In around 2016, Mr Fabbri, the appellant, arranged for a sea container to be placed on a property owned by Ms Atyeo, the respondent. There is a dispute as to whether Mr Fabbri agreed to pay Ms Atyeo a nominal annual fee for allowing…
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
AGLC
Fabbri v Atyeo [2024] WADC 2
Case
[2024] WADC 2
Decision Date
CaseChat Overview and Summary
The case of Fabbri v Atyeo involved a dispute between Mr Massimo James Fabbri and Ms Rona Atyeo regarding the removal and storage of a sea container on Ms Atyeo's property. Mr Fabbri sought summary judgment against Ms Atyeo for various claims including breach of contract, detinue, conversion, trespass, and negligence. The claims were based on the alleged wrongful detention of the sea container and the loss or damage of its contents. The matter was heard and dismissed by the Magistrates Court of Western Australia, a decision which Mr Fabbri appealed to a higher court.
The primary legal issue the court had to decide was whether a relationship of bailment existed between Mr Fabbri and Ms Atyeo. This relationship, if proven, would establish a duty of care on the part of Ms Atyeo towards the sea container and its contents. The court examined Mr Fabbri's assertions that he had placed the container on Ms Atyeo's property with an offer of a $400 gift, which was declined, and that there were no discussions about fees or contracts. The court also considered Ms Atyeo's actions in placing a swimming pool on the property, which obstructed the removal of the container without the use of a crane, and her refusal to cover the cost of the crane or to allow the container's removal unless Mr Fabbri paid her $2,000.
The court found that there was no evidence of a contractual or bailment relationship between the parties, and therefore, Ms Atyeo had no duty of care towards the container or its contents. The court determined that Mr Fabbri's claims were without merit and that there was no reasonable prospect of success. The court dismissed Mr Fabbri's application for summary judgment and ruled that the claims should proceed to trial. The court also rejected Mr Fabbri's argument that he had not been adequately served with the application and that his ill health had prevented him from presenting his evidence fully.
The court's decision was final, and Mr Fabbri's appeal was dismissed. The court ordered that Mr Fabbri pay the costs of the appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Mr Fabbri's position and evidence In the Statement of Claim, Mr Fabbri relevantly asserted that:[17](a)in the conversations with Ms Atyeo which led to the sea container being placed on her property, no 'monies, fees or contracts were discussed';(b)rather there was an offer to pay Ms Atyeo $400 'as a thank you for her help' by way of a gift, which was declined by Ms Atyeo;(c)after the sea container had been placed on the property, Ms Atyeo had put in a swimming pool which meant that the sea container could not be moved in the same manner in which it was delivered;(d)the sea container could only be moved by using a crane to lift it over the swimming pool and on to a truck which will cost in the vicinity of $2,000;(e)Ms Atyeo refused to pay for the cost of the crane; and(f)Ms Atyeo refused to allow him to remove the container unless he paid her $2,000.[17] MB 464. The legal basis of the Claim is:[18]1.Breach of contract by asking for money.2.Nor was there a contract.3.Detinue - the crime of wrongful detention of goods or personal possessions.4.Conversion - financial compensation for whats missing as compared to what was placed in the container.5.Trespass to property - physical damages to items to be assessed and missing items also to be assessed and a monetary value added to the claim.6.Negligence - failure to look after property in your care.[18] MB 465. As to the remedy or relief claimed:[19]Rona Atyeo, the defendant, be ordered by this court to pay Mr Massimo James Fabbri all costs associated with this case. Re: JOO/GCLM/1652/2020 including previous trial default by defendant of $4000.00.Defendant to pay for extraction of Sea Container from present location to the back of a flat bed truck, supplied and paid for by the claimant Massimo Fabbri as to our first intentions.Note : The claimant will not be held responsible for any damage to property, flora and fauna, and the container and its contents due to extraction supplied by the defendant.Before removal of Sea Container, claimant to inspect the container for damage and the real possibility of missing contents and damage. Post inspection items missing or damaged to have a monetary value applied and added to the costs.Any legal requirement for the claimant to facilitate the inspection and removal of this Sea Container shall be absorbed by the defendant or added to the costs. Following inspection the container will be chained and locked by the claimant.The container and all contents as originally arrived to be returned to Mr Fabbri within fourteen days at her expense.In the event that I am ordered to collect my goods, this will be at Rona's expense.Defendant to pay punitive damages to the claimant, in the amount of $10,000.00.[19] MB 465. As I have said, the sea container has now been collected. The only residual issue in the Claim is whether Mr Fabbri is entitled to compensation for the items which he says were missing from the sea container and the damage which he says some of the items which were returned had sustained. As mentioned ([5]), he particularises these damages in the amount of $53,320.[20][20] MB 409 - MB 410.
Decision
Reasons for decision
The power to summarily dismiss a claim brought in the Magistrates Court is found in Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) s 18, in the following terms:18.Summary judgment, Court may give(1)The Court may give judgment against a claim without a trial if the party making the claim does not satisfy the Court that the claim has a reasonable prospect of succeeding.(2)The Court may give judgment in favour of a claim without a trial if the party defending the claim does not satisfy the Court that the defence has a reasonable prospect of succeeding.(3)In order to determine whether a claim or a defence has a reasonable prospect of succeeding, the Court may determine any necessary question of fact or law.(4)If under subsection (3) the Court determines one or more questions of law and there is no question of fact or mixed fact and law in issue between the parties, the determination of the question of law is final for the purposes of proceedings in the Court in relation to the case concerned.(5)The powers in subsections (1), (2) and (3) may be exercised -(a)in relation to all or a part of a claim or a defence; and(b)regardless of which party, or of whether any party, has made an application to the Court for their exercise.(6)The Court may set aside a judgment given under this section and may do so on conditions as to the payment of costs or as to other matters.(7)No appeal lies against the Court's decision to refuse to give judgment under subsection (1) or (2). The Magistrate dealt with three procedural issues subsidiary to the Decision. The first was the lateness of the Application. Unlike the position in the Supreme Court and District Court,[36] there is no time limit within which an application for summary judgment may be brought in the Magistrates Court. Rather, the issue of lateness is best viewed as going to the exercise of the decision to grant summary judgment. If the application is brought after a claim has been in progress for some time, fairness and practical utility may dictate that the appropriate course is simply to allow the claim to progress to trial. In any event, in this case, the Magistrate observed that the Application had 'been brought swiftly following the dramatic change in the course of the Claim after 13 December 2022 and the consent order made on that day'. Her Honour concluded that 'even though the Application could have been brought earlier, once the re framed Claim was advanced, albeit poorly, the Application was made reasonably quickly'.[37] [36] Rules of the Supreme Court 1971 (WA) O 14 r 1(1) and O 16 r 1(1) (RSC).[37] MB 79 - MB 80. The second was a concern expressed by Mr Fabbri that he had not been duly served with the Application. The Magistrate found that he had.[38][38] MB 80 - MB 81. The third was, in effect, whether Mr Fabbri had been given an adequate opportunity to adduce all the evidence he wanted to because of ill health. The Magistrate found that he had.[39] [39] MB 101 - MB 102. Only the third of these findings is challenged in the grounds of Appeal.