine was not installed in the Vehicle or provided by Mr Mammoliti; (b) the parts purchased by Mr Mammoliti (the subject of invoices 99 and 35) were not installed on the Vehicle or provided by Mr Mammoliti; (c) the exterior paint of the Vehicle was scratched and not in the same condition as when the Vehicle was provided to Mr Mammoliti in September 2013 ^[3] and the restoration works have not been completed (he took photos which appear in Exhibit B, CB 55-61). Some parts were collected in around 2022 and subsequently.

    3. It was common ground that it was provided later to Mr Mammoliti in or about the middle of 2014. This was a matter Mr Bentancur corrected in his second affidavit, par 20

45. On 15 August 2022, Mr Bentancur’s solicitor sent a letter of demand to Mr Mammoliti (Exhibit B, CB 49-51). Amongst the assertions were made, the solicitor emphasised his client’s retrieval of the Vehicle in February 2022 and discovery that not only were the restoration works not completed, but Mr Bentancur was of the opinion that no work had been undertaken to complete the works since the Vehicle was delivered to Mr Mammoliti. One of a number of demands was that the original engine to the Vehicle be returned in the same condition that it was delivered to Mr Mammoliti in 2014. Also demanded was that “within 14 days” of the date of the letter, Mr Mammoliti provide all the parts the subject of the invoices.

Discussions with Mr Mammoliti about the return of the original engine to the Vehicle

46. Mr Bentancur deposed (paragraph 57) to Mr Mammoliti informing him, throughout the period 2019 to 2022, that he had taken the original engine to another person’s workshop for works to be conducted on the engine. In his cross-examination, he said he thought the period for such discussions was 2020 to 2022. He accepted, further, that Mr Mammoliti told him it was some other place, and he was making arrangements to retrieve it; indeed that Mr Mammoliti had told Mr Bentancur the name of the person who had it in their possession (Mr Lees). He deposed that at no time did he authorise Mr Mammoliti to provide the original engine to a third party to conduct any works on the engine.

47. He further deposed (paragraph 59) to correspondence he had read from Mr Mammoliti’s solicitors (Aubrey Crawley & Co), sent in about May 2023, informing his own solicitors that Mr Mammoliti was in possession of the original engine and enclosing photos of it. Mr Bentancur deposed (paragraph 60) to instructing his solicitors to request of Aubrey Crawley & Co that the original engine (and any other remaining parts) be delivered up for his possession; however that request had not been actioned.

48. Under cross-examination, Mr Bentancur reiterated that Mr Mammoliti informed him that the engine was not at his workshop. He confirmed that Mr Mammoliti told him that the person to whom he sent it was deceased. He did not recall Mr Mammoliti telling him, initially, that that deceased person had lived in Parkes, or that the engine had even been taken out of Sydney; although he accepted that at some point (which he thought was sometime between 2021 and 2022), he recalled Mr Mammoliti telling him the engine was somewhere in the country.

49. Mr Bentancur was referred to a text message that he sent Mr Mammoliti on 9 March 2022 (Exhibit B, CB 49). He interpreted the text to mean that Mr Mammoliti told him that ‘Dave’ would pick up the engine as soon as the water lowered, which he took to be a reference to the flooding.

50. Mr Bentancur was also taken to paragraph 10 of the Defence and appreciated that Mr Mammoliti had alleged that the engine was at his (Mr Mammoliti’s) premises. That Defence was filed in April 2023.

Interactions with Mr Tsolakis

51. Mr Bentancur further deposed (paragraph 62) that in or about early 2022, he attended an MB Classic Star’s workshop at Greenacre. He observed Mr John Tsolakis, of that firm, working on similar vehicles in the workshop. He showed Mr Tsolakis photos of the Vehicle (and the Donor Vehicle) and sought an estimate from him for the works. He was given an estimate of between $40,000 and $50,000. In the latter part of 2022, Mr Tsolakis indicated that MB Classic Star could do the work.

52. Under cross-examination, Mr Bentancur said that he told Mr Tsolakis that although he had the Vehicle, the engine to the Vehicle was with Mr Mammoliti. He agreed that he did not tell Mr Tsolakis that Mr Mammoliti had indicated to him that he was arranging to get the original engine back and that, at least not before May 2023, he did not tell Mr Tsolakis of the legal proceeding he commenced against Mr Mammoliti.

53. After some equivocation, Mr Bentancur ultimately indicated to the best of his recollections, he had firstly dropped off the Vehicle to Mr Tsolakis and also dropped off the Donor Vehicle to Mr Tsolakis. About 2-3 days later, a friend of his, “Miguel”, picked up the Donor Vehicle and returned it to Mr Bentancur’s workshop. Mr Bentancur did not, however, have the (original) engine from the Vehicle installed in the original Vehicle.

54. Mr Bentancur deposed that on 21 November 2022 he obtained a quote of $22,000 for the repair of the external paintwork of the Vehicle, but Mr Bentancur did not proceed. Instead in about July 2023, he took the Vehicle to Queen Street Customs (in Revesby). He received a quote of $30,000-$40,000 to repaint the Vehicle.

55. Mr Bentancur was asked whether he received a list of missing parts from Mr Tsolakis. He indicated that he had not; although Mr Bentancur recalled that Mr Tsolakis had ‘rattled off’ the parts he needed.

Alessandro Bentancur

56. This person is one of two sons of Danys Bentancur and he swore two affidavits in the proceedings (3 August 2023 and 27 February 2024).

57. As to the first of his affidavits, the main purpose of it was to provide some corroboration of what Danys had deposed to in his latter affidavit (in chief).

58. He accepted under cross-examination, that between 2000 and 2013 (a period when his age range was 7 to 20), the Vehicle had been stored. He denied the proposition that it was not capable of being driven from late 2013. He said that whenever he saw the Vehicle in this period, it ‘worked fine’; although he said he recalled some painting of it.

59. He deposed to Danys complaining to him in 2018 about Mr Mammoliti not having completed the Restoration works and his father asking him to follow up with Mr Mammoliti to arrange for the completion of the works. In cross-examination, he denied that his father was away the whole year. In 2019, his father was away again, although this witness could not recall the longest period he was away for in 2019 (or 2018).

60. Alessandro Bentancur deposed that, between 2018 and 2019, he sent Mr Mammoliti text messages, only to find that he could not get hold of him. He did not recall ever speaking with Mr Mammoliti.

61. He also deposed that in or around January 2021, he accompanied Danys Bentancur in driving out to Mr Mammoliti’s workshop and being unable to access it due to a steel locked gate. This also happened in February 2021. On neither occasion did he see the Vehicle.

62. Alessandro further deposed that, in or around December 2022, he accompanied his father to attend the workshop of MB Classic Star. By that time the Vehicle had been delivered to that firm’s workshop. He noticed that the interior of the Vehicle was completely empty; there was no roof, and the Vehicle was, to use his description, ‘just the metal shell’.

63. On 13 June 2023, he also accompanied his father to meet Mr Tsolakis at the MBCS Workshop. An inspection took place that day. Apart from Mr Tsolakis, Dany Bentancur and himself, he deposed that, Ms Hitch (of the plaintiff’s law firm), Mr Crawley (the defendant’s solicitor) and Mr Mammoliti were also in attendance. This witness recalled Mr Mammoliti indicating that he had the engine. He said he was not able to compare the condition of the engine between the time it was dropped off and the time it was collected.

64. As to the second affidavit (27 February 2024), Alessandro Bentancur indicated that in 2013 he was an employee of XL Precast Pty Ltd, a precast concrete manufacturing, whose workshop was located at Yenora. He deposed to his father identifying for him the presence, in or around late 2013, of the Vehicle.

65. Alessandro deposed that, between late 2013 and early 2014, this Vehicle had remained inside the Yenora workshop with a large sheet cover over the top of it. He deposed to never having seen the sheet cover removed from the Vehicle in that period until around the middle of 2014 when the Vehicle had been removed from the workshop.

John Tsolakis

66. Mr Tsolakis is a mechanic and owner of the firm MB Classic Star, a car restoration workshop. He had a prior connection with Mercedes-Benz; having served an apprenticeship and training in its Milpera workshop. His firm worked exclusively in restoring classic Mercedes-Benz vehicles.

67. Mr Tsolakis swore two affidavits: the first on 2 August 2023; and the second on 10 May 2024 (which was only partially read, after objection had successfully been taken to part of it).

68. In the first of his affidavits, Mr Tsolakis deposed that in or around early 2022, in the company of Mr Bentancur, they went to Mr Mammoliti’s Workshop and inspected the Vehicle and Donor Vehicle (he said he was told by Mr Bentancur that he had acquired the Donor Vehicle one or two years before). He was informed by Mr Bentancur that the original engine was missing.

69. The purpose of the Donor Vehicle being inspected alongside of the Vehicle, was to assess the scope of the restoration works required. He deposed to explaining to Mr Bentancur that the Donor Vehicle would need to be delivered to the workshop, first, so that parts of the Donor Vehicle could be stripped and reconditioned, in preparation for installation on the Vehicle. He later said that the Donor Vehicle had arrived about a month before the Vehicle. He said that he told Mr Bentancur that it would cost about $50,000 to complete the work so as to restore the Vehicle. By that, he clarified in cross-examination, he understood his task was to make the Vehicle ‘drivable’, with the ‘supplied engine’ from the Donor Vehicle – not the ‘original’ Vehicle.

70. He said that he deposed to observing that: (a) the Vehicle had many scratches on the paintwork and stone chips across the body; (b) the boot of the Vehicle contained the air filter and a couple of horns and the steering column; (c) the wiring of the Vehicle was exposed but was in the dash of the Vehicle; and (d) the Vehicle was otherwise just a shell; with the front and rear suspension.

71. In cross-examination, he was asked about the differences between scratching and stone chips across the body in the paintwork, and it was suggested that the latter might have been caused by a moving vehicle. He said that there was a difference between scratches (a line) and a stone chip (a piece).

72. He deposed (paragraph 9) that in around the middle of 2022, the Donor Vehicle was delivered to MB Classic Star’s workshop and he commenced work; stripping the Donor Vehicle and reconditioning the parts from the Donor Vehicle. He deposed (paragraph 11) that at the time that the Vehicle was delivered to the workshop: (a) the shell was complete with all hinged components but excluding one side door panel; (b) there was no mention, motor or gearbox in the Vehicle; (c) the front suspension, differentiator, breaks and shocks were installed on the Vehicle; (d) the air filter and worn were prior provided separately from the Vehicle in boxes by Mr Bentancur for him to install into the Vehicle; and (e) the paintwork and the Vehicle had a lot of scratches and stone chips.

66. He said, under cross-examination, that he thought he wrote a list of the parts that were needed; but which were missing. He also said that he gave Mr Bentancur a list of missing parts and that Mr Bentancur pointed out those which he thought he might have and those which he thought he might need to obtain. A call was made for the list by Mr Mammoliti’s Counsel during the first day of the hearing, but no document was produced in response.

67. He deposed (paragraph 16) that between the middle of 2022 and the middle of 2023, he took the parts from the Donor Vehicle, reconditioned them in preparation for the part to be reconstructed and installed on the Vehicle. The parts that he needed to restore the Vehicle came from the stock kept at the workshop, the Donor Vehicle or had been ordered by himself. The parts were (without limitation): engine, chrome dahs, shock absorbers, front rotors and rods, rear springs, rear wiring harness; fuel tank and wheel bearing kit.

68. Under cross-examination, he estimated that 10% of the parts were on the Vehicle. When he was reminded of the expression ‘current car’, in connection with the cross-examination on paragraph 16, he was referring to parts from the Donor Vehicle.

69. Mr Tsolakis was referred to paragraph 14 of his first affidavit, when he deposed to having a conversation on 13 June 2023 with Mr Mammoliti; in which, in response to Mr Mammoliti’s assertion that there were parts that were missing and did not need to be replaced, with the statement that although there may be some parts were there, they still needed to be replaced. He said he was referring to brakes.

70. Mr Tsolakis was asked to compare the content of the works described in Mr Mammoliti’s invoice of 8 September 2014 and the description of the works he deposed (paragraph 16) to having performed in his first affidavit.

71. In cross-examination he was asked about the sequence of the works. Although a differential could be installed before the engine, essentially, the installation of the engine represented the beginning of the works.

72. He estimated that, as at the date he prepared his first affidavit, he conducted restoration works upon the Vehicle taking approximately 120 hours to complete at a cost of approximately $50,000 in labour and parts. This represented the works he had performed between the middle of 2022 and the middle of 2023. More precisely, he indicated that he started the works 6 to 8 months before issuing the invoice; after a period of some delay when the Vehicle had been received by him. He explained that he did not want to start the works until he had all the parts to complete the works. He understood that the Vehicle had spent some time at Mr Mammoliti’s workshop but was unaware where else it had been stored.

73. It was this part of the affidavit (paragraphs 16 to 23 inclusive), that was the subject of some elaboration in Mr Tsolakis’ second affidavit. In that affidavit, Mr Tsolakis indicated that he had sourced and installed the following parts on the Vehicle: front brake hoses; front brake callipers, rear springs; rear wiring harness and fuel tank. He deposed, further, to replacing the following parts of the Vehicle: front rotors; front brake pads; and wheel bearing kit. He deposed to having sourced and installed a radiator, for a second-hand vehicle, provided to him by the plaintiff. He further removed an engine obtained from the Donor Vehicle, and installed the engine into the Vehicle; as the original engine was not able to be recovered at that time.

74. On 7 July 2023, Mr Tsolakis invoiced (number 18071) the plaintiff for these works, which was quantified in the amount of $50,000. In his supplementary affidavit, he estimated that the majority of the time spent was on the restoration and installation of the current engine; a part of the works whose quantified estimate was $35,000. Where, in on the invoice, there was a reference to the word “paid”, that was a reference to the deposit received in the sum of $27,000 prior to the works being undertaken. The balance of the invoice had since been paid in full.

75. He said that Mr Bentancur told him that the original engine had been retrieved, but only in April 2024.

76. Mr Tsolakis was also referred to an email Mr Mammoliti send to Mr Bentancur on 20 January 2014 (Exhibit B, CB 39-40, whose content was reproduced above). He agreed that some parts referred to in the email were missing; being components to the engine; but said there were other parts as well.

Dylann Brew

84. Mr Brew is a solicitor employed by Matthews Folbigg Lawyers, the firm retained by Mr Bentancur. He swore two affidavits.

85. In the first of them (1 August 2023), he deposed to a conversation that he had with Mr Mammoliti on 1 September 2022 in relation to the letter of demand sent to him on 15 August 2022. The gist of this response was that Mr Mammoliti was too busy to respond to the letter of demand. It was said that Mr Mammoliti explained that he was still getting pieces of the Vehicle back to the workshop and had been finding pieces around the place: he had a “bucket of pieces” and had even found some earlier that morning. Pressed for an indication as to when he would respond by Mr Brew, Mr Mammoliti did not provide that indication.

86. Under cross-examination, Mr Brew was referred to the letter of demand. Of the multiple complaints expressed, at the time the letter was sent, Mr Brew accepted (in retrospect) that the most significant was the complaint about the missing engine. He also clarified that upon the topic of the return of the engine, he was more concerned about the timing for when that would be returned; as distinct from the whereabouts of its location.

87. He was referred however, to par 3 of his first affidavit in which there was no express reference to the engine. Mr Brew accepted that it was possible that there were other words said in the conversation beyond those which appeared in his affidavit account of the conversation. He denied, however, that Mr Mammoliti had disclosed that he had sent away the engine to a third party and could not indicate a time for when it would be returned.

88. In the second of them (27 February 2024) he referred to, and annexed correspondence to and from Aubrey F Crawley & Co regarding Mr Bentancur’s attempt to recover parts of the Vehicle in Mr Mammoliti’s possession. He deposed that at the date of the affidavit, Mr Mammoliti had not returned Mr Bentancur’s property.

Hayley Hitch

89. Ms Hitch was another solicitor employed by the plaintiff’s law firm.

90. She deposed (in an affidavit dated 26 February 2024) to attending a meeting at the MB Classic Star Workshop on 13 June 2023 to inspect the Vehicle. At that meeting she took several photos (which appeared in Exhibit HH-1).

91. She also deposed to her recollection that during the meeting Mr Tsolakis said words the effect that “the scratches on the paintwork were all there when the car was delivered to me.” Under cross-examination, Ms Hitch clarified that she was relying solely upon Mr Tsolakis’ comment and confirmed that she was not recording her own observations.

Dylan Bentancur

92. This witness was another son of Danys Bentancur.

93. He gave evidence about the collection of parts to the Vehicle. He deposed to attending a workshop at Cecil Park on 29 February 2024. He took several photos what he saw (Annexure A to his affidavit) and deposed to a conversation with Mr Mammoliti.

94. He collected certain items which apparently had been the subject of an arrangement between his father and Mr Mammoliti. These were: an original engine block VIN tag; Bosch fuel injection system (x2); original reconditioned head with valves fitted (x2); original engine block; original pump short engine block; (2) outer steel panels; stainless steel trim; fuel pipe cleaned; and two pieces of trim.

95. He deposed that whilst he was there, Mr Mammoliti located the following two additional items which, Mr Mammoliti informed him, also belonged to his father. These were an original sump and water pump. He collected those items as well. He took photographs of all of these items.

96. He deposed to delivering the items to his father’s office in Yennora.

97. He also delivered and returned two jackstands to Mr Mammoliti which, his father informed him, belonged to Mr Mammoliti. He took photographs of those as well.

Evidence for Mr Mammoliti

98. Mr Mammoliti swore a single affidavit (24 October 2023).

99. He referred to his qualifications as an automotive engineer fitter and licensed motor vehicle repairer. He deposed having been an automotive engineer for 28 years. His business was the restoration of vehicles. This included but was not limited to Mercedes-Benz vehicles.

100. His dealings with Mr Bentancur derived from an introduction from his family friend, Dany Losurdo in late 2013. After that, Mr Bentancur had called him with the latter requesting that he indicate his availability to reassemble and rebuild the Vehicle and to explain the procedure. He recalled that Mr Bentancur had informed him that the car had been completely stripped; with the engine pulled apart and had been sitting in parts at panel beaters for a period of time. He deposed (paragraph 10) to Mr Bentancur telling him that the Vehicle was all in pieces as the panel shop where it had been painted had closed down; and that Mr Bentancur asked him to put it back together. It was put to Mr Mammoliti that this last part was not true, but he adhered to his evidence. A time for inspection was arranged.

101. That inspection occurred in or about the middle of January 2014 when Mr Mammoliti attended a warehouse in Yenora with Mr Bentancur. Mr Mammoliti deposed (paragraph 11) to observing the car body which, he deposed, had been completely stripped of doors, bonnet, boot lid, interior and seats, dashboard, steering wheel, front and rear suspension all mechanical parts and the wheels.

102. On this point, Mr Bentancur disagreed with Mr Mammoliti’s evidence that when the latter inspected the Vehicle in or about the middle of January 2014, it was without doors, bonnet and boot lid being attached. He asserted all of those items were attached. He also disagreed with Mr Mammoliti’s evidence that at the time of delivery of the Vehicle, the paintwork on the car body was “marked”.

103. In cross-examination, it was put to Mr Mammoliti that it was not true to say that the doors and boot lid were unattached. Mr Mammoliti said that he did not recall. He was referred to Court Book page 321 which were photos of the condition of the Vehicle on or about 21 November 2013 (about 4 months before he received it). Although Mr Mammoliti conceded that they depicted that the doors were bolted in, he was not prepared to say whether or not they were locked. It was put to him, but he denied, that by his affidavit, he was trying to convey the impression that the condition of the Vehicle was worse than it really was in.

104. Mr Mammoliti deposed (paragraph 11) to a conversation with Mr Bentancur in which the two of them were discussing what parts that were there. According to his recollections, Mr Mammoliti indicated that he would need to see the mechanical parts and the car chassis and other body panels before he could give a quote. He indicated that he charged by the hour. He also explained that the work would have to be done progressively and that he would have to pay as he proceeded with the work. He also deposed to explaining that there would be delay in sourcing the parts and he could not give a time for completion for putting all the parts back together. In cross-examination, Mr Mammoliti agreed that Mr Bentancur would help him to either source missing parts if he, Mr Mammoliti, could not do so.

105. Mr Mammoliti deposed (paragraph 12) that following this inspection, three pallets and some of the parts were delivered to his premises. But, at the time of delivery, no inventory of what was being delivered was provided. Following his inspection of the engine parts and front suspension (which were in parts), he sent an email to Mr Bentancur on 20 January 2014 (whose content is reproduced above).

106. On 20 January 2014, he sent an email to Mr Bentancur advising the results of his inspection and what method he intended adopting with the works. He listed (paragraph 13) the engine parts that were missing and what items needed to be replaced. The major parts of the engine were: crankshaft, timing chains and guides, oil pump, water pump, oil pump pick up pipe, fuel injectors, timing cover and brackets.

107. He explained that it was customary with a total gearbox or ‘engine rebuild’ to send the gearbox or engine to an engineer specialist. He deposed that he later said the gearbox to Mr Coz Ida at the Transmission Centre Fairfield. The engine was sent to Mr Bob Lees of Action Cranks.

108. Mr Mammoliti also deposed to advising Mr Bentancur what was required to be replaced with the front suspension and all steering components. These were the steering components and brakes and the brake callipers.

109. The next day, Mr Bentancur responded by email and advised that he would check to see whether anything had been left behind.

110. On or about 15 May 2014, Mr Mammoliti deposed (paragraph 15) that the car body and chassis were delivered, uncovered, on a stand. This was about two weeks after an email that he sent to Mr Bentancur. He deposed that the doors, sill panels, bonnets, boot lid, dashboard gauges were delivered separately on several occasions on the back of Mr Bentancur’s truck. He deposed that those panels had not been covered, when loaded and uploaded, and were scratched or cuffed. He deposed that no inventory of what was delivered was provided. Further he said that the paint on the car body was “marked” in several places.

111. Mr Bentancur disagreed with Mr Mammoliti’s evidence that, when the car body and chassis was delivered on 15 May 2014, its condition was ‘marked in several places and the vehicle panels were scratched or scuffed’. He deposed that the Vehicle had in fact just been repainted and had been delivered to his workshop. It remained there and was covered with a sheet at all times from the end of 2013 to the middle of 2014 until it was transported to Mr Mammoliti’s workshop.

112. Mr Mammoliti deposed (paragraph 16) that sometime after the email of 20 January 2014, he had a conversation with Mr Bentancur on the subject of the costs to be incurred in purchasing new parts for the works. He deposed to explaining to Mr Bentancur that, so far as he could, he would rebuild the car with the use of second-hand parts, subject to their availability. Whilst Mr Bentancur was overseas in May 2014, Mr Mammoliti deposed (paragraph 17) to ordering parts that were necessary for the rebuild of the suspension and the reconditioning of the head for the engine: he purchased a short engine block for the pistons and crankshaft after Mr Bentancur had told him that the purchase of new parts was too expensive. He deposed to informing Danys that the new pistons would cost thousand dollars each and Danys not agreeable to pay that price. He deposed to also purchasing the grille mesh. These items were purchased from MB Spares and Service.

113. Mr Mammoliti deposed (paragraph 19) to sorting the various parts of the car which required to be chromed, or zinc coated, and he delivered them to All Chrome Bits. These works were completed in August 2014 and subsequently fitted to the car (he annexed an invoice he received from All Chrome Bits, dated 17 August 2014). He also arranged for the purchase of the front and rear shock absorbers (from Melbourne Shock Absorber Centre Pty Ltd) and fitted to the suspension. This was the item the subject of another invoice (also annexed to his affidavit) from that company dated 20 November 2014. He deposed to purchasing the guide bosses for the inlet and exhaust valve seals, for the engine head, from MB Spares. He annexed a copy of an invoice from MB Spares, dated 27 October 2014 (paragraph 20).

114. He deposed (paragraph 21) to then reconditioning the engine head and fitting those parts to the engine head and suspension. He also deposed to stripping the short engine and completing the reconditioning of the engine head. Photos of the reconditioned engine head were annexed.

115. He deposed (paragraph 22) that after paying the suppliers he sent an invoice (99) to Mr Bentancur on or about 8 September 2014, which he annexed to his affidavit. Mr Mammoliti deposed (paragraphs 23-29) to certain events which related to the delay in payment of that invoice. In cross-examination, Mr Mammoliti accepted that under the sub-heading ‘Parts’ there were some items that had been ordered for, some items that had been installed and some which had not been installed in, the Vehicle.

116. Meanwhile on 13 November 2014, Mr Mammoliti sent an email to Mr Bentancur advising of the works that had been completed, to that point, and suggested that if Mr Bentancur had any questions let him know. He deposed to not hearing from Mr Bentancur in response.

117. Mr Mammoliti was referred to the second invoice issued in December 2014 (Exhibit 2). He was asked whether it was correct to contrast the subject matter of the first invoice (the ordering of parts) with the second invoice (works to rebuild the engine). Mr Mammoliti accepted that those works had not been completed; he had sent the engine block to Mr Lee. It was put to Mr Mammoliti that he had never completed the rebuild of the engine: Mr Mammoliti said that he had not done it himself. In re-examination, he said that some of the parts that were ordered had been installed whilst others had not.

118. On 20 February 2015, Mr Bentancur sent Mr Mammoliti an email regarding an indication provided by Mr Mammoliti of the need for further information regarding the components needed for the interior of the car. These were: the dicky seat behind the two front seats; the two front seats complete specifically in beige MV Tech material, or (if that was not original), then leather; door trims, headrests armrests and hard pockets carpet kit soft top complete assembly frame in blue steering wheel to be white/beige (paragraph 30). Mr Mammoliti emphasised that Mr Bentancur’s email confirmed that the items listed had disappeared when the Vehicle was at the panel beaters.

119. He deposed (paragraph 31) to purchasing the short engine block to source second-hand pistons and the crankshaft. He also deposed to several conversations with Mr Bentancur during 2014 and 2015 regarding missing parts for the car. He identified those as window regulators window winders door handles, locking mechanisms fuel pump air filter assembly and numerous other parts. He recalled Mr Bentancur informing him that he would buy a second-hand car (the Donor Vehicle) in the US and that Mr Mammoliti could get the parts from that car. But Mr Mammoliti warned him that his identification of the missing parts was not exhaustive and that he could not complete putting the car back together without the parts. At any rate, Mr Mammoliti deposed (paragraph 32) that he did not receive the Donor Vehicle. His position was that since Mr Bentancur had not provided the Donor Vehicle and did not want to purchase further replacement parts, he ceased to perform work on the Vehicle.

120. Mr Mammoliti deposed (paragraph 33) to his delivery the original engine block with the second-hand short engine block crankshaft and pistons, to Bob Lees at Action Cranks - a specialist in rebuilding engines when a second-hand crankshaft was to be used in a different engine block. But Mr Lees died – a matter he deposed (paragraph 34) to only finding out when Mr Bentancur contacted him to return the car.

121. Mr Mammoliti deposed (paragraph 34) to the Vehicle being collected in December 2021.

122. Mr Mammoliti deposed (paragraph 36.1) that the time when the Vehicle was collected, he had carried out following work: the installation of the front suspension and new shock absorbers; the connection of the tie rods (steering mechanism); fitting of the steering box; fitting the front and rear brake callipers with new pistons; fitting the wheel bearing kits; fitting the front rotors; fitting the front and rear wiring harness; fitting the front bumper bar; fitting the front grill; fitting the headlights; fitting the rear tail and brake lights; fitting the clock gauge; fitting the bonnet; fitting the boot lid and fitting the second-hand tyres to the wheel rims so as to install the suspension and steering mechanism. He also deposed to delivering all other chrome bits including headlight dress rims. It was put to Mr Mammoliti that he did not complete all the work identified in this sub-paragraph, but Mr Mammoliti said that he did.

98. In his affidavit in reply, Mr Bentancur took issue with Mr Mammoliti’s evidence (paragraph 36.1) about the works that had been installed at the time of the collection of the Vehicle in February 2022. He denied that the following parts have been installed: new shock absorbers (he said these were provided with the Vehicle in 2014); new pistons (these were also provided with the Vehicle in 2014); clock gauge; front and rear wiring harness; all of the chrome bits (only a portion were provided back).

99. Mr Mammoliti deposed (paragraph 36.3) that when the (partly rebuilt) Vehicle was collected by Mr Bentancur, he had arranged to be collected from Mr Lee’s property (in Parkes): the original engine block; the short motor; the engine gasket kit and he also arranged for the collection of the gearbox from Coz Ida (from the Transmission Centre, Fairfield).

100. Mr Mammoliti deposed (paragraph 36.4) that a (non-exhaustive) list of material parts had not been provided to him on or after the occasion when the Vehicle was delivered. He agreed that he was trying to list the parts that he had not been provided with. The list was: full interior of the car (including seats, floor coverings and dashboard gauges); radiator; rear beaver moulds; rubber mould for windscreen; complete dashboard; soft top assembly frame and cover; soft top lid chrome; boot lid Mercedes logos; rear number plate light fitting; two small rear bumper bars; window regulators; window winders; door handles; door locking mechanisms; fuel pump; air filter assembly; and fuel tank. He was challenged in cross-examination about all of these parts, but he adhered to his evidence. He disputed the possibility that some parts were still in his workshop.

101. In his affidavit in reply, Mr Bentancur refuted Mr Mammoliti that among the list at paragraph 36.4 the following items had not been supplied: radiator; rear beaver moulds; complete dashboard; boot lid Mercedes logos; rear number plate light fitting; two small rear bumper bars; window regulators; window winders; door handles door locking mechanisms; fuel pump air filter assembly; and fuel tank. All of these, he deposed, had been delivered to Mr Mammoliti with the Vehicle to Mr Mammoliti’s workshop in 2014.

102. Mr Mammoliti deposed that he arranged with David Halliday, a former employee of the deceased (Bob Lees), to retrieve the original engine block from Parkes. That occurred and the engine block (and short engine) was conveyed back to his workshop.

103. He deposed to communications (apparently) with Hayley Hitch (15 August 2022, pp 19-21 of Exhibit 6) and Dylann Brew (in early September 2022) responding to demands for the return of the original engine, but supplied explanations in response in each case. A feature of those explanations was that Mr Bentancur already was aware of the sources of the difficulties.

104. It was put to Mr Mammoliti that in and from 2022, when Mr Bentancur came to collect the Vehicle, not all of the parts were returned. Mr Mammoliti agreed that this process occurred over the next few months. Even by February 2024, parts were still being collected.

105. Mr Mammoliti was also referred to photographs of his work office/workshop (CB 329-339) that was in Exhibit C. Some of the photos of the vehicles, he accepted, were a combination of client vehicles and his own, (or family members or associates’ cars) and he was at pains to try to distinguish and explain the circumstances as to how long each of them were there. Asked whether some cars may have been uncovered, he indicated that this depended on the circumstances. In re-examination, he said he thought that Mr Bentancur’s Vehicle could have been placed outside; possibly for 2 years. He went through the photos that depicted his workshop in some detail (in re-examination) and said (also in re-examination) that he had a method of identifying the parts of vehicles that belonged to different owners; featuring the use of a black container with the customer’s name on it. He denied the possibility that parts belonging to Mr Bentancur could not be identified.

106. Mr Bentancur denied Mr Mammoliti’s evidence (paragraph 46) receiving any photographs from or on behalf of Mr Mammoliti providing visual updates of the Vehicle.

107. As to Mr Mammoliti’s invoice (99), Mr Bentancur refers to the description of the work as a ‘rebuilt’ engine. However, Mr Bentancur pointed out that (at the date he swore the affidavit) the engine had remained in Mr Mammoliti’s possession (citing the photos in Exhibit B pp 31-42). He also refuted that the parts that were the subject of invoice 35 were installed; the rebuilt engine and new pistons, for which Mr Mammoliti was charged by this invoice, were not installed.

108. Mr Bentancur also disagreed with Mr Mammoliti’s assertion that no parts had been displaced whilst the Vehicle was that the latter is workshop. Referring to other evidence, Mr Bentancur asserted that Mr Mammoliti did not keep the Vehicle’s parts in a manner which would avoid displacing the parts; as well as arguing that the latter was still finding parts around the workshop over a substantive period of time.

109. He also disputed Mr Mammoliti’s assertion that the Vehicle was covered or under cover.

Credit of lay witnesses

135. The evidence of lay witnesses other than Messrs Bentancur and Mammoliti was fairly brief. I had no reason to doubt the credibility or reliability of the other lay witnesses.

136. I regarded Mr Bentancur as being an honest witness who tried to do his best. Counsel for Mr Mammoliti fairly did not suggest otherwise. Mr Bentancur made sensible concessions and his frequently cited response of ‘not remembering’ or ‘recalling’ struck me as authentic, rather than a self-serving mantra, to reflect the truth. He even volunteered some information (which I regarded as his trying to be helpful) which objectively, did not assist his case; such as the instance when, having heard Mr Tsolakis give evidence about the latter providing a list to Mr Bentancur, Mr Bentancur’s evidence was to the contrary. He was not discomforted about the implications of his evidence about others who had performed works on the Vehicle which, again, may be taken to have provided assistance to Mr Mammoliti’s case. On certain occasions, there were indications that his recollections were not infallible, such as when he changed his evidence about the sequencing for when and how vehicles were delivered to Mr Tsolakis’ workshop and where it was, I must consider the existence of corroborative evidence and the contemporaneous evidence and probabilities.

137. I accept Counsel for Mr Mammoliti’s submission that in the instances (which were not many) when there were differences between Mr Bentancur and Mr Tsolakis’ evidence, I would prefer the latter for no greater reason that the subject matter of the issues on which they diverged engaged the latter’s expertise more than the former’s.

138. I was less impressed with Mr Mammoliti’s credibility and reliability. His evidence conveyed the impression of overtly strong confidence in his recollections (which was not warranted with regard to the passage of time and the very detailed nature of factual disputes). This was demonstrated when he gave evidence, unassisted by any contemporaneous document, of the parts that he did and did not receive. There were instances when his answers were non-responsive and evasive or amounted to embellishments designed to advance his case. Some of his evidence appeared self-serving and implausible. This included his descriptions of the state of the Vehicle shortly before it had been delivered to him in 2014; and the precision he gave of the ‘missing parts’ to the Vehicle that was supplied.

139. Where there was conflict between Mr Bentancur and Mr Mammoliti, I was generally inclined to favour Mr Bentancur’s evidence unless it was contradicted by the contemporary documentation or the inherent probabilities.

Heads of Damage claimed

Exterior paintwork

140. Expert opinion evidence was adduced by both parties. On the issues upon which the parties fought which prompted the calling of expert opinion evidence, the focus of attention was on causes of what were assumed to be damage to the external paintwork manifested by scratching and marks and associated costs of the repair.

Expert evidence about paintwork

Mr De Boer’s evidence

141. Mr Bentancur relied upon the opinion of Mr Bernard De Boer, who identified himself as a retired company director, and deposed to his being an experienced mechanic and Mercedes-Benz motor restoration specialist.

142. Mr De Boer stated that he inspected the Vehicle on 14 February 2024 at Revesby. Mr De Boer described the condition of the Vehicle when he saw it. He said that it was very dusty; with many scratches and paint chips. The right door was on the interior floor damaged; the complete interior components were missing, as were the roofs, rubbers, glass and all associated parts. The original engine was not fitted to the car.

143. Mr De Boer inferred that the Vehicle had been stored in a damp environment.

144. Asked about the cause of blistering to the exterior paintwork, he attributed this to hot damp conditions, with the Vehicle being covered with a tarpaulin cover; so that the air could not escape and dry out.

145. Mr De Boer estimated further that a respray of the exterior paintwork of the Vehicle, to a quality standard, would cost up to $45,000 to restore the Vehicle to a decent condition.

Mr Wood’s evidence

146. Mr Gavin Wood prepared an expert report in response. He is a director of the firm ‘Get Assessed’. Mr Wood examined the Vehicle on 23 November 2023; also at Revesby. He described himself as having over 30 years’ experience in the motor trade industry; having worked in multiple aspects of the industry, including panel beating, painting, and assessing. Mr Wood wrote that he had been employed as a motor vehicle assessor for many insurance companies, was a member of the Motor Traders Association and a member of the Institute of Automotive Mechanical Engineers.

147. Mr Wood conducted an onsite inspection of the Vehicle on 23 November 2023.

148. Mr Wood identified areas of visible rust on the right-side rear floor and the left-hand inner quarter panel plate. But he did not infer from the photographs of those areas that the Vehicle had been left uncovered and unprotected by the weather; he thought it suggested that it had been stored inside a factory.

149. By his inspection, he regarded the Vehicle painting presenting in good condition; with no evidence of marks, scratches, or stone shops within the painted services.

150. He further commented upon the grinding of the body filler (performed by Mohammad, of Queen Street Customs, apparently in Tamworth) which, he understood, had the blistered areas sanded to identify the cause of blistering. Photographic images were taken of the right-side door, right-side rear deck panel and left-side rear deck panel. His common observation was the application of excessive filler and the re-occurrence of visible rust.

151. Mr Wood then explained that, as rust continued to propagate under the filler surface, this caused the filler to swell and often created a bubbling-type appearance within the paint surface caused by the expansion.

152. Whilst pointing out that the bubbling paint and blistering damage was not visible at the time of his inspection, Mr Wood believed that this was not consistent with Mr Mammoliti storing the Vehicle for the six-year period he was asked to assume; but was rather caused by excessive plastic filler application combined with a poor preparation of the steel underneath (prior to the application of the filler). The scratches to the front corners of the front apron was, he believed, consistent with the front bumper being fitted and the identity of the person who fitted that before the Vehicle came to Mr Mammoliti was indeterminate.

153. Mr Wood estimated that the cost of re-spraying the Vehicle, from its current condition, was in the range between $20,000 and $30,000 (incl GST).

154. Mr Wood did, however, consider that the alleged paintwork blistering damage were not consistent with Mr Mammoliti inappropriately storing the Vehicle; that appeared more consistent with the front bumper being fitted.

Concurrent evidence

155. The experts conferred during the course of the hearing. Other than an adjustment to his assumptions (which he said made no material difference to his conclusions), both experts adhered to their respective views. They indicated that as a result of their conference, there were no areas of substantial agreement.

156. This continued when they gave their evidence concurrently in the ‘hot tub’.

157. Mr De Boer referred to three previous instances that he knew of where Mercedes-Benz vehicles had been left in a carport, for a substantial period, with a tarpaulin covering it and upon removal, where each vehicle had not had filler applied to it (ie. they had completely been restored) and where the condition of the paintwork was observed to have seriously deteriorated. The vehicles were a MB 220 Utility, MB 220 ‘Roundy’ and a MB 220 Sedan. Only in the first of those had he observed a part of the restoration process.

158. But Mr De Boer conceded (more than once) that he could not disprove the hypothesis advanced by Mr Wood, that damage to the paintwork was caused by filler underneath.

159. Mr Wood adhered to his evidence and referred to his experience with restoration works when rust had eaten into the paintwork; especially in wet environments. Paint on a wet surface (due to moisture coming through the undersurface of paint) can cause blistering. He also maintained that there was no evidence of the blistering consistent with the Vehicle being covered.

160. Mr Bentancur’s claim about damage to the car was not limited to bubbles on the paintwork which was the subject of the experts’ evidence. It extended also to a claim about damage in the form of scratches and chips. Mr Bentancur took Mr Mammoliti to accept that the issue was whether, on the premise that damage to the paintwork occurred, it was caused by Mr Mammoliti.

Submissions

Mr Bentancur’s submissions

161. I will address the aspect of bubbling with the paintwork first. As to this, Mr Bentancur acknowledged the two theories of the experts but argued that this was beside the point; since Mr Wood said that even if his theory was good (the rust causing the filler to expand and cause bubbling after applying the paint too quickly to the primer, especially in wet environments), if the car been stored inside at all times, it would ‘never’ have developed bubbling. Keeping the Vehicle stored outside was a cause (if not the only cause) of this particular damage. He also submitted that photographs of the condition of the Vehicle from Hills & Co on 1 February 2013 (CB 192), 12 February 2013 (CB 207) and 1 August 2013 (CB 261) suggested that Mr Wood’s theory did not apply in the circumstances. That is to say, there was no prospect that that the primer had not dried in the 6 months following application of the primer in February 2013.

162. As to the scratches and paint chipping, Mr Bentancur submitted that the Vehicle was delivered to Mr Mammoliti in November 2013 in an ‘immaculately’ (painted) state. Reliance was placed on photographs taken of the Vehicle on 21 November 2023 (Exhibit C, CB 322-324). With Mr Bentancur explaining the steps taken to preserve the condition of the Vehicle, it was submitted that the Court should find that when Mr Mammoliti received it, the paintwork was in a still fresh condition. Mr Mammoliti had the Vehicle in his possession from about middle 2014 to February 2022 (nearly 8 years).

163. Mr Bentancur’s Counsel emphasised a discrepancy in the estimate that Mr Mammoliti had given about the period that the Vehicle had been left outside, under an awning, or car cover. (Mr Bentancur gave evidence that he saw it outside the workshop, uncovered and exposed multiple times in 2020).

164. Hayley Hitch took photographs of the Vehicle on 13 June 2023. She deposed to Mr Tsolakis’ opining that the scratches in the paintwork were there when the Vehicle was supplied to him. This was consistent with Mr Tsolakis’ own observations (paragraph 11(e) of his first affidavit) and Mr Bentancur’s observations (paragraph 52(c) of his first affidavit).

165. Having regard to a range of effective quotes from a spray painter (who did not do the works) and the views of the two experts, Mr Bentancur submitted that an appropriate allowance should be made for the sum of $22,000.

Mr Mammoliti’s submissions

166. Counsel appeared to argue that in the absence of the intentional conduct by Mr Mammoliti, damage in the form of scratching or chips in the paint (a form of direct and non-negligent damage) could be compensated for, but Mr Bentancur was not permitted to run an action for damages based upon scratching or chips that had occurred in a negligent fashion. That was even more so in the claim for damage based upon bubbling.

167. In relation to the bubbling, there were two conjectures by two experts. Neither could exclude the potential validity of the other’s theory of bubbling.

168. In relation to the scratching and chips, there were potentially multiple causes of damage, and it was not proven that Mr Mammoliti (directly and non-negligently) scratched the paintwork at any point in time.

Consideration

The pleading problem

169. In the statement of claim, the claim in respect to this head of damage (after the pleading of the contract in paragraph 4) was pleaded as follows:

“11   In or around February 2022, the Plaintiff collected the Vehicle from the Workshop. At the time of collecting the Vehicle

…….

(c)   the exterior paint of the Vehicle was not in the same condition as it was when the Vehicle was provided to the Defendant (it was scratched)

12   The plaintiff has incurred loss as a result of the Defendant .. causing damage to the Vehicle

Particulars

……

(b)   Quote for $22,000 to repair the external paintwork of the Vehicle..”

170. This pleading left the standard of care ambiguous. On the first day of the hearing, Mr Bentancur applied to amend the prefatory words in paragraph 11 to insert after the word “Vehicle” and in parentheses, “(“in breach of the Implied Term”)”. ^[4]

     4. In the proposed Amended Statement of Claim (proposed paragraph 4A), ‘Implied Term’ was defined as meaning “to perform the works that the Defendant would provide his services with reasonable care and skill”.

171. But Mr Mammoliti objected to this amendment and that objection was sustained. This left paragraph 11 in the form it was when Mr Bentancur commenced the proceeding; ie without the averment that damage to external paintwork was caused by Mr Mammoliti’s breach of an implied term of providing services with reasonable care and skill.

172. This has occasioned a pleading problem for Mr Bentancur. Mr Mammoliti objected to having to meet a case on the asserted premise that the defendant did cause damage to the Vehicle in the sense described in sub-paragraph 11(c) of the statement of claim, ie. that such damage was caused by breach of an implied term of care or, put another way (as it is understood in s 5A(1) of the Civil Liability Act 2002 (NSW)), “negligence”. That objection was sustained. Mr Bentancur did not plead facts that any of the matters in s 3B(1) were applicable, so the exception in s 5A(2) was not enlivened. Further, I would not have found that the parties impliedly agreed (in fact) that Mr Mammoliti’s obligation of care for the condition or state of the vehicle was strict in nature.

173. However, in substance, if not in form, Mr Bentancur’s case is that Mr Mammoliti was effectively in the position of a bailee (under contract rather than gratuitously). But for bailees, the position in law is that they are not regarded as an insurer for the chattels bailed. They are under no absolute or strict obligation to redeliver them but are obliged only to exert reasonable diligence in taking care of them. It is true that the onus of disproving negligence may be on the bailee, such that a failure to re-deliver the chattel to the owner in good condition may give rise to the inference of negligence, but that does not assist the bailor (owner) if he does not run an action in negligence (or breach of an implied term of care)^[5] . The obligation applies whether or not the chattel was in the bailee’s physical or constructive possession. ^[6]

     5. Glebe Island Terminals v Continental Seagram Pty Ltd (1993) 40 NSWLR 206 per Sheller JA at 228A-C (a case dealing with the loss of the vehicle); Krupowicz & Anor v CTTT & Anor [2003] NSWSC at [7]-[8]

     6. In the matter of Qenos Pty Ltd (Administrators Appointed) [2024] NSWSC 482 at [42], citing Topaloglu v UPS SCS (Australia) Pty Ltd [2011] QSC 217 at [124]

212. Mr Mammoliti’s argument about remoteness is also rejected. The parties ultimately agreed that it was of the essence of the contract that Mr Mammoliti would rebuild the original engine for installation in the Vehicle. If he failed to do so in breach of the intermediate term, the use and installation of a second-hand engine for installation fell within either of the two limbs (although more viably the first limb) in the rule of Hadley v Baxendale ^[13] at the time that the contract was entered into in 2014. In particular, Mr Mammoliti knew, or should have known, at 2014 that if he did not rebuild the original engine (within a reasonable time), then Mr Bentancur was likely to require someone else to rebuild it and further, if as materialised, he was unable or unwilling to re-deliver that original engine, Mr Bentancur was likely to get someone else to rebuild a substitute engine and install it in the Vehicle.

     13. (1854) 156 ER 145 at 151

213. I see no reason why a finding of causal connection, between breach and loss, should not be made in those circumstances. I do not accept that there was any supervening act by Mr Bentancur.

214. I accept Mr Bentancur’s submission that faced with the uncertain prospect that he would recover the original engine and to meet the circumstances caused by Mr Mammoliti’s breach – the return of the Vehicle without its engine – causing damage (the consequent reduction in the value of the Vehicle), he engaged Mr Tsolakis to install the engine from the Donor Vehicle.

215. The onus of proof that the plaintiff failed to mitigate his loss (a limitation upon the recovery of damages which, incidentally, had not been pleaded by Mr Mammoliti in his Defence) fell on Mr Mammoliti. I am not persuaded that this onus was discharged. Irrespective of onus, however, I regarded Mr Bentancur’s engagement of Mr Tsolakis to install the substitute engine as reasonable.

216. With reference to her closing written submissions, I did not understand that Counsel for Mr Mammoliti submitted that any limitations defence applied to this particular head of damage. I consider it was right for her not to do so. This particular action accrued at about the point of termination, in 2022.

217. In terms of quantum, I accept Mr Tsolakis’ unchallenged evidence that the costs specifically referable to works on the replacement engine was quantified as $35,000.

218. I allow Mr Bentancur to recover that sum for this item of damage.

Claim about payment for works not performed (and charged for)

222. The aggregate sums of money that Mr Bentancur was invoiced (for the two invoices) was $25,367 (incl GST). By his Counsel’s opening submissions (MFI 1), Mr Bentancur had prepared an Annexure (A). The gist of this was to accept that some parts were installed whereas others were not. He acknowledged that a sum of $5,430 was properly payable by him to Mr Mammoliti (and possibly more). This meant that his head of loss was quantified as being in the sum of $19,937. The contents of Annexure A were (substantially) as follows:

Item Invoiced	Cost (in parentheses if conceded)	Was it installed by Mammoliti?	Court Book Page Ref:
Invoice 99
Complete Short Block	($2,600)	Not Installed, but handed over	13
Servicing Cylinder Head	($550)	Installed	358
Engine Gasket Kit	$420	Not installed	158
Front Rotors	$320	Installed	99, 154
Front Rods (Tie Rods)	$120	Installed	99
Front Brake Hoses	$80	Not Installed	99, 154
Wheel Bearing Kit	$60	Installed	154
Front Brake Calliper reconditioning with new Pistons	($480)	Installed	98
Parts that have been chromed	($1,800)	Partly Installed	55 to 61, 155 to 516, 159, 376
Invoice 35
Rebuilt Engine and Suspension	$14,831	Engine – Not Installed	Rebuilt Engine and Suspension

Submissions about the Invoices

Mr Bentancur’s submissions

223. I understood it to be accepted that Mr Mammoliti accepted as an implied term (of fact) that he would only charge Mr Bentancur for ‘work’ and services that he had performed. Put negatively, the implied promise would be that when rendering an invoice for progressive stages of a contract, Mr Mammoliti would not overcharge. I accept, further, Mr Bentancur’s characterisation that, at least the first invoice featured a mixture of parts of the Vehicle and partly (although less so) the provision of services; and the second invoice was directed to a payment, up front (or anticipated) for services to be delivered.

224. Counsel for Mr Bentancur submitted that the parties were at odds as to whether Mr Bentancur was obliged to supply to Mr Mammoliti any other parts other than those he provided to Mr Mammoliti. Mr Mammoliti argued that he did. Mr Bentancur submitted that it was that, after Mr Mammoliti had been provided with the parts, it was his responsibility to do so; even if aided by Mr Bentancur.

225. This contract was so informal that it is difficult to be definitive about the responsibility for parts other than those which Mr Bentancur first provided to Mr Mammoliti with the Vehicle. In truth, it seemed to me that the parties did not provide for the contingency that the parts that Mr Bentancur provided to Mr Mammoliti would be insufficient to enable him to refurbish and restore the Vehicle. They improvised, ad hoc, an arrangement whereby Mr Mammoliti conducted an overview of what he needed and if there missing parts, they adopted any one or more expedients to solve any particular problem: Mr Bentancur would, upon Mr Mammoliti notifying him, (double-)check whether he had necessary parts himself (in which case they would be provided); Mr Mammoliti would, after consultation with Mr Bentancur, acquire parts (original or second-hand) from third party suppliers (and have Mr Mammoliti reimburse him for doing so); or Mr Bentancur could acquire from a third party source himself. I am inclined to think that this was a manifestation of the implied duty to co-operate. Mr Mammoliti acquired parts (on Mr Bentancur’s behalf) and Mr Bentancur also acquired parts independently. It is unnecessary to be more definitive than this; and I do not consider that the point is especially material.

226. Another issue concerned Mr Mammoliti’s obligations when he obtained the parts (from Mr Bentancur or a third-party supplier). I consider that the position was that, consistent with his other obligations, Mr Mammoliti was obliged to install the item (or attempt to) or otherwise provide the part to Mr Bentancur. There are other associated implied obligations, such as the installation within a reasonable period of time. What that might be would depend on the facts, but it would in reality depend upon Mr Mammoliti deploying his expertise. One thing to me is clear: there was not, and could not, be a claim that Mr Mammoliti negligently failed to install parts that were later supplied to him.

227. Counsel for Mr Bentancur submitted that on his own evidence, Mr Mammoliti accepted that:

1. in relation to the First Invoice, the items in the First Invoice reflected works that were only partly installed and partly for works not yet done; and

2. in relation to the Second Invoice, he had never completed the engine rebuild

228. Counsel for Mr Bentancur further submitted that it was unnecessary resort to an action in restitution. He cited a passage from Baltic Shipping Co v Dillon (1993) 176 CLR 344 as authority for the proposition that where a contract is breached, an award of damages may include an amount for substitute performance, or an amount representing reliance loss.

229. With reference to the content of Annexure A to his outline of opening written submissions, the plaintiff’s Counsel identified certain items that Mr Bentancur asserted had not been installed: (a) engine gasket kit; (b) front brake hoses; (c) front rotor; (d) front rods; and (e) wheel bearing kit. The aggregate amount for those items, which had not been installed by Mr Mammoliti was $1,000 (plus GST). Mr Bentancur claims that amount.

230. He also claims the balance of $1,800 (plus GST) from the First Invoice. That sum had not been broken down and should be construed as being separate from any allowance (by Mr Mammoliti) for labour in the items above.

231. As to the Second Invoice, Mr Bentancur’s Counsel referred me to photographs of the original engine as at 29 February 2024 (CB 351). That was proof, if any further proof was needed, that the original engine was not rebuilt or reinstalled in the Vehicle. Yet Mr Mammoliti had charged Mr Bentancur in anticipation that it would.

232. Mr Bentancur did not seek repayment of the whole of the Second Invoice. He accepted that the part of the invoice relating to ‘Suspension’ had been performed. It was not possible to discern on the face of the invoice how much of the sum of money charged ($14,831 plus GST) had been apportioned between the suspension and the rebuilt engine. However, there was reason to think that a modest proportion should be given to the former. There was evidence (CB 377) that the cost was “$771.9(?)” and Mr Mammoliti gave evidence that an engine rebuild of a common 4-6 cylinder engine would commonly range between $10,000 and $14,000.

233. Apparently with reference to the issue regarding the second invoice, but also the issue of the engine rebuild, Mr Bentancur’s Counsel (in verbal reply) also submitted that it did not avail Mr Mammoliti that his capacity to work on the engine rebuild was hindered because the latter did not have all the parts he needed. This was because on Mr Mammoliti’s case (fortified by the photos of the engine as at February 2024), Mr Mammoliti never did perform any works himself on the engine rebuild. Moreover, there was no evidence (after Mr Lee’s death) of Mr Lee having charged Mr Mammoliti for such work. Nor, for that matter, was there any complaint by a third party emanating from Mr Lee that the latter did not have the necessary parts to perform the engine rebuild.

Mr Mammoliti’s submissions

234. Counsel for Mr Mammoliti submitted that the claim for this head of damage was hopeless. She submitted that the invoices only related to parts and such parts were not installed (or provided to Mr Bentancur). No action in restitution was sought and if it had, it would probably have been statute-barred.

235. Mr Mammoliti submitted that the action on the invoices was statute-barred. Unlike the action in tort, the general position was that the action for breach of contract crystallized at the date of breach. The 6-year time limitation ran from the date of each invoice (both in 2014) sued upon. The proceeding commenced in December 2022.

236. Generally, Mr Mammoliti submitted that it was Mr Bentancur who bore the onus of proving that Mr Mammoliti was not entitled to charge the amounts in the respective invoices.

237. In relation to the first invoice, because of the informality of the arrangement, it was not a breach of contract for Mr Mammoliti to seek payment from Mr Bentancur in advance of purchasing parts for the Vehicle.

238. With respect to contested items in this invoice and commentary in the Annexure ‘A’:

1. for the Engine Gasket Kit, Mr Mammoliti disputed that it was not installed and even if it was not, that would not mean it could not be charged for.

2. for the Front Rotors, even if these were damaged due to the Vehicle being uncovered, it would not deny that the work was done.

3. for the Front Pads, even on the assumption that Mr Tsolakis later needed to replace these items installed that did not derogate from Mr Mammoliti’s entitlement to have originally charged for them

4. for the Front Brake Hoses, on the assumption that Mr Tsolakis installed these, it did not mean that Mr Mammoliti was not entitled to charge for them

5. for the Wheel Bearing Kit, the circumstance that the item was installed by later damaged did not negate the entitlement to charge for it earlier.

239. In relation to the second invoice, Mr Mammoliti’s Counsel submitted that just because the engine was not rebuilt did not mean that no work had been done to which the invoice related; nor did it mean that the value of the work that was done was not reflected in the amount charged. It was for Mr Bentancur to prove that certain works to which the invoice related were not performed. To the contrary, Mr Bentancur accepted that the suspension had been performed; which would at least indicate that some performance had been rendered in relation to the second invoice.

240. Mr Mammoliti’s Counsel submitted that a Jones v Dunkel inference did not arise from his absence of explanation for the works that he did. Mr Mammoliti did, in fact, indicate in his affidavit the works that he did to progress the contract. Just because some parts that had been acquired had not yet been installed was irrelevant. It just explained why Mr Bentancur terminated the contract. His Counsel submitted that the second invoice had been adduced by Mr Mammoliti – not Mr Bentancur – in the former’s affidavit. Mr Mammoliti could not have known he would be cross-examined about the work he had done or not done.

241. There was no proposition that the second invoice was a sham. In the absence of an express stipulation for completion, it was difficult to see how the failure to have rebuilt the original engine amounted to a breach of a condition justifying termination. Where there was no breach of an essential term, there was no basis to recover the monies paid whilst a contract was still on foot.

242. Counsel for Mr Mammoliti submitted that Mr Bentancur’s core complaint was that the second invoice included an amount done for the original work that was not done or which had been included in the first invoice. It was wrong to say that no work was performed on the engine (subject to the cylinder head). Mr Mammoliti had pointed out missing engine parts in his email to Mr Bentancur on 14 January 2014 and Mr Mammoliti’s evidence that the original engine head was reconditioned, repaired and fitted with various parts.

Consideration

243. I reject, firstly, Mr Mammoliti’s limitations defence in respect to either invoice. In contract law, the action accrues upon the breach of a contract term. Usually that means that the contract is breached where there is a failure to perform a contractual obligation. Both invoices represented, in substance, advance payments (or pre-payments) for works and services to be performed. No loss was sustained by Mr Bentancur when the invoices were issued by Mr Mammoliti; let alone when they were paid by Mr Bentancur, since the payments were made in anticipation of Mr Mammoliti performing his obligations under the contract. The breach arose because of the failure of Mr Mammoliti to substantially perform his obligations up to the point when the contract was terminated. Termination occurred in 2022 when, on Mr Bentancur’s case, Mr Mammoliti was discharged from further performance, but by which point, Mr Bentancur no longer received the benefit of the Works the subject of those invoices.

244. In Cessnock City Council, with respect to damages for ‘wasted expenditure’, the majority held (at [60], [120] and [126]) that compensation for that head of damage was linked to the cardinal object of an award for damages, derived from Robinson v Harman ^[14] , to place the plaintiff the same position as if the contract had been performed. That could permit the plaintiff:

“..to recover expenditure reasonably incurred in anticipation of, or reliance on, the performance of the contractual obligation that was breached but only to the extent that the expenditure would have been recovered but cannot now be recovered.” ^[15]

14. (1848) 154 ER 363 at 365

15. Cessnock City Council at [120]

245. In his Honour’s concurring judgment, Gageler CJ also explicitly (at [6]-[8]) tied the recovery of damages for wasted expenditure to the principle in Robinson v Harman. The Chief Justice explained that for there to be compensatory damages, there must be “damage”, which his Honour explained, was a reference to the:

“legally cognisable respect or respects in which the position of the plaintiff has been made worse by non-performance of the contract in comparison to the position would have been in had the contract been performed. Non-performance of a contract has the potential to make the plaintiff worse off in different respects, with the consequence that ‘(d)ifferent, even cumulative, heads of damage may be pleaded by the plaintiff, depending on the type of contract involved and the kinds of breach and damages occasioned, provided there is no double recovery.” ^[16]

16. Ibid at [8]

246. As the Chief Justice further explained (at [12]), with reference to the category of damage known as “wasted expenditure”:

“…. Wasting of past expenditure upon failure of performance is a legally cognisable respect in which the plaintiff is worse off as a result of non-comparison in comparison to performance. … non-performance by the defendant has caused expenditure incurred by the plaintiff to have been thrown away … the plaintiff has incurred expenditure which, because of non-performance, in incapable of yielding any benefit or gain to the plaintiff.”

247. Dealing with the Second Invoice first, I noted that Mr Bentancur only seeks repayment of only part of that invoice. I find that it dealt with two discrete subject matter: the ‘rebuilt engine’ and ‘suspension’. There was no express breakdown between those two services. However there is force in Mr Bentancur’s submissions (MFI 5, paragraphs 52-55) that there is a method by which the price of the invoice may be apportioned to the two subject matter, by reference to the cost to Mr Mammoliti of the suspension ($771.96 ^[17] ) and the likelihood (based upon Mr Mammoliti’s expert, Mr Wood’s opinion) that the cost of rebuilding an engine for this (luxury) Vehicle would substantially exceed the range ($10,000 to $14,000) for a ‘common’ 4-6 cylinder engine; noting also the incidence of inflation since 10 years ago.

     17. Exhibit 6 (CB 377)

248. However, I agree with Mr Mammoliti’s submission that it is too simplistic to say that no work, and therefore no benefit or gain, was obtained by Mr Bentancur from what Mr Mammoliti did with the original engine such as would engage an entitlement in Mr Bentancur to wasted expenditure. Mr Mammoliti’s emails to Mr Bentancur on 20 January 2014 and 13 November 2014, along with photos depicting a comparison between the state of the original head and what he had done in connection with, suggest to the contrary it. It does not matter, for this purpose, whether the quality of what Mr Mammoliti had done with the engine was unreasonable or deficient in some way.

249. In relation to the First Invoice, I further agree with Mr Mammoliti that simply because a part that he acquired, on behalf of Mr Bentancur’s behalf was not installed, or turned out to be defective and useless for the purpose of installation, does not derogate from the circumstance that the act of acquisition was part of the Works that Mr Mammoliti performed. In other words, some benefit or gain was obtained by Mr Bentancur through Mr Mammoliti’s performance of his obligations. I also reject a bright-line distinction between parts and labour in the First Invoice. The strictness of that distinction is belied by Mr Bentancur’s emphasis upon the circumstance that some, but not all, of the parts were “installed”.

250. I reject Mr Bentancur’s claim for recovery of monies he paid to Mr Mammoliti pursuant to the First and Second Invoices.

251. In the result, I would allow Mr Bentancur damages for the sum of $35,000.

Costs

252. Both parties, in their respective submissions, sought costs. Neither party indicated that they wanted an opportunity to be heard on costs. In my view, costs should follow the event. If, in the light of these reasons, some special order for costs is sought, a party may apply for a variation of the costs order within the time prescribed by the Court Rules.

Orders

253. The Court orders:

1. Judgment for the plaintiff for the sum of $35,000 (the ‘judgment sum’).

1. The defendant is to pay the plaintiff interest on the judgment sum pursuant to s 100 of the Civil Procedure Act 2005 (NSW).

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

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Endnotes

Amendments

04 June 2024 - Amended 'Cases cited' field on coversheet

Decision last updated: 04 June 2024