Jambrecina, Drago v Tom Elvin Pty Ltd [1998] FCA 1444

GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) ) AG 26 of 1998 CANBERRA DISTRICT REGISTRY ) ) GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: DRAGO JAMBRECINA Appellant AND: TOM ELVIN PTY LTD Respondent JUDGES: LEE, HIGGINS, LEHANE JJ PLACE: CANBERRA DATE: 2 NOVEMBER 1998 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) ) AG 26 of 1998 CANBERRA DISTRICT REGISTRY ) ) GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: DRAGO JAMBRECINA Appellant AND: TOM ELVIN PTY LTD Respondent JUDGES: LEE, HIGGINS, LEHANE JJ PLACE: CANBERRA DATE: 2 NOVEMBER 1998 EX TEMPORE REASONS FOR JUDGMENT THE COURT:

1. The issue in this appeal is whether the learned Magistrate made an error of principle or of law. The second issue is as to whether the proceedings were conducted in a manner which was unfair to the appellant. The court understands the appellant's complaint. It may well be as Mr Jambrecina suggests that, given the two loads of concrete at issue were for whatever reason defective, there should have been an allowance for the costs thrown away by its replacement. The evidence was not clear as to why the learned Magistrate was not persuaded that the job could and should have been completed before the rains set in. However, if he was wrong as to that, it was an error in understanding or assessing the evidence given. That is not in the view of the court an error of law or of principle. It was no doubt a conclusion to which others may not have arrived. It was not a conclusion which was unavailable to him however. I would add that it may well be that this court would have decided otherwise but leave on those circumstances was rightly refused and this appeal must accordingly be dismissed. The court has determined that in this case costs should not be awarded. I certify that this and the one (1) preceding page are a true copy of the Reasons for Judgment herein of the Court. Associate: Date: 13 November 1998 Counsel for the Appellant: Appellant in Person Counsel for the Respondent: Respondent in Person Date of hearing: 2 November 1998 Date of ex tempore judgment: 2 November 1998