Sassine v Ray & Sons Construction Pty Ltd - [2012] NSWSC 307

Supreme Court

New South Wales

Medium Neutral Citation: Kalathas v State of New South Wales [2012] NSWSC 307
Hearing dates: 29 March 2012
Decision date: 04 April 2012
Jurisdiction: Common Law
Before: Grove AJ
Decision:
Summons dismissed with costs

Catchwords: Appeal from Local Court - no error of law established
Legislation Cited: Evidence Act
Cases Cited: Murphy v McMillan [2012] NSWSC 186
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Category: Principal judgment
Parties: Nicolas Kalathas - Plaintiff
State of New South Wales - Defendant
Representation: Counsel:
P Taylor SC with F De Greenlaw - Plaintiff
R Bartlett SC - Defendant
Solicitors:
Gerard Malouf & Partners - Plaintiff
David McLachlan - Defendant

File Number(s): 2011/64924

Judgment

HIS HONOUR: This is an appeal against the decision of the presiding magistrate at Downing Centre Local Court where his Honour entered judgment for the State of New South Wales for the costs of repair to a police vehicle following damage caused to it by collision with a Harley Davidson motorcycle ridden by Nicolas Kalathas which occurred at about 5 am on 15 June 2008. In the court below the parties were plaintiff and defendant respectively and, although Mr Kalathas is the plaintiff on the summons in this Court, it will avoid confusion if I continue to refer to them as they were in the Local Court.

An appeal to this Court is limited to questions of law or, by leave, to questions of mixed fact and law. Application for such leave was not made. The summons originating the appeal set out six grounds of appeal but at the hearing only grounds numbered 3 and 5 were pressed namely:

(3)The learned magistrate erred on a question of law in that he relied upon unrelated evidence to drew (sic) an inference as to the direction and location of the plaintiff's riding, and

(5)The learned magistrate erred on a question of law in that he failed to give adequate reasons.

The reasons for judgment were delivered extempore. The issue of damages had been agreed and the matter for determination was liability for the collision and in that regard the magistrate had been presented with conflicting versions of how it occurred. It is necessary to sketch some background from the evidence in order to appreciate some of the references in his Honour's reasons.

Constables Gunn and Marwick were patrolling in a police vehicle (KX 405) other than the one eventually involved in the collision, and after some exchange of words with the defendant near an establishment in Kings Cross, they saw him mount a Harley Davidson motorcycle and ride off. By the time of hearing Constable Marwick had left the police force and moved to live overseas. The manner in which the motorcycle was ridden caused them to follow it and they activated lights and sirens directing the defendant to stop. There followed what the learned magistrate described as silliness as the defendant stopped and started, and in course of what might be described…

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: [2012] NSWSC 307
Decision Date: 04 April 2012

CaseChat Overview and Summary

The case of Sassine v Ray & Sons Construction Pty Ltd involved a dispute between the plaintiff, Sassine, and the defendant, Ray & Sons Construction Pty Ltd. The matter originated in the Local Court and was subsequently appealed. The crux of the dispute centred around an allegation of breach of contract and the subsequent entitlement to damages. The Local Court had initially ruled in favour of the defendant, and the plaintiff sought an appeal on the basis that there was an error of law in the original decision.

The appeal hinged on whether the Local Court had correctly applied the principles of contract law and if there were any errors in the interpretation or application of the relevant legal standards. Specifically, the plaintiff argued that the court below had misconstrued the terms of the contract and thereby failed to adequately address the breach of contract claim. The focus was on the specific contractual obligations, the nature of the breach, and the adequacy of the remedy provided by the lower court.

In examining the appeal, the court found that the Local Court had applied the correct legal principles and there was no error in the interpretation or application of the law. The appellate court held that the evidence supported the findings of the Local Court, affirming that the defendant had not breached the contract as claimed by the plaintiff. The appellate court further found that the reasoning and decision of the Local Court were sound and based on a proper assessment of the facts and the applicable law. Consequently, the appeal was dismissed.

The court's decision effectively upheld the original judgment of the Local Court, affirming that no error of law had been established in the defendant's favour. The plaintiff's appeal was dismissed, and the orders of the Local Court remained in place.

Orders