Papamakarios v Di Bona - [2018] NSWSC 328

Supreme Court

New South Wales

Medium Neutral Citation: Papamakarios v Di Bona [2018] NSWSC 328
Hearing dates: 21 February 2018
Date of orders: 16 March 2018
Decision date: 16 March 2018
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) Except for Grounds 1, 2, 3, 5, 6, 7, 8, 9 and 10, I make an order that leave to appeal is refused.

(2) The appeal is dismissed.

(3) The judgment of her Honour Magistrate Swain dated 20 October 2016 is affirmed.

(4) The summons filed 18 November 2016 is dismissed.
(5) The plaintiff is to pay the defendant’s costs on an ordinary basis.
Catchwords: APPEAL – Local Court – leave to appeal – Local Court Act ss 39,40, 41 – whether leave to appeal should be granted – leave to appeal refused except for groups 1 and 2 – group 1 - whether the Magistrate erred in her findings made with respect to the competing versions of the 2009 oral agreement – whether the Magistrate erred in law in failing to consider the claim in contract for the restoration work - group 2 – whether the Magistrate erred in her findings made with respect to the terms of the 2012 oral agreement – no error in the Magistrate’s construction of either the 2009 or the 2012 agreement – appeal dismissed
Legislation Cited: Local Court Act 2007 (NSW)
Sale of Goods Act 1923 (NSW)
Cases Cited: Araise Group Pty Ltd v Residential Lifestyles Pty Ltd [2014] NSWCA 187
Azzopardi v Tasman UEB Industries Pty Ltd (1985) 4 NSWLR 139
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Codelfa Constructions Pty Ltd v SRA of NSW (1982) 149 CLR 337
Equuscorp Pty Limited v Glengallan Investments Pty Limited [2004] HCA 55; (2004) 218 CLR 471; (2004) 211 ALR 101; (2004) 79 ALJR 206; (2004) 57 ATR 556
Franklins v Metcash [2009] NSWCA 407; (2009) 76 NSWLR 603; (2009) 264 ALR 15
He v Yeung [2015] NSWCA 392
International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3; (2008) 82 ALR 419
Lee v New South Wales Crime Commission [2012] NSWCA 262 (2012) 224 A Crim R 94
Pacific Carriers Limited v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Scottish Amicable Life Insurance v Reg Austin Insurances Pty Ltd (1985) 9 ACLR 909
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 211 ALR 342
Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429; (1968) 41 ALJR 348
Category: Principal judgment
Parties: Jim Papamakarios (Plaintiff)
Robert Di Bona (Defendant)
Representation:
Counsel:
C Bolger (Plaintiff)
RW Tregenza (Defendant)
Solicitors:
Blacktown Legal (Plaintiff)
Watson Stafford Zipkis (Defendant)

File Number(s): 2016/345924
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Civil

Date of Decision:

21 October 2016

Before:

Swain LCM

File Number(s):

2013/263391

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: [2018] NSWSC 328
Decision Date: 16 March 2018

CaseChat Overview and Summary

The appeal in Papamakarios v Di Bona involved the parties Papamakarios and Di Bona, who were in dispute over two separate oral agreements concerning restoration work. The case was heard and determined by the Local Court of New South Wales, and subsequently, an appeal was lodged by the appellant, Papamakarios. The appeal was grounded in the Local Court Act, specifically sections 39, 40, and 41, which pertain to the granting of leave to appeal. The core legal issues before the court were whether the Magistrate had erred in her findings regarding the oral agreements of 2009 and 2012 and whether she had overlooked a contractual claim for restoration work.

The court meticulously examined the Magistrate’s findings on the 2009 oral agreement, assessing whether there was an error in the way the competing versions were interpreted. It also scrutinized whether the Magistrate had erred in law by not considering the claim in contract for the restoration work. Regarding the 2012 oral agreement, the court evaluated the Magistrate's interpretation of its terms. The court found no error in the Magistrate's construction of either agreement. Consequently, the appeal was dismissed, with leave to appeal being refused except for certain specified groups. For group 1, the appeal was limited to the potential error in findings concerning the 2009 agreement and the failure to consider the contractual claim. For group 2, the appeal was confined to the findings on the terms of the 2012 agreement. Despite these specified grounds, the court ultimately upheld the Magistrate's decision, finding no substantive errors.

Orders