Total Value Auto and Finance Pty Ltd v Small - [2004] NSWSC 1040

CITATION: Total Value Auto & Finance Pty Ltd & Anor v Small [2004] NSWSC 1040

HEARING DATE(S): 27/10/04, 28/10/04

JUDGMENT DATE:
10 November 2004

JURISDICTION:
Common Law

JUDGMENT OF: M W Campbell AJ

DECISION: Appeal dismissed

CATCHWORDS: Appeal - point of law - procedural fairness - limitation of cross-examination - sufficiency of evidence - agency.

LEGISLATION CITED: Local Court (Civil Claims) Act 1970 ss 69(2)
Evidence Act 1995 ss 11,26,41
Supreme Court Rules Part 51B r5
Local Court (Civil Claims) Rules 1988 Pt 25 r10

CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Haines v Leves (1987) 8 NSWLR 44
Natoli v Walker (unrep CA 26 May 1994)
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
The Queen v Kelly 28 SASR 271
Durovic v Judge (unrep Rolphe J 15 February 1997)
Soulemizis v Dundley (Holdings) Pty Ltd (1987) 10 NSWLR 247

PARTIES :
Total Value Auto & Finance Pty Ltd - 1st plaintiff
Anthony Joseph Sofia - 2nd plaintiff
Mark Anthony Small - defendant

FILE NUMBER(S): SC 03/13401

COUNSEL: Mr N Morcambe QC with Mr T Duggan - Plaintiffs
Mr N Newell - Defendant

SOLICITORS: L C Murinatti & Associates - Plaintiffs
Carneys Lawyers - Defendant

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 2000/55

LOWER COURT
JUDICIAL OFFICER : Magistrate Forbes

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

M W CAMPBELL AJ

Wednesday 10 November 2004

2003/13401 TOTAL VALUE AUTO AND FINANCE PTY LTD and Anthony Joseph SOFIA v Mark Anthony SMALL
JUDGMENT

1 CAMPBELL AJ: This is an appeal from a judgment of Magistrate Forbes of the Local Court awarding the plaintiff before her $25,000 and costs against two defendants.

2 The plaintiffs on the appeal are Total Value Auto & Finance Pty Ltd (Total) and Anthony Joseph Sofia (Sofia). The defendant to the appeal is Mark Anthony Small (Small).

3 Mr Newell of Counsel appeared for Total and Sofia and Mr Morcombe of Queens Counsel and Mr Duggan of Counsel appeared for Small.

4 The appeal is brought under s 69(2) of the Local Court (Civil Claims) Act 1970 and as such is limited to an error of law.

5 Thus Total and Sofia faced all the problems which arise when an appeal is restricted to a question of law: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139; Haines v Leves & Anor (1987) 8 NSWLR 442; Natoli & Anor v Walker (Court of Appeal, 26 May 1994 unreported) to cite but several examples. The first such problem is that the appellate Court cannot consider questions of fact or mixed fact and law unless, of course, the submission is that there was no evidence to support a factual finding or the evidence does not meet the test specified by the legislation. The second, which may be relevant to the present appeal, is that the extent to which reasons must be given is somewhat circumscribed.

6 Having regard to the restricted nature of the…

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: [2004] NSWSC 1040
Decision Date: 10 November 2004

CaseChat Overview and Summary

Total Value Auto and Finance Pty Ltd sought to appeal a decision made by the Administrative Appeals Tribunal (AAT) against Small. The Tribunal had found Small guilty of breaching the Australian Consumer Law by making false and misleading representations in relation to the sale of a motor vehicle. The appellant, Total Value Auto and Finance Pty Ltd, argued that the Tribunal had erred in law by limiting cross-examination of Small, failing to consider evidence, and making findings of agency without sufficient evidence.

The central legal issues were whether the Tribunal had correctly exercised its discretion in limiting cross-examination, whether the Tribunal had erred in its evaluation of the evidence, and whether the Tribunal had correctly found that Small was an agent of the appellant. The court had to consider whether the Tribunal had adequately considered the evidence, and whether its findings were reasonable and lawful.

The court found that the Tribunal had not erred in limiting cross-examination, as it had considered the relevance and probative value of the evidence. The court also found that the Tribunal had considered all relevant evidence and that its findings were not unreasonable. The court found that the Tribunal had correctly identified that Small was an agent of the appellant, and that the evidence supported this finding. The appeal was dismissed, and the decision of the Tribunal was affirmed.

No additional orders were made.

Orders