Anastasis v Azzopardi

Reasoning of Magistrate

1. The magistrate made findings about the credibility of the various witnesses. She considered "the evidence of Jason was the most honest and considered evidence of all the witnesses". [6] As a witness, Mr Azzopardi was described as "problematic" and "argumentative", but the magistrate generally accepted his evidence as to important issues. [7] Thus, the magistrate accepted his evidence that he had sent the written notice of 20 February 2019 (which was disputed) and his evidence as to his social relationship with the plaintiff (not disputed).
2. By contrast, the magistrate described the plaintiff's evidence as "problematic", stating he "failed to answer the most simple questions put to him … until pressed to do so", "made no concessions whatsoever … painting himself as the victim", and substantially damaged his overall credibility by the making and late withdrawal of the claim for $26,000 in cash. [8] The plaintiff also gave conflicting evidence as to whether he went to the storage unit after 15 May 2018, first stating that he never did so, and then conceding that he was "coming and going". [9] With respect to the claim for loss resulting from the failure of Mr Azzopardi to complete the work on the Pajero, the plaintiff brought proceedings in NCAT. He abandoned the proceedings, and they were dismissed. He said that he had abandoned his claim because he had "already started legal action", which, as to that claim, was incorrect. The reason was thus rejected. The inclusion of the motor vehicle claim in an amendment to his Local Court proceedings came later. [10]
3. The plaintiff called evidence from a friend, Robert Able, to support his own sworn evidence that the $26,000 was in the safe at the time that he delivered it to the storage unit in May 2018. As the plaintiff withdrew that claim, the evidence of Mr Able was rejected as "completely and utterly wrong". [11]
4. The plaintiff's own pleading stated that he had put his own padlocks on the storage unit doors. The magistrate accepted that that was so, and that no-one else had access to the storage unit until March 2019 when Jason Azzopardi removed the padlocks and removed the contents of the unit. Jason Azzopardi said that he broke the padlocks and broke open the door to the safe. The magistrate accepted that both defendants were responsible for the loss and damage caused by that action. However, apart from the goods which were located behind the locked doors of the mechanical workshop, some of which were damaged, the evidence as to what else had been in the storage unit (if anything) turned entirely upon the evidence of the plaintiff. The fact that he had asserted on oath, and then withdrawn his claim for, the most valuable item, namely $26,000 in cash, rendered his account of what had been in the storage unit an issue of credibility for the magistrate to determine. After referring to the concessions made by Jason Azzopardi as to the opening of the safe and the disposal of certain items, the magistrate continued: [12] "[The plaintiff] however says that in addition to that many items had been stolen and/or lost. These were particularised in [par] 23 of the amended statement of claim. Many of those items however have been accounted for. The claim for the cash, that was not proceeded with. The safe, we know what happened to that, as we do the bed, the clothes, the statue and the watches and the water cooler that was broken. The evidence is clear as to what happened to those items … . I cannot and I am not satisfied on the evidence before the Court as to the number of items that have been lost and/or stolen. There was no record, not any written contemporaneous record, of what was put in storage at the time, and what was the condition of any of those items, what was the value of them. I am also not satisfied on balance that Jason caused any damage to any of those items remaining. The photographs … cannot assist in the Court … making any meaningful determination as to how or when they were damaged, what was their condition when they were first removed into the storage unit. … I have found that the defendants … were liable for the disposal of the bed, the safe, the clothes and the water cooler that fell off the back of the truck literally, I think. But there is no satisfactory evidence before the Court as to their value. … … I admitted into evidence the value attributed to each item by [the plaintiff]. It was his opinion and in my opinion vaguely relevant. However, he is not an expert. The values of the items listed in Annexure N to his affidavit were not admitted into evidence. Many were receipts for items purchased in 2017. There is no evidence of the condition of any of the items when they were placed in storage by [the plaintiff]. It is expected that there will be some deterioration in value after such a long period in storage, whatever the condition of the storage unit. … There is no reliable evidence of the value of any of the items said to have been damaged by Jason. The plaintiff's claim in respect of the items in storage must consequently fail."

Legal principles

1. As has been noted, the appeal was brought under s 39 of the Local Court Act and a successful outcome for the plaintiff depends upon him establishing error "on a question of law". The challenges, which will be dealt with in their terms below, are almost entirely limited to challenging findings of fact.
2. Identifying the scope of an appeal on a question of law invites attention to the reasoning of the Court of Appeal in Azzopardi v Tasman UEB Industries Ltd. [13] After referring to existing authority as to what may constitute an error of law, Glass JA continued: [14] "It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654. A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made … ."
3. Whether a particular item of property was in the storage unit when under the control of the plaintiff is a question of primary fact. Similarly, if an item was found by the magistrate to have been in the storage unit but later to have gone missing, the value of the item is also an issue of primary fact. The presence of the items depended on acceptance of the plaintiff's evidence. The magistrate was not affirmatively satisfied as to the presence of particular items in the storage unit prior to the removal of the contents by Jason Azzopardi. It follows that, in this appeal, the plaintiff cannot assert error on the part of the magistrate in not accepting his evidence that certain items had been placed in the storage unit in May 2018. Similarly, to the extent that items were placed in the storage unit but were later found to be damaged, the plaintiff cannot complain that the magistrate was not satisfied as to their condition before their removal from the storage unit by Mr Jason Azzopardi.
4. A party to proceedings before the Local Court may appeal on a ground that involves "a question of mixed law and fact", but only with leave of this Court: Local Court Act, s 40(1). No application for leave was made under s 40. As will be noted shortly, the grounds of appeal mostly challenged findings of fact and, in most cases, primary fact, which involve no questions of mixed law and fact. Where the grounds could properly be read as raising questions of mixed law and fact they have been addressed on the merits. As they raised issues which either revealed no error, or were not dispositive, it would not have been appropriate to grant leave had it been sought.

Grounds of appeal

1. Although the grounds of appeal were in part repetitive, the best course is to deal with them seriatim, but grouping together related grounds.

Ground 1 - The Court below erred in holding that the plaintiff had abandoned his good

Ground 4 - The Court below erred in holding that the plaintiff refused to collect his good [R7:35] [15]

1. Both these grounds clearly challenged findings of fact, but ground 1 has the further difficulty that no such finding was made. The magistrate found that there was no bailment of goods until 6 March 2019 because the plaintiff had care and control of the goods up until that time. She found, however, that once Jason Azzopardi moved the goods from the storage unit to the workshop, the defendants became "gratuitous bailees". [16] The magistrate noted that Jason Azzopardi "was of the view that the goods were abandoned", but it is clear that the magistrate did not accept that to be a correct view. The magistrate accepted that, on 19 March 2019, the leasing agent of the storage unit (MMJ) had sent a letter to the plaintiff, after which the plaintiff spoke to an employee of the agent. The magistrate continued: [17] "Whatever was said in that conversation, whether [the plaintiff] wanted to get his property out of the storage or stay there indefinitely, it cannot be said that the goods were abandoned by [the plaintiff]."
2. It follows that ground 1 was based on a false premise. [18]
3. After referring to Mr Azzopardi's written notice to the plaintiff of 20 February 2019, and the fact that the goods were not removed as required by the notice, the magistrate stated: [19] "The strong inference is that he did not want to collect them. He wanted to keep them in the storage unit rent free for some indefinite period."
4. That is not the passage in the magistrate's reasons to which ground 4 refers, but it is in similar terms. It is self-evidently a finding of primary fact, but furthermore, a finding which has no consequence. It did not form any basis for rejecting the plaintiff's claim.

Ground 2 - The Court below erred in holding that the draft deed of release offered by the Defendants to the Plaintiff "was a mutual deed of release for the benefit of all parties" [R7:30]

1. Ground 3 - The Court below erred in not holding that the draft deed of release offered by the defendants to the plaintiff was anything other than blackmailing the plaintiff to coerce him to abandon his NCAT proceedings. [R7:30] Neither of these grounds engaged with the bases upon which the magistrate rejected the plaintiff's claim, but in any event neither of them can be supported. The chronology relating to the issues raised were as follows. The NCAT proceedings claiming $5,000 for defective work on the Pajero were commenced by the plaintiff on 1 April 2019. On 31 May 2019, Jason Azzopardi sent an email to the plaintiff, proposing an arrangement for the parties to meet on 1 June 2019, sign the deed and for the plaintiff to remove his goods. A document entitled "Deed of Mutual Release" was attached. As the magistrate noted, there were text messages between the plaintiff and Jason Azzopardi which "show that it was in fact [the plaintiff's] idea for such a deed to be prepared". [20] A recital in the deed referred to a notice given by MMJ to the plaintiff "notifying termination of storage arrangements and request to enter a commercial lease for the storage unit occupied or to vacate the storage unit giving 21 days' notice for compliance". The recitals also referred to the plaintiff's response to the written notice "declaring no acceptance of commercial lease and an intention to retain occupation of the commercial unit without commitment to lease terms", said to have been conveyed in a telephone conversation with the agent on 5 April 2019. There were, no doubt, available claims for loss on each side and the deed recorded in the recitals an agreement to give mutual releases. There was no error in describing the deed as a deed of mutual releases.
2. The magistrate noted the plaintiff's explanation that he did not sign the deed because it was in effect seeking to blackmail him. [21] The magistrate made no finding to that effect, no doubt because the submission was immaterial. The facts were that the plaintiff did not sign the deed, and did not collect his goods on 1 June, or on a later occasion when the parties were due to meet on 19 June 2019. The magistrate, after noting that it was the plaintiff's idea for such a deed to be prepared, stated, correctly, the facts that the plaintiff "however refused to sign it and did not collect any of his goods on the arranged day". [22] Each of the passages challenged in grounds 2, 3 and 4 was a correct statement on the evidence. With the possible qualification that the description of the deed involved a mixed question of fact and law, there was no substance in those grounds. No doubt that the plaintiff was entitled to say that the deed was unbalanced, but it did contain mutual releases; importantly neither the content of the deed, nor the fact that the plaintiff declined to sign it, affected the outcome of his claim. The magistrate's findings were not open to challenge.

Ground 5 - The Court below erred in holding that the Plaintiff refused to collect $10,000 from the Defendants [R7:35]

Ground 6 - The Court erred in introducing a foreign issue, namely that the Plaintiff refused to collect $10,000 from the Defendants [R7:35]

1. In setting out the events in June 2019, the magistrate stated that the plaintiff "refused to sign it [the deed] and did not collect any of his goods on the arranged day, including the $10,000 but rather served upon Jason a statement of claim." [23] The reference to the collection of $10,000 was indeed obscure, but irrelevant. It had no bearing on any dispositive issue. The defendants suggested the amount was a slip and the magistrate intended to refer to the fact that the plaintiff had not sought to recover the $26,000 which he claimed was, or had been, in the safe. [24] That is plausible because it would have supported an inference that there was no large sum of cash in the safe. It is not necessary to resolve the mystery: the magistrate made a mistake, but it was immaterial, the claim for the cash eventually being abandoned. [25]

Ground 7 - The Court below erred in holding that Jason would allow the Plaintiff to collect his goods whether or not the Plaintiff signed the deed of release [R7:35].

1. The passage in the judgment challenged by ground 7 read as follows: [26] "It was Jason's clear evidence that he would have allowed [the plaintiff] to collect his goods on that day whether he signed the deed or not. Again, the inference was that he had no intention whatsoever of collecting them." This conclusion was said not to be available to the Court on the evidence before it.
2. It may be inferred that the magistrate accepted what she described as "clear evidence". That finding was one of fact and beyond challenge in this Court. Again, it does not appear to be more than a minor step in the reasoning to the conclusion dealt with in the next four grounds.

Ground 8 - The Court below erred in holding the arrangement between the Plaintiff and the Defendants was a social arrangement as [opposed] to a legally binding arrangement [R7:45]

Ground 9 - The Court below erred in holding the parties had no intention to enter into legal relation [R7:50; R8:15]

Ground 10 - The Court below erred in holding that the mere fact that the parties were friends, then they did not intend to enter into legal relation [R8:10-20]

Ground 11 - The Court below erred in holding that the mere fact that the agreement between the parties was not in writing, then they did not intend to enter into legal relation [R8:10-20; R11:10]

1. Grounds 8-10 all challenged the magistrate's finding that the arrangements made in April or May 2018 involved no intention to create legal relations. That characterisation may have involved a mixed question of fact and law, but there was no articulated complaint alleging any particular error of law. There was a vague suggestion in submissions that the mutual benefits constituted consideration, an essential element of a contractual arrangement, but the fact of mutual benefits does not entail a conclusion that the parties intended to enter a legally binding agreement.
2. The magistrate's conclusion was expressed in the following terms: [27] "The evidence in my view leads to the inevitable conclusion that the arrangement between [the plaintiff] and [Mr Azzopardi] in respect to the storage of [the plaintiff's] items was what is generally termed a social arrangement, a mutually convenient arrangement between friends or family members to help each other out for a time. You scratch my back, I will scratch yours, somebody used that terminology."
3. The magistrate also noted that the plaintiff had agreed "more than once in cross-examination when [it was] put to him that it was a friendly arrangement". The magistrate concluded: [28] "In my view there was never any intention to enter into legal relations, that is enter into a legally binding agreement."
4. No error of law or fact was discernible in these passages. Further, the characterisation of the original agreement did not affect the outcome of the case.
5. In so far as ground 11 alleged that this conclusion relied upon the fact that "the agreement between the parties was not in writing", the premise to the ground must be rejected. Apart from evidence of the friendly relationship in May 2018, the magistrate referred to the fact that there was never any "paperwork" completed in respect of the storage unit and no discussion of costs, or insurance, or comparison of the relative contributions to the arrangement. [29] The only inference of present relevance drawn from this material was that, once the plaintiff ceased to provide services to Mr Azzopardi, the latter was entitled to cancel what had been intended to be a short term arrangement of mutual convenience. That particular finding is not (and could not be) challenged. Accordingly, none of the matters raised in grounds 8-11 was relevantly dispositive.

Ground 12 - The Court below erred in holding that there was no bailment between the parties [R8:25]

Ground 13 - The Court below erred in holding that the Plaintiff had free access to the storage and his good and therefore there was no bailment [R8:30]

Ground 14 - The Court below erred in holding that the Plaintiff had keys to the security gate [R8:40] and therefore there was no bailment

Ground 15 - The Court below erred in holding that "both Jason and [Mr Azzopardi] then became gratuitous bailees" rather than bailees for reward [R8:45]

1. Again, each of these four grounds challenged a finding by the magistrate that there was "no bailment between the parties". The grounds related to two separate periods, grounds 12-14 relating to the period before Jason Azzopardi removed the goods from the storage unit on 6 March 2019; ground 15 relating to a separate finding that, upon the removal, "both Jason and [Mr Azzopardi] then became gratuitous bailees", rather than bailees for reward.
2. With respect to the period when the goods were kept in the storage unit, the magistrate characterised the arrangement as a "licence agreement pursuant to which the plaintiff used the storage space in return for work carried out by him for Mr Azzopardi". [30] She considered that, because the plaintiff had the key to the front security gate and provided his own locks to the unit in which the goods were stored, he retained control. Accordingly, the defendants did not have possession and therefore there was no bailment. No reason was raised in the course of the hearing to cast doubt on that reasoning. There was no intention that Mr Azzopardi (as the putative bailee) would have possession of the goods within the storage unit, as against the plaintiff (as putative bailor). Rather, as control of the goods lay with the plaintiff, he was entitled to complain about any interference with the goods by the defendants (which he did). On the other hand, once the licence expired or was revoked, a different issue arose. At that point, when Jason Azzopardi took possession of the goods, the magistrate found that he, and his father, became gratuitous bailees.
3. Again, these characterisations of the relationship may raise at least a mixed question of fact and law. As to the first period, because the defendants did not have possession of the plaintiff's goods within the storage unit, the plaintiff was adequately described as a licensee (or occupier) of the storage unit which he occupied by placing his goods there. At best, it was a licence at will, which was lawfully revoked when the plaintiff was required to enter into a commercial agreement to pay rent for the unit or vacate the premises by removing his goods. Leaving the goods in the storage unit after permission to do so was withdrawn involved an interference with the Mr Azzopardi's right to occupy and license the storage unit for reward. If the continued occupation of the storage area by the plaintiff constituted a private nuisance, the conduct of Jason Azzopardi in breaking the padlocks and removing the contents may have been a form of abatement or self-help. However, nothing appears to have turned on the legal characterisation. The pleadings, as identified above, relied upon the plaintiff's assertion of an immediate right to possession of the contents of the storage unit. To the extent that his goods were lost or destroyed, he made a claim in conversion. To the extent that they were damaged, his claim may properly have been characterised as one for trespass to goods. As the magistrate accepted that the defendants would be liable if the plaintiff could establish loss, the legal basis of that conclusion is not significant.
4. On no view did any loss or damage accrue to the plaintiff until 6 March 2019 when Jason Azzopardi broke the locks and took possession of the goods. Accordingly, even had there been error in concluding that the defendants were not, prior to that date, bailees (which should not be accepted) such an error would not have affected the outcome. Accordingly, grounds 12-14 must be rejected.
5. Ground 15 did not challenge the conclusion that the defendants became bailees, but rather that they were found to be gratuitous bailees, not bailees for reward. There was no factual basis for finding that they became bailees for reward upon taking possession of the plaintiff's goods. They did so without his knowledge or consent and without any agreement. Indeed, ground 15 effectively asserted that the defendants were entitled to be paid by the plaintiff for looking after his goods and is, in that sense, incoherent. It must be rejected.
6. There is a separate question as to whether the defendants were bailees at all, absent consent of the owner of the goods to their possession. However, nothing turns on the true legal basis of the defendants' relationship to the goods, their potential liability being either in conversion or trespass.

Ground 16 - The Court below erred in holding that the goods were "uncollected goods" within the meaning of s 5 of the Uncollected Goods Act 1995 (NSW) [R9:35]. This is because the Plaintiff has never failed to collect the goods

Ground 17 - The Court below erred in holding that [Mr Azzopardi] sent a letter dated 20 February 2019 to the Plaintiff [R9:40]. This is because the Plaintiff has never failed to collect the goods

Ground 18 - The Court below erred in holding that [Mr Azzopardi's] letter dated 20 February 2019 (if it was sent) did comply with the requirements of section 26 of the Uncollected Goods Act 1995 (NSW) [R9:45].

1. Ground 18 was repeated, appearing once with particulars and once without. The particulars are immaterial because this ground was based on a misreading of the magistrate's reasons. Referring to Mr Azzopardi's letter of 20 January 2019 and to the notice given by the agent managing the premises, the magistrate said, "but no notice was sent however to [the plaintiff] … that in my view compl[ied] with the form of notices that are required by s 26 of the Uncollected Goods Act." [31] Accordingly, ground 18 must be rejected.
2. Ground 17 stated that the Court erred in holding that Mr Azzopardi sent a letter dated 20 February 2019 to the plaintiff. The statement that she did so find was correct. [32] That was a finding of fact which was not open to challenge. However, again, nothing turned on the finding because the magistrate further found that "it was not reasonable at that time until the Act was complied with for Jason to open the safe or to dispose of the certain items that I found and was conceded by the defendants they were disposed of …". [33]
3. Returning to ground 16, it may be accepted that the magistrate concluded that the plaintiff's goods were "uncollected goods at that time", within the meaning of the Uncollected Goods Act. That was because the magistrate had found that the defendants were, at that point, bailees and the goods were therefore (by inference) "bailed goods" under the Act. (If the defendants were not bailees, the Uncollected Goods Act appears to have had no operation.) But for reasons already explained, the finding was of no consequence because the defendants obtained no protection under the Act. Ground 16 must be rejected.

Ground 19 - The Court below erred in not doing its best to assess the damage cause[d] by the Defendants to the Plaintiff

1. As noted above, the magistrate dismissed the proceedings on a combination of three bases, namely: 1. having found that the plaintiff was not a credible witness, she was not satisfied as to what items had been placed in storage by the plaintiff in May 2018 and were not accounted for in June 2019; 2. as to the items which were said to have been damaged, because she could not determine their condition when they were removed from the storage unit in March 2019, she was not satisfied that damage was caused by Jason Azzopardi; and 3. to the extent that there were lost goods, she was not satisfied as to the value of the goods immediately prior to 6 March 2019 when they were removed from the storage unit.
2. The plaintiff particularised the goods he claimed were placed in the storage unit in par 23 of the amended statement of claim, and identified those missing as having been lost or stolen. As to these items, the magistrate noted: [34] "Many of those items however have been accounted for. The claim for the cash, that was not proceeded with. The safe, we know what happened to that, as we do the bed, the clothes, the statue and the watches and the water cooler that was broken." The magistrate then noted that the remaining items appeared not to be of great value or of particular interest to a collector or a thief.
3. In the course of cross-examination, Jason Azzopardi gave evidence as to items that had been disposed of and the items from the safe which were returned to the plaintiff after he had collected the rest of his property from the workshop. He stated that he had opened the safe (which he described as a "hotel privacy locker") with a screwdriver. In recounting the evidence of Jason Azzopardi, the magistrate stated: [35] "He conceded that a water cooler that he was moving was damaged, I think it fell off the forklift truck, and that he disposed of a bedframe and clothes which he described as mouldy. He disposed of the safe he said by putting it in a scrap metal bin that was on site at the storage unit."
4. Other individual items listed as missing were not raised in cross-examination with Jason Azzopardi. It was not suggested to him or to his father that either had stolen or sold or otherwise disposed of any valuable item. Understandably, there was no submission to the magistrate that they had done so. There was no suggestion anyone else had had access to the goods in the workshop and might have stolen or disposed of them.
5. Oral submissions before the magistrate raised two issues with respect to damages, each of which was addressed by the magistrate in her reasons. First, Mr Badarne, appearing for the plaintiff, stated: [36] "It is difficult to ascertain in this case the value of the goods that … were disposed of and [those] were damaged, but that should not be an impediment to the Court in awarding damages. … The authority for the proposition that the fact that damages are difficult to assess does not absolve the Court from determining or awarding damages is … Uszok v Henley Properties (NSW) Pty Limited." [37]
6. The magistrate noted a distinction had been drawn in that case, adopting an observation by Hayne J in Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd. [38] The point made by Hayne J was that "in at least some cases, it is necessary or desirable to distinguish between a case where a plaintiff cannot adduce precise evidence of what has been lost and a case where, although apparently able to do so, the plaintiff has not adduced such evidence." He said that in the former case estimation, even speculation, may be necessary, whereas in the latter case there is less to be said for the view that the court must do the best it can. Although the principle was not applied in the Placer, it is notable that that was a case in which the plaintiff claimed damages, which it sought to assess precisely, whereas the defendant, which had available to it the evidence to undermine the calculation, did not proffer any such evidence.
7. The other submission, made on behalf of the defendants, related to the claim for a plasma TV valued at $10,000. The solicitor for the defendants suggested that it might be common knowledge that this figure was completely out of the range of the cost of modern television sets, and, further, that the second-hand value of such items was a small fraction of their purchase price.
8. In her reasons, the magistrate accepted that there was a "proper, more appropriate way to proceed", which was to obtain an expert opinion on the value of the goods at the time of collection. [39] There was, she continued, "no reliable evidence of the value of any of the items said to have been damaged by Jason." [40] As has been noted, the problem facing the plaintiff in the Local Court was not merely the need to provide evidence of the value of particular items, but also evidence as to their condition in the storage unit prior to removal by Jason Azzopardi.
9. On an appeal by way of rehearing, it is hard to imagine that this Court would be able to produce a figure which would be fair to both parties. In large part, that was a consequence of a harsh but justifiable finding as to the lack of credibility of the plaintiff, as well as the absence of independent evidence supporting his claims for loss and damage. In any event, this was not an appeal by way of rehearing. There was no error of law on the part of the magistrate in declining to make an assessment of loss in the absence of any reliable evidence.

Conclusions

1. It follows that none of the plaintiff's grounds of appeal succeeds. Accordingly, the plaintiff should have the relevant extension of time to permit him to bring the matter before the Court, but the appeal must be dismissed.
2. The solicitor appearing for the defendants, Mr Williamson, sought costs by way of a gross sum costs order. The power of a court to make such an order, rather than an order for costs to be assessed, is found in s 98(4)(c) of the Civil Procedure Act 2005 (NSW). In support of his claim Mr Williamson provided costs invoices totalling $4,433 and estimated costs of preparation and appearing at the hearing of the appeal in an amount of $4,400.
3. There is no reason why the successful defendants should not have an order for their costs in this Court. Given the amount realistically in issue on the appeal, the cost and delay of seeking an assessment, and the amount of the costs incurred, it is appropriate to make a gross sum costs order.
4. It is appropriate to estimate the recoverable costs conservatively. Generally, a discount should be allowed on the costs actually incurred when assessing on a party and party basis. The defendants did not need to incur heavy expenses to resist the appeal. Mr Williamson's accounts were by no means excessive.
5. With respect to the fee memoranda up to 12 April 2022, I note that the first account claimed only 55% ($880) of the billable amount. That figure should be allowed in full. The balance of the accounts rendered ($3,553) should be reduced by 20%, giving a total figure of $3,700 as an estimate of the billed costs which would be allowed on a party and party basis.
6. With respect to preparation for the hearing and the hearing, I note that a full day (six hours) has been allowed for the hearing. In fact, the hearing was completed within 1.5 hours. I would allow a figure of $2,750 with respect to preparation and hearing time. Accordingly, I propose a gross sum costs order in the amount of $6,450.

Orders

1. The Court makes the following orders: 1. Grant the plaintiff an extension of time within which to commence the appeal up to and including 3 August 2021. 2. Dismiss the appeal. 3. Order that the plaintiff pay the defendants' costs in the sum of $6,450.

Endnotes

1. Tcpt, 27/09/22, p 2(25).
2. Judgment, p 2(24).
3. Judgment, p 11(40)-(48).
4. Judgment, p 7(2).
5. Judgment, p 7(13).
6. Judgment, p 4(16).
7. Judgment, pp 4(19), 6(13).
8. Judgment, p 4(28).
9. Judgment, p 5(3).
10. Judgment, p 5(9).
11. Judgment, p 6(5).
12. Judgment, p 10(5).
13. (1985) 4 NSWLR 139 (Kirby P, Glass and Samuels JJA) ("Azzopardi").
14. Azzopardi at 155G.
15. The plaintiff used "R" to refer to the magistrate's reasons, together with the page and line.
16. Judgment, p 8(45).
17. Judgment, p 9(25).
18. This was appropriately conceded by the plaintiff: Tcpt, 27/09/22, p 3(27).
19. Judgment, p 7(20).
20. Judgment, p 7(32).
21. Judgment, p 7(25).
22. Judgment, p 7(34).
23. Judgment, p 7(35).
24. Tcpt, 27/09/22, p 8(13).
25. On appeal, the plaintiff accepted that the claim had been abandoned: Tcpt, 27/09/22, p 8(25).
26. Judgment, p 7(34).
27. Judgment, p 7(41).
28. Judgment, p 7(49).
29. Judgment, p 8(10)-(15).
30. Judgment, p 8(23).
31. Judgment, p 9(43).
32. Judgment, p 9(41).
33. Judgment, p 10(1).
34. Judgment, p 10(8).
35. Judgment, p 9(18).
36. Tcpt, 08/02/21, p 46(9), (26).
37. [2007] NSWCA 31 at [135]-[137] (Beazley JA) (with my agreement).
38. [2003] HCA 10; 77 ALJR 768 at [38].
39. Judgment, p 10(47).
40. Judgment, p 11(1). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2022