Camilleri v Pudig [1999] NSWSC 118 (25 February 1999)

Last Updated: 26 March 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Camilleri v Pudig [1999] NSWSC 118

CURRENT JURISDICTION:

FILE NUMBER(S): 12645/98

HEARING DATE{S): 01/02/99

JUDGMENT DATE: 25/02/1999

PARTIES:

Anthony Joseph David Camilleri (Plaintiff)

Grant Francis Pudig (Defendant)

JUDGMENT OF: Windeyer J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr. M. Ashhurst (Plaintiff)

Ms N. Abadee (Defendant)

SOLICITORS:

Vasso P. Tsolakis - Plaintiff

W.G. McNally & Co - Defendant

CATCHWORDS:

STATED CASE - Appeal from Magistrate's decision whether there was sufficient evidence to support finding

ACTS CITED:

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

DECISION:

Summons dismissed with costs

JUDGMENT:

1 This is an appeal by way of stated case from a decision of Mr. J.R. Dive, Senior Civil Magistrate of 23 April 1998, giving judgment for Mr. Pudig, the respondent, against the appellant, Mr. Camilleri for $28,000.00 plus interest.

2 In the Local Court action Mr. Pudig claimed damages in negligence against Mr. Camilleri on the basis that a motor vehicle he had purchased from Mr. Camilleri was not what it was represented to be. The facts are as set out in the stated case. Put briefly the Alpina BMW motor vehicle was built under contract for Mr. Camilleri by a Mr. Feichtinger; it was stolen from Feichtinger's workshop by a Mr. Szakall, whom Mr. Camilleri had commissioned at an earlier time to build a car for him, but this commission was not concluded; the vehicle was taken into police custody and impounded between 16 September 1992 and 18 March 1994 on which later date His Honour Judge Herron in the District Court ordered its release to Mr. Camilleri. Mr. Pudig purchased the vehicle from Mr. Camilleri in 1994, during negotiations he inspected the vehicle's service book which was handed to him by Mr. Camilleri on his inquiring about it. The book contained a servicing record showing what on their face would be regular services at appropriate intervals, all signed by Mr. Feichtinger. Two of these entries showed services on 13 April 1993 and 2 November 1993, while the vehicle was in police custody. The odometer reading showed increases in distances travelled during that period. On 22 February 1995, the vehicle engine "blew up" while Mr. Pudig was driving the vehicle at the Eastern Creek Raceway.

3 The material in the stated case under the headings "Determination" and "Grounds for Determination" is set out hereunder:

DETERMINATION

On 23 April 1998 I gave verdict and judgment in the sum of $28,000 plus interest in favour of the plaintiff (Grant Francis Pudig) on the action brought by way of Further Amended Statement of Claim against the defendant (Anthony Joseph David Camilleri). The plaintiff claimed damages in the sum $28,000 (together with interest) arising from a transaction in which the plaintiff had purchased a motor vehicle from the defendant and which was completed on 24 November 1994.

The plaintiff alleged that the defendant had negligently misrepresented that the motor vehicle had been serviced regularly at the Padstow Prestige Car Centre, including on two dates when it was in police custody.

I found that the defendant had knowingly misrepresented to the plaintiff that the subject vehicle had been serviced regularly at the Padstow Prestige Car Centre on two dates when the vehicle was in fact in police custody.

GROUNDS OF DETERMINATION

I found that the defendant was aware of the contents of the service booklet including the two entries of 13 April 1993 and 2 November 1993 and on this basis I found that the defendant had represented that the subject motor vehicle had been serviced regularly by Padstow Prestige Car Centre, that such representation was untrue, and that the misrepresentation was made, at the very least, negligently. I also found that the defendant knew that it was likely that the plaintiff would rely on that representation and be thereby induced to purchase the subject vehicle

I based this finding on the fact that it was clearly to the defendant's benefit that these entries had been made because it covered the period in which the vehicle had been in police custody. Without the false entries, the service record would be a significant problem for the defendant as a vendor. I found the defendant was a man very familiar with BMW motor vehicles and who realised that the service record was something a prospective purchaser would be likely to look at. I found it most unlikely that Mr. Feichtinger would have falsified records of this type out of the goodness of his heart.

I accepted the plaintiff's claim that the damages he suffered as a result of this misrepresentation was the difference between the value of the vehicle at the date it was purchased and the amount the plaintiff paid for the vehicle. I accepted that this figure was $28,000.

4 It is common ground that the plaintiff did not allege fraud, his claim being for damages for negligence. There was no claim in contract. It is not contended there was any error of law in the determination of the figure for damages although its expression may be somewhat elliptical.

5 The appellant's contentions set out in the stated case are as follows:

APPELLANT'S CONTENTIONS:

The appellant contends that I erred in law on the grounds that:

1. There was no evidence upon which I could reasonably base my finding that the defendant had knowledge of the 13 April 1993 and 2 November 1993 entries in the service log book which was exhibit 1.

2. My findings that the defendant knew of the two entries of 13 April 1993 and 2 November 1993 were speculation.

3. That my finding of negligence by the defendant was in effect a finding of fraud.

4. That in instances where serious allegations such as fraud, or conduct amounting to fraud are made, I am not entitled to speculate as to what the facts were.

5. That in the absence of evidence of knowledge of the two misleading service book entries, the claim against the defendant must fail.

6 There was no evidence that the plaintiff had relied on the two entries of 13 April 1993 and 2 November 1993 in exhibit 1 so as to cause him to purchase the vehicle.

7. In the absence of evidence of reliance the plaintiff's claim for damages should have failed.

8. Any loss suffered by the plaintiff was not caused by any act of the defendant.

9. Any loss suffered by the plaintiff was not a loss which could have been foreseeable as a result of the alleged misrepresentation.

6 These contentions arise from two more generally expressed contentions, namely that there was no evidence upon which the learned magistrate could find that Camilleri had knowledge of the false entries without which the claim must fail; and secondly there was no evidence that the plaintiff relied upon the log book entries. It was accepted by counsel for the appellant that contention number 8 went to inducement only and no argument was addressed to contention 9.

7 The transcript taken in the proceedings before the magistrate was in evidence before me, being relied upon on the question of whether there was any evidence to justify the findings of the magistrate.

8 One difficulty with the matter is that there appears to be some confusion in the grounds for determination as to the distinction between fraud and negligent misrepresentation. To establish fraud it was necessary for the magistrate to find that the representation as to regular servicing was made by Camilleri, that he knew that it was untrue, that he intended Mr. Pudig to rely upon it and that Mr. Pudig did rely upon it in making his purchase. To establish negligence which appears to be what the learned magistrate did find, it would have been sufficient for the magistrate to have found as a fact that Camilleri represented to Pudig that the record of service entries was correct, in doing so he breached a duty of care he owed to Pudig who relied upon these representations in deciding to purchase the vehicle. Inducement may be readily inferred in some cases of fraud but reliance is not readily inferred in actions based in negligence.

Appellant's contentions

9 It is convenient to deal first with contentions 3 and 4. The magistrate did not make a finding of fraud. Knowledge in the circumstances did not in itself amount to fraudulent representation. The magistrate found negligence.

10 I turn to the questions of negligence and evidence. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 the Mason CJ said at p355:

The question whether there is any evidence of a particular fact is a question of law: McPhee v S. Bennett Ltd (1934) 52 WN (NSW) 8 at p9; Australian Gas Light Co. v Valuer General (1940) 40 SR (NSW) 126, at pp137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light; Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, at pp 8-9. This is because, before an inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusion: Federal Commissioner of Taxation v Broken Hill South Ltd [1941] HCA 33; (1941) 65 CLR 150, at pp 155, 157, 160.

Mr. Ashhurst for the plaintiff/appellant placed some reliance on this last sentence, which is perhaps not altogether clear. However it does not establish that if facts from which a conclusion is drawn could admit of a different conclusion, the conclusion or inference drawn cannot be properly drawn. The question is whether the conclusion drawn is reasonably drawn from the facts found.

11 I have concluded it was open to the magistrate to make the finding of knowledge which he did from the facts he found. There was evidence the service record was significant to a purchaser (Mr. Phillips transcript 18 December 1997 page 61-62); if that were the case then it was a fact that it was to the benefit of Mr. Camilleri that the service book entries be made. There was evidence that Mr. Camilleri accepted that the record was of some relevance to a purchaser. The finding that Mr. Feichtinger was unlikely to have falsified the records "out of the goodness of his heart" was open in the absence of evidence from him which Camilleri could have been expected to call and was a fact from which knowledge could be found. It amounts to no more than a finding that evidence of Feichtinger would not have assisted the appellant's case that he had no knowledge of the entries.

12 The appellant does not allege that the magistrate did not find reliance but that there was no evidence of reliance. Mr. Pudig said that the evidence of regular servicing was of great significance to him. He said that he believed the vehicle was as presented to him after he went through the substantiating paperwork. It follows that there was evidence on which the learned magistrate could find reliance.

13 Finally I turn to contention 5. It is not correct that in the absence of evidence of knowledge the claim must have failed. Negligent misrepresentation does not depend upon knowledge that false representations are made. It would have been open to the magistrate to find that in making available to the purchaser the service record book containing the relevant entries, the vendor represented to the purchaser that the entries were correct; that in so acting he was in breach of a duty of care owed to the purchaser who relied upon the representations in deciding to purchase the vehicle and thereby suffered damage in making the purchase. That is not a conclusion the magistrate was bound to come to, but it was one which was open to him. That is an answer to contention 5, but it would have been relevant only had it been necessary to decide whether to remit the matter to the magistrate..

14 The summon should be dismissed with costs.

I certify that paragraphs 1 to 14 are a true copy of the Reasons for Judgment given by Windeyer J in matter 12645/98 Camilleri v Pudig

______________________________

Laurel Laurent

Associate to Mr. Justice Windeyer

25 February 1999

LAST UPDATED: 23/03/1999