Gms Spares Pty Limited v Swann Insurance (Aust) Pty Limited and Anor
[2005] NSWSC 768
•5 August 2005
NEW SOUTH WALES SUPREME COURT
CITATION: GMS Spares Pty Limited v Swann Insurance (Aust) Pty Limited & Anor [2005] NSWSC 768
CURRENT JURISDICTION: Common Law Division
FILE NUMBER(S): 10842/05
HEARING DATE{S): 29 July 2005
JUDGMENT DATE: 05/08/2005
PARTIES:
GMS Spares Pty Limited (Plaintiff)
Swann Insurance (Aust) Pty Limited (First Defendant)
His Honour Hugh Dillon in his capacity as Magistrate, Local Court, Downing Centre (Second Defendant)
JUDGMENT OF: Associate Justice Malpass
LOWER COURT JURISDICTION: Local Court
LOWER COURT FILE NUMBER(S): 9090 of 2003
LOWER COURT JUDICIAL OFFICER: Dillon LCM
COUNSEL:
Mr J Collins (Plaintiff)
Mr M R Elliott (First Defendant)
SOLICITORS:
Lang Gellert & Noonan (Plaintiff)
Brown Wright Stein (First Defendant)
CATCHWORDS:
Alleged error in finding that the plaintiff had failed to prove the suffering of loss - the finding was one of fact based on credibility and reasonably open to the Magistrate - no error in point of law.
ACTS CITED:
DECISION:
The summons is dismissed
the plaintiff is to pay the costs of the summons
the exhibits may be returned.
JUDGMENT:
- 4 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONAssociate Justice Malpass
5 August 2005
10842 of 2005 GMS Spares Pty Limited v Swann Insurance (Aust) Pty Limited & Anor
JUDGMENT
His Honour: The first defendant is an insurer. It provided cover in respect of a motor vehicle (registration number AMM-735). The vehicle was damaged in an accident. The first defendant came to the view that the vehicle was a “write-off”. This made the vehicle unregistrable thereafter. Despite this, the vehicle underwent various sales. The plaintiff claims to have been a purchaser of the vehicle.
The plaintiff commenced proceedings in the Local Court against the first defendant. It relied on a cause of action founded in negligence. The process alleged a breach of duty of care to inform the plaintiff of the written-off status of the vehicle. The alleged loss was the sum of $32,745 (being the alleged purchase price of the vehicle) less its salvage value.
A contested hearing took place before Dillon LCM. The Magistrate delivered his decision on 7 February 2004. He came to the view that there should be verdict and judgment for the first defendant.
The plaintiff filed a summons in this court on 9 March 2005. It now proceeds on an amended summons which was filed on 23 March 2005. The proceedings purport to bring a challenge against the decision of the Magistrate. It is contended that he erred in point of law. The plaintiff bears the onus of demonstrating error in point of law that justifies the disturbing of the decision.
Before proceeding further, it should be observed that the summons has been filed out of time. Accordingly, an extension of time is required.
The application for extension of time and the appeal itself were heard together. The application for extension was resisted on the basis that the appeal was without merit.
I shall put the application to one side and first look at the merits of the appeal.
The Magistrate had before him a statement of agreed facts (a copy of that document is Annexure F to an affidavit sworn by William Maynard on 1 July 2005). The Magistrate had before him other statements and documentary material. He had oral evidence from Messrs Nader (who described himself as being the owner of the plaintiff) and Dandachli (who had been involved in dispositions of the vehicle).
The Magistrate found that the first defendant owed the plaintiff the alleged duty of care and that there had been a breach of that duty.
In his judgment, the Magistrate observed that the plaintiff had the onus of proof, on the balance of probabilities, of proving all elements of its case (including the alleged loss). He proceeded to find that it had not discharged the onus of proof in respect of the question of the suffering of loss.
Despite what appears in the amended summons, the only question argued by the plaintiff on the appeal was whether or not the Magistrate had erred in the making of that decision. It was said that the error was error of law.
In my view, the appeal is hopeless. The alleged error concerns a finding of fact only. Further, it was a finding of fact made having regard to credibility. In addition, it was a finding of fact that was reasonably open to the Magistrate on the evidence.
Whilst the plaintiff has sought to emphasise the lack of evidence adduced by the first defendant, its failure on this question was due to the unpersuasive quality of the evidence that it had led itself.
Whilst there was some evidence from Messrs Simon Nader and Mahmoud Dandachli directed to the question of payment by the plaintiff for the purchase of the vehicle, the Magistrate saw problems with that evidence (see paragraphs 23-29 of the judgment).
There had been a request for particulars made by the first defendant. There had also been a notice to produce served by it upon the plaintiff. It required the production of, inter alia, relevant business records concerning the alleged purchase.
The plaintiff had failed to answer the request for particulars and it had not produced any relevant business records.
There was material that suggested that the plaintiff could have been reasonably expected to have business records (including a cheque butt or bank statement). In the circumstances, the Magistrate gave weight to the failure on the part of the plaintiff to adduce business records in support of its claim at the trial.
The Magistrate did refuse an application for an adjournment so that another member of the Dandachli family (Mr Ghassan Dandachli) could put evidence before the court. However, there has to be considerable doubt as to whether or not any evidence that he might have given would have assisted the plaintiff and the refusal of that adjournment was not pursued as a ground of appeal.
For completeness, it may be appropriate to mention one further matter. The failure to prove payment may have had other ramifications in this case. It went to the question of the status of the plaintiff as purchaser and whether or not it was owed a duty of care. This is a matter that does not require further consideration.
Because of the lack of merit in the appeal, it would be futile to grant an extension of time in which to bring it. Accordingly, the application for extension of time is refused and the purported appeal must fail.
The summons is dismissed. The plaintiff is to pay the costs of the summons. The exhibits may be returned.
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LAST UPDATED: 05/08/2005
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