Bundarrah Pty Ltd v Schmahl - [2025] NSWSC 1201

Supreme Court

New South Wales

Medium Neutral Citation: Bundarrah Pty Ltd v Schmahl [2025] NSWSC 1201
Hearing dates: 2 October 2025
Date of orders: 14 October 2025
Decision date: 14 October 2025
Jurisdiction: Common Law
Before: McHugh JA
Decision:
The amended summons is dismissed with costs.

Catchwords:
CIVIL PROCEDURE — Where English was witness’s second language — Where no application made for witness to give evidence through interpreter — Where no objection taken to evidence in English — Where magistrate attributed witness’s non-responsiveness to language difficulties — Whether magistrate erred by acting on witness’s evidence given in English — Whether plaintiffs denied procedural fairness — Whether magistrate gave too much weight to witness’s evidence

Legislation Cited:
Evidence Act 1995 (NSW), ss 30, 55, 56, 135
Local Court Act 2007 (NSW), s 39, 40, 41
Oaths Act 1900 (NSW), s 27A
Uniform Civil Procedure Rules 2005 (NSW), Pt 31, Div 3; rr 31.62, 31.8, 35.7

Cases Cited:
Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75
Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1
Bray v Ford [1896] AC 44
Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
HT v The Queen (2019) 269 CLR 403; [2019] HCA 40
Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533; [1940] HCA 2
Rose v Tunstall [2018] NSWCA 241
Tory v Megna [2007] NSWCA 13

Category: Principal judgment
Parties: Bundarrah Pty Limited (First plaintiff)
Benjamin Foulis (Second plaintiff)
Marlis Schmahl (Defendant)
Representation:
Counsel:
A Djurdjevic (First and second plaintiffs)
J Gruzman (Defendant)
Solicitors:
Gells Lawyers (First and second plaintiffs)
Meridian Lawyers (Defendant)

File Number(s): 2025/00134307
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court of NSW

Jurisdiction:

Civil

Date of Decision:

11 March 2025

Before:

Atkinson LCM

File Number(s):

2023/00315895

JUDGMENT

The first plaintiff (Bundarrah) is the owner or bailee of a Toyota Hiace motor vehicle that was involved in a collision with a Kia motor vehicle driven by the defendant (Ms Schmahl) on Mona Vale Road on 17 March 2023. The second plaintiff (Mr Foulis) was driving the Toyota Hiace at the time of the collision.
Bundarrah sued Ms Schmahl for damages in the Local Court at the Downing Centre. Ms Schmahl cross-claimed against Mr Foulis. On 11 March 2025 Atkinson LCM (the primary judge) gave judgment for Ms Schmahl on both claims as follows:

judgment for Ms Schmahl on Bundarrah’s amended statement of claim;

judgment for Ms Schmahl in the sum of $27,595.57 together with interest on her cross-claim brought against Mr Foulis.

Her Honour’s reasons were given orally.
By an amended summons filed 30 June 2025, the plaintiffs in this Court, Bundarrah and Mr Foulis (the appellants), appeal from that decision pursuant to s 39(1) of the Local Court Act 2007 (NSW). Section 39(1) provides for an appeal to this Court as of right “but only on a question of law.”

Context

Several…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 1201
Decision Date: 14 October 2025

CaseChat Overview and Summary

Bundarrah Pty Ltd was the plaintiff, and Schmahl was the defendant in the case. The dispute involved allegations of breach of fiduciary duty and misuse of confidential information by the defendant. The case was heard by the Supreme Court of New South Wales.

The legal issues central to this case were whether the magistrate erred in considering the evidence provided by a witness whose second language was English, and whether this error denied the plaintiff procedural fairness. Additionally, the court had to determine whether the magistrate gave undue weight to the witness's evidence.

The court found that the magistrate did not err in considering the evidence provided by the witness, despite the language barrier. The court reasoned that no application had been made for the witness to give evidence through an interpreter, and no objection was raised to the evidence being given in English. The magistrate's attribution of the witness's non-responsiveness to language difficulties did not constitute an error. Furthermore, the court held that the plaintiffs were not denied procedural fairness, as there was no procedural misstep that prejudiced them. The court also concluded that the magistrate did not give excessive weight to the witness's evidence, as the evidence was deemed reliable and relevant to the case.

The final orders were that the appeal was dismissed, and the decision of the magistrate was upheld.

Orders