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[2025] NSWSC 456
General information, not legal advice.
Supreme Court of NSW
2025-05-14
Harrison AsJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Geveko Markings Australia Pty Ltd v Global Linemarking Services Pty Ltd. [2025] NSWSC 456
Hearing dates: 28 March 2025
Date of orders: 14 May 2025
Decision date: 14 May 2025
Jurisdiction: Common Law
Before: Harrison AsJ
Decision: (1) Leave to appeal is granted.
(2) The Appeal is dismissed.
(3) The decision of the Magistrate dated 13 May 2024 is affirmed.
(4) The Amended Summons dated 7 November 2024 is dismissed.
(5) The defendant’s Notice of Motion dated 17 October 2024 is dismissed with no order as to costs.
(6) The plaintiff is to pay the defendant’s costs with the exception of those costs incurred in the defendant’s Notice of Motion seeking that the plaintiff’s appeal is incompetent.
Catchwords: APPEALS — Leave to Appeal — Australian Consumer Law — Local Court Act — Probative Evidence
Legislation Cited: Civil Procedure Act 2005 (NSW), s 96
Competition and Consumer Act 2010 (Cth) Sch 2 (‘Australian Consumer Law’), s 56
Local Court Act 2007 (NSW), s 39, s 40, and s 41
Uniform Civil Procedure Rules 2005 (NSW) Sch 7
Cases Cited: AK v Western Australia (2008) 232 CLR 438
Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
BHP Billiton Ltd v Dunning [2013] NSWCA 421
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402, 407; [2006] NSWSC 343
Edwards v Bairstow [1956] AC 14
Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190
Haines v Leves (1987) 8 NSWLR 442
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
N Madden's Stable Bedding Pty Ltd v Reid [2014] NSWSC 554icolia v Commissioner of Railways (NSW)(1970) 45 ALJR 465
R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 115 CLR 644, 654
Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262
Souaid v Nahas (2019) 89 MVR 364
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259
Swain v Waverley Municipal Council [2005] HCA 4
US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWSC 705
Wainohu v New South Wales (2011) 243 CLR 181
Wang v Australian Securities and Investments Commission [2019] FCA 1178
Waterford v Commonwealth (1987) 163 CLR 54, 77
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480
Zelden v Sewell [2011] NSWCA 56
Category: Principal judgment
Parties: Geveko Markings Australia Pty Ltd (Plaintiff)
Global Linemarking Services Pty Ltd (Defendant)
Representation: Counsel:
J K Raftery (Plaintiff)
R D Turnbull (Defendant)
Solicitors:
Corporate Legal (Plaintiff)
Ballantyne Law (Defendant)
File Number(s): 2024/00211645
Publication restriction: Nil
This judgment involves an appeal from a decision of the Local Court in relation to a cross claim.
The plaintiff/cross-defendant is Geveko Markings Australia Pty Ltd (Geveko) and is represented J K Raftery of counsel. The defendant/cross-claimant is Global Linemarking Service Pty Ltd (Global Linemarking) and is represented by R D Turnbull of counsel.
The parties relied on a court book consisting of 3 volumes marked as exhibit A1, A2, and A3 respectively. For convenience, I shall refer to the parties by name.
This appeal concerns only the cross-claim made by Geveko. Geveko is in the business of manufacturing and supplying paint products for use on roads, cycleways, carparks, and other similar surfaces. Geveko is a registered participant in the Australian Paint Approval Scheme (APAS) which is an accredited scheme operated by Commonwealth Scientific and Industrial Research Organisation (CSIRO) Verification Services to ensure paints and related coating products perform to defined standards.
Specifically, this appeal concerns the PlastiRoute Roll Grip S G133 Emerald Green Paint (green paint) by Geveko that Global Linemarking applied to a cycleway in Indooroopilly in Queensland. The main issue in dispute was whether the green paint met its advertised specifications in relation to being slip resistant.
On 10 October 2024, Magistrate Barko (the Magistrate) made the following orders:
Pursuant to section 96 of the Civil Procedur**e Act 2005 (NSW) a set-off judgment is made in favour of the plaintiff in the sum of $6,712.18.
No order for statutory interest.
Each party to bear its own professional and court costs.
On 13 May 2024, the Magistrate ordered that:
There will be a verdict for Geveko on the claim in the amount of $23,691.14.
There will be a verdict for Global Linemarking on the cross claim in the amount of $16,978.96.
By way of the Notice of Motion (NOM) filed on 17 October 2024 in this Court, Global Linemarking seeks:
An order extending the time for the filing and service of this NOM.
An order that the Summons be dismissed because the appeal is incompetent.
It relies upon the affidavit of its solicitor Kathryn Lee Rundle affirmed on 17 October 2024.
I shall deal with this NOM later in this judgment.
By way of the Amended Summons filed on 7 November 2024, Geveko appeals from part of decision of the Magistrate delivered on 13 May 2024 in relation to the cross-claim.
Geveko seeks the following orders:
To the extent necessary, leave to appeal from the part of the decision below in relation to the green paint.
Appeal be allowed.
The order of the Court below that there be verdict for Global Linemarking on the cross-claim in respect of the green paint be set aside.
There be verdict and judgment in favour of Geveko in respect of the green paint.
Geveko submitted that it did not contend, that only if Global Linemarking can demonstrate how the green paint became defective could Global Linemarking succeed on its claim that the green paint is defective. Instead, Geveko contended that Global Linemarking failed to prove, by probative evidence, that the green paint did not correspond with its description. Geveko further submitted that Global Linemarking’s position appears to rely on the principle of ‘res ipsa loquitur*’**.* The position being that because the slip test did not meet a specific skid resistance texture (SRT), the green paint must be defective.
As to the first ground of appeal (Appeal Ground 1), Geveko challenges a single factual finding made by the Magistrate that I will refer to later in this judgment. It says that there was no evidence to support a factual finding by reference to nine sub-grounds.
The second ground of appeal (Appeal Ground 2) is that the Magistrate failed to provide adequate reasons. I shall deal with Appeal Ground 1 and Appeal Ground 2 in turn.
39 Appeals as of right
(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law.
…
40 Appeals requiring leave
(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.
(2) A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court--
(a) an interlocutory judgment or order,
(b) a judgment or order made with the consent of the parties,
(c) an order as to costs.
41 Determination of appeals
(1) The Supreme Court may determine an appeal made under section 39 (1) or 40--
(a) by varying the terms of the judgment or order, or
(b) by setting aside the judgment or order, or
(c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court's directions, or
(d) by dismissing the appeal.
…
The first issue that needs to be determined is whether Geveko should be granted the leave to appeal on the basis that the appeal grounds refer to mixed questions of law and fact. If, as alleged by Global Linkmarking, Appeal Ground 1 only raises issues of fact, this appeal ground is not amenable to appeal.
In BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19]-[20] (BHP Billiton) the Court of Appeal set out the following principles with respect to the granting of leave to appeal;
“Principles relevant to leave applications
[19] In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary judge was arguably wrong in the conclusion arrived at: Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 per Sheller JA; Zelden v Sewell [2011] NSWCA 56 at [22] per Campbell JA (Young JA agreeing).
[20] Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or an injustice which is reasonably clear, in the sense of going beyond merely what is arguable: Carolan per Kirby P; Jaycar Pty Ltd v Lombardo [2011] NSWCAS 284, Campbell JA (Young and Meagher JJA agreeing) at [46]. See also Lee v New South Wales Crime Commission [2012] NSWCA 276 per Bathurst CJ (Macfarlan and Barrett JJA agreeing).”
“[68] ... the "no evidence” ground is not restricted to circumstances where there is, quite literally, no evidence at all. That is because a finding may constitute an error of law if there was no probative evidence to support it, so as to be no evidence in law at all. It follows that the no evidence ground of review will not always be defeated by identifying a mere "skerrick'' of evidence if it can be shown by the party asserting the "no evidence'' ground not to have been also legally probative in making the finding in question. However that inquiry is one of capacity, not weight.”
Global Linemarking submitted that Geveko has no right of appeal, with or without leave, on a question of fact alone per Basten J in Souaid v Nahas (2019) 89 MVR 364 at [3] (Souaid). Where the appeal asserts a misapplication of legal principle to particular facts, that is a question of mixed fact and law per Basten J in Souaid at [3].
Appeal Ground 1 raises questions of fact alone, such that it is incompetent and should be dismissed.
If, contrary to these submissions, the Court finds that Appeal Ground 1 raises a question of mixed fact and law, leave should not be granted for the following reasons:
The quantum is very small: the verdict on the cross-claim was $16,978.96. Once offset against the verdict on the main claim, the net result was that Global Linemarking paid Geveko about $6,700. Therefore, both the cross-claim and the net result are well within the jurisdictional limit of the small claims division of the Local Court. While Global Linemarking accepts that the limits on appeals from the small claims division do not apply to this case, the policy intention of Parliament is clear. Claims worth less than $20,000 can only be appealed if there is a lack of jurisdiction or a denial of procedural fairness as per s 39(2) of the Local Court Act 2007 (NSW). That legislative intention ought to weigh in the balance in exercising the Court’s discretion with respect to leave, and should weigh against the granting of leave;
Relatedly to the previous point, there is a greater emphasis on early determination and finality of claims regarding small amounts per Campbell JA in Zelden v Sewell [2011] NSWCA 56, at [22]; and
There is no issue of legal principle which needs to be resolved by this Court, nor is there an issue of public importance, or some clear injustice. One or more of those conditions ought to be met for there to be a grant of leave per Campbell JA in Jaycar Pty Ltd v Lombardo [2011] NSWCA 284, at [46].
The following relevant principles arise in these proceedings:
If there is evidence which, if believed, could support a finding of fact, that is not an error of law: Nicolia v Commissioner of Railways (NSW) (1970) 45 ALJR 465; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139;
A finding of causation is a finding of fact that can be made even without expert evidence to support it: Fernande**z v Tubemakers of Australia Ltd [19751 2 NSWLR 190, 197 (Glass JA); Setsam (2000) 49 NSWLR 262, [83]
The amount in dispute is modest. However, it is my view that Appeal Ground 2, namely that the Magistrate failed to provide adequate reasons raises an error of law. Therefore, Geveko does not require leave to appeal.
Appeal Ground 1 purports to raise an error of law in that there is no evidence to support a single finding of fact. If this is correct, no leave to appeal is required. Appeal Ground 1 seeks to overturn a single finding of fact and makes reference to nine sub-grounds. In any event those nine sub-grounds form part of the Magistrate’s reasoning process, I will briefly address those findings to ascertain whether Global Linemarking failed to prove by probative evidence that the green paint did not correspond with its description. Appeal Ground 1 (no probative evidence) may raise a question of law or mixed questions of law and fact. Therefore, I grant leave to appeal.
The starting point is the pleading framework. I shall briefly set it out here.
On 11 October 2021, Geveko filed a Statement of Claim (SoC) for damages for breach of contract and alleged that it provided goods and services to Global Linemarking in the amount of $23,691.14 between the period 7 May and 27 August 2021.
On 13 December 2021, Global Linemarking filed a defence and admitted that Geveko has provided goods and services as described above within that period. However, Global Linemarking denied that it owed Geveko any money and highlighted that Geveko supplied goods that were worthless to Global Linemarking.
On 13 December 2021, Global Linemarking filed its cross-claim (the cross-claim) and alleged that in May 2021, it purchased from Geveko various supplies of the green paint and liquid benox to be used to mark a surface on the Indooroopilly River Walk (the River Walk). Global Linemarking alleged that the products did not comply with relevant Australian standards, were defective and/or unusable, and were supplied in contravention of the Competition and Consumer Act 2010 (Cth), Sch 2- the Australian Consumer Law (ACL). By reason of such, Global alleges that it suffered damages in the sum of $15,422.
On 31 January 2022, Geveko filed its defence to the cross-claim and admitted that it supplied the green paint and liquid benox to Global Linemarking and charged the prices. It also admitted that the products were to be used for a cycleway. However, it denied that the products were to be used on the River Walk. Geveko alleged that the green paint had an SRT of greater than 65. Geveko also denied that the liquid benox was not unusable as it was in fact mixed into the green paint. Geveko admitted that the provisions of the ACL applied to its supply of the green paint but denied that there was any contravention of the same. Finally, Geveko denied that Global Linemarking suffered any loss or damages as a result of its supply of the green paint and denies the quantum claimed.
“[71] Mr Cocoran did not personally inspect the River Walk until March 2022, after the infamous Brisbane floods. He conceded that the Green Paint has been stored for longer than the recommended shelf-life and that the technical data sheets referred to the BPN of 65+ and no other slip-resistance testing method. He made concessions as to Mr Harris’ expertise.
[72] Geveko’s Mr Curtis did not inspect the River Walk until March 2022. He did not consider the BPN to be the appropriate test, notwithstanding that Geveko’s technical data information referred to the BPN.
[73] Mr Harris took contemporaneous photos of the river walk job shortly after it was completed “skiting” about the professionalism of Global’s work.
[74] Mr Pouw’s evidence about the initial application of the Green Paint and its properties was changed during his oral evidence, blaming Geveko’s liquid benox additive to have hardened the paint to quickly in respect of the first section of the work. I sincerely doubt the recollection of Mr Pouw in this regard, noting that it only came into evidence after photos were shown to him of the aftermath of the floods.
[75] Floods of the nature of what occurred in Brisbane in 2021 don’t just produce a flow of water across a surface. They produce all manner of material, metallic, wooden, plastic, animal etc being washed across the surface. Global’s contemporaneous photo depict what can only be described by Mr Harris. The March 2022 photos depict a completely difference surface which no doubt impacted upon Geveko’s relevant witnesses’ evidence. Mr Banner and Mr Ording gave completely independent evidence of the testing of the River Walk shortly after it was painted with the Green Paint and their credibility etc was not challenged.
[76] I am satisfied, factually, that the independent testing of the River Walk, by way of the BPN testing method, resulted in various portions (not all) of the River Walk not complying with the 65+ results and that there is a direct causal connection between these results and the Council requiring rectification works to be performed.
[77] I am not satisfied, given the expertise of Global, Mr Harris, and Mr Pouw, that the Green Paint was not applied in accordance with Geveko's specifications, and if not, only done so in a limited area.
[78] The simple fact is that the independent testing was only carried out in limited, select areas, and not across the whole of the applied Green Paint. Time, traffic, and weather may have impacted upon the slip resistance of the Green Paint applied.
[79] I am satisfied, as a matter of fact, that the Green Paint, in part, did not meet the BPN of 65+. I am satisfied, as a matter of fact, that Geveko advertised and held out its Green Paint to have the qualities of BPN 65+. I am satisfied, as a matter of fact, that Global did not apply the Green Paint, to the greatest extent, in breach of Geveko's application recommendations. I am satisfied, and find as a matter of fact, that the Green Paint, by reason of its manufacturing process, its transport, its storage conditions, and/or its shelf life, ultimately did not produce a BPN of 65+ in its entire application. I am satisfied, and find as a matter of fact, that Global, in accordance with its contractual obligations in respect of the River Walk, relied upon Geveko's publication that the Green Paint, by description, was BPN 65+ and that it did not correspond with that description.
[80] As a matter of law, I am satisfied and find that Geveko contravened s56 of the ACL and that Global is entitled to its claim for damages having to repaint the River Walk to render it in accordance with the Council’s requirements.
[81] However, the damages claimed by Global are limited to some $3,900. I am satisfied, as a matter of law, that Global is entitled to these damages that it assessed. However, there was no total lack of consideration on the part of Geveko in respect of the Green Paint. It was obtained and applied over the relevant parts of the River Walk. Only portions of the River Walk were tested and found not to comply with the BPN 65+. Other sections tested were found to be compliant. Naturally, it is not realistic that the testing be carried out on all of the River Walk (costing more that the application of the Green Paint itself) and that the Council were entitled to be disgruntled about the test result, however that does not equate to Geveko not being entitled to any payment for the Green paint it supplied — there was no total failure of consideration ( see “Total Failure of Consideration” – John Tarrant www.austtii.edu.au/au/journals/UWALawRw/2006/6.pdf). The Green Paint was left in situ and not removed. Ultimately Mr Banner of the Council noted that further paint was applied and that he assumed that the relevant standard was complied with.
[82] I can infer form the evidence that the extra paint applied across the whole of the relevant portions of the River Walk only increased their slip resistance and that the Green Paint, in conforming areas, added to this achievement.”
Geveko only referred to the evidence that was favourable to its case, as follows:
Mr Moritz Bahr (Mr Bahr), chemist and the product manager for paints and plural components at Geveko, developed the green paint. Mr Bahr gave unchallenged evidence as to the APAS accreditation process and the manufacturing process. In respect of the manufacturing process, Mr Bahr gave the following evidence:
(a) The green paint consists of filler (which is a combination of carbonate and quartz) and aggregate (which consists of grain quartz). The aggregate is the component which provides the skid resistance. (b) The aggregate is a product called Quartz Sand purchased by Geveko in Germany. The aggregate is quality controlled by applying an incoming raw material quality control procedure; and (c) The binder, additives filler and aggregate are combined by machine which adds the specific volume of each component.
“... So I, I do recall in I think it was stage one that the paint was, you know, going hard quite quickly. So then we would reduce the BPO so it doesn't go off so quickly. And that's when we noticed that this paint was going off way too quickly. So then we reduced BPO again and then tried to keep on rolling with the product and it was just going off way too quickly for us to get a good finish”. (CB901 [0]-[5]).
“When choosing the areas to test, the technician is prompted to find the smoothest (more slippery) areas to test in high traffic areas as these are the areas where a skid or slip is more likely to occur” (CB 720).
On 1 July 2021, Mr McCauley conducted further slip tests which revealed positive results for all five of the areas tested.
On 14 July 2021, Mr McCauley conducted further testing which did not achieve any positive results.
No further testing was undertaken either of the green paint or out at the River Walk.
Geveko submitted that Mr Bahr gave uncontradicted and unchallenged evidence as to the process in which Geveko had its products accredited and the process by which it manufactured the green paint. Furthermore, Mr Bahr gave evidence that the only way in which the green paint may not reach an adequate SRT is when it is not applied correctly.
Mr Bahr was not seriously challenged on his evidence. That is not surprising given Global Linemarking did not have any expert evidence which would have provided the cross-examiner with a foundation for any challenge. The highest that Mr Bahr’s evidence was challenged was in the following question and answer:
“Q. If any of those things affected the quality of the paint, that could affect its skid resistance when it's applied, couldn't it?
A. No. No. That is - that is what I told you before when let me - let me explain it now, then I can explain it. Should I explain it?” (CB 789 [35]-[40])
Mr Bahr’s evidence needed to be refuted by Global Linemarking. For Global Linemarking to establish that the green paint could not reach the adequate SRT, one would have expected expert evidence which explained how the aggregate in the green paint could disintegrate or change composition. The evidence of Mr Bahr (by implication given his evidence is that the only way the green paint would not reach the required SRT is if it was not applied correctly) was that the aggregate cannot change composition or disintegrate.
Any suggestion that the test results obtained by Mr Ording and Mr McCauley are probative evidence of the green paint being defective is misplaced. First, there were more tests that returned positive results than ones that returned negative results. Second, there was no explanation as to how one part of the green paint could be defective and the other part perfectly fine. Third, the testing included a variable, being the application of the paint.
When one considers that all relevant witnesses accepted that the application of the green paint was, at least in part, poor, it is not surprising that there were areas where the SRT did not achieve the relevant standard.
The need for Global Linemarking to have adduced expert evidence is highlighted by the findings of the Magistrate that the green paint “by reason of its manufacturing process, its transportation, its storage conditions, and/or its shelf life, ultimately did not produce a BPN of 65+.” (CB 968 [79]) The use of the conjunction “and/or” amplifies the problem. His Honour did not know (as there was no evidence) what could have caused a problem with the green paint. If Global Linemarking wished to contend, for example, that the storage conditions caused the reduced SRT, it ought to have adduced expert evidence. The only expert who provided an opinion was Mr Bahr. The findings are inconsistent with his evidence.
The failure to apply sufficient green paint might have been because Global Linemarking failed to purchase a sufficient quantity for the site.
The technical data sheet recommended a minimum of 2 millimetres thickness be applied. Mr Harris agreed with the thickness during cross-examination. Global Linemarking invoiced its client for 521 square metres. For that area, Global Linemarking required 110 tins of green paint (3.4 kg x 521 sqm = 1,771.4kg). However, Global Linemarking only purchased 90 units of the green paint which is a total of 1,440 kg of paint.
Global Linemarking failed to adduce any evidence that the green paint could not achieve an SRT of greater than 65. The Magistrate should not have found that the green paint failed to correspond with its description and the appeal ought to be allowed.
In the written submissions dated 18 March 2025, Global Linemarking replied to the nine sub-grounds discretely. In the written submissions dated 25 March 2025, Geveko gave replies to each sub-ground of Global Linemarking’s submissions.
For sub-ground 1(a), Global Linemarking submitted that there was evidence from Mr John Banner (Mr Banner) as to the slip resistance of the green paint. He tested the green paint on 3 and 4 June 2021. He found that the SRT was in the 40s.
There was expert evidence from Mr Ording who carried out BPN tests on the green paint, with 7 out of 10 showing an SRT of less than 65.
7 out of 10 of which showed an SRT of less than 65.
Neither Mr Banner nor Mr Ording were required for cross-examination.
The evidence of both was that the SRT of the green paint was below 65, which was the evidence to support the finding that the green paint did not correspond with its description.
For sub-ground 1(b), Global Linemarking submitted that Mr Ording was an independent expert, he gave evidence, and his evidence was not challenged by way of cross-examination. No challenge was made to his expertise, to his independence, nor to his capacity to opine in the way that he did (whether at trial or on appeal). His evidence should be accepted in whole.
He was instructed by the defendant’s solicitors, he was provided with the expert witness code of conduct contained in Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW)(UCPR), and he expressed compliance with that code.
Mr Bahr conceded that the green paint could become defective because of storage conditions, which may affect its shelf life, viscosity and curing time.
Although he said that application was the only reason the advertised SRT would not be achieved, cut across through his evidence and other matters such as storage, shelf life, and viscosity could also render the green paint defective. Considering that inconsistency, the Magistrate was not bound to accept Mr Bahr’s evidence unquestioningly.
Even if that inconsistency had not existed, the Magistrate was still not bound to accept Mr Bahr’s evidence unquestioningly.
Geveko asserted that Global Linemarking ought to have led evidence to explain how the green paint changed composition. That issue was not pleaded as a matter of positive defence, so it is not apparent why the defendant should have led evidence on it. Moreover, that evidence was not an essential integer to establishing liability under s 56 of the ACL. The claim was that the green paint did not meet an advertised specification. The claim was not that the green paint disintegrated. In order to establish liability under s 56 of the ACL, all that the defendant had to prove was that green paint did not meet specification, which it did prove.
In any event, a failure to accept Mr Bahr’s evidence, if it be an error, is only an error of fact, from which no appeal lies to this Court: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644, 654 (Menzies J). As Brennan J said, “[t]here is no error of law simply in making a wrong finding of fact”: Waterford v Commonwealth (1987) 163 CLR 54, at [77].
Global Linemarking conflated a concession regarding the possibility of the green paint becoming defective and the green paint becoming defective in a way that would cause it to be incapable of meeting the required SRT. That conflation led to Global Linemarking’s submission, that there was inconsistency in Mr Bahr’s evidence.
The submission that all Global Linemarking had to prove was that the green paint did not meet the specification oversimplified the matter. The evidence of Mr Cocoran was that the paint had to be mixed before application as the aggregate fell to the bottom of the tin. Global Linemarking could not apply the paint from the top part of the tin (without the aggregate) have the area tested and then complain that the green paint did not meet the specified SRT
Mr Pouw gave evidence about the manner in which the green paint was applied. He did not say that it was not applied in accordance with the manufacturer’s specifications. He gave no evidence of the type identified in sub-ground 1(d).
But even if he had given such evidence, it would not amount to an error of law to have disregarded it. The Magistrate was satisfied based on Mr Ording’s unchallenged expert evidence that the advertised SRT had not been reached.
“I am not satisfied, given the expertise of Global, Mr Harris, and Mr Pouw, that the Green Paint was not applied in accordance with Geveko’s specifications, and if not, only done so in a limited area.”
“I am satisfied, as a matter of fact, that Global did not apply the Green Paint, to the greatest extent, in breach of Geveko’s application recommendations.”
Mr Bahr gave evidence that the storage and shelf life of the green paint could affect the quality of the green paint.
But even if there was no evidence that any of the matters in sub-ground 1(f) could have caused the green paint to fail to meet an SRT of 65 or more, the fact is that the green paint failed to reach the relevant SRT. Based on that factual finding, the Magistrate was entitled to find that the plaintiff contravened s 56 of the ACL.
For sub-ground 1(h), Global Linemarking submitted that there was evidence that the March 2022 photographs of the site depicted a different surface to when the green paint was applied. The Brisbane River had flooded between application of the green paint and the March 2022 photographs, submerging the painted surface. As a matter of common sense, the Magistrate concluded at [75] of the Judgment that the floods could bring “all manner of material” across the painted surface so as to impact it. It was open for the Magistrate to infer, from the uncontested fact of the flooding, that the surface had changed by reason of that flooding.
For sub-ground 1(i), Global Linemarking submitted that the Local Court did not require evidence that stormwater or other material being washed across the green paint would alter the painted surface. The flooding that occurred over the green paint was an agreed fact. From that agreed fact, the Magistrate was entitled to draw an inference that such flooding had altered the green paint. The test is whether it is reasonable to draw the inference on the basis of the primary facts per Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, at [88].
In any event, even if it was not proper to draw that inference, the fact remains that the green paint failed to meet the SRT level advertised, once tested. That was sufficient for the Magistrate to conclude that the plaintiff had breached s 56 of the ACL.
Geveko’s nine sub-grounds of appeal canvass the factual findings made by the Magistrate in an attempt to establish the proposition that there was no probative evidence to prove that the green paint did not correspond with its description. However, Geveko’s submissions refer to only evidence adduced by it, rather than to the evidence as a whole. It is written law that the judgment of the Magistrate has to be read as a whole, not cherry picking the parts that favour the appellant’s case.
The Magistrate made findings of fact that were based on the evidence of both parties. His Honour is not obliged to accept all the evidence of Geveko and ignore the evidence of Global Linemarking.
The Magistrate made findings of fact that Mr Cocoran and Mr Curtis did not inspect the River Walk until March 2022. The Magistrate also made a factual finding that while Mr Pouw changed his evidence, his Honour “sincerely doubted” Mr Pouw’s recollection because Mr Pouw changed his evidence only after seeing photos of the aftermath of the floods (at [74] of the Judgment). That is the change in evidence occurred after examining non-contemporaneous photographic evidence. His Honour was entitled to make the findings as to the occurrence of the Brisbane floods in 2021 and make a factual finding that the witnesses who relied on the later March 2022 photos were looking at the photos that depicted a completely different surface as they were taken after the Brisbane floods in 2021.
While the expert report of Mr Bahr was admitted into evidence and Global Linemarking did not rely on the expert’s evidence, the Magistrate was not obliged to accept the export report if it was based on photographs which were taken, in March 2022, two years after the work was done. These photographs were not only taken after the Brisbane floods in 2021 but also after the reapplication of the paint with a paint product from another supplier.
The Magistrate preferred the evidence of Mr Banner and Mr Ording who gave independent evidence of the testing of the River Walk shortly after it was painted with the green paint. His Honour noted that their credibility was not challenged. Mr Banner tested the green paint on 3 and 4 June 2021 and found that the SRT was in the 40s. Mr Ording carried out BPN tests on 5 June 2021 and found that 7 out of 10 of which showed an SRT of less than 65. Overall, the test results showed that the green paint did not reach the SRT of 65+.
Based on these results above, the Magistrate was satisfied that the green paint did not meet the advertised standard of a BPN of 65+ and that “as a matter of fact,” the green paint, by reason of its manufacturing process, its transport, its storage conditions, and/or its shelf life, ultimately did not produce a BPN of 65+ in its entire application.” (at [79] of the Judgment)
I noted that Geveko’s expert gave evidence that the green paint could have deteriorated if it was not stored properly. In the cross examination of Mr Bahr, the following evidence was given:
“Q: So that means that after 12 months, the product can become unstable, can’t it?
A: When it’s after 12 months tested, and it’s stable, then it is okay.
Q: But what I’m asking you is that if it’s outside the factory after 12 months, there’s a real risk that it will become unstable, won’t it?
A: It’s always – it’s always a question about the storage conditions”. (T32 [50]; T33 [5])
As a result of these factual findings, the Magistrate was satisfied that Geveko contravened s 56 of the ACL and Global Linemarking was entitled to damages.
As stated in Swain v Waverley Municipal Council [2005] HCA 4 at [2] per Gleeson CJ:
“[2] In the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. Most decisions of trial courts are never the subject of appeal. When there is an appeal, the appellate court does not simply re-try the case. Depending on the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance. Trial by jury carries with it significant limitations of that kind.”
It is my view that the Magistrate considered the evidence of both parties, made factual findings based on the evidence and arrived at a decision that was open to him. There was probative evidence to support the finding that the green paint did not correspond to its description. This ground of appeal is an attempt to re-try the case.
Appeal Ground 1 raises only factual matters and is incompetent. Therefore, Appeal Ground 1 fails.
As to Appeal Ground 2, it alleges that the Magistrate failed to provide adequate reasons.
In Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 at [29], Basten JA held:
“[29] Where the process of fact finding is unreviewable except to the extent that it reveals an error of law, the reasons required must be sufficient to demonstrate that the legal limits of the process have not been contravened. Having regard to the purpose of giving reasons, the standard is properly identified negatively: it must be shown that the decision has not been reached capriciously or arbitrarily, but rationally. The reasons must thus reveal that all material factors have been identified and addressed, and that no prohibited considerations have been operative. If there is an available process of reasoning from the evidence to the outcome which has been adopted, either expressly or by implication, the appellate court should be slow to reach the conclusion that the function of the trial court has not been exercised according to law.”
In US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWSC 705 at [99]-[101], the Court set out the three fundamental elements which should be involved in a statement of reasons. They are summarised below:
a judge should refer to relevant evidence, but there is no need to do so in detail, particularly where it is clear the evidence has been considered;
a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached; and
a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found, in an understandable and preferably logical way.
Appropriate allowance should be made for the pressures under which magistrates are placed by the volume of cases coming before them: see Director of Public Prosecutions (NSW) v Illawarra Cashmart Ply Ltd (2006) 67 NSWLR 402 at 407; [2006] NSWSC 343 at [15]-[18]; see also Madden's Stable Bedding Ply Ltd v Reid [2014] NSWSC 554 at [32] per Button J.
In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43;(2013) 252 CLR 480, the High Court considered the obligation on a Medical Panel and the same reasoning applies to the Local Court. At [55] the High Court stated:
“[55] The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.”
Geveko submitted that the reasons of the Magistrate did not disclose why Global Linemarking was successful nor did they disclose why Geveko's evidence and submissions were not accepted. The reasons failed to explain why:
The uncontradicted evidence of Mr Bahr was rejected;
It was held that the March 2022 photographs were said to depict a completely different surface to when the green paint was applied (particularly in light of Mr Pouw's evidence that the photographs were consistent with his memory);
The Magistrate concluded that the green paint did not meet the SRT of 65+
It was held that the manufacturing process may have resulted in the green paint purportedly not reaching the SRT of 65+
it was held that the transport process may have resulted in the green paint purportedly not reaching the SRT of 65+
It was held that the storage conditions may have resulted in the green paint purportedly not reaching the SRT of 65+
It was held that the shelf life may have resulted in the green paint purportedly not reaching the SRT of 65+; and why
His Honour held that the green paint did not correspond with its description.
The reasons leave more questions unanswered than answered. The Magistrate has made findings of fact and reached conclusions without any explanation as to how he arrived at those findings.
Global Linemarking submitted that the reasons are not inadequate because the Magistrate did not undertake a “minute explanation of every step in the reasoning process that leads to the judge’s conclusion” per Kirby P, in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259.
In AK v Western Australia (2008) 232 CLR 438, 468 at [85] Heydon J gave a useful summary of the learned magistrate’s obligation to give reasons:
“[85] …Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law [77] and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”
It has also been said that “the content and detail of reasons will vary according to the nature of the jurisdiction which the court is exercising and the particular matters the subject of the decision” per French CJ and Kiefel J in Wainohu v New South Wales (2011) 243 CLR 181 at [56].
Applying those principles to this case, the Magistrate gave adequate reasons to support his findings.
Geveko’s criticisms of the reasons are effectively a reformulation of Appeal Ground 1, cast as a reasons ground. They may be met as follows:
The Magistrate did not need to explain why uncontradicted evidence was not accepted. It is sufficient to explain that he found that the slip resistance test did not result in sufficiently high slip resistance, such that there was a breach of s 56 of the ACL. In any event, the Magistrate did explain why Mr Bahr’s evidence should not be accepted: he was the developer of the green paint, and Geveko is an international company in a competitive market—in short, he was biased (the Judgment at [44]).
The Magistrate found that the Brisbane floods affected the surface of the paint, such that the photographs taken in March 2022 did not depict the same surface which had been painted.
The plaintiff’s submission ignored reasons given where the Magistrate relied on the BPN testing method to find that the green paint did not meet the SRT of 65+. That was buttressed by the reasons which summarised Mr Banner and Mr Ording’s uncontradicted evidence. Taken together with [77] of the Judgment that provide adequate reasoning for finding that the SRT of 65+ had not been met; and
The ultimate reality is that the green paint, when tested, did not meet the advertised SRT. There was sufficient reasoning to explain that finding. No more was required.
I agree that this appeal ground is a reformulation of Appeal Ground 1.
In summary, the Magistrate:
Summarised the evidence concerning the green paint in the Judgment [14(c)]-[14(f)], [15(b)]- [15(c)], [17(h)]-[17(m)], [18(e)]-[18(g)], [20(e)]-[20(g)], [23], [25(g)]-[25(o)], [26(f)]-[26(l)], [28(l)]-[28(p)], [30(d)], [31(b)]-[31(c)], [32], and [34].
Summarised the parties’ submissions concerning the green paint in the Judgment [36(b)]- [36(e)], [36(k)]-[36(m)], and [37].
Made findings as to the credibility of Mr Harris (Judgment at [41]) and Mr Bahr (Judgment at [44]).
Stated the law in relation to s 56 of the ACL (Judgment at [57]- [60]).
Made findings of fact in relation to the green paint (Judgment at [71]-[82]).
Explained that the reason the plaintiff lost the cross-claim was because of the independent testing of the River Walk, using the BPN method (Judgment at [76]).
The Magistrate referred to the evidence of both parties, set out material findings of fact and ultimate findings of fact were reached. His Honour explained the actual path of reasoning in sufficient detail to enable this Court to see whether the opinion does or does not involve any error of law. It is my view that the Magistrate gave well-organised and proper reasons. Therefore, the second ground of appeal fails.
The result is that the appeal is dismissed.
Insofar as Global Linemarking’s Notice of Motion seeking an order that the appeal is incompetent is concerned, I have not made a decision that the appeal is incompetent. Geveko was entitled to argue a question of law raised in Appeal Ground 2. It is my view that Global Linemarking’s Notice of Motion dated 17 October 2024 is dismissed with no order as to costs. The reason that I make this order is that it was only after dealing with the orders sought in the Appeal, that the Notice of Motion could be determined. The Notice of Motion played no useful role in these proceedings.
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Geveko Markings Australia Pty Ltd
Global Linemarking Services Pty Ltd. [2025] NSWSC 456
(2008) 232 CLR 438
(1985) 4 NSWLR 139
(2006) 67 NSWLR 402
(1987) 8 NSWLR 442
(1966) 115 CLR 644
(2000) 49 NSWLR 262
(2019) 89 MVR 364
(1987) 10 NSWLR 247
(2011) 243 CLR 181
(1987) 163 CLR 54
(2013) 252 CLR 480
(1970) 45 ALJR 465
(1966) 116 CLR 644
Findings of fact which are perverse, or against the evidence or the overwhelming weight of the evidence, or are based on unsound reasoning are not errors of law: Haines v Leves (1987) 8 NSWLR 442, [469]-[470];
If there are facts on which an inference might be drawn, there is no error of law: Edwards v Bairstow [1956] AC 14.
None of the sub-grounds to Appeal Ground 1 raise an error of law, or a question of mixed fact and law, such that the appeal is incompetent.