LA MELA -v- FRANKLEXIS PTY LTD [2020] WASCA 83 (28 May 2020)

1. On appeal in this court there was no allegation of factual error on the part of the magistrate or the primary judge. By contrast, before the primary judge Mr La Mela made various complaints about factual matters.[15] The primary judge found that none of those matters warranted intervention; they were either not relevant to the central issues or were findings of fact open on the evidence.[16] Her Honour was satisfied that none of the matters raised by Mr La Mela demonstrated any factual errors by the magistrate.[17] The allegations of factual error are not reproduced in the grounds of appeal advanced in this court. Rather, as will be seen, the main issue on appeal is the correct legal characterisation to be drawn from the concurrent findings of fact made by the magistrate and the primary judge.
2. In the circumstances it is convenient to recount the background facts by reference to the magistrate's reasons as, in substance, adopted by the primary judge. It is not necessary to recite the whole unfortunate history. That is developed comprehensively in the magistrate's reasons[18] and then repeated at length in the primary reasons.[19] What follows is no more than is necessary to deal with the more limited issues agitated on appeal in this court.
3. In summary:
   1. Mr La Mela purchased the Alfa in 2008.[20]
   2. Commencing from around April 2011 the Alfa's gearbox was noisy.[21] During April 2011 Mr La Mela took the car to another mechanic, Cileberti Motors, to be serviced. That business was owned and operated by a Mr Lo Presti.[22] Mr La Mela did not seek to have the Alfa fixed at this time.[23]
   3. Mr La Mela met Mr Fogliani in or about October 2011.[24] In November 2011 Mr La Mela arranged for Franklexis to service a Mercedes motor vehicle.[25] Mr Fogliani inspected that car and identified repairs that were required. Those repairs were done. Mr La Mela paid for the works when the Mercedes was collected.[26]
   4. The Alfa had not been driven since September 2011 because it had experienced issues.[27] In around November or December 2011 Mr La Mela arranged for the car to be towed to Franklexis' workshop.[28] A battery was replaced.[29] After this initial work, on 8 December 2011, further work was undertaken by the respondents for Mr La Mela; this involved the Alfa's clutch.[30] Again, after the car was brought in to the workshop, Mr Fogliani made a diagnosis, that diagnosis was communicated to Mr La Mela, instructions were given to do the work, and the work was then undertaken.[31] The work was charged for and paid.[32]
   5. Some further work was completed on the car, free of charge, in early January 2012.[33]
   6. The Alfa experienced further mechanical difficulties in mid‑February 2012; the gears would not engage. Mr La Mela telephoned Mr Fogliani and was told to 'pump' the clutch. This did not work. Arrangements were made for the car to be towed to Franklexis' workshop so that Mr Fogliani could investigate the problem. That occurred on 15 February 2012.[34] Mr La Mela said that at the time there was an in person conversation between himself and Mr Fogliani to this effect:

I - I said that the car is not working, and he said let - leave it with me and I will fix it. We will have a look.[35]

1. The next part of the history, concerning the communications on 20 February 2012, is critical. For that reason it is appropriate to set out the primary judge's finding in full:

Some short time after Mr Fogliani received the Alfa he contacted Mr La Mela. This was likely on or around 20 February. He [Mr Fogliani] informed him [Mr La Mela] that the problem was the master cylinder and it would need to be replaced. He [Mr Fogliani] went on to say that he had located a replacement master cylinder at Cileberti Motors and if Mr La Mela collected and paid for it he [the respondents] would install it. Mr La Mela agreed.[36] (emphasis added)

1. Mr La Mela attended Cileberti Motors on 21 February 2012. He collected and paid for the master cylinder. However, while at Cileberti Motors, Mr La Mela had a conversation with Mr Lo Presti. Based on this conversation Mr La Mela formed the belief that: (a) there was no problem with the master cylinder; (b) the problem was with the gearbox; and (c) the gearbox should have been repaired at the same time as the clutch and by not having done so there would be a duplication of work.[37]
2. Mr La Mela attended Franklexis' workshop on 22 February 2012. Mr La Mela handed Mr Fogliani the master cylinder. However, at the time of delivering the master cylinder Mr La Mela told Mr Fogliani not to install the master cylinder. Mr La Mela told Mr Fogliani that the problem was only with the gearbox and it should have been repaired at the same time as the clutch. However, Mr La Mela did not seek to be reimbursed for the payment he had made for the master cylinder.[38]
3. The 'instruction'[39] by Mr La Mela to the respondents not to install the master cylinder was repeated on a further two occasions (on 24 February 2012 and 3 March 2012).[40] There were unequivocal and express statements by Mr La Mela to the respondents not to install the master cylinder.[41]
4. Mr Fogliani never informed Mr La Mela that the respondents accepted Mr La Mela's directions not to install the master cylinder.[42] Despite Mr La Mela's 'instructions', in early March 2012 Mr Fogliani installed the master cylinder in the Alfa.[43] Mr La Mela became aware of this on or about 9 March 2012.[44] There is no evidence as to what Mr La Mela said, at the time, about the installation of the master cylinder in the face of his statements to the respondents not to install the cylinder.[45]
5. The respondents installed the master cylinder, notwithstanding Mr La Mela's directions to the contrary, because in Mr Fogliani's professional opinion it was required.[46] Mr Fogliani was a mechanic of 35 years standing.[47] By contrast, Mr Fogliani considered that Mr La Mela was not qualified.[48]
6. Thereafter the respondents performed additional work on the Alfa: the gear box was removed, reconditioned by Cileberti motors, and replaced. The respondents agreed to remove and reinstall the gearbox free of charge.[49]
7. On or about 13 April 2012 Mr La Mela was informed that the Alfa was ready to be collected.[50]
8. When Mr La Mela sought to collect the car, Mr Fogliani demanded payment of the $480.05 for installing the master cylinder. Mr La Mela refused to pay; and the respondents refused to return the Alfa until the $480.05 was paid. Another issue arose as to the car's paintwork, one that is immaterial to the disposition of the appeals.[51]
9. In circumstances where the parties were unable to resolve their differences, Mr Fogliani informed Mr La Mela that, in addition to retaining the Alfa, Franklexis would be charging storage fees until the $480.05 was paid.[52]
10. The magistrate found that the installation of the master cylinder was required.[53] The magistrate accepted Mr Fogliani's evidence that the master cylinder needed repair.[54] So too the magistrate accepted that the respondents had to rectify the problem with the master cylinder by replacement.[55] The magistrate also found that there was no evidence that the master cylinder was installed incorrectly.[56] There were some challenges to these findings before the primary judge; however, those challenges failed.[57]
11. Separately, the magistrate found that, having been tasked to find the cause of the Alfa's problems and believing those faults to have originated in the master cylinder, it would have been unreasonable for the respondents to re-install a defective master cylinder into the car. The magistrate considered that to do so would have been contrary to the exercise of due skill, care and attention.[58] That finding was not challenged.
12. On two occasions the magistrate made express findings as to Mr La Mela's astute nature.[59] The magistrate expressly found that Mr La Mela took a canny approach as to prices to be paid, negotiations to be had and obtaining discounts for cash.[60] For example, in obtaining the master cylinder replacement from Cileberti Motors, Mr La Mela sought and obtained the trade price for the part.[61]

1. So far as the issues on appeal are concerned, by the end of the trial before the magistrate the parties had narrowed the legal areas in dispute to issues about the terms of the contract for the repair of the Alfa and whether there had been any breach of those terms.[62] The magistrate expressed the issues in these terms:

(a) Was there a contract between [Mr La Mela] and [Franklexis] for a repair of the Alfa?

(b) What were the terms of the contract?

(c) Were those terms to be implied?

(d) Was there a breach of that contract and if so by whom?

...

(f) If [Franklexis] breached the contract by way of negligence or otherwise what damages are payable by [Franklexis] to [Mr La Mela]?

(g) If [Mr La Mela] breached the contract are there any damages payable to [Franklexis]?[63]

...

1. The magistrate considered, based on the materials before him and as was common ground at trial, that there was a contract between Mr La Mela and Franklexis.[64] For that reason his Honour saw the real issues as being the nature and terms of the contract, whether there was a breach and whether there was a valid variation to the contract.[65] The latter issue arose so far as, before the magistrate, Mr La Mela contended in the alternative that any contract to install the master cylinder was 'varied' by his statements not to install the master cylinder.[66]
2. While, as already noted, it was common ground that there was a contract between the parties,[67] there was a contest as to the nature and terms of the agreement. In summary:
   1. Mr La Mela contended that a contract was entered into on 15 February 2012 pursuant to which the respondents would investigate the car's failure and perform necessary repairs. The contract was said to be subject to an implied term that the respondents would not undertake works or repairs where Mr La Mela expressly so instructed.[68]
   2. The respondents contended that the contract was entered into on 20 February 2012 - when Mr Fogliani said that the problem was the master cylinder and Mr La Mela agreed to collect the replacement cylinder which had been located at Cileberti Motors.[69]
3. The contest as to the nature and terms of the contract was always going to be determinative for the parties' respective cases as to breach. If Mr La Mela's alleged contract with its alleged implied terms was accepted, the master cylinder should not have been installed. Franklexis should have delivered up the Alfa and had no claim for the costs of installation. Also, having regard to the way in which the case was fought, the position was the reverse if the respondents' case as to the nature and terms of the contract was accepted (unless Mr La Mela was able to establish that the contract was varied).
4. The magistrate found that a contract was formed on 20 February 2012 in the telephone conversation between Mr La Mela and Mr Fogliani (ie before Mr La Mela's statements not to install the master cylinder).[70] It was a contract to install the master cylinder. The magistrate inferred that Mr La Mela requested the respondents' services.[71] The magistrate explained his conclusion in these terms:

There was an intention to contract between the parties. That contract was based upon the course of dealing between the parties prior to the offer to install the master cylinder which was accepted by [Mr La Mela]. In any event [Franklexis] offered to install the master cylinder based upon [Mr Fogliani's] opinion of what was required to be done to fix or repair the Alfa. That offer was unequivocally accepted by [Mr La Mela]. The terms were oral but straightforward and clear. [The respondents] would install a master cylinder based upon [Mr Fogliani's] diagnosis of the problem with the Alfa given his accepted expertise and the inherent nature of his longstanding business. [Mr La Mela] sought out and accepted that expert opinion from [the respondents].[72]

1. Otherwise his Honour concluded that:
   1. Taking into account, as 'surrounding circumstances',[73] the three prior dealings between the parties, the agreement was that the respondents would install the master cylinder and Mr La Mela would pay for the installation.[74] The magistrate observed that it was well understood, in transactions of this type, that identifying the problem and consequential repair would incur a cost,[75] suggesting that his Honour saw the payment obligation as an implied term. The magistrate also found that it was a term of the contract that the master cylinder was to be collected, purchased and supplied by Mr La Mela.[76]
   2. There was no implied term to the effect of that contended for by Mr La Mela,[77] ie that the respondents must not undertake works or repairs where Mr La Mela expressly so instructed. (Likewise the magistrate rejected an implied term for the imposition of storage fees.)[78]
   3. The three 'instructions' not to install the master cylinder constituted an attempt by Mr La Mela to vary the contract.[79] However, the offer to vary was not accepted - the respondents' action of installing the cylinder unequivocally amounted to rejection of the offer.[80] The contract could not be varied unilaterally.[81]
2. The magistrate's findings on Mr La Mela's alleged implied term were expressed as follows:

[Mr La Mela] alleges that the [contract] contained an implied term that [Franklexis] would not undertake any works or repairs to the Alfa that were specifically not required by [Mr La Mela], or where [Mr La Mela] expressly instructed [the respondents] not to undertake those works or repairs.

... Consistent with my finding that the [contract] was formed on or about 20 February 2012, the contract was formed, and the parties bound, at that point.

Applying the legal principles [as to implied terms], I cannot imply a term as the one submitted. [Mr La Mela] stated to [Mr Fogliani] that he did not want the master cylinder installed after he handed him the master cylinder he had collected from Cileberti. The only reason he collected and paid for the master cylinder was based upon the clear oral agreement between the parties for him to do so. [Mr La Mela] had no other reason to collect, and pay for, the master cylinder.

I would accept that there is an implied term to follow the directions of one party to a contract in general as long as they are consistent with the essential terms of that contract ...

The installation of the master cylinder was required, in any event, given the evidence in this trial.[82]

1. Accordingly, it appears that the magistrate rejected the suggested implied term on the basis that - in a context where it was raised in support of a contention that irrespective of the contract to install the respondents were bound not to install the master cylinder given Mr La Mela's express directions to the contrary - the suggested implied term would contradict and was inconsistent with the essence of the contract.[83] As explained below, the grounds of appeal to this court do not raise for consideration the correctness of this conclusion.
2. The magistrate's findings as to the nature and terms of the contract were determinative of the counterclaim for payment of Franklexis' invoice for the $480.05 and Mr La Mela's claim for delivery up of the Alfa. Judgment was entered against Mr La Mela for the $480.05.[84] The claim for delivery up had to fail so far as Mr Fogliani was entitled to assert a workman's lien (referred to by the magistrate as an 'artificer's lien').[85]
3. The magistrate heard argument as to the appropriate costs orders on 5 October 2017. The then solicitor for Mr La Mela conceded that the respondents would be entitled to costs on the counterclaim.[86] However, it was argued that the respondents were only partly successful - recovering the $480.05 but not a significantly larger amount claimed by way of storage costs. The then solicitor for Mr La Mela submitted that the amount recovered was a 'tiny proportion' of the amount of the counterclaim.[87] On behalf of Mr La Mela it was submitted that costs should be awarded in relation to the claim for the $480.05 but not the claim for the storage fees.[88] Alternatively, if there was to be some apportionment reducing the costs recovered on the counterclaim, the costs should be reduced by 90% to 80% to reflect that the major part of the counterclaim was dismissed.[89]
4. There was no argument presented on behalf of Mr La Mela to the effect that Mr La Mela should recover his costs of defending the counterclaim so far as it claimed the storage costs.
5. The primary judge summarised the basis for the magistrate's costs decision in terms that may be adopted in these reasons. The magistrate:
   1. Acknowledged that an award of costs is ultimately discretionary;
   2. Applied s 25 MCCPA[90] and found that it could not be seriously contended that the successful party was not entitled to their costs unless the court considered there was a good reason not to make such an order (see s 25(1) MCCPA);
   3. Recognised that the costs for the claim and counterclaim needed to be considered separately;
   4. Found that the claim for storage fees though a significant part of the quantum of the counterclaim which resulted in the transfer of the matter from the minor case claim division, did not unduly add to the length of the trial;
   5. Found that the claim for storage fees was capable of argument given the manner it was put and the authorities; and
   6. Though [the respondents] had only been partially successful on the counterclaim and then only by a small amount, [considered] this was not a good reason not to award them costs given points 4 and 5 above.[91]
6. The magistrate referred to the decisions of this court in Amaca Pty Ltd v Hannell[92] and Bowen v Alsanto Nominees Pty Ltd.[93] Those cases acknowledge that: (1) the court has a broad discretion as to costs; (2) generally costs follow the event; (3) the court may order that a successful party recover only a portion of its costs where the party has been unsuccessful on discrete issues, but that should not be done as a matter of course; (4) the power to so adjust is properly exercisable only where there are discrete and severable issues upon which the generally successful party has failed and which have added to the costs of the proceedings in a significant and readily discernible way.[94] The magistrate identified those principles and incorporated them in his costs determination.[95]
7. In oral exchanges with the parties' solicitors, which the magistrate incorporated into his reasons,[96] the magistrate identified that the storage costs counterclaim was a 'relatively' or 'very' discrete issue'.[97] His Honour also recorded his view that the overwhelming time at trial was devoted to the contract - its nature and the circumstances surrounding it - rather than the legal principle that underpinned the counterclaim for storage costs[98] (the submissions on this point being described as 'very brief').[99]
8. In the circumstances the magistrate considered it appropriate to reduce the respondents' costs on the counterclaim by 25%.[100]

1. The primary judge identified, correctly, that it was necessary for Mr La Mela to demonstrate error.[101] The primary judge reviewed the background facts and the magistrate's findings.[102] There is no complaint to the effect that the primary judge misapprehended the magistrate's findings. Among other things, her Honour expressly noted that the magistrate found that the contract between the parties was formed on 20 February 2012 and was for the installation of the master cylinder.[103]
2. The primary judge identified that Mr La Mela's grounds of appeal in relation to the liability decision fell within three broad categories:[104]
   1. Complaints about the conduct of the litigation.
   2. Complaints about the magistrate's failure to consider various provisions of the Australian Consumer Law not argued at trial.
   3. Complaints about factual matters.
3. On appeal in this court no argument was advanced which sought to reagitate anything within the first two categories. Accordingly, those matters - and the primary judge's rejection of those complaints - can be put to one side. Indeed, even as to the last category, there is only one aspect that is said by Mr La Mela to justify the appeals to this court. This is the last of Mr La Mela's complaints before the primary judge as to factual matters: that Mr La Mela told Mr Fogliani three times not to install the master cylinder.[105]
4. In his written submissions on appeal to this court Mr La Mela submitted that the complaint so articulated sufficiently raised the point about the 'instructions' having contractual effect.[106]
5. The primary judge dealt with this complaint directly. Her Honour observed that the magistrate accepted that Mr La Mela instructed Mr Fogliani three times not to install the master cylinder, but was not persuaded that this varied the prior contract to install the cylinder. Her Honour concluded that none of the matters raised - including the one now alleged to provide justification for the present appeal - identified any legal or factual error by the magistrate.[107]
6. Similarly, having recounted the magistrate's reasons for the costs decision,[108] the primary judge held that Mr La Mela had not identified any legal, factual or discretionary error.[109] That was unsurprising in circumstances where the complaints made were the same as those made in relation to the appeal against the liability decision.[110]

1. There are three grounds of appeal. Grounds 1 and 2 are concerned with the liability decision and may be dealt with together. Ground 3 is raised in the alternative and concerns the costs decision. All three grounds allege that the primary judge erred in upholding and not finding error in the magistrate's decision.
2. Ground 1 alleges that the primary judge erred in law in upholding the magistrate's finding that a (bilateral) contract was formed on 20 February 2012 with terms that Franklexis would install a master cylinder and be paid a reasonable amount for doing so. The alleged error is particularised in three ways. The appellant alleged that:[111]
   1. The exchange between Mr La Mela and Mr Fogliani on 20 February 2020 did not reveal a manifestation of mutual intent as to the making of a contract.
   2. There was no or no sufficient prior course of dealings or subsequent conduct to support the existence of the contract.
   3. The terms of the contract could not have arisen on the basis of necessity or as a legal incident of the contract. (However, no submissions were expressly directed to this aspect of the alleged error.)
3. The gravamen of Mr La Mela's argument was that the 20 February 2012 telephone conversation amounted to no more than an offer - described by the appellant's written submissions as a 'unilateral contract' - which was rejected by conduct insofar as Mr La Mela told the respondents not to install the master cylinder. Mr La Mela submitted that a bilateral contract did not arise.[112]
4. It was, however, suggested that some other informal contract was made when Mr La Mela arranged for the Alfa to be towed to Franklexis' workshop on 15 February 2012.[113] Mr La Mela repeated the contention that the contract was formed on 15 February 2012, rather than 20 February 2012, in his oral submissions at the appeal hearing.
5. Ground 2 assumed success on ground 1.[114] If, because ground 1 was upheld, there was no 20 February 2012 contract to install as found by the magistrate and only the 15 February 2012 informal contract as contended for by Mr La Mela, then it was alleged that the primary judge erred in law in upholding the magistrate's finding that the respondents did not breach the contract by installing the master cylinder. Mr La Mela contended that the primary judge should have found that the respondents breached the contract by installing the master cylinder, were not entitled to charge for its installation, and were not entitled to assert a lien over the Alfa.[115]
6. Mr La Mela sought orders reversing the dismissal of his claim and the partial upholding of the counterclaim. He sought further orders that the matter be remitted to the magistrate for assessment of damages for wrongful detention and conversion of the Alfa.[116]
7. Ground 3 alleges that the primary judge erred in finding that the magistrate's decision as to the costs of the counterclaim did not reveal discretionary error. The alleged discretionary error relied on is not identified in the ground. In submissions all that is said is that the magistrate was in error in purporting to apply the principles in relation to a generally successful party being deprived of some of its costs in relation to issues on which it failed.[117]
8. In his appellant's case Mr La Mela claimed that the primary judge should have set aside the magistrate's costs orders and made orders that: (1) Mr La Mela pay the respondents' costs of the counterclaim in relation to the payment of the $480.05 invoice; and (2) the respondents pay Mr La Mela's costs of defending the counterclaim for the storage fees.[118] Mr La Mela went further in his oral submissions at the appeal hearing. Mr La Mela contended that the appropriate order was that the respondents pay all his costs.
9. The error is alleged, and a costs order sought in favour of Mr La Mela, notwithstanding Mr La Mela's concession before the magistrate and the absence of any contention at the time that a costs order should be made in his favour.

Mr La Mela's applications to adjourn the appeal hearing and amend the grounds of appeal

1. It is appropriate, at this stage, to provide our reasons for the orders of the court dismissing Mr La Mela's application to adjourn the appeal hearing and the applications for leave to amend to add new grounds of appeal.

1. Mr La Mela was represented in the appeals from their inception (in February 2019) until 30 March 2020 when he filed a notice of self-representation. During the time Mr La Mela was represented there was an application, on Mr La Mela's behalf, to amend the grounds of appeal. That application, which was opposed, was allowed on 16 August 2019. Thereafter the respondent filed a substituted respondent's answer and appeal books were lodged on 22 November 2019. On 9 March 2020 the parties were informed of the 6 May 2020 hearing date.
2. On 28 April 2020 Mr La Mela lodged an amended application in an appeal (the amended application being dated 24 April 2020) by which, among other things, he sought an order postponing the appeal hearing for at least five weeks. On 30 April 2020 that aspect of the application was referred to the hearing of the appeal. The affidavit accompanying the application lacked clarity. The basis for the adjournment appeared to be various amendments that Mr La Mela wished to effect to the appeal books and the designation of the parties. At the appeal hearing, however, Mr La Mela informed the court that he sought the adjournment so that he could amend his grounds of appeal and submissions. This explained the somewhat oblique observation in Mr La Mela's affidavit in support of the application that '[m]y counsels (sic) have been unwilling to amend the application, to facilitate the just resolution of the real issues in the dispute'.[119]
3. Mr La Mela said that, with an adjournment, he would seek to add two new grounds to the following effect:[120]
   1. The primary judge erred in upholding the erroneous finding of the magistrate that Franklexis held a valid lien over the Alfa.
   2. The primary judge erred in upholding the decision of the magistrate insofar as the magistrate erred in relying on the absence of expert evidence on the part of Mr La Mela as to the necessity to replace the master cylinder.
4. In considering whether there should be an adjournment of an appeal hearing the court evaluates the interests of justice and is informed by the goals and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA).[121] The following factors militated against a favourable exercise of discretion on Mr La Mela's application to adjourn. First, Mr La Mela had previously been afforded an opportunity to amend his grounds of appeal. Second, the application came very late. The appeal hearing had been listed since 9 March 2020 (ie some eight weeks earlier); however, the application seeking adjournment was lodged a mere one week before the hearing date. No compelling reason was advanced for the lateness of the application. Third, insofar as the ground for the requested adjournment was the intention to seek to amend the grounds of appeal, the suggested amendments could and should have been reduced to a written form well prior to the appeal hearing rather than, as occurred, being summarised orally. Had Mr La Mela acted in a timely way an application to amend could have been heard and determined well before the appeal hearing. Fourth, this litigation has already been drawn out and has resulted in costs that are disproportionate to the amount in issue. Further delay in the final resolution of the dispute would plainly be prejudicial to the respondents. Fifth, adjournment was inconsistent with the public interest in the efficient use of the resources of the court.
5. Finally, the additional grounds as foreshadowed by Mr La Mela had no merit. They were not advanced as grounds when Mr La Mela was represented by solicitors and counsel. The first, whether Franklexis held a valid lien, inevitably turned on whether there was a contract to install the master cylinder as found by the magistrate and the primary judge. In that respect it could add nothing to ground 1. The second, the magistrate's apparent reliance on the absence of any expert evidence on the part of Mr La Mela, was irrelevant to the proper determination of the contractual relationship, if any, between the parties. This proposed further ground appeared to be something of an afterthought on the part of Mr La Mela. It was not initially articulated in support of the adjournment application, although Mr La Mela did say that there was another point which had escaped him. Even when it was belatedly relied on there was no indication by Mr La Mela as to how, if there was such an error, it could be material in the sense that it would have resulted in the primary judge allowing the appeal against the orders of the magistrate.
6. By the time of the appeal hearing Mr La Mela had been afforded a sufficient opportunity to formulate and support the case he wished to advance on appeal. Adjournment to allow reformulation - in the form of new grounds which were not self-evidently grounds of merit and in respect of which leave to amend would have to be sought - would have been to the prejudice of the respondents and other litigants in this court. The adjournment would have been contrary to the goal in O 1 r 4A and achievement of the objects of case flow management in O 1 r 4B.
7. For these reasons Mr La Mela did not satisfy us that it was in the interests of justice to adjourn the appeal hearing. To the extent that, in seeking the adjournment, there was an implicit application for leave to amend to advance the additional grounds of appeal as nominated in support of the application to adjourn, we considered there should be no such leave. Amendment would have necessitated an adjournment and a proper basis for adjournment had not been made out.

1. In the course of Mr La Mela's oral submissions there was a subsequent application to add a new ground to the effect that the primary judge erred in upholding the decision of the magistrate insofar as the magistrate erred in finding that a contract was established on 15 February 2012.[122]
2. It was difficult to understand this proposed new ground. There was no such finding by the magistrate. And elsewhere it was Mr La Mela's contention that an informal contract arose as and from 15 February 2012. Accordingly, the putative ground ought to be understood in terms that the alleged error of the magistrate was in not finding that a contract was established on 15 February 2012.
3. Ground 1 already asserted that it should have been found that an informal contract arose on 15 February 2012.[123] In our view nothing was achieved by this point being separately advanced as an independent further ground. Even if, properly analysed, there was an informal agreement as and from 15 February 2012, that alone did not mandate a finding of error in terms of ground 1. The identification of such an informal agreement between the parties as at 15 February 2012 was not inconsistent with the 20 February 2012 contract to install the master cylinder as found by the magistrate and upheld by the primary judge. Success on the appeal ultimately required Mr La Mela to establish error in finding that, as and from 20 February 2012, there was a legally binding contract between the parties to install the master cylinder, and not merely an unaccepted offer in that regard. An error in terms of failing to find that there was an informal contract as and from 15 February 2012 could not be dispositive of the appeal.
4. As an independent ground the suggested further new ground of appeal lacked utility. To the extent that the contention was advanced in support of ground 1 the point was already before the court. In the circumstances the proposed amendment served no purpose and had to be refused. The court so ordered.[124]

Grounds 1 and 2: Mr La Mela's contention that there was no contract to install the master cylinder The parties' submissions

1. Ground 1 is concerned with when the contract between Mr La Mela and Franklexis was formed and the terms of the contract. Mr La Mela, while no longer challenging the facts as found by the magistrate, contended that properly analysed those facts did not establish that as and from 20 February 2012 there was a binding contract between Mr La Mela and Franklexis for the respondents to install the replacement master cylinder in the Alfa.
2. Mr La Mela's submissions in support of ground 1 contained a number of strands:
   1. For reasons described more fully at [64] - [66] below, Mr La Mela asserted there was no manifestation on 20 February 2012 of mutual intent to contract.
   2. The prior dealings were said to be insufficient in number, and too unclear and inconsistent, to provide a basis to incorporate or imply any terms by reason of a prior course of dealings. In any case the doctrine of incorporation by reason of prior course of dealings was said not to apply to the incorporation of oral terms.
   3. The matters of subsequent conduct relied on by the magistrate were said not to support the contract terms as found.
   4. The proposition that Mr La Mela bound himself to the installation of the master cylinder, and could not give a contrary instruction, was said to be a rigid and odd result in the context of an informal oral contract and not to accord with what a reasonable business person would have understood from the dealings and communication.
3. Mr La Mela also submitted that, if the true agreement entitled him to direct the respondents not to carry out recommended work, there was no need to consider any argument about variation. That much must be accepted. Similarly, there was said to be no need to imply a term to direct the respondents as to the work to be carried out. However, both matters simply begged the question of the nature and terms of the agreement between the parties.
4. Mr La Mela contended that, properly construing the facts as found, he and the respondents entered into an informal agreement on 15 February 2012 under which, in effect, Mr Fogliani was to do no more than: (1) investigate the fault with the Alfa; and (2) then discuss his views and any further steps with Mr La Mela. Thereafter the agreement was to be, and was in fact, expanded from time to time as further matters were discussed and agreed. In that regard Mr La Mela pointed to the reconditioning of the Alfa's gearbox. However, as explained at [59] above, establishing that such an informal agreement arose on 15 February 2012 could not alone result in ground 1 being upheld. Ground 1 required Mr La Mela to establish error in the finding that on 20 February 2012 there was a legally binding contract to install the master cylinder.
5. An integral component to Mr La Mela's argument in support of ground 1 was his suggested analysis of the 20 February 2012 telephone conversation. Mr La Mela rejected the magistrate's conclusion that there was an offer and acceptance. Mr La Mela contended that:
   1. Franklexis made an offer to Mr La Mela to install a replacement master cylinder if Mr La Mela purchased the part from Cileberti Motors and provided it to the respondents for installation.
   2. He, Mr La Mela, could only have accepted the offer by so acting - at which time it was said that 'the unilateral contract arising from the making of the offer would have been replaced by a bilateral contract'.[125]
   3. The offer was rejected. Mr La Mela purchased and delivered the master cylinder. However, in effecting delivery Mr La Mela told the respondents that the cylinder should not be installed - a qualification which was unequivocally incompatible with acceptance by conduct of the offer to install. Thus no contract arose for the respondents to install the master cylinder.
6. In support of this analysis Mr La Mela relied on the principles in relation to what are sometimes referred to as 'unilateral contracts' - especially those principles as essayed by Pullin JA in Hughes v St Barbara Ltd.[126]
7. It is unnecessary to recount in detail Mr La Mela's separate submissions in support of ground 2. Ground 2 inevitably stood or fell with ground 1. Mr La Mela essentially submitted that ground 2 should be upheld as findings as to the contract in terms of ground 1 should have led to findings of breach of contract on the part of the respondents.
8. In answering ground 1 the respondents, in substance, relied on the reasoning of the magistrate as endorsed by the primary judge. In addition, so far as Mr La Mela said that under his 'unilateral contract' analysis no contract was formed on 20 February 2012 to install the master cylinder, the respondents contended that this was a new argument not raised at trial. The respondents contended that the new argument was inconsistent with Mr La Mela's position at trial, there being no dispute that a contract existed between the parties. The respondents argued that Mr La Mela was bound by the conduct of his case at trial as there were no exceptional circumstances such as would permit a new case to be advanced on appeal.
9. The respondents contended, in any event, that the facts as found did not constitute an instance of a unilateral contract where one party made a promise which was dependant on the other party doing an act. Rather, on the respondents' submission there was a bilateral contract in which: (1) having inspected and diagnosed the fault with the Alfa, Franklexis, by Mr Fogliani, offered to install a replacement master cylinder (with Mr La Mela to supply the relevant part); and (2) Mr La Mela accepted that offer. Mr La Mela's attendance at Cileberti Motors and purchase of the master cylinder, together with his delivery of the cylinder to the respondents, was said to be consistent with his acceptance of the offer.

1. The respondents are correct in their complaint that before the magistrate there was no dispute about the existence of a contract between the parties. However, before the magistrate Mr La Mela did not accept the proposition that a contract arose out of the telephone conversation of 20 February 2012. Similarly to what is now said on appeal to this court, Mr La Mela relied on an informal contract which was said to have been formed on 15 February 2012.
2. While, in that respect, it cannot be said that Mr La Mela is advancing a new case on appeal, the same does not hold for the 'unilateral contract' analysis that is the true foundation for the argument advanced on appeal in this court: no such case was advanced before the magistrate or the primary judge. It is a new point.
3. The suggestion, recounted at [36] - [37] above, that Mr La Mela's statements to the respondents not to install the master cylinder - as raised before the primary judge - sufficiently raised the question of contractual effect as advanced on this appeal, is no more than an assertion and lacks any substantive merit. In no way did that reference to the magistrate's factual findings raise any question as to the proper legal characterisation of the whole of the parties' dealings and communications as is now sought to be agitated by ground 1. This is an instance of an appellant seeking to rely on an argument not relied on at first instance, or before the District Court on an initial appeal, which at the very least attracted the general principles relating to whether such a new point might be [127]ertained on appeal.127
4. The present case might be viewed as not one where the new point could possibly have been met by evidence at trial. Rather, this might be seen as a case where the relevant communications and associated dealings were fully explored in evidence before the magistrate. There was no suggestion by the respondents that there was any further evidence that could have been adduced in answer to the point. Moreover, Mr La Mela relies on the facts as found by the magistrate. In substance what Mr La Mela seeks is the judgment that he says ought to have been given by the magistrate on the facts as found at trial had the applicable legal principles been correctly applied to those facts. It may be that this is permissible on an appeal under s 42 of the Magistrates Court (Civil Proceedings) Act in the same way that the High Court will, exceptionally, entertain a question of law notwithstanding that the point was not raised at trial or at an intermediate appellate level.[128]
5. It is not necessary, however, to come to a final conclusion on whether it is now too late for Mr La Mela to raise this new point. For the reasons set out below, ground 1 ought to be dismissed on its merits.

1. Mr La Mela's argument in support of ground 1 invites the court to accept that the 20 February 2012 communication and related dealings should be analysed in terms of a 'unilateral contract'.
2. The term 'unilateral contract' has been said to have an oxymoronic quality.[129] There must, of necessity, be two parties to a contractual obligation.[130] However, the term unilateral contract has been used to describe the contract formed following an offer by way of promise made by one party (the promisor) where the offer is to be and is accepted by another (the promisee) by doing an act or fulfilling a condition specified by the promisor. In United Dominions Trust (Commercial) Ltd v Eagle Aircraft Services Diplock LJ described a unilateral contract in this way:

Under contracts which are only unilateral - which I have elsewhere described as 'if' contracts - one party, whom I will call 'the promisor', undertakes to do or to refrain from doing something on his part if another party, 'the promisee', does or refrains from doing something, but the promisee does not himself undertake to do or to refrain from doing that thing ... A unilateral contract does not give rise to any immediate obligation on the part of either party to do or to refrain from doing anything except possibly an obligation on the part of the promisor to refrain from putting it out of his power to perform his undertaking in the future. This apart, a unilateral contract may never give rise to any obligation on the part of the promisor; it will only do so on the occurrence of the event specified in the contract, viz, the doing ... of a particular thing. It never gives rise, however, to any obligation on the promisee to bring about the event by doing or refraining from doing that particular thing. Indeed, a unilateral contract of itself never gives rise to any obligation on the promisee to do or to refrain from doing anything.[131]

1. A contract is 'unilateral' where the promisee makes no counter‑promise to perform the stipulated act or abstention. By contrast, under a bilateral contract each party undertakes an obligation - the mutual promises being consideration each for the other. Hence a bilateral contract involves a promise for a promise while a unilateral contract involves a promise for an act.[132]
2. The classic illustration of a unilateral contract is provided by Carlill v Carbolic Smoke Ball Co.[133] A more modern illustration might be where an automotive services provider (the promisor), having previously provided a service to a customer (the promisee), provides an unsolicited offer to the customer in a follow-up customer care email: the automotive services provider says that it will discount the cost of its next service by 5% if the customer provides a positive review on the provider's Facebook page by recommending the provider. The customer is not obliged to do anything. However, if the customer provides such a recommendation, thereby accepting the offer made by the automotive services provider, the latter will be obliged to allow the discount on the next service.
3. The promisor's offer must amount to a request, either express or implied, that the promisee do an act or fulfil a condition;[134] and the promisee must act on the faith of the offer or in reliance on the offer.[135] With such a unilateral contract the consideration on the part of the promisee is completely executed by the doing of the thing which constitutes acceptance of the offer.[136]
4. As Pullin JA explained in Hughes v St Barbara Ltd, on occasions the unilateral contract may be that the promisor will enter into a synallagmatic contract with the promise upon the occurrence of the event specified in the unilateral contract. In those circumstances, where the act is done or the condition fulfilled, it results in a synallagmatic contract: there is then a reciprocally binding contract. The unilateral contract is discharged and the parties accept new obligations under the synallagmatic contract. If there are any remaining obligations on the part of the promisee, those obligations do not arise out of the unilateral contract. Rather, they are an incident of the subsequent synallagmatic contract which the promisee chose to enter into by doing the act or fulfilling the condition.[137]
5. Mr La Mela argued that the appropriate characterisation of the 20 February 2012 telephone conversation was in terms of a unilateral contract. Mr La Mela argued that he did not bind himself to purchasing the master cylinder and delivering it to the respondents for installation in the Alfa. On Mr La Mela's case on appeal it was contended that, in delivering the cylinder coupled with an instruction not to install the part, he rejected the respondents' offer: in only delivering the master cylinder with accompanying instructions not to install it he could not be taken to have done the act or fulfilled the condition the subject of the respondents' offer.
6. We are unable to accept Mr La Mela's unilateral contract analysis. In our opinion the facts as found reveal, as and from the telephone conversation between Mr La Mela and Mr Fogliani on 20 February 2012, a concluded bilateral agreement which evinced an intention to enter into legal relations.
7. The question is whether, by the telephone conversation on 20 February 2012, the parties reached a bilateral agreement and had the necessary intention to immediately create contractual relations. The question must be assessed consistently with the objective theory of contract. As was said by Gaudron, McHugh, Hayne and Callinan JJ in Ermogenous v Greek Orthodox Community of SA Inc:

Although the word 'intention' is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.[138]

1. The most common, but by no means exclusive, approach to determining whether parties have concluded negotiations and reached agreement is to ask whether there has been both offer and acceptance. There must be an outward manifestation of an intention to form a contract. The court's task is to ascertain from the parties' actions and dealings whether they intended to make a concluded bargain. That intention is tested objectively by reference to what a reasonable observer would have concluded. The 'acid test' has been said to be whether, viewed as a whole and objectively from the point of view of reasonable persons on both sides, the dealings show a concluded bargain.[139]
2. The present case is not one which requires detailed consideration of the principles employed in offer and acceptance analysis. It suffices to state the following:[140]
   1. An offer is promissory in nature. It will consist of a statement of the terms on which the alleged offeror is prepared to be bound if the other party accepts the putative offer. An offer will convey to the other party an invitation to accept the terms and thereby bind both parties in contract.
   2. An offer must be distinguished from a mere negotiating position or the provision of information. The distinction lies in the conveying, by an offer, of an objective intention to be immediately bound upon acceptance by the offeree.
   3. In assessing whether an offer has been made, and if so the terms of the offer, the court considers the issue as a matter of construction and employs an objective test. An alleged offer ought ordinarily to be interpreted in the sense in which it would reasonably be understood by a reasonable person in the position of the putative offeree.
   4. In the case of a bilateral contract, acceptance ordinarily requires communication by the offeree to the offeror of a final and unqualified assent to the terms of the offer and the invitation within the offer (either express or implied) that the offeree commit itself to the contract.
   5. Whether or not there is acceptance is determined objectively, from the perspective of a reasonable person in the position of the offeror, by reference to the words or actions of the offeree.
3. In a case such as the present - where there are relatively informal oral dealings between a services provider and a consumer - resolution of whether there was an offer and acceptance of that offer must take into account the past communications between the parties, the language used by them when it is said that they reached agreement and the circumstances in which the parties communicated with each another.
4. The important facts in the present case are these:
   1. Franklexis conducted business as a mechanical repairer and automotive services provider. Mr Fogliani, its director and proprietor, was an experienced mechanic. It can be accepted that, as at 20 February 2012, these matters were known to Mr La Mela given that he had previously used the respondents' services.
   2. Mr La Mela owned motor vehicles including the Alfa.
   3. On three prior occasions, within the five months before 15 February 2012, Mr La Mela had engaged Franklexis to provide automotive services on one of his cars for reward. Two of those occasions involved the Alfa. On each of the two occasions involving the Alfa, after Mr La Mela left the vehicle with Mr Fogliani, Mr Fogliani identified the work that needed to be done, communicated that to Mr La Mela, received instructions to proceed and performed the work. Franklexis was paid a fee for the services as provided.
   4. The Alfa failed again in mid-February 2012. Mr La Mela sought Mr Fogliani's advice. When a suggested quick fix was unsuccessful Mr La Mela made arrangements for the Alfa to be towed to Franklexis' workshop. Mr La Mela informed Mr Fogliani that the car was not working. Mr Fogliani said to leave the car with him and he, Mr Fogliani, would take a look and fix it.
   5. On 20 February 2012 there was a telephone conversation between Mr Fogliani and Mr La Mela as recounted at [15.7] above. Mr Fogliani identified the necessity to replace the master cylinder and where Mr La Mela could buy a replacement. The arrangement that he purchase and supply the master cylinder was of benefit to Mr La Mela (in keeping with his nature as an astute consumer) as Mr La Mela would obtain the replacement part at cost without any mark-up added by Franklexis as the repairer. Mr Fogliani said that he would install the replacement cylinder if Mr La Mela collected and paid for it. Mr La Mela agreed. Mr La Mela's contemporaneous agreement - an integral part of the unchallenged factual findings - has a significance that is overlooked in the unilateral contract analysis that Mr La Mela advanced on appeal.
   6. The next day Mr La Mela attended at Cileberti Motors and purchased the master cylinder.
5. Those facts, taken together and viewed objectively, ought to be characterised in legal terms as follows. Having identified the fault with the Alfa and what was required to fix it, Mr Fogliani, on behalf of Franklexis, offered to install a replacement master cylinder (to be purchased by Mr La Mela) for, by implication, reasonable labour costs - the offer being to charge for labour only as the offer identified that Mr La Mela was himself to obtain the relevant part from Cileberti Motors. Objectively, and properly understood, Mr Fogliani's offer: (1) was an offer in the strict legal sense - objectively intended to be binding upon acceptance; and (2) invited immediate acceptance by a response from Mr La Mela - it did not invite acceptance by an act of providing the master cylinder. Mr La Mela accepted that offer when he expressly 'agreed' to it. The relevant factual finding that Mr La Mela agreed is not challenged. There was a binding legal contract as and from the 20 February 2012 telephone conversation.
6. It was an express term of the contract that Mr La Mela was to provide the replacement master cylinder to the respondents and it was necessarily implicit in the agreement that the respondents would not charge for the supply of the replacement part upon its installation. Mr La Mela's performance of that obligation was a condition precedent to Franklexis' performance of its obligation to install. It was not, objectively, a condition precedent to the formation of the contract in that: (1) the location of the part (at Cileberti Motors) had been ascertained by the respondents and the procurement of the part could not objectively be regarded as a potential impediment to the formation of the contract for repair; and (2) it was in that context that Mr La Mela had expressly 'agreed' to the installation of the replacement part.
7. We do not accept that, viewed objectively, Mr Fogliani was offering to enter into a unilateral contract whereby a binding legal agreement to install the master cylinder would only arise on Mr La Mela purchasing and delivering the part as located at Cileberti Motors. A reasonable observer would not have reached such a conclusion. As Mr Fogliani did not then have an appropriate master cylinder, it was necessary that one be obtained. Part of the arrangement proposed by Mr Fogliani to which Mr La Mela agreed in the telephone conversation of 20 February 2012 was for Mr La Mela to purchase and deliver the master cylinder. That feature of the arrangement had benefits for both parties: it relieved the respondents from the need to spend time obtaining the cylinder; it saved Mr La Mela the mark- up on it. To our minds, this feature of the arrangement did not alter the character of Mr Fogliani's offer. Had the contract been for the respondents to obtain the part and install it, the contract would plainly have been bilateral and formed when Mr La Mela agreed on 20 February 2012. In our view, the same is true of the discussion with its arrangement for Mr La Mela to obtain the part.
8. In a context where the Alfa had been left with the respondents to locate its fault - and there were two earlier occasions where similar circumstances had occurred with Mr La Mela giving instructions that specified work be performed after Mr Fogliani had identified its necessity - there was nothing unilateral in the conversation and associated dealings. Mr Fogliani was making an offer for acceptance by communication of Mr La Mela's assent rather than for acceptance by the purchase and delivery of the part. Nor was the relevant commitment confined to the respondents. Mr La Mela agreed to the arrangements in their totality, communicating his acceptance, and did so in the course of the telephone conversation. The parties entered into a bilateral agreement by offer and acceptance exchanging promise for promise: Franklexis would install; Mr La Mela would supply the replacement part and pay for its installation.
9. The agreement as so found is one where Franklexis' entitlement to charge a reasonable amount for the labour involved in installing the master cylinder arises from the offer properly construed. Accordingly, so far as that is a term, it does not arise by implication in the strict sense. If, however, there was no such express term, the obligation to pay a reasonable price for the respondents' labour would readily be implied given the nature of the contract:[141] even though the contract was initially executory, the repair work was done and the contract was fully executed. That said, identification of the true juridical basis for the payment obligation is of no moment to the proper disposition of Mr La Mela's appeal. Mr La Mela's contention was that there was no binding bilateral contract. He did not take issue with whether there was a payment obligation - and, if so, its basis - if, properly characterising the facts as found, there was an immediately binding bilateral contract.
10. Ground 1 fails insofar as it rests on Mr La Mela's unilateral contract analysis, such analysis being integral to acceptance of ground 1. There was, as the magistrate and primary judge both found, a binding legal agreement - in the form of a bilateral contract - formed by conventional offer and acceptance. The other matters raised by Mr La Mela in support of ground 1 may be dealt with relatively briefly.
11. First, the magistrate's reliance on the prior dealings between Mr La Mela and the respondents was not for the purpose of determining whether there was a sufficient course of prior consistent dealings to incorporate terms by implication. Those dealings did no more than provide relevant context - as the magistrate described it 'surrounding circumstances' - that was of assistance in concluding that, viewed objectively, the parties reached an agreement in the telephone conversation of 20 February 2012. In the same way that a contract may be inferred from conduct - dealings being relevant both for what was said and not said - past dealings may assist in concluding that, viewed objectively, the parties' conduct in the form of a conversation revealed a tacit understanding or agreement, or manifestation of mutual assent, which evinced an intention to create legal relations. It is no different to the self-evident truism that resolution of whether a proposal amounts to an offer, and whether a response thereto is to be regarded as acceptance of the offer, ought to take account of the past communications between the parties.
12. Second, as to subsequent conduct, Mr La Mela's attendance at Cileberti Motors and purchase of the replacement master cylinder was consistent with, and provided further confirmation of, the parties having reached an agreement in the telephone conversation. The type of contract under consideration was an informal oral agreement. Subsequent conduct may be considered for the purpose of inferring whether a binding agreement was reached (and, moreover, its subject matter and the identification of its necessary terms).[142]
13. Third, while to some it might seem odd that a consumer in the position of Mr La Mela could not revoke his agreement to work being performed on his own car, an agreement of that type is not so unreasonable or improbable as to compel the conclusion that this was not, viewed objectively, the parties' mutual intent. After all, once agreement was reached, the respondents might then remove the defective cylinder - and this, in due course, would necessitate work being done to install its replacement. The agreement is not unbusinesslike when viewed in this context and when it is recalled that Mr La Mela sought out and relied on the respondents exercising due skill and care based on Mr Fogliani's expertise as a mechanic.
14. In any event, in the circumstances of this case this feature of the agreement is not the result of construing what was discussed between Mr La Mela and Mr Fogliani. There was no express consideration of the point in the parties' communications and dealings. If Mr La Mela was to be able to withdraw from the contract - in substance seeking immediate return of the Alfa without installation of the master cylinder as had previously been agreed - a term or condition to this effect must be found. Before the magistrate Mr La Mela contended for an implied term that would, in substance, have had this effect, but that point was not agitated in this appeal.
15. There is some suggestion in a mid-19th century decision that where goods are bailed under a contract whereby the bailee is required and entitled to do certain work on them, the bailor is nevertheless at liberty to countermand the order for the doing of the work and require that the goods be delivered up (although the bailor may become liable in damages or on a quantum meruit and there is a lien for the work actually done).[143] The basis for the conclusion that the bailor may countermand is unclear. Brooking J took a contrary view in Bolwell Fibreglass Pty Ltd v Foley, stating that the bailee is, generally speaking, entitled to retain possession of the goods and complete the work the subject of the agreement.[144] Brooking J's conclusion was grounded in the view that, where there are reciprocal obligations with one party promising to complete certain work and the other promising to pay for that work, the bailor cannot by breaking or repudiating the contract, compel the bailee to bring the contract to an end and be relegated to a remedy in damages.[145]
16. In Palmer on Bailment (Third Edition) the learned author expresses support for the view of Brooking J in Bolwell Fibreglass Pty Ltd v Foley, stating that the true position is that:

unless the work is of such a nature that it depends essentially on the bailor's cooperation for its completion, or unless the bailee has no substantial or legitimate interest in completing it, the bailee is entitled to proceed to completion and to earn his full agreed remuneration for the commissioned task.[146]

1. Whatever the correct position as to countermand by a bailor as a matter of law, at no time in the appeals has Mr La Mela challenged the rejection of his suggested implied term as would have allowed him to countermand the agreement to install the master cylinder by giving subsequent directions to that effect. Nor did Mr La Mela argue that, if there was a binding bilateral contract formed in the 20 February 2012 telephone conversation, it was on terms that he was authorised to delete work from the contract. Thus, no question arises in the appeals before this court as to whether a contention to either effect might have had merit. Ground 1 turns on whether, as contended by Mr La Mela, Mr Fogliani was proposing a unilateral contract.
2. Ground 1 should be dismissed. Ground 2 was dependent on ground 1 being upheld. As ground 1 should be dismissed, it follows that ground 2 should be dismissed.

1. Ground 3 is without merit.
2. The magistrate's costs determination involved the exercise of a judicial discretion. Accordingly, before the primary judge the standard of appellate review was that described in House v The King:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[147]

1. No alleged error of that type was advanced before the primary judge.
2. In this court Mr La Mela alleged a discretionary error but made no attempt to identify that error. The error was said to arise in applying the principle that a generally successful party may be deprived of some of its costs in relation to issues on which it failed. Mr La Mela pointed to the respondents' failure on the counterclaim for storage fees. Mr La Mela submitted that an issue included a disputed question of fact or law. The magistrate implicitly accepted as much in identifying that the storage costs claim was a discrete issue on which the respondents had failed thereby meaning it was appropriate to reduce their costs on the counterclaim by 25%.
3. On appeal the submission reduced to the proposition that, as Mr La Mela successfully defended the claim for storage fees, he was 'entitled' to his costs of defending that aspect of the counterclaim.[148] So understood ground 3 is a misconceived attempt to request this court to re-exercise the discretion invested in the magistrate by providing for a costs order on the counterclaim in favour of Mr La Mela. It ignores the basal circumstance that this court's jurisdiction is one to correct error in the exercise of the District Court's appellate review of the magistrate's decision. This court, like the primary judge, cannot simply substitute its opinion as to the appropriate costs order merely because it would have exercised the discretion in a different manner to the magistrate.
4. There are in any case at least two reasons why the submission is incorrect.
5. First, in the circumstances of the present case there was no such entitlement to a costs order as a matter of law - that being the implicit suggestion of Mr La Mela's submission. The magistrate correctly identified the salient principles that arose in deciding whether, in the case before his Honour, Franklexis - while successful in part on its counterclaim - should be deprived of part of its costs in the case. It was well open to his Honour to conclude that Franklexis' failure on that part of the counterclaim consisting of the storage costs claim should result in the respondents, although the generally successful party on the counterclaim, recovering only a portion of their costs. Insofar as his Honour determined to reduce the entitlement by 25% it is established that such apportionment is undertaken as a matter of impression rather than mathematical precision.[149] The magistrate had the advantage of hearing the evidence and receiving the parties' submissions, both written and oral. His Honour was best placed to assess the appropriate extent of the reduction. There was and is no proper basis to contend that the magistrate was in error in determining in the exercise of his discretion that it was just and fair to account for the respondents' partial failure on the counterclaim - and Mr La Mela's correlative partial success - by reducing the respondents' costs on the counterclaim in an amount of 25%.
6. Second, the contention on appeal overlooks the fact that Mr La Mela never contended before the magistrate that his partial success on the counterclaim meant that some costs order should be made in his favour. There could be no discretionary error on the part of the magistrate in not making a costs order on the counterclaim that the magistrate was never asked to make. All the more so the primary judge could not err in law in not finding that such a discretionary error was revealed.
7. Ground 3 should be dismissed.

1. For these reasons Mr La Mela's appeals should be dismissed.
2. The appeal notice in relation to the liability decision required an extension of time. The delay is minor and explained. There was no fault on the part of Mr La Mela. The respondents did not suggest any prejudice had been suffered by reason of the short delay. In all the circumstances, while the appeal the subject of appeal notice CACV 28 of 2019 should be dismissed, we would nevertheless grant an extension of time as sought.
3. We propose orders as follows:
   1. On appeal CACV 26 of 2019, the appeal is dismissed.
   2. On appeal CACV 28 of 2019:

(a) The time for the appellant to lodge a notice of appeal is extended to 25 February 2019.

1. The parties should be heard on the costs of the appeals.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] GAB 9 - 10. See also the appellant's statement of minor case claim dated 22 January 2013 GAB 4 - 8.

[8] La Mela v Franklexis Pty Ltd [2019] WADC 7 (Primary reasons).

[14] Affidavit of M A K Richards sworn 25 February 2019 WAB 3 - 5.

[16] Primary reasons [109] - [110].

[18] Magistrate's reasons [3] - [5], [15] - [80].

[20] Magistrate's reasons [16], [30]; Primary reasons [30].

[21] Magistrate's reasons [18]; Primary reasons [31].

[22] Magistrate's reasons [16], [18], [80] (bullet point 6); Primary reasons [31].

[23] Magistrate's reasons [19]; Primary reasons [32].

[24] Magistrate's reasons [22]; Primary reasons [34].

[25] Magistrate's reasons [22] - [23], [80] (bullet point 2); Primary reasons [34].

[26] Magistrate's reasons [23]; Primary reasons [35].

[27] Magistrate's reasons [20] - [21]; Primary reasons [33].

[28] Magistrate's reasons [25], [80] (bullet point 2); Primary reasons [36].

[29] Magistrate's reasons [29], [80] (bullet point 2); Primary reasons [39].

[30] Magistrate's reasons [34], [80] (bullet point 2); Primary reasons [43].

[31] Magistrate's reasons [34]; Primary reasons [44].

[32] Magistrate's reasons [34] -[35], [80] (bullet point 2); Primary reasons [45].

[33] Magistrate's reasons [38], [80] (bullet point 3); Primary reasons [47].

[34] Magistrate's reasons [41] - [42], [80] (bullet point 4); Primary reasons [50].

[35] Magistrate's reasons [167] (referring to trial ts 101).

[36] Primary reasons [54]. See Magistrate's reasons [41] - [42], [44], [80] (bullet point 5), [163].

[37] Magistrate's reasons [44], [47] - [48], [76] (bullet point 14), [80] (bullet point 6); Primary reasons [55] ‑ [56].

[38] Magistrate's reasons [50] - [52], [68] - [69], [76] (bullet point 14), [80] (bullet point 7); Primary reasons [58].

[39] The statement by Mr La Mela on 22 February 2012 that Mr Fogliani should not install the master cylinder was referred to by the magistrate as an 'instruction'.

[40] Magistrate's reasons [68] - [71], [79], [80] (bullet point 7), [129] - [131], [164]; Primary reasons [61] ‑ [63], [65].

[42] Primary reasons [59]. See also Magistrate's reasons [134], [137].

[43] Magistrate's reasons [80] (bullet point 13); Primary reasons [65], [67].

[46] Magistrate's reasons [70]. See also Primary reasons [59].

[47] Magistrate's reasons [16]; Primary reasons [23].

[49] Magistrate's reasons [80] (bullet points 8, 10, 11); Primary reasons [63] - [64], [66] - [67].

[51] Primary reasons [2], [70] - [71].

[53] Magistrate's reasons [127]. See also at [165] - [166], [171].

[54] Magistrate's reasons [73], [78].

[55] Magistrate's reasons [73], [79], [120(b)], [175].

[59] Magistrate's reasons [30], [44].

[61] Magistrate's reasons [30], [44], [46], [60] (bullet points 7 - 9), [80] (bullet point 6); Primary reasons [56].

[66] Magistrate's reasons [129] - [131]. See also Appellant's submissions dated 16 August 2017 pars 23 - 26.

[67] Magistrate's reasons [87] - [88].

[68] Magistrate's reasons [123]. See also Appellant's submissions dated 16 August 2017 pars 6 - 7; Appellant's submissions dated 31 August 2017 pars 7, 13, 33 - 34.

[69] Trial ts 450 - 453, 474 (the reference there to 21 February 2012 being an inadvertent error in recollection of the evidence); Respondents' submissions dated 17 August 2017 par 14.

[70] Magistrate's reasons [45], [88], [109], [124], [133] - [134], [161] - [162], [164], [169], [173] - [174].

[71] Magistrate's reasons [163], [167].

[72] Magistrate's reasons [90]. See also at [92], [109].

[73] Magistrate's reasons [102]. See also at [100] - [105], [160], [168], [173].

[74] Magistrate's reasons [105(a) - (b)].

[79] Magistrate's reasons [134], [137], [169].

[80] Magistrate's reasons [134], [137], [174].

[82] Magistrate's reasons [123] - [127].

[83] See also Magistrate's reasons [103].

[89] Costs ts 18. See also costs ts 16.

[90] Referring to the Magistrates Court (Civil Proceedings) Act 2004 (WA).

[92] Amaca Pty Ltd v Hannell [2007] WASCA 158 (S). See also costs ts 20.

[93] Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 (S). See also costs ts 8 - 9.

[94] Amaca Pty Ltd v Hannell [6] - [7]; Bowen v Alsanto Nominees Pty Ltd [5] - [8]. See also Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [48] - [52].

[97] Costs ts 10, 17. See also costs ts 16.

[98] Costs ts 18 - 19. See also costs ts 13.

[101] Primary reasons [12]. See Sethi v Bhavsar [2020] WASCA 52 [31] - [32].

[102] Primary reasons [30] - [106].

[103] Primary reasons [87.1], [94.2].

[106] Appellant's submissions par 26 WAB 21.

[107] Primary reasons [115] - [116].

[111] Appellant's grounds pars 1.4 - 1.6 WAB 10.

[112] Appellant's submissions par 52 WAB 27. See also: Appellant's grounds par 2 WAB 11; Appellant's submissions par 60 WAB 29.

[113] Appellant's grounds par 2.4 WAB 11.

[114] Appellant's submissions pars 61 - 63 WAB 30.

[115] Appellant's grounds par 4 WAB 12.

[116] Appellant's submissions pars 62 - 67 WAB 30 - 31; Appellant's orders wanted pars 1 - 2 WAB 34.

[117] Appellant's submissions par 72 WAB 31 - 32.

[118] Appellant's grounds par 6 WAB 12; Appellant's submissions par 74 WAB 32; Appellant's orders wanted par 4 WAB 34 - 35.

[119] Affidavit of V La Mela sworn 24 April 2020 par 11.

[121] JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38 [3] - [4].

[123] Appellant's grounds par 2.4 WAB 11.

[125] Appellant's grounds par 2.2 WAB 11.

[126] Hughes v St Barbara Ltd [2011] WASCA 234 [95], [97] - [99].

[127] In that regard see the summary in Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [65] - [67].

[128] See eg Crampton v R [6] - [7], [10], [21], [57], [155], [165].

[130] Australian Woollen Mills Pty Ltd v The Commonwealth [1954] HCA 20; (1954) 92 CLR 424, 456.

[131] United Dominions Trust (Commercial) Ltd v Eagle Aircraft Services [1968] 1 WLR 74, 83.

[132] J D Heydon, Heydon on Contract [2.210].

[133] Carlill v Carbolic Smoke Ball Co [1892] EWCA Civ 1; [1893] 1 QB 256.

[134] Australian Woollen Mills Pty Ltd v The Commonwealth (456 - 457), (458), (460); Beaton v McDivitt (1987) 13 NSWLR 162, 182.

[135] R v Clarke [1927] HCA 47; (1927) 40 CLR 227, 234 - 235, 242, 244.

[136] Australian Woollen Mills Pty Ltd v The Commonwealth (456).

[138] Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 [25].

[139] Meates v Attorney-General [1983] NZLR 308, 377, Brambles Holdings v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 [75]; RJ Baker Nominees Pty Ltd v Parsons Management Group Pty Ltd [2010] WASCA 128 [94].

[140] See generally: N Seddon, R Bigwood and M Ellinghaus, Cheshire & Fifoot's Law of Contract (10th Australian Edition) [3.2], [3.3], [3.9], [3.13], [3.22]; JD Heydon, Heydon on Contract [2.10], [2.30] - [2.40], [2.60], [2.130], [2.300].

[141] See K Lewinson and D Hughes, The Interpretation of Contracts in Australia [6.16].

[142] Fazio v Fazio [2012] WASCA 72 [193].

[143] Lilley v Barnsley [1844] EngR 388; (1844) 1 Car & Kir 344; 2 Mood & R 548; 174 ER 377.

[144] Bolwell Fibreglass Pty Ltd v Foley [1984] VicRp 8; [1984] VR 97, 112 (although, as developed at 112 - 113, there were some circumstances in which the bailee might be prevented from insisting on completing the work and recovering the contract price). See also at (111), (113 ‑ 114), (116).

[145] Bolwell Fibreglass Pty Ltd v Foley (111).

[146] N Palmer, Palmer on Bailment (Third Edition) [15-084].

[147] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

[148] Appellant's submissions par 74 WAB 32.

[149] Strzelecki Holdings Pty Ltd v Jorgensen [52].