Iacullo v Nasta Holdings Pty Limited [2007] NSWSC 764

New South Wales Supreme Court

CITATION : Iacullo v Nasta Holdings Pty Limited [2007] NSWSC 764

HEARING DATE(S) : 12/07/2007

JUDGMENT DATE : 13 July 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The appeal fails. The Summons is dismissed. The plaintiff is to pay the costs of the proceedings.

CATCHWORDS : Appeal from Local Court - determined on findings of fact - arguments put by plaintiff fell outside the scope of the Summons - no error in point of law

PARTIES : Dominic Iacullo (Pl) Nasta Holdings Pty Limited (Def)

FILE NUMBER(S) : SC 16314/06

COUNSEL : Mr M. Luitingh (Pl) Mr J. Jordan (Sol) (Def)

SOLICITORS : Lincoln Smith & Company Solicitors (Pl) Jordan Djundja Solicitors (Def)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 6095/05

LOWER COURT JUDICIAL OFFICER : Corbett LCM

LOWER COURT DATE OF DECISION : 6/12/2006

- 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

13 JULY 2007

16314/06 Dominic Iacullo v Nasta Holdings Pty Limited

JUDGMENT 1 HIS HONOUR: The defendant carried out work for the plaintiff on his property. The parties came into dispute concerning both the scope and the performance of that work. 2 The defendant brought proceedings in the Local Court claiming a sum in the order of $3,900.00. The plaintiff defended the proceedings and also filed a cross-claim. It sought a sum in the order of $14,500.00 for the costs of rectification of defective work (including repair costs of damage to a sewer pipe of a neighbour which was located, in part, on the plaintiff's property). 3 The proceedings were heard on 6 December 2006. Both parties called evidence. The evidence threw up conflict (it was described as being "totally contrary"). The Magistrate preferred the evidence relied on by the defendant. 4 She determined the dispute by making findings of fact. These findings led her to giving judgment for the plaintiff and dismissing the cross-claim. 5 On 22 December 2006, the plaintiff filed a Summons in this Court. It seeks to bring an appeal against what is referred to as "the decision" of the Magistrate. 6 In the course of the preparation of the appeal for hearing, directions were given by the Registrar (including directions for the serving of written submissions). These directions were not complied with. 7 The relief claimed in the Summons conveys the impression that the challenge is brought in respect of the judgment given for the defendant only. There are two grounds of appeal. They are as follows:- "1. her Honour erred in finding that it was not a term and condition of the contract made between the plaintiff and the defendant that in carrying out work at the plaintiff's property, the defendant was not required to excavate in and around the plaintiff's swimming pool to a depth that was necessary to ensure that groundwater did not enter through the shell of the pool structure; 2. in making her decision and in giving judgment in the case, her Honour erred by relying upon certain facts as evidence in the defendant's case in circumstances where those facts had previously been ruled by her Honour to be inadmissible in evidence and where the leave granted by her Honour to the defendant to adduced oral evidence of those facts had not been exercised;" 8 There is an appeal as of right from the General Division of the Local Court where there has been error in point of law. The plaintiff bears the onus of demonstrating that there has been such an error and that it justifies the disturbing of the decision of the Local Court. 9 The appeal was heard on 12 July 2007. Both parties were legally represented. There was a late change of Counsel for the plaintiff. Mr Luitingh was briefed shortly before the hearing. His written submissions were served on the day before the hearing, placing Mr Jordan (for the defendant) at some disadvantage. Because of the smallness of the amount in dispute I was loathe to see an adjournment of the proceedings. Mr Jordan was given a short adjournment, which gave him at least some opportunity to meet the case advanced by his opponent. 10 Counsel for the plaintiff has relied on those submissions, which were supplemented by oral argument. What is relied on therein, at least largely, concerns the cross-claim and also falls outside the scope of the two grounds of appeal. Largely, it may be described as seeking to challenge the findings of fact made by the Magistrate. There is a complaint of lack of reasons for preferring the evidence of the defendant to that of the plaintiff. 11 In a broad and general sense, Mr Luitingh sought to be allowed to go outside the restraints imposed by the Summons. Mr Jordan opposed such application. 12 I considered the material before dealing with the application. I came to the view that what was now being put lacked merit. In those circumstances, I considered that it would be futile to grant the application. 13 It was freely conceded that what was being put largely concerned complaint about findings of fact. It was put that there was one issue that concerned a point of law (this was a no evidence argument in relation to the damaged sewer pipe). I do not accept that argument. In my view, there was evidence to support the findings made by the Magistrate in relation to the damaged sewer pipe. 14 Whilst it was not raised during oral argument, I shall briefly address the submission that no reasons were given for preferring the evidence of the defendant. It is well established that the question of what will suffice as adequate disclosure of reasoning process will vary from case to case. In the circumstances of this particular case, I am not persuaded that the disclosure of reasoning process was insufficient. 15 In my view, this appeal is misconceived. The dispute between the parties was determined by findings of fact. No error in point of law has been demonstrated. 16 The appeal fails. The Summons is dismissed. The plaintiff is to pay the costs of the proceedings. **********