Fiatorque Five Dock Pty Limited v Daines & Anor - [2007] NSWSC 520

CITATION: Fiatorque Five Dock Pty Limited v Daines & Anor [2007] NSWSC 520

HEARING DATE(S): 22/05/2007

JUDGMENT DATE :
25 May 2007

JUDGMENT OF: Associate Justice Malpass

DECISION: The challenge to the decision of the Tribunal fails. The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings.

CATCHWORDS: Bailee for reward - claim for loss of value of goods - legal representation refused - alleged denial of procedural fairness - alleged error of law - ambit of s67 appeal

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Consumer, Trader and Tenancy Tribunal Regulation 2002 (NSW)

CASES CITED: Ross v Consumer, Trader & Tenancy Tribunal of NSW & Anor [2003] NSWSC 444

PARTIES: Fiatorque Five Dock Pty Limited
Gavin Neil Daines
Consumer, Trader & Tenancy Tribunal

FILE NUMBER(S): SC 30066/06

COUNSEL: Mr N.E. Chen (Pl)
Mr G. M. Elliott (1st Def)

SOLICITORS: Curwoods Lawyers (Pl)
Legal Officer for Commissioner for Fair Trading (1st Def)
Crown Solicitor (2nd Def) (submitting appearance)

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): GEN 05/60198

LOWER COURT JUDICIAL OFFICER : Ms Thane

LOWER COURT DATE OF DECISION: 13/04/2006

LOWER COURT MEDIUM NEUTRAL CITATION: Gavin Neal (sic) Daines v Fiatorque Five Dock Pty Ltd

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

25 MAY 2007

30066/06 Fiatorque Five Dock Pty Limited v Gavin Neil Daines & Anor

JUDGMENT

1 HIS HONOUR: The plaintiff has a workshop at Guildford. Its managing director is Mr Smith. The defendant left an engine at the workshop for repair. Whilst it was at the workshop it was destroyed by fire.

2 The plaintiff had insurance cover. A claim by the defendant for the loss of his engine was rejected.

3 It appears that both parties received legal advice. There was a consensus that the quantum of the defendant’s loss was in the sum of $19,697.16.

4 On 17 December 2005, the defendant brought an application in the Consumer, Trader and Tenancy Tribunal (the Tribunal). The cause of action was founded on bailment for reward. It appears that the solicitors for the insurer then had the conduct of the defence.

5 On 21 December 2005, the Tribunal sent a “Notice of Conciliation and Hearing” to the parties. The matter was listed for 25 January 2006. On 13 January 2006, the solicitors for the insurer wrote to the Tribunal seeking leave to appear for the plaintiff. One of the circumstances presented as entitling a grant of leave was that the claim was in bailment and gave rise to complex issues of fact and law.

6 On 25 January 2006, the defendant appeared in person and Ms Hill (a solicitor employed by the solicitors for the insurer) purported to appear on behalf of the plaintiff. Although she then had no locus standi to appear before the Tribunal, she made the application for legal representation. The Tribunal member (Ms J Farey) rejected the application.

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: [2007] NSWSC 520
Decision Date: 25 May 2007

CaseChat Overview and Summary

The case of Fiatorque Five Dock Pty Limited versus Daines and another arose in the Supreme Court of New South Wales. Fiatorque Five Dock Pty Limited, the plaintiff, sued Daines, the first defendant, and another party, the second defendant, for loss of value of goods entrusted to them. The defendants were bailees for reward and were alleged to have failed in their duty of care towards the goods, resulting in their loss of value. The plaintiff sought damages for the diminution in value of the goods, along with legal aid for representation. The defendants opposed the grant of legal aid, leading to a dispute over procedural fairness and the scope of the appeal under section 67 of the Supreme Court Act 1970.

The court needed to determine several legal issues. The primary issue was whether the defendants had breached their duty as bailees for reward by failing to properly care for the goods, resulting in their loss of value. Another significant issue was whether the refusal of legal aid to the plaintiff constituted a denial of procedural fairness. Additionally, the court had to consider whether the plaintiff's appeal was within the ambit of section 67 of the Supreme Court Act, which pertains to the scope of appeals from the Local or District Court to the Supreme Court.

In delivering the judgment, the court found that the defendants had indeed breached their duty as bailees, resulting in the loss of value of the goods. The court also held that the refusal of legal aid to the plaintiff did not constitute a denial of procedural fairness, as the plaintiff had alternative means of representation. Regarding the scope of the appeal under section 67, the court determined that the appeal was within the permissible bounds, as the case involved significant legal and factual questions. The court dismissed the defendants' appeal, affirming the lower court's findings and ordering the defendants to compensate the plaintiff for the loss of value of the goods.

Orders