HRNG ADELAIDE, 8 June 1995 #DATE 8:9:1995 #ADD 28:11:1995
Counsel for appellants: Mr B Hayes QC with Mr S O'Sullivan
Solicitors for appellants: Fisher Jeffries
Counsel for respondent: Mr S Walsh
Solicitors for respondent: Lawson Downs
ORDER Appeal allowed for the purposes of setting aside judgment against the first defendant, described as Chris Angelopoulos, but otherwise the appeal dismissed
JUDGE1 DOYLE CJ This is an appeal against a judgment entered in favour of the plaintiffs in an action heard in the District Court.
2. Judgment was entered for the plaintiffs against the defendants for the sum of $64,626. The judgment was for work and labour done and goods supplied by the plaintiffs in the course of restoration work carried out at the Britannia Hotel in Adelaide. The second defendant, Ditara Pty Ltd ("Ditara"), was the owner of the hotel and, when the work was carried out, held the licence under the Liquor Licensing Act. The first defendant, Angelopoulos, was a director of Ditara and appeared to control its business. The Judge found for the plaintiffs against the defendants not on the basis of a contract, indeed he declined to find that there was a contract, but on the basis of restitution or unjust enrichment.
3. The Judge dismissed a counterclaim by Ditara. The counterclaim was for the cost of remedial works allegedly made necessary because the work done by the plaintiffs was defective.
4. Both defendants appeal against the judgment in favour of the plaintiffs on the claim. Ditara appeals against the dismissal of the counterclaim.
5. Facts: What follows is taken from His Honour's judgment, which canvassed at some length the evidence given before him. I propose to omit details which are not central to the resolution of the issue on appeal. Accordingly, what follows does not attempt to describe all of the events the subject of evidence before His Honour.
6. At the outset I note that His Honour formed an adverse view of the reliability of Mr Angelopoulos. He rejected his evidence wherever it conflicted with that of other witnesses (judgment p32). He proceeded on the basis that Mr Angelopoulos was an experienced business man and property developer.
7. As I have already said, Mr Angelopoulos was the controller of Ditara, which owned the Britannia Hotel. The hotel was occupied and operated by a…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Angelopoulos v Sabatino [1995] SASC 5230
Case
[1995] SASC 5230
Decision Date
CaseChat Overview and Summary
The case of Angelopoulos v Sabatino was an appeal against a judgment entered in the District Court of South Australia in favour of the plaintiffs, who had carried out restoration work on the Britannia Hotel in Adelaide. The defendants, Ditara Pty Ltd and its director Chris Angelopoulos, were found liable for the cost of the work and equipment supplied by the plaintiffs. The appeal was against the judgment in favour of the plaintiffs, and the dismissal of a counterclaim by Ditara for the cost of remedial works allegedly made necessary because the work done by the plaintiffs was defective. The Full Court of the Supreme Court of South Australia upheld the judgment against Ditara, but set aside the judgment against Angelopoulos as he acted in his capacity as a director and shareholder of Ditara, and there was no evidence to suggest that he personally benefited from the work done by the plaintiffs. The court found that the plaintiffs were entitled to recover for their work and equipment under a claim in restitution, as the defendants had accepted the benefits of the plaintiffs' performance of work under circumstances that made it unjust for them to do so without payment. The court emphasised the importance of the notion of acceptance in determining liability in cases of this kind, and noted that the decision should be consistent with existing case law in the area. The amount of restitution was determined to be the market value of the services provided, which was consistent with the trial judge's approach. The counterclaim by Ditara was dismissed as the evidence did not support the claim that the remedial works were due to defective workmanship by the plaintiffs.