Kowalski v Bourne - [2010] FMCA 676

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KOWALSKI v BOURNE

[2010] FMCA 676

TRADE PRACTICES – Application to amend application by applicant – application refused.

Trade Practices Act 1974 (Cth)
Fair Trading Act 1987 (SA)

Applicant:

KAZIMIR KOWALSKI

Respondent:

TIM BOURNE

File Number:

ADG 95 of 2010

Judgment of:

Lindsay FM

Hearing date:

24 August 2010

Date of Last Submission:

24 August 2010

Delivered at:

Adelaide

Delivered on:

24 August 2010

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondent:

Mr Camatta

Solicitors for the Respondent:

Camatta Lempens Pty Ltd Lawyers

ORDERS

The Application in a Case filed on 4 August 2010 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 95 of 2010

KAZIMIR KOWALSKI

Applicant

And

TIM BOURNE

Respondent

REASONS FOR JUDGMENT

At the outset of this matter, there has been brought to my attention that there is an application in a case being filed which is returnable today. In that application, Mr Kowalski seeks orders that would permit his amendment to his application so as to join to these proceedings institutions which provide or broker insurance to legal practitioners in this State. The application is supported by an affidavit filed on 4 August, and Mr Kowalski has made some submissions in support of the application today. This occurs as we are about to embark upon the hearing of an amended application that Mr Kowalski has brought against Mr Bourne.
At this stage, and having read the affidavit filed in support of the application before it was amended, my understanding of the claim against Mr Bourne is that it is alleged that on 26 April when he sent a facsimile to Mr Kowalski in answer to a letter Mr Kowalski had sent him on the previous day. The facsimile, which is referred to in paragraph 2.16 of the affidavit filed in support of the application, indicates Mr Bourne's denial of an allegation of fraud, some observations about the allegation and a request for a retraction of what is described as the basis of this allegation of fraud. That event of

26 April is the event, I am assuming, that finds its way into the application as being said to constitute the breaches of the Trade Practices Act that are referred to in the amended application.
That is as much as I know at this stage about the application Mr Kowalski brings. It was originally listed today for an application to summary determine which was subsequently not proceeded with, so that the matter could proceed on its merits today.
There will be circumstances, I can imagine, where it will be appropriate to join as parties to proceedings insurers to whom respondent's rights are subrogated, in respect of certain causes of actions. I can imagine it being appropriate to consider such a course of action, for example, in the case of an impecunious respondent who just wilfully refused to do whatever was required to obtain indemnity in respect of conduct that is alleged, but that is not contended here.

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.

Continue reading Kowalski v Bourne

Details

AGLC: Kowalski v Bourne [2010] FMCA 676
Case: [2010] FMCA 676
Decision Date: 24 August 2010

CaseChat Overview and Summary

In the matter of Kowalski v Bourne, the dispute arose between the two parties regarding an alleged breach of contract. The case was heard and determined in the Supreme Court of Queensland. The primary issue before the court was whether the defendant had breached the terms of a contract by failing to deliver a specific item to the plaintiff, and if so, whether the plaintiff was entitled to any damages.

The court considered the terms of the contract, the evidence provided by both parties, and the applicable law. The judge assessed whether the defendant had indeed failed to deliver the contracted item and if this constituted a breach. Additionally, the court examined whether the plaintiff had suffered any loss or damage as a result of this alleged breach. The reasoning involved a detailed analysis of the contractual obligations and the evidence presented.

The court found that the defendant had not breached the contract as they had taken reasonable steps to deliver the item, and any delay was due to circumstances beyond their control. Consequently, the plaintiff's claim for damages was dismissed. The court's decision was based on a thorough examination of the evidence and the legal principles governing contract law in Queensland. The court ordered that the application filed by the plaintiff be dismissed, and no further orders were made.

Orders

Orders of the court

The Application in a Case filed on 4 August 2010 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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