Camilleri v Pudig

[1999] NSWCA 257

CITATION:	CAMILLERI v PUDIG [1999] NSWCA 257
FILE NUMBER(S):	CA 40200/99
HEARING DATE(S):	16 July 1999
JUDGMENT DATE:	16 July 1999
PARTIES :	Anthony Joseph Camilleri - Claimant Grant Francis Pudig - Opponent
JUDGMENT OF:	Sheller JA at 1; Giles JA at 9; Cole AJA at 10

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	12645/98
LOWER COURT JUDICIAL OFFICER:	Windeyer J

COUNSEL:	M A Ashhurst - Claimant N E Abadee - Opponent
SOLICITORS:	Vasso P Tsolakis - Claimant W G McNally & Co - Opponent
CATCHWORDS:	STATED CASE - from Magistrate - appeal to Supreme Court - second hand car - misrepresentation - reliance by document - knowledge of opponent - whether error of applicable principle or misapplication of principle - no such error
ACTS CITED:	N/A
CASES CITED:	N/A
DECISION:	Application for leave to appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40200/99
CL 12645/98

SHELLER JA
GILES JA
COLE AJA

Friday, 16 July 1999

CAMILLERI v PUDIG

JUDGMENT

1    SHELLER JA: This is an application brought by the defendant in proceedings in the Local Court for leave to appeal from a decision given by Windeyer J on 25 February 1999. His Honour on that occasion dismissed the claimant's stated case, brought by way of summons, in respect of the proceedings in the Local Court to which I have referred.

2    In those proceedings, the learned Magistrate on 23 April 1998 gave a verdict and judgment in the sum of $28,000 plus interest in favour of the opponent to this application.

3    The stated case set out the Magistrate's grounds of determination. In broad terms, the proceedings related to an alleged negligent misrepresentation made by the claimant when selling a motor vehicle to the opponent. The negligent misrepresentation alleged related to the contents of a service booklet which contained entries for 13 April 1993 and 2 November 1993. Those dates were during a period of eighteen months when the motor vehicle in question was in police custody.

4    The Magistrate found that the claimant was aware of the contents of the service booklet, including those two entries, and on that basis found that the claimant had represented that the subject motor vehicle had been serviced regularly by a particular servicing company, that such representation was untrue and that the representation was made “at the very least” negligently. The Magistrate also found that the claimant knew that it was likely that the opponent would rely on that representation and be thereby induced to purchase the subject vehicle. The Magistrate said:

“I based this finding on the fact that it was clearly to the defendant's benefit that these entries had been made because it covered the period in which the vehicle had been in police custody. Without the false entries, the service record would be a significant problem for the defendant as a vendor. I found the defendant was a man very familiar with BMW motor vehicles and who realised that the service record was something a prospective purchaser would be likely to look at. I found it most unlikely that Mr Feichtinger [I interpolate he was the person who had apparently made the entries] would have falsified records of this type out of the goodness of his heart.”

5    Before making this determination, the Magistrate rehearsed the factual background which went to the history of the construction of this motor vehicle and the way in which it ultimately found its way into the claimant's hands.

6    When the matter came before Windeyer J, two matters were regarded as of particular significance in the claimant's argument that the Magistrate had erred in coming to the decision that he did. The first was whether it was open to the Magistrate to make the finding of knowledge which he did from the facts he found; the second was whether it was open to the Magistrate to find that the opponent had relied upon the representation made when deciding to purchase the vehicle.

7    Windeyer J, in paragraphs 11 and 12 of his judgment, concluded that those findings were open to the Magistrate. The gist of the argument advanced today is that Windeyer J erred in so concluding. These matters are said to give rise either to errors of applicable principle or, alternatively, misapplication of principle. This has been discussed in some detail and the cases referred to. However, having carefully read what Windeyer J said in these paragraphs, I am not persuaded that they disclose any error, either of principle or the application of principle.

8    The amount involved in this case is some $25,000 plus interest and no doubt costs. I do not think that this is, in the circumstances, an appropriate case for the Court to grant leave. Accordingly, in my opinion, the application for leave should be dismissed with costs.

9    GILES JA: I agree.

10    COLE AJA: I also agree and add only this. In my opinion, it should be recognised by the profession that where leave to appeal is required, it will not usually be granted where the only error which can be pointed to is misapplication of established principle, as distinct from an absence of expressed or inferred appreciation by the trial Judge of established principle, or mis-statement of that principle. Here, the only asserted error was misapplication of principles related to the drawing of inferences of fact. I do not think any such error has been established, but even if it had, that would not in my view justify the granting of leave. I agree with the orders proposed.

11    SHELLER JA: The application is therefore dismissed with costs.
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