RMW Industries Pty Ltd ATF A1 Catering Services Pty Ltd v Botany Bay Mechanical Repairs Pty Ltd

1. [1]

   The plaintiff appeals from a decision of the Local Court of New South Wales, dismissing its claim for damages against the defendant, in the sum of $19,950, in relation to work that the defendant carried out on the brakes of a 1953 Rolls Royce Silver Dawn (the vehicle).

2. [2]

   It was common ground in the Local Court that in 2017, the defendant carried out work on the brakes of the vehicle pursuant to an agreement. The principal issue between the parties concerned the terms of that agreement. The plaintiff’s case was that the defendant agreed to replace brake parts on the vehicle with parts to be imported from England. The defendant’s case was that it agreed, at the plaintiff’s request, to recondition the existing brakes, and had done so.

3. [3]

   The events the subject of the proceedings took place in 2017 but proceedings were not commenced in the Local Court until 2022. The matter was heard over two days, on 30 July 2024 and 7 February 2025, and the magistrate delivered her decision on 30 May 2025. In dismissing the plaintiff’s claim, the magistrate, Greenwood LCM, found that the agreement was to recondition the existing brakes, as the defendant contended. In reaching that conclusion, her Honour rejected the evidence of the plaintiff’s principal witness and preferred the evidence of witnesses called on behalf of the defendant, finding their evidence was more consistent with contemporaneous documents.

4. [4]

   The summons in this Court, which was filed on 21 August 2025, advanced 39 grounds of appeal. Ten of the grounds were styled as raising questions of law, in respect of which there is an appeal as of right under s 39(1) of the Local Court Act 2007 (NSW). The remainder of the grounds were styled as raising questions of mixed law and fact, for which leave is required under s 40(1) of the Act.

5. [5]

   The plaintiff read an affidavit of Roger Michael Whalebone sworn 20 October 2025. Mr Whalebone was, and remains, a director of the plaintiff. Exhibit RW_01 to his affidavit contained the pleadings and evidence that the parties respectively relied on in the Local Court, namely:

   1. (1)

      for the plaintiff, an affidavit of Mr Whalebone sworn 8 December 2023 and a report prepared by Renzo Alessi, an expert motor mechanic and motor vehicle examiner, dated 3 April 2023; and

   2. (2)

      for the defendant, two affidavits of Michael Micallef, a director of the defendant, sworn 20 March 2024 and 3 April 2024; two affidavits of Dominic Marcus Allenspach, an employee of the defendant at the relevant time, sworn 5 April 2024 and 23 May 2024; and an affidavit of Peter Wycech, another employee of the defendant at the relevant time, sworn 27 March 2024 (I have adopted the surname spelling in Mr Wycech’s affidavit, in the transcript his surname is spelt “Wyzek”).

6. [6]

   The exhibit also contained a copy of the transcript of the hearing in the Local Court, the plaintiff’s closing written submissions (the parties did not make oral submissions), the Local Court’s orders, and the reasons of the magistrate.

7. [7]

   The defendant read an affidavit of John Richard Hertz, solicitor, sworn 4 November 2025, which annexed the defendant’s closing written submissions in the Local Court. The defendant also read an affidavit of Mr Micallef sworn 4 November 2025, which was directed to a factual matter raised by one of the grounds of appeal.

8. [8]

   At the hearing before me on 4 February 2026, the plaintiff initially sought to read two further affidavits of Mr Whalebone, sworn 28 January 2026 and 3 February 2026. Those affidavits contained evidence that was not before the magistrate. The defendant objected to both affidavits on the basis that they were served well outside the date for the plaintiff’s evidence in the consent timetable (21 October 2025) and too close to the hearing. Additionally, the plaintiff had not addressed the threshold requirement for the receipt of further evidence on an appeal, namely, that there be “special grounds” for doing so: see r 50.16 of the Uniform Civil Procedure Rules 2005 (NSW).

9. [9]

   These matters were raised with the plaintiff’s counsel, in particular the absence of any material addressing special grounds. Counsel then sought to read only two paragraphs of Mr Whalebone’s affidavit of 3 February 2026, which were directed to the issue of whether RMW Industries Pty Ltd (RMW) was the proper plaintiff in the Local Court, although counsel was unable to identify a ground of appeal that was specifically directed to this issue. Upon counsel for the defendant submitting that the question of the proper plaintiff was not one on which it relied before the magistrate and, for its part, was not an issue on the appeal, the plaintiff’s counsel did not ultimately press these paragraphs. The plaintiff’s counsel also did not press Mr Whalebone’s affidavit of 28 January 2026 on the basis that it was directed to the same issue.

Background to the magistrate’s decision

1. [10]

   The relief the plaintiff relevantly claimed in the amended statement of claim was damages “for faulty, negligent and dishonest motor vehicle repair attempts carried out by the defendant”. The plaintiff alleged that it had an agreement with the defendant by which the latter would replace the vehicle’s brake master cylinder parts with authentic parts from a specialist parts company in England called Flying Spares Ltd (Flying Spares), for a total amount of $1,800 (ASOC [4]). In breach of the agreement, the defendant did not provide these services and failed in its professional due care and skill to complete the repairs and ensure the vehicle was in a roadworthy and safe condition (ASOC [6]). The plaintiff further alleged that the defendant’s failure to supply the new parts from England constituted a failure to comply with guarantees in the Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law (ACL), ss 54(2) and 56 (ASOC [7]). The defendant denied these allegations.

2. [11]

   Mr Whalebone gave evidence for the plaintiff about the terms of the alleged agreement. Mr Micallef and Mr Allenspach gave evidence on that issue for the defendant. Mr Wycech’s evidence responded to Mr Whalebone’s evidence about a visit he made to the defendant’s workshop in Botany. Although all of the lay witnesses were cross-examined, the magistrate found that some of their evidence was not ultimately in dispute.

3. [12]

   Mr Whalebone was driving the vehicle in January 2017 and noticed that the brake pedal was not responsive. Mr Whalebone contacted the defendant as he had previously engaged it to fix other vehicles. At Mr Micallef’s direction, Mr Allenspach attended Mr Whalebone’s workshop to ascertain the model type of the vehicle, the vehicle identification number and the type of braking system.

4. [13]

   Mr Micallef spent some time investigating where to source parts for the vehicle and found Flying Spares. Contemporaneous emails between Mr Allenspach and Flying Spares were in evidence. On 22 January 2017, Mr Allenspach sent an email inquiring about parts for the vehicle. On 24 January 2017, a “Dave Hughes” of Flying Spares replied to Mr Allenspach, attaching a quote for £1480.53.

5. [14]

   It was common ground that on 7 February 2017, Mr Whalebone met with Mr Micallef and Mr Allenspach at the defendant’s workshop. It was also common ground that in the course of that meeting, Mr Whalebone asked if the defendant had experience fixing Rolls Royce vehicles and Mr Micallef said that it did. The three witnesses also agreed that Mr Whalebone handed $1,500 in cash to Mr Micallef by way of a deposit. The central dispute in the Local Court was the work for which the deposit was paid.

6. [15]

   Mr Whalebone’s evidence was that Mr Micallef undertook to replace the brake parts on the vehicle with new parts from Flying Spares and gave him the quotation from Flying Spares. He said that he directed Mr Micallef to carry out that work and paid the deposit in cash. He also asked Mr Micallef and Mr Allenspach to sign the Flying Spares quotation and said he saw them both do this, pointing to what, on his evidence, were signatures on the version of the quotation that he annexed to his affidavit, under the words “Paid $1,500 cash to Mike Tuesday 7 Feb 2017”. There was other handwriting on the document, which Mr Whalebone acknowledged was his handwriting, including “Michael & Dominic quoted Labour ½ day 2 persons to Bleed Brakes Total $300”, “Total Job $1,800”, and at the bottom of the page, the words “Quotation Accepted, 7-2-2017” and “signed Roger Whalebone”.

7. [16]

   Mr Allenspach and Mr Micallef denied that there was an agreement on the terms that Mr Whalebone alleged, or that either of them had provided a quotation of $1,800. Mr Allenspach gave evidence that he had printed the quote and had written on it two further figures, “£924.97” and “AUD $1,532.79”. He accepted that the version of the quote annexed to Mr Whalebone’s affidavit had those figures written on it in his handwriting, but said this was the only writing of his on the document. He denied that he had signed the document, as did Mr Micallef. They both gave evidence that before the proceedings they had not seen any of the other annotations on the quotation that Mr Whalebone annexed to his affidavit.

8. [17]

   The magistrate noted that the figure of £924.97 was the sum of four figures that were highlighted on the quote, all of which related to the front wheel brakes. Her Honour stated that this figure was consistent with the email correspondence between Mr Allenspach and Mr Hughes of Flying Spares. In an email of 3 February 2017, Mr Allenspach raised with Mr Hughes that the rear drums of the vehicle were hydraulic and, as it was becoming difficult to ensure that the parts were correct, asked whether Flying Spares could supply rubbers in the way of a rebuild kit, “as a plan B”. On 3 February 2017, Mr Hughes replied:

9. [18]

   Mr Allenspach and Mr Micallef gave evidence that the quote was provided to Mr Whalebone and that he was asked for his credit card details because the parts were a special order from overseas. Mr Whalebone refused, saying the quote was too expensive. According to Mr Micallef, at the 7 February meeting Mr Whalebone said words to the effect of, “[o]nly overhaul the already modified braking system that was on the Vehicle”, to which Mr Micallef responded, “[r]econditioning the modified parts already installed on the Vehicle is not the best option”. Mr Allenspach’s evidence was that he heard Mr Whalebone give specific instructions to repair the existing braking system.

10. [19]

    According to Mr Allenspach and Mr Micallef, the defendant carried out the work in accordance with what it contended was the agreement. Mr Micallef caused an invoice to be generated for the defendant, dated 3 March 2017, which set out the price for parts that were used in the job, along with brake fluid and transmission oil, sub-totalling $1,179.90. With an additional labour cost of $1,000, the total amount put at the bottom of the invoice was $2397.90 including GST. Also at the bottom of the invoice, on the left-hand side, was a reference to the receipt of $1,500 cash on 7 February 2017.

11. [20]

    Mr Whalebone gave evidence that in mid-to-late February 2017, Mr Micallef told him the vehicle would soon be ready with the new parts fitted. Shortly after that, he went to the defendant’s premises and found that the vehicle was not in the workshop. Mr Whalebone said he spoke to Mr Wycech, who told him that the vehicle was at Mr Micallef’s residence at Banksia Street and that Mr Micallef was working on it with another mechanic, using parts from a supplier that Mr Whalebone considered supplied cheap, after-market parts. Mr Wycech gave evidence denying that he said any of what Mr Whalebone alleged. He accepted that they had a conversation but his description of the discussion suggested that it was cursory.

12. [21]

    Mr Whalebone said that on 2 March 2017, he received a phone call from Mr Micallef telling him the vehicle was ready and the amount due was $2,400, to be paid in cash. He attended the defendant’s premises the next day and Mr Micallef printed the invoice for him. He paid the requested amount in cash, and the version of the invoice annexed to Mr Whalebone’s affidavit was annotated with the words, “3-3-07 Paid Cash $2,400-”. Mr Micallef’s evidence was that no further money was paid to the defendant apart from the deposit, leaving a balance of $897.90 ($679.90 excluding GST) which remained outstanding.

13. [22]

    Mr Whalebone gave evidence that after he paid the invoice, he and Mr Micallef went to collect the vehicle from Mr Micallef’s home in Banksia Street, Botany. When Mr Whalebone tried to drive the vehicle, he depressed the brake pedal to the floor and the brakes did not engage. He complained to Mr Micallef, who said to leave the vehicle with him. Over the ensuing months, Mr Whalebone repeatedly requested updates on the repair of the vehicle and was told Mr Micallef was still fixing it.

14. [23]

    Mr Micallef agreed that Mr Whalebone complained about the brakes not being good enough in that the pedal was low, but he said that this was the product of having a modified braking system in a very old car. The fact that the pedal reached the floor when first depressed did not mean the brakes were not working. Mr Micallef’s evidence was that he did not return the vehicle because the plaintiff had not paid the outstanding amount, and he kept it at his home for safe storage. Between February and October 2017, Mr Micallef made repeated calls to Mr Whalebone for payment, which were unanswered and not returned. In November 2017, Mr Micallef received a letter of demand from Mr Whalebone for release of the vehicle, and he agreed for it to be towed from his home.

15. [24]

    Mr Whalebone said that he had the vehicle towed to Cremorne Prestige Service Pty Ltd, following which he had the vehicle moved to Auto Trans Australia in Alexandria. Mr Micallef gave evidence that, on his inquiries, after the vehicle was taken to Auto Trans Australia it was taken to another repairer. As noted in the expert report, the vehicle’s odometer indicated that it had done very little mileage since Mr Whalebone first drove it to the defendant’s premises.

16. [25]

    The plaintiff relied on the expert report of Mr Alessi dated 3 April 2023. Mr Alessi examined the vehicle on 21 March 2023 “to determine if the Defendant orchestrated the work and replaced the components as detailed within the quotation obtained from Flying Spares and agreed upon by the Plaintiff and the Defendant” (at [41]). Mr Alessi’s opinion was that the defendant had attempted to repair the original components fitted to the vehicle, and that those attempts were unsuccessful, with the brake master cylinder described as continuing to leak, causing further damage to the undercarriage, which would continue to expand the longer the matter took to resolve (at [43]-[44]). Mr Alessi also expressed the opinion that the brake fluid lacked the lubricating qualities associated with the correct fluid for Rolls Royce vehicles of the same make and model, although there was an insufficient quantity to sample (at [47]). Mr Alessi was also cross-examined.

The decision of the magistrate

1. [26]

   Her Honour identified the following issues as arising for determination:

   1. (1)

      whether the plaintiff was the correct party;

   2. (2)

      what was the agreement for work to be done on the vehicle’s brakes;

   3. (3)

      what work was in fact done;

   4. (4)

      was the work completed to the requisite standard;

   5. (5)

      was there a breach of the Australian Consumer Law; and

   6. (6)

      what was RMW’s loss in relation to any invoice amount.

2. [27]

   As to the first issue, her Honour found that the registered owner of the vehicle in February 2017 was A1 Catering Services Pty Ltd, on the basis that the 2016 registration renewal document in evidence identified it as such. Although Mr Whalebone gave evidence that RMW was the owner of the vehicle by this time, he had not proffered any explanation of how and on what terms ownership of the vehicle had changed.

3. [28]

   Her Honour proceeded to consider the second issue, “putting aside who Botany Bay entered the agreement with”. Her Honour referred to a number of authorities in relation to contract formation and oral contracts. Her Honour also referred to the often-cited passage from John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94]-[95], in which Hammerschlag J referred to the need for “an actual persuasion, after a contest, that an event has happened”. Her Honour noted what was said in Watson v Foxman (1995) 49 NSWLR 315 about the passage of time, its impact on human memory, and that where events relied upon (including conversations) took place many years ago, the safe course was to place primary emphasis on the objective factual surrounding material and inherent commercial probabilities, together with the documents tendered in evidence.

4. [29]

   Her Honour’s ultimate finding on the second issue was that the plaintiff had not made out its case that the agreement was that the defendant would be paid $1,800 to purchase and install Flying Spares parts. In reaching that conclusion, her Honour identified a number of difficulties with Mr Whalebone’s evidence and determined that she could not accept it unless it was verified by another witness or contemporaneous documentation.

5. [30]

   First, Mr Whalebone struck her Honour as “an astute businessman”, and yet on his own evidence he had paid an invoice the contents of which did not accord with the agreement that he said was in place. Next, Mr Whalebone’s evidence that he paid $2,400 upon being given the invoice meant that, together with the deposit of $1,500, he claimed to have paid the defendant $3,900 for a job that, on his version of the agreement, should have cost $1,800. A careful reading of the invoice indicated that the amount due was the invoiced amount less the $1,500 deposit, being $897.90, which accorded with Mr Micallef’s evidence. Her Honour stated:

6. [31]

   Her Honour also noted that by this time, on Mr Whalebone’s evidence, Mr Wycech had told him that there were problems with the vehicle’s brakes, being the very work Mr Whalebone had asked to be done. Her Honour considered that Mr Whalebone could not just be mistaken in his evidence about the signatures on the quotation and the payment of $2,400, and found that his evidence on these matters was not true, which seriously affected his credibility.

7. [32]

   On the third issue, the question of the work that was actually done, her Honour found that Mr Allenspach’s evidence as to the work that the defendant carried out accorded with the terms of the invoice that the defendant had issued on 3 March 2017. Her Honour noted that Mr Micallef agreed that he had outsourced some work to another business, Sydney Clutch and Break Exchange Pty Ltd (Sydney Clutch and Break), and she accepted his evidence that the work Sydney Clutch and Break performed (honing and refitting the master and wheel cylinder) was regarded as specialist machining work, not done by motor mechanics or his business.

8. [33]

   As to the fourth issue, the standard of the defendant’s work, her Honour summarised the differing accounts of Mr Whalebone and Mr Micallef. Her Honour referred to the plaintiff’s submission that the defendant was negligent in tort and under the ACL because it did not supply the Flying Spares parts (which her Honour rejected) and because the work was not fit for purpose, free from defects, safe and durable. Her Honour referred to the plaintiff’s reliance in this regard on the evidence of Mr Alessi. After summarising Mr Alessi’s evidence, her Honour noted that although he said the original braking system on the vehicle was an hydraulic system, he agreed (in cross-examination) that it was possible that this was not the case. Her Honour referred to the email from Mr Hughes of Flying Spares as suggesting that Mr Alessi was wrong about this before identifying a number of difficulties with his report, which the transcript indicated were the subject of cross-examination:

   1. (1)

      The report was based on assumptions provided by Mr Whalebone, including as to matters in dispute (such as what the terms of the agreement were).

   2. (2)

      There were matters of which Mr Alessi was not aware in preparing his report, in particular that the vehicle had been taken to other workshops.

   3. (3)

      Mr Alessi agreed in cross-examination that a vehicle’s wheels would normally be removed in order to report on brakes, and he had not done this because Mr Whalebone asked him not to interfere too much with the vehicle. Mr Alessi agreed that in this respect his examination of the vehicle was somewhat superficial.

   4. (4)

      Some of the photographs in Mr Alessi’s report were not taken by him but were instead provided by Mr Whalebone, and the report did not identify which ones. Of most concern to her Honour were two photographs showing wet patches on the floor, in which the vehicle appeared to be in different positions. One of these photographs was taken by Mr Whalebone and the other by Mr Alessi.

   5. (5)

      Some parts of the report appeared to her Honour to be partisan in favour of the plaintiff, including, for example, the statement that the vehicle was returned to the plaintiff in an unroadworthy and dangerous state.

9. [34]

   The above matters caused her Honour sufficient concern that she was unable to accept Mr Alessi’s conclusion that the defendant’s work on the vehicle was defective. In view of this conclusion, and the credit issues with Mr Whalebone’s evidence, her Honour concluded that the plaintiff “has not been able to persuade me there has been a breach of the Australian Consumer Law”. Her Honour also concluded that she was “not satisfied that the work done to the vehicle was rendered other than with due care and skill, noting that s 54.2 of the ACL does not apply to services rendered”.

10. [35]

    On the fifth and sixth issues, which related to damages, Mr Whalebone’s evidence was that he paid £300,000 for the vehicle. Her Honour considered that to be an extraordinary amount for a 57-year-old vehicle. Given the asserted value made the vehicle an extremely valuable asset, her Honour found it surprising that there was no evidence to substantiate the value. Her Honour was also not satisfied that the plaintiff had established that the vehicle brought in between $8,000 and $9,000 a year by reason of a rental agreement with a wedding car company. Her Honour considered that documentary evidence supporting this claim could have been provided. In relation to the dispute between the parties as to whether the vehicle was required to be licensed as a hire car and have hire car plates, her Honour found that possession of a licence was no longer a specific requirement but the vehicle would have needed hire car plates. Her Honour concluded that the plaintiff had not satisfied her that the vehicle was used for transport services as alleged or, if it was, that the plaintiff had substantiated its loss in this regard. Finally, her Honour was not satisfied that the plaintiff had mitigated its loss.

The grounds of appeal in the summons

1. [36]

   In Souaid v Nahas [2019] NSWSC 1132; 89 MVR 364, Basten J observed at [3]:

2. [37]

   Turning to the plaintiff’s summons, under the heading “Appeal Grounds” there is an introduction to the appeal in [1]-[4]. Thereafter, as I noted above, the grounds are divided into two sections. In the first section, headed “Appeal as of right – Section 39(1)”, [5] is introductory to the ten grounds of appeal at [6]-[15], each of which is said to be brought as of right. In the second section, headed “Leave to appeal – Section 40(1)”, [16] is introductory to a further 27 paragraphs at [17]-[43], each of which is said to raise a ground requiring leave. By [43] of the grounds, the plaintiff did not advance a ground but referred to seeking to adduce further evidence on the appeal. As I have set out above, that application was not ultimately pressed.

3. [38]

   There were two grounds in the first section of the summons, and one ground in the second section, that could be said to raise questions of law for the purposes of s 39 of the Local Court Act. There were also aspects of grounds in the second section which, if made good, could amount to an error of law and which I have considered on that basis.

4. [39]

   First, [14] of the grounds alleged that the magistrate contravened s 26(d) of the Evidence Act 1995 (NSW) by allowing Mr Micallef and Mr Allenspach “to be present in the lower court when its other witness was giving evidence during oral evidence” in circumstances where the plaintiff’s witnesses were not present in court when the other was giving evidence, “demonstrating a denial of procedural fairness and natural justice to the plaintiff”. No submissions were directed to this ground. In response to it, the defendant relied on the affidavit of Mr Micallef of 4 November 2025, in which he gave evidence that apart from him and Mr Allenspach, the only “other witness” for the defendant was Mr Wycech. Mr Micallef stated that he and Mr Allenspach left the court as directed when Mr Wycech gave his evidence, and did not return until Mr Wycech had exited the court room. This evidence was consistent with the transcript of the hearing on 30 July 2024, with counsel for the plaintiff stating that he would like Mr Micallef and Mr Allenspach to leave (page 61) before Mr Wycech was affirmed, and the magistrate stating at the conclusion of Mr Wycech’s evidence “[t]he gentlemen outside can come in if they would like to” (page 67).

5. [40]

   It may be that the ground was directed at the presence of Mr Micallef in the court room on 7 February 2025 when Mr Allenspach gave his evidence. By contrast with the circumstances involving Mr Wycech, Mr Micallef’s continuing presence when Mr Allenspach gave evidence was not something that the plaintiff’s counsel raised with her Honour. The plaintiff’s counsel was nonetheless aware that Mr Micallef was in court during Mr Allenspach’s evidence. In cross-examining Mr Micallef, counsel asked him to confirm that he was present when Mr Allenspach gave his evidence, and Mr Micallef so confirmed (page 28).

6. [41]

   Section 26(d) of the Evidence Act confers a power on the court to make such orders as it considers just in relation to “the presence and behaviour of any person in connection with the questioning of witnesses”. Her Honour was not asked to make any orders in relation to the presence of Mr Micallef during Mr Allenspach’s evidence, and the plaintiff’s counsel subsequently relied on his presence in cross-examination. In these circumstances, I am not satisfied that any error on the part of her Honour has been shown, let alone one that resulted in a denial of procedural fairness or natural justice. I reject this ground.

7. [42]

   Second, [15] of the grounds alleged that the magistrate’s decision to dismiss the plaintiff’s claim was unreasonable and unjust, denying the plaintiff procedural fairness and natural justice, “[b]y reason of the … aforementioned errors in law …”. For the reasons I have given, the aforementioned grounds alleged only one other error of that kind, which I have dismissed. The plaintiff did not otherwise identify what conduct or omission on the part of the magistrate resulted in a denial of procedural fairness in her Honour making the challenged findings, nor did the plaintiff identify the basis on which her Honour’s decision was legally unreasonable (assuming for present purposes that was the intent of the ground). Having carefully reviewed the transcript of the hearing and her Honour’s reasons, I am not satisfied that her Honour denied the plaintiff procedural fairness, or that the decision was not reasonably open to her Honour on the evidence. I reject this ground.

8. [43]

   In [17] of the grounds of appeal, the plaintiff alleged that the magistrate erred in finding that the defendant was not negligent. In his oral submissions, counsel for the plaintiff submitted that the magistrate had failed to consider this claim, in circumstances where it was pleaded. Although an omission of that nature, if established, would give rise to legal error, the magistrate did not fail to consider the issue.

9. [44]

   The plaintiff alleged in the amended statement of claim that the defendant failed “in its professional due care and skill to complete the repairs and ensure the motor vehicle was in a roadworthy and safe condition”. Immediately following this allegation, the plaintiff alleged that the defendant was “negligent and careless”, in breach of its contract, in breach of “its duty and/or standard of care”, and in breach of trust. This was the extent of the plaintiff’s pleaded case in relation to negligence. The plaintiff’s written submissions in the Local Court (there were no oral submissions) did not identify negligence as an issue for her Honour to determine. Nonetheless, her Honour noted in her reasons that negligence was raised and, having earlier referred to the work recorded in the invoice, her Honour concluded that she was “not satisfied that the work done … was rendered other than with due care and skill”. In circumstances where her Honour observed that s 54.2 of the ACL did not apply to services rendered, her Honour could only be referring to the allegation in the pleading that the work was not done with professional due care and skill, being the only basis in the pleading for an allegation of negligence. I would reject this ground.

10. [45]

    The balance of the grounds in the first section, said to be advanced as of right under s 39 of the Local Court Act, commenced with the formula that the magistrate “was wrong in law”. However, the grounds were addressed either to questions of mixed law and fact or questions of fact, with the plaintiff contending that the magistrate was wrong in:

    1. (1)

       holding that the defendant did not breach the consumer guarantees under the ACL (at [6]) and was not liable for damages under that Act or consequential damages (at [7], [8]),

    2. (2)

       rejecting the plaintiff’s case about the agreement in view of the plaintiff’s evidence to the contrary and the annotations on the Flying Spares quotation document (at [9], [11]),

    3. (3)

       holding that a term of the agreement was that the defendant would repair the vehicle’s existing brake system, and that Mr Whalebone’s subsequent conduct amounted to an agreement to that term (at [10], [12]), and

    4. (4)

       holding that the defendant correctly applied the deposit of $1,500 to the invoice dated 3 March 2017 (at [13]).

11. [46]

    As to the grounds in the second section, which were acknowledged to require leave under s 40, most raised questions of fact, not questions of mixed law and fact. By way of broad overview, noting there were 25 such grounds, the plaintiff variously challenged:

    1. (1)

       the magistrate’s findings on damage to the vehicle and her Honour’s conclusion that the plaintiff had not proved its loss, including her Honour’s rejection of Mr Alessi’s evidence, her rejection of the existence of a hire arrangement in relation to the vehicle, and her conclusion that the plaintiff’s taking the vehicle to subsequent workshops reduced the defendant’s liability (at [18]-[22], [33], [39]);

    2. (2)

       the magistrate’s acceptance of the defendant’s evidence when that evidence was in conflict with other evidence, in particular Mr Alessi’s evidence as the sole expert, which her Honour wrongly rejected including on the erroneous basis that the vehicle was in different positions in the plaintiff’s workshop (at [23]-[25], [35], [36], [41]);

    3. (3)

       the magistrate’s conclusion that the work was done with due care and skill when that was against the weight of the evidence (at [26], [27]);

    4. (4)

       the magistrate’s failure to consider the defendant’s possession of the vehicle for ten months, during which time it was unsuccessful in rectifying its defective and faulty workmanship (at [31]);

    5. (5)

       the magistrate’s finding that the defendant (perhaps meaning Mr Micallef) moved the vehicle to his home for safe storage, which was contrary to the plaintiff’s evidence that it was stored outside (also said to be in breach of the parties’ agreement) (at [28]-[30]);

    6. (6)

       the magistrate’s adverse credit findings against Mr Whalebone on the basis that those findings were contrary to the signed contemporaneous documents (at [32]);

    7. (7)

       the magistrate’s finding that the defendant would run at a significant loss on the job if it had performed its obligations on the plaintiff’s version of the agreement, which could not be inferred from the terms of the agreement (at [37]);

    8. (8)

       the magistrate’s failure to consider that the defendant engaged a third party without notifying the plaintiff, which was in breach of the agreement between the parties, and her Honour’s failure to consider extensive previous business dealings between the parties in relation to repairs to other vehicles, for which Mr Whalebone paid cash (at [34], [38]); and

    9. (9)

       the magistrate’s failure to consider that the vehicle had travelled only eight kilometres in five and a half years and was held in the plaintiff’s storage premises to preserve its condition (at [40]).

12. [47]

    Bellew J summarised the applicable principles in relation to leave to appeal under s 40 of the Local Court Act in Namoi Sustainable Energy Pty Ltd v Buhren [2022] NSWSC 175 (citations omitted):

13. [48]

    Relevantly to the question of leave, a number of the grounds of appeal described the error in question as demonstrating a reasonably clear injustice to the plaintiff. However, the plaintiff’s written and oral submissions did not address the question of leave. The defendant submitted that leave should be refused, contending that the matter did not involve issues of principle or public importance, or an injustice that was reasonably clear. In those circumstances, the defendant submitted, the small monetary amount involved was a particularly relevant consideration.

14. [49]

    At the hearing, the plaintiff’s counsel was invited to address the question of leave but did not make any submissions on the issue. The grounds were not addressed individually. The written submissions referenced a selection of the grounds as being relevant to each of the issues the magistrate identified in the reasons as arising for determination, save for the issue of mitigation which was not the subject of any ground of appeal. Of those issues, counsel identified the second, being what the parties had agreed, as pivotal. The magistrate’s conclusion as to the terms of the agreement rested on her Honour’s acceptance of the defendant’s evidence and rejection of the plaintiff’s, having identified numerous difficulties with Mr Whalebone’s credit as I have summarised above. Her Honour’s credit finding was one of fact which the plaintiff has not identified is affected by any error that is reviewable on an appeal under s 39 or s 40 of the Local Court Act.

15. [50]

    The plaintiff’s counsel also specifically took issue with her Honour’s reliance on second hand hearsay in the email correspondence from Mr Hughes of Flying Spares, especially his statement that, according to another specialist, the hydraulic brake systems were not introduced into Rolls Royce vehicles until 1955. The plaintiff accepted that no issue with the use of this material had been raised before the magistrate, but nonetheless submitted that her Honour had erroneously relied on this email to find that Mr Alessi was wrong in his opinion that the vehicle’s hydraulic brake system was the original. I do not accept that submission. Her Honour did no more than to say that Mr Hughes’ email suggested Mr Alessi was wrong. What was of central significance to her Honour was that Mr Alessi himself acknowledged that it was possible that the hydraulic brake system was not the original system, and in any event gave Mr Alessi’s evidence little weight in light of the other issues with the expert report that her Honour canvassed in the reasons.

16. [51]

    The plaintiff’s counsel also took issue with her Honour’s rejection of Mr Alessi as a partisan witness on the basis of Mr Whalebone taking some of the photographs in the report, in circumstances where Mr Alessi also took photographs which were included in the report, and which showed leaking fluid. The challenge to her Honour’s assessment of Mr Alessi’s evidence and the weight that could be given to it did not raise a question of mixed law and fact. In any event, her Honour identified a number of reasons for not relying on Mr Alessi’s evidence, of which the photographs were but one.

17. [52]

    It is apparent that the plaintiff, and Mr Whalebone as its director, strenuously disagreed with the magistrate’s decision as to the terms of the agreement and her Honour’s rejection of Mr Whalebone’s evidence in this regard. However, that is not a basis on which to grant leave to appeal from the Local Court following a two-day hearing in which counsel was briefed, the costs of which have likely well exceeded the value of the claim. To the extent that the challenge to her Honour’s conclusion on this issue involved a question of mixed law and fact, it did not raise a point of principle or general importance, or an injustice which is reasonably clear in the sense of going beyond what is merely arguable.

18. [53]

    Having determined that the terms of the agreement were as the defendant contended, her Honour’s conclusion that the plaintiff had not established its ACL claim followed necessarily. In circumstances where the plaintiff has not demonstrated a basis for a grant of leave to appeal in respect of the anterior issue, there would be no utility in granting leave to challenge her Honour’s conclusion on the contingent ACL claim (assuming for present purposes in the plaintiff’s favour that the challenge to that conclusion involved a question of mixed fact and law). The same lack of utility attends the plaintiff’s various challenges to the magistrate’s conclusion that it had not proved its loss, the plaintiff’s claim being concerned for the greater part with factual findings that her Honour made on the way to that conclusion, and there being no basis in any event to consider the issue of loss where leave is not granted to challenge the finding that no breach or contravention occurred.

19. [54]

    The final ground in the second section of the grounds of appeal asserted that by reason of the various errors of fact which were the subject of the preceding grounds, her Honour’s decision was unreasonable and unjust and denied the plaintiff procedural fairness and natural justice (at [42]). As with the identically worded ground that concluded the first section of the grounds of appeal, no further detail is provided. In the absence of any articulation of how the preceding grounds involved a denial of procedural fairness or unreasonableness, I am not satisfied that the plaintiff has established error of either kind in relation to any of the findings the subject of the grounds in this section. I reject this ground.

Conclusion

1. [55]

   The summons should be dismissed. The defendant sought its costs in this event, and the plaintiff accepted that there was no reason why the ordinary rule as to costs would not apply. Accordingly, I make the following order:

   1. (1)

      The summons is dismissed with costs.