Atkins v Hughes - [2020] SADC 32

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
ATKINS v HUGHES & ANOR
[2020] SADC 32
Reasons for Decision of Her Honour Judge Schammer
27 March 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
The Applicant and his wife entered into a Retail Tenancy Agreement (RTA) as tenants with respect to a property at Novar Gardens (the property) owned by the Respondents.
The Applicant claims that at the time he executed the RTA, the Respondents’ property manager (Ray White) for and on behalf of the Respondents, entered into a verbal contract with him whereby the Applicant, a qualified builder, was authorised to undertake any repairs or maintenance work with respect to the property, provided the amount did not exceed $500.00.
Further, the Applicant claims that thereafter Ray White issued to him specific ‘work orders’ instructing him to provide assistance, in his capacity as a qualified builder, by liaising with, supervising and reporting upon the work of other contractors retained by them, for and on behalf of the Respondents, to undertake repair and maintenance work at the property.
The Applicant subsequently issued invoices payable by the Respondents for the work he claims to have undertaken pursuant to the alleged agreement and in accordance with the work orders. The invoices were not paid.
The Applicant filed a Claim in the Adelaide Magistrates Court in the sum of $8,816.90 (plus filing fee) seeking payment of the unpaid invoices. The Respondents denied they had any liability to pay the invoices. The Respondents denied there was any alleged agreement made in the terms as claimed by the Applicant, or at all. The Respondents denied that the ‘work orders’ were requests for the Applicant to undertake any services for which he was entitled to be paid.
After a trial held over two days, the Magistrate dismissed the Claim and ordered the Applicant pay the Respondents’ costs in the sum of $340.00.
Held:
The Magistrate’s judgment was not affected by bias and both parties were afforded procedural fairness.
The Magistrate was correct in finding that there was no agreement entered into by Ray White for and on behalf of the Respondents, authorising the Applicant to undertake repairs and maintenance work with respect to the property and be reimbursed for such work.
The Magistrate was correct in finding that none of the ‘work orders’ constituted a request for the Applicant to provide services, for which he would be paid, either pursuant to the alleged agreement or at all.
Orders:
1 The judgment of the Magistrate made on 25 July 2019 is affirmed.
2 The Application for Review is dismissed.
3 No order as to the costs of and incidental to the Application for Review.
Magistrates Court Act 1991 s 38; Building and Construction Industry Security of Payment Act 2009 ss 13-15, referred to.
Harradine v District Court of South Australia [2012] SASC 96; Johnson v Johnson [2000] 201 CLR 488, considered.

ATKINS v HUGHES & ANOR
[2020] SADC 32
Introduction

On 10 October 2017, Paul Atkins (the Applicant) and his wife, Regina Atkins, entered into Residential Tenancy Agreement (RTA) as tenants, with respect to a property at 26 Sunningdale Ave, Novar Gardens (the property).
The property was owned by Brett and Trudi-Ann Hughes (the Respondents). The Respondents engaged a property manager, Adelaide Rentals Pty Ltd ATFT Adelaide Management Unit Trust trading as Ray White, Adelaide (Ray White) to let the property and to manage the property during the course of the tenancy pursuant to a Property Management Agreement dated 8 April 2016 (PMA).
The Applicant claims to be a qualified builder. He claims that at the time he and his wife executed the RTA, Emma Cauchi, a property manager employed by Ray White, acting as agent for and on behalf of the Respondents, entered into a verbal contract with him wherein she authorised him to undertake any repairs or maintenance work with respect to the property, provided the amount did not exceed $500.00 (the Agreement).
Further, the Applicant claims that from time to time he received express written instructions from Ms Cauchi, for and on behalf of the Respondents, to provide assistance by liaising with, supervising and reporting upon the work of other contractors retained by Ray White, for and on behalf of the Respondents, to undertake repair and maintenance work at the property (the work orders).
During December 2017 and January 2018, the Applicant sent several invoices to Ms Cauchi seeking payment for work he claims to have undertaken pursuant to the Agreement and the work orders. Those invoices were not paid.
By Claim dated 10 September 2018, issued in the Adelaide Magistrates Court, the Applicant claimed from the Respondents a sum of $8,816.90 (plus filing fee). This sum included the unpaid invoices, together with additional charges for interest and accounting fees.
The Respondents deny that Ms Cauchi, on their behalf, entered into the Agreement or instructed the Applicant to undertake any work, as claimed.
The Claim proceeded to trial before a Magistrate over two days in June 2019. The trial was conducted by way of an enquiry using the inquisitorial process. The Magistrate directed the questioning of the witnesses, and at the completion of the evidence took the parties in steps through the important components of the claim (and defence), sought their confirmation that she had correctly restated their position and offered them the opportunity to draw any other matters to the court’s attention by way of closing submissions.
The Magistrate heard evidence from the Applicant, the Respondents and Ms Cauchi. In addition, numerous documents were tendered, comprising Exhibits P1-P31 and D1-D3 and D5-D15.[1] Included in the exhibits was an affidavit sworn by the Applicant’s wife, Regina Atkins on 7 February 2019.[2] Mrs Atkins did not give any oral evidence.
[1] The document recorded as having been tendered as Exhibit D4 was in fact tendered as Exhibit P31.
[2] Exhibit P29.
On 25 July 2019, the Magistrate delivered a detailed Written Judgment wherein she preferred and accepted the evidence of Ms Cauchi to that of the Applicant and determined that there was no agreement in place authorising the Applicant to undertake repair and maintenance work with respect to the property, nor were any requests made for the Applicant to provide any such work, including work supervising other contractors.
The Magistrate dismissed the Applicant’s claim and ordered he pay the Respondents’ costs, fixed in the sum of $340.00.
The Application for Review
By a ‘Notice of Appeal against Magistrate Decision’ dated 31 July 2019 (the Application), the Applicant seeks orders including:
1Striking out the order dismissing the claim;
2Setting aside the judgment entered by the Magistrate; and
3Ordering a re-trial.
Attached to the Application are four exhibits. In addition, the Applicant filed a Case Book comprising two volumes and containing documents under 36 tabs, marked as exhibits. Many of the documents in the Case Book were not tendered as exhibits before the Magistrate. However, it is possible that most, if not all, of the documents were viewed by the Magistrate, as large volumes of material were put before her. The Magistrate only accepted documents as exhibits that she considered relevant.
In the circumstances, I accepted the Case Book, despite some of the documents comprising ‘new evidence’ and insofar as I consider the documents to be relevant, I have relied upon them.
By way of summary only, the Applicant contends that the Magistrate erred in that she:
1was biased against him, in that she provided assistance to the Respondents as to how to defend the claim, prevented him from cross-examining the Respondents’ witnesses and in her manner of questioning of witnesses.
2accepted and preferred the evidence of Ms Cauchi that there was no Agreement, rather than his evidence, supported by that of his wife. It was submitted that Ms Cauchi’s evidence was inconsistent and lacked credibility.
3did not accept the affidavit evidence of his wife, Regina, on the basis that she did not attend at trial and give oral evidence, despite having informed the Applicant that her affidavit was sufficient.
4accepted the hearsay evidence of the Respondents that no agreement had been reached between the parties.
The Applicant also submitted that another Magistrate, who had previously had the carriage of the claim through its earlier interlocutory processes, was biased against him.
The Procedure on Review
Section 38 of the Magistrates Court Act 1991 (MCA) outlines the procedure to be followed in the determination of minor civil actions in the Magistrates Court and provides a mechanism whereby a party dissatisfied with a judgment given in a minor civil action may apply to the District Court for a review of the matter.
Section 38(7) of the MCA states:
38—Minor civil actions
(7)The following provisions apply to such a review by the District Court:
(a)subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(ab)if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the Court;
(b)the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)     in determining the matter, the Court may—
(i)    affirm the judgment; or
(ii)     rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)    if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e)in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
In Harradine v District Court of South Australia,[3] Blue J outlined the principles which apply to a review by a District Court judge of a minor civil action.
[3] [2012] SASC 96 at [53].
The review is not in the nature of an appeal, nor is it necessarily a hearing de novo as the judge is entitled to have regard to the evidence adduced before the Magistrate. The judge is not required to re-hear the evidence, although they may do so. Where a case turns on disputed facts or credibility the judge may consider it appropriate to hear the evidence afresh. A judge may also receive ‘fresh evidence’ in certain circumstances.
Ultimately s 38(7)(e) MCA requires the judge to ‘act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms’.
The Hearing of the Application for Review
The Applicant and the Respondents attended the hearing of the Application for Review and were unrepresented, as they had been at the trial before the Magistrate.
The Applicant had prepared a lengthy written outline of argument comprising some 16 typed pages. He spoke from that document and made some additional oral submissions.
It is apparent from the Submissions that in addition to (and/or in the alternative to) the relief sought in the Application, the Applicant sought orders from the court:
1Giving him leave ‘to file an interlocutory application to uplift the case to a higher court of jurisdiction to enter a claim for Unjust Enrichment in the alternative of the pursuit of Contract payment.’
2That the Respondents pay interest on overdue amounts and costs, including the costs of obtaining legal advice and costs occasioned by their failure to settle the claim for less than $10,000.00.
The Respondents relied upon a Written Case filed and served pursuant to District Court Civil Supplementary Rule 230 and made brief additional oral submissions.
On the hearing of the Application for Review, I elected not to proceed by way of the hearing of evidence ‘afresh’. To do so, in my view, was contrary to s 38(7)(e) MCA, in terms of the additional time and imposition on the parties, necessary to properly revisit the evidence. I am satisfied the Magistrate properly explored all relevant matters arising on the evidence at trial.
However, one of the Applicant’s grounds of appeal was that the Magistrate had not given Mrs Atkins’ affidavit sufficient weight as she had not given evidence at the trial. Mrs Atkins attended the hearing of the Application for Review and as such, I heard her oral evidence.
The Claim
Background
The Claim is based in contract and is not a claim made pursuant to the RTA, noting that the parties have also been engaged in other litigation before the South Australian Civil and Administrative Tribunal (SACAT) with respect to disputes arising under the RTA.
However, to understand the claim, and some of the arguments raised by the parties, it is necessary to consider both the RTA and the PMA.
RTA
The Applicant and his wife attended at Ray White’s office and signed the RTA on 10 October 2017 in the presence of Ms Cauchi, who also executed the RTA. Both the Applicant and his wife described this attendance as being relatively short and both denied being given the time or opportunity to read the RTA before executing it.
A copy of the RTA was tendered at the trial as Exhibit P31. This document consists of 17 pages, being both the agreement itself and various annexures. The Applicant and his wife applied their initials to each of the 17 pages. They signed the Execution Clause, acknowledging receipt of various brochures, manuals and the keys (despite the Applicant claiming not to have received some of those materials) and they also signed the ‘Tenant Acknowledgement Form’, which relevantly included an acknowledgement that they had had explained to them and understood the ‘Maintenance procedure’.
The Applicant highlighted that on each of the pages where his full signature appeared, there were various boxes which had not been marked in any way by Ms Cauchi, thus indicating her lack of professionalism and how rushed this process was.
The Annexures to the RTA included a document entitled ‘Ray White Adelaide Repairs and Maintenance Procedure’. This document contains a requirement that tenants are to notify the landlord/agent of any general repairs needed (preferably in writing). It also stated:
MAINTENANCE MANAGER:
All maintenance and repairs MUST be logged through Maintenance Manager in order for them to be actioned, instructions on how to complete this have been provided to you in your tenancy pack.
EMERGENCY REPAIRS: If an urgent repair is required (eg. Burst water pipe, gas leak, dangerous electrical fault etc.) every effort should be made to contact the landlord/agent as soon as possible. The landlord is not required to give notice to the tenant to enter the premises in an emergency. If a landlord/agent or the nominated repairer can not be contacted the tenant can have the urgent repair carried out by a person who is licensed to carry out the necessary work. The repairer is to provide the landlord with a report on work carried out and the apparent cause of the state of disrepair. The tenant is entitled to recover from the landlord reasonable costs of having the repair carried out. However, the tenant may not be entitled to recover the cost of repairing the premises if the premises are subject to a housing improvement order notice fixing the maximum rent payable for the premises.
Emergency Repairs:
1.    Burst water pipes
2.    Hot water service breakdown
3.    Serious roof leak (which may cause major or long term structural damage to the building)
4.    Gas leak
5.    Dangerous electrical fault
6.    Flooding and serious floor damage
7.    Serious storm, fire or impact damage
8.    Failure/breakdown of the gas/electricity or water supply
9.    Fault or damage that results in the property being insecure or unsafe
10. Fault or damage that is likely to cause injury
The Applicant denied ever initiating any maintenance requests through Maintenance Manager (referred to at the trial as the Maintenance Portal). He acknowledged that at times he had clicked on a link to the portal in emails he received from Ms Cauchi. He denied being told anything about the Maintenance Portal by Ms Cauchi, but said that he was made aware, later, that all maintenance requests were required to be put in writing.
Although there was a volume of evidence devoted to this issue at the trial, in my view, whether or not the Applicant ever used the Maintenance Portal, in the sense that he initiated communications with Ms Cauchi through that portal, rather than simply clicking on links to write messages which were then able to be viewed on the portal, is not relevant in determining the primary issue in dispute, namely whether there was an Agreement as alleged.
PMA
The PMA was not provided to the Applicant and his wife when they signed the RTA, although the Applicant subsequently obtained a copy during the course of the action.
Pursuant to the PMA, the Respondents appointed Ray White as the sole agent to let and manage the property, and in doing so authorised Ray White ‘to act in all respects in relation to the Property on behalf of the Landlord to do all things necessary to…instruct repairs and works to maintain the property...’, unless otherwise limited by the PMA.
Ray White had specific authority under the PMA to instruct repairs and maintenance, namely:
Authority to Instruct repairs and maintenance
For the purpose of effecting repairs and/or maintenance for the Landlord, the Manager is authorised to instruct expenditure of up to the amount set out below (the “Discretionary Expenditure Limit”) on any Individual and separate works required without seeking prior approval from the Landlord. The Manager can in any event (and in its absolute discretion) instruct all necessary repairs which arise after-hours (not between 9am – 5pm) and/or in an emergency which in each case may exceed the Discretionary Expenditure Limit without seeking any prior approval and it is accepted this expenditure may be for more than one (1) item of repair and be on different occasions and on each exercise of this authority may in each case exceed the limit so authorised.
Discretionary Expenditure Limit $500.00
The Alleged Agreement
The Applicant claimed that at the time he signed the RTA, Ms Cauchi raised with him the fact that he had listed his occupation on the Ray White Application Form as ‘retired builder’. He said that it was in that context, that Ms Cauchi said words to him to the effect that if there were any emergency fixes or minor matters that needed fixing at the property, he could fix them himself and send her the bill for payment, provided the amount charged did not exceed $500.00, and that he then agreed to do so (the Agreement).
He said there was no discussion at that time about any specific repairs or maintenance work that needed to be undertaken, or what he would be paid for such work.
Thereafter, from time to time, the Applicant claimed he had received specific requests for his assistance in his capacity as a qualified builder from Ms Cauchi, being requests made pursuant to the agreement. These requests were all made in writing. The Applicant described these as ‘work orders’. An example of one of the ‘work orders’ is an email dated 13 December 2017 from Ms Cauchi to the Applicant, tendered as Exhibit P1, which stated:
Hi Paul Atkins,
We have been informed that the job below has been completed.
We would appreciate it if you could click on the link below to confirm that the issue has been resolved or whether additional attention is required. This should only take a few seconds to complete.
If you consider the job not satisfactorily completed, it would also be very helpful if you could include a photo indicating where you feel it is unsatisfactory.
Please ensure that you leave any feedback by 27/12/17 as you will no longer be able to after this point.
Thank you for your assistance with this matter.
Job address: 26 Sunningdale Avenue, NOVAR GARDENS, SA 5040
Brief Description: Bee Removal
Job Details: Bee hive in large tree – Please remove
Job completion feedback link: click here
Should you have any questions please do not hesitate to contact us.
Emma Cauchi
Property Manager
Ray White Adelaide Group
A: 11A Carrington Street ADELAIDE SA 5000 | 742 Anzac Highway GLENELG SA 5045
P: 08 8213 5900
MMGR-J0027
[Ref: PM-IFwueinsKajC-p]

It was the Applicant’s case that this document evidenced Ms Cauchi retaining his services, pursuant to the Agreement, to follow a bee removalist retained by Ray White to undertake work at the property, to check on that work and then write and send a report to her. There were numerous other similar documents in evidence and relied upon by the Applicant as comprising ‘work orders’ and forming the basis for other work claimed to have been undertaken by the Applicant.
Invoices
From time to time the Applicant prepared various invoices and forwarded them via email, to Ms Cauchi for payment. Each invoice includes the following statement:
Minimum charge one hour including call out charge.
$418.00 per hour inclusive of GST
Full payment within 14 days
Interest and accounting fees added on overdue payments.
The Applicant’s hourly rate was said to be calculated by reference to what his lawyer had charged him, namely $380.00 per hour plus GST. The Applicant stated that such a fee was reasonable having regard to the rates charged by Ray White to attend to certain matters and rates charged by other contractors. The Applicant acknowledged that no hourly rate was discussed at the time the Agreement was reached.
None of the invoices were paid, nor did anyone at Ray White acknowledge receipt of such invoices and/or respond to them in anyway. Although the invoices were not paid, the Applicant assumed due to the lack of any response, or objection by Ray White, that it was appropriate for him to continue to do the work and be paid for it. He relied upon the fact that Ms Cauchi had not contacted him upon receipt of the invoices as evidence that the Agreement was ongoing.
The claim was for the sum of $8,816.90 (plus filing fee) which included the unpaid invoices, together with additional charges for interest and accounting fees.
The Applicant prepared a Composite Invoice which summarised the work said to have been undertaken by him pursuant to the Agreement and formed the basis of the claim. This composite invoice was tendered at the trial as Exhibit P25 and comprises work said to have been undertaken by the Applicant between 10 October 2017 and 1 January 2018. The Applicant confirmed that he ceased undertaking work pursuant to the Agreement as from that date.
By reference to this document, the work undertaken by the Applicant and for which he sought reimbursement pursuant to the Agreement, largely falls into two separate categories, namely ‘Urgent or Emergency works’, being maintenance works undertaken by him of his own volition (in other words, without any express instructions for work to be performed – and undertaken by the Applicant relying on the terms of the Agreement) and ‘Supervisory/Reporting work’, being work undertaken by him in liaising with, following, supervising and/or reporting on the work undertaken by other contractors retained by Ray White to undertake maintenance as requested by the Applicant and as approved by them. The work in this latter category relates to the alleged ‘work orders’.
I will revisit the specific components of the claim, later in the judgment.
Respondents’ Defence
The Respondents denied there was ever any alleged Agreement. Further the Respondents denied that the ‘work orders’ comprised any request for the Applicant’s services pursuant to any alleged Agreement or at all.
Ms Cauchi gave evidence that at the time the Applicant and his wife signed the RTA, there was a general discussion about the fact the Applicant was a retired builder and she recalled him saying that if anything needed fixing he was happy to do it. She claimed that she told the Applicant that all maintenance requests had to go through the Maintenance Portal and had to be approved. She denied there ever being any discussion about a $500.00 (or any monetary) limit about maintenance.
Ms Cauchi said that she never discussed the Agent’s Authority to instruct repairs and maintenance (as outlined in the PMA) with the Applicant.
The Applicant was in regular communication with Ms Cauchi about repairs and maintenance required for the property. On occasions, the Applicant informed Ms Cauchi of maintenance he had done on the property and for which he sought no charge.
On 8 December 2017, the Applicant sent a message to Ms Cauchi as follows:[4]
Good morning Emma. The bees were eradicated yesterday. On closer inspection there was a large cavity within the tree so on advice from the pest control I purchased expanded foam and filled the cavity to prevent reoccurrence. Only $12 so no charge claimed.
[4] Exhibit D2.
That same day, the Applicant sent a further message to Ms Cauchi in relation to a request for maintenance which included fixing a bathroom basin that was not draining:[5]
…the bathroom vanity would not drain at all now and unlikely to be attended to until after Monday so this item, as a qualified Plumber I had to fix myself. Regina just happen to have a free eBay gift which of all things is a drain cleaner, go figure! Toy but did the job well.
So again there is no charge from us to have fixed this problem, make sure you are not charged by your contractor.
[5] Exhibit D1.
He followed this with another message:[6]
No costs thats fine, we had what we needed to fix on hand and it was just the P trap needed cleaning and not the whole pipe clogged as I thought it might be.
No Problems.
[6] Exhibit D1.
On or about 15 December 2017,[7] in relation to an issue with a toilet leaking water upon flushing, he stated in a message (dealing with that and other matters):[8]
Please find photo attached, the main toilet was badly leaking water every time it was flushed.
On examination I found the grommet at the back as per the photo had lived its life.
I went to Bunnings (only $4) and replaced anew. No charge put it down as good faith, no point paying call out fees to a plumber of such a small matter…
[7] See page 78 of Exhibit 20 of Case Book.
[8] Exhibit D3.
The Applicant explained that although he was initially prepared to bear these costs himself, the ‘work orders had overtaken’ and he sought to include these costs as part of the claim. He later explained that he had said he ‘wouldn’t charge for minor problems but if they became major I would’.[9]
[9] T 165.5-6.
Ms Cauchi denied that the documents relied upon by the Applicant as being alleged ‘work orders’ were anything of that type. For example, by reference to Exhibit P1, she said this was a template email automatically generated by the Ray White Maintenance Portal, sent to the tenant (in this case, the Applicant) advising, after the event, that a contractor retained by Ray White to undertake approved maintenance at the property, had completed that maintenance, and requesting the tenant to confirm that the work had in fact been completed, by clicking on the link within that document.
She said she never requested the Applicant ever supervise any maintenance contractors, although she acknowledged that at times she requested he facilitate contractors gaining access to the property to do the requested works.
Ms Cauchi did not remember ever seeing the invoices provided to her by the Applicant for his services rendered. She stated that she received many emails from the Applicant and acknowledged that it was possible she had received emails from him attaching the invoices. She said that if she had seen the invoices she would have flagged that with the Respondents, as they had not approved the tenant to do the work.
The Respondents submitted that when the Applicant and his wife executed the RTA they also signed the ‘Tenant Acknowledgement Form’ whereby they acknowledged that they had had the Maintenance Procedure explained to them. This procedure included requirements relating to Emergency Repairs, which procedure had not been followed by the Applicant and was contrary to the alleged Agreement.
The Applicant agreed he had signed that document but said that Ms Cauchi had only spent about 10 minutes with him at the time the RTA was executed, he did not have time to properly read the document and he did not get some of the documents as listed. He acknowledged he did understand some of the document relating to maintenance procedures and that he had tried at times to call the emergency numbers provided, but without success.[10] He also knew from that document that it was necessary to provide notice of all defects in writing.[11]
[10] T 105.2-19.
[11] T 106.23-28.
The Trial Procedure
A perusal of the transcript of the trial indicates that the Magistrate gave both parties every opportunity to present their respective cases in detail. She approached the trial with particular diligence and attention to detail, despite the sum in dispute being modest.
As is usual in the hearing of a minor civil action, the Magistrate took on the role of examining the various witnesses, with a view to eliciting evidence relevant to the facts in dispute.
The Magistrate carefully considered each aspect of the Applicant’s claim, cross-referencing the various ‘work orders’ and the tasks as outlined on the invoices with numerous documents that were tendered as evidence and seeking, in each instance, his evidence as to what, he said, constituted the relevant agreement by which he would be paid for that work.
The Applicant had prepared a list of questions (or topics) he sought to ask Ms Cauchi by way of cross-examination. It is apparent from the transcript that the Magistrate received a copy of that list and worked through it, enquiring of the Applicant why a particular topic was important, making decisions as to relevance and then asking questions of Ms Cauchi insofar as she considered the question to be relevant. This included putting various documents to Ms Cauchi, as requested by the Applicant, and asking questions of her. Although the Magistrate did not allow the Applicant the ability to directly question the Respondents’ witnesses, she discussed with him what he wanted to cover, and why, and then formulated and asked questions on relevant topics of the witnesses.
The Magistrate also explained to the Applicant that some of the matters on his list were in fact matters for submissions, rather than cross-examination, in particular matters pertaining to the reliability and credibility of Ms Cauchi’s evidence.[12]
[12] For example, those relating to the form in which the keys were presented to him at the commencement of the tenancy and a failure by Ms Cauchi to mark various boxes on page 7 of the RTA and on the Tenant Acknowledgement Form.
At the conclusion of the evidence the Magistrate gave the parties the opportunity to make verbal closing submissions.
The Magistrate’s Reasons
The Judgment provides a summary of the evidence heard by the Magistrate, an analysis of the evidence and the basis for her findings, which relied on findings of credibility. However, in making such findings, the Magistrate was also informed by her own observations and interpretation of the various exhibits.
The Magistrate accepted and preferred the evidence of Ms Cauchi to that of the Applicant. In doing so, she acknowledged the submissions made by the Applicant that Ms Cauchi was not a reliable or honest witness. She stated:[13]
…To the contrary, I find that Ms Cauchi gave her evidence honestly and to the best of her ability, in a straight forward manner and without embellishment. She was, for example, prepared to accept that she may have seen the invoices although she could not recall that. She was also prepared to accept that there was a conversation on 10 October 2017 with Mr Atkins which included the topic of his being a builder and that he was happy to do anything that needed fixing. However, she was clear that she also told Mr Atkins that any maintenance requests must go through the maintenance portal and must be approved.
[13] Judgment at [64].
In accepting Ms Cauchi’s evidence that there was no Agreement with the Applicant wherein he was authorised to do repairs or maintenance and seek reimbursement for such work as he claimed, the Magistrate also referred to the emails from the Applicant outlining the minor work he had done without charge,[14] as supporting such a finding. She found that the alleged ‘work orders’ had been misconstrued by the Applicant, and that such documents were simply requests made of him to confirm that requested repair and maintenance work had in fact been carried out.
Grounds of Appeal/Findings on Review
[14] Exhibits D1, D2 and D3.
Bias/Conduct of Trial
The Applicant was extremely critical of the manner in which both the action and the trial was conducted.
The Applicant claimed that a Magistrate who had previously had the carriage of the action (the other Magistrate), was biased against him, and that this subsequently tainted the actions of the Magistrate at trial and in the delivery of her judgment.
There will be a reasonable apprehension of bias if a fair minded lay observer might have reasonably apprehended that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the claim they are required to decide.[15]
[15] Johnson v Johnson [2000] 201 CLR 488 at [11].
Exhibit 1 of the Case Book submitted by the Applicant was a letter of apology directed by him to the other Magistrate (undated) wherein the Applicant acknowledged that Magistrate was simply doing her job and makes no allegation or suggestion of bias.
The Applicant submitted that the other Magistrate had told the Respondents ‘how to run their case’ against him. I understand this relates to a suggestion made by the other Magistrate to the Respondents that they may consider obtaining quotations from other contractors for the repair work undertaken by the Applicant by way of comparison, relevant to the issue of quantum. Those documents were tendered as Exhibit D15.
The Magistrate found there was no Agreement, such that there was no need for her to make any determination as to whether the sums as charged by the Applicant were reasonable. There is no reference in the Magistrate’s judgment to Exhibit D15.
I reject the Applicant’s assertion that the other Magistrate instructed the Respondents ‘how to beat’ the Applicant. In any event Exhibit D15 played no role in the ultimate findings made by the Magistrate.
The Applicant considered that the Magistrate’s refusal to allow him to conduct the cross-examination of the witnesses and to instead effectively act as both judge and barrister for both parties, resulted in bias against him.
As outlined by Blue J in Harradine,[16] the provisions in s 38(1) of the MCA evince a general intention that a Magistrate is to proceed broadly in accordance with the inquisitorial model during the hearing of a minor civil action. The inquisitorial model involves the Magistrate performing an active role in determining the issues, managing witnesses and the scope of the evidence. This involves the witnesses telling their version of events, often by way of narrative, and the Magistrate undertaking the principal questioning of witnesses. It is the Magistrate’s role to inquire actively into the facts and issues.
[16] [2012] SASC 96 at [49].
The Magistrate was very careful to ensure that each component of the Applicant’s claim was properly understood and in evidence before the court. Insofar as she disallowed certain questions sought to be asked by the Applicant by way of cross-examination of Ms Cauchi and the Respondents, I am satisfied that she properly considered the relevance of such matters, and insofar as the questions sought to be asked did have relevance, that she appropriately worded the questions to enable the Applicant’s position to be put to the witness and a response elicited.
The Magistrate was painstaking in ensuring the Applicant had fully explained the basis of his claim. She directed him to documents in existence that related to each component of the claim, gave him the opportunity to respond to the various matters put forward by way of defence, and to consider and comment on any documents relied upon by the Respondents. The fact the hearing took more than one day demonstrates the care taken by the Magistrate to ensure the parties had the appropriate opportunity to be fairly heard and for the claim and defence to be properly tested.
I am satisfied that the parties were afforded procedural fairness by the Magistrate by way of a fair hearing. I am not satisfied that a fair-minded observer might have reasonably apprehended that the Magistrate may not have brought an impartial and unprejudiced mind to the Claim.
Mrs Atkins’ Evidence
As previously stated, I heard oral evidence from Mrs Atkins at the hearing of the Application for Review.
In her oral evidence Mrs Atkins described what was said by Ms Cauchi when they signed the RTA, in the following terms:[17]
Well, I remember when my husband mentioned that he’s a builder and she was very pleased to hear that and she said ‘Good and you can fix everything yourself and why you send us a bill as long as below $500.’
[17] Application T 7.21-24.
Mrs Atkins’ oral evidence therefore mirrored that of the Applicant as to the essence of the Agreement, namely that Ms Cauchi knew the Applicant was a builder, she had said for him to fix everything himself and to send her the bill, as long as it was below $500.00.
As to whether Ms Cauchi said anything about any particular procedure the Applicant should follow in this respect, Mrs Atkins said:[18]
No, I think she said ‘Just write an email’ or something like that, what needs to be done. Kind of let her know but he is going to fix it and she will pay it.
[18] Application T 8.30-32.
The Magistrate received as evidence the affidavit affirmed by Mrs Regina Atkins on 7 February 2018 which outlined what occurred when she and the Applicant signed the RTA on 10 October 2017.
I note that in Mrs Atkins’ affidavit affirmed on 7 February 2018, received by the Magistrate as evidence at trial, she made no reference to Ms Cauchi imposing any monetary limit on the work undertaken by the Applicant pursuant to the Agreement. She deposed:[19]
My Husband Paul told Emma he was a qualified builder and Emma replied “Oh good then you can fix the defect yourself and send us a bill, some people can’t even change a light bulb”
[19] Exhibit P29 at [2].
Similarly, in an affidavit affirmed on 7 February 2018, the Applicant made no reference to a $500.00 limit, or any monetary limit. As to the Agreement he simply stated therein:[20]
I told Emma RWAG I was a registered builder, and she replied ‘Oh good then you can fix the defects yourself and send us a bill’ I said ‘Good no problem I can do that’ THE AGREEMENT.
[20] Exhibit P28.
The affidavits affirmed respectively by the Applicant and Mrs Atkins were otherwise very similar in their content and wording.
It is apparent from her evidence that Mrs Atkins was not involved in any ongoing communication with Ray White during the course of the tenancy, instead leaving that to the Applicant, ‘because husband is head of family so he’s doing’.[21]
[21] Application T 10.1-3.
My impression from having observed Mrs Atkins give her evidence and her interactions with the Applicant was that she was a supportive, dutiful and loving wife, who very much deferred to the Applicant.
In my view, Mrs Atkins’ evidence was tailored to be consistent with the evidence of the Applicant. I am not satisfied that she now has an accurate independent recollection of precisely what was said at the meeting on 10 October 2017, noting that on her own evidence things were very rushed, her children were present at the time, and it was her husband who was responsible for matters pertaining to the lease. I also note the Applicant’s comment during the hearing of the Application for Review that Mrs Atkins is Russian, and ‘so understanding English is difficult’.[22]
[22] Application T 12.1-4.
I consider it likely and I find, that when she affirmed her affidavit, and when she gave her oral evidence, Mrs Atkins was simply restating what the Applicant had discussed with her, and what she therefore understood as being his recollection of the words said by Ms Cauchi which he claims constituted the Agreement. I am not satisfied that either now, or at the time she affirmed her affidavit, Mrs Atkins had an independent recollection of precisely what was discussed between the Applicant and Ms Cauchi at the time the RTA was executed, although she may well have a recollection of a discussion concerning maintenance, as, on all of the evidence, it is clear that there was a discussion on that topic. It is what, if anything, that was agreed that is in issue.

In my view, the Magistrate made no error in her treatment of Mrs Atkins’ evidence. Further, contrary to the Applicant’s claim, the Magistrate did not give any assurance to the Applicant that she would necessarily accept the contents of Mrs Atkins’ affidavit as being credible and reliable, rather she agreed to receive the affidavit as evidence, in circumstances where the Applicant informed her that Mrs Atkins was not willing to attend to give oral evidence.
The Respondents’ Evidence
The Applicant contended that the Magistrate had relied on the hearsay evidence of the Respondents that there was no such Agreement.
The Respondents were not present on the occasion the Applicant and Mrs Atkins executed the RTA. The evidence they gave to the court did not relate to that occasion – rather they referred to other documents, policies and procedures which they claimed lent support to their claim that there was no such Agreement.
Ultimately the Magistrate determined there was no Agreement preferring and relying upon the evidence of Ms Cauchi as to what occurred on 10 October 2017 and in her interpretation of the ‘work orders’.
I am satisfied she did not rely on any ‘hearsay evidence’ given by the Respondents in the making of such findings.
Reliability/Credibility of Ms Cauchi
The Applicant submitted that the Magistrate should not have accepted Ms Cauchi as being either a credible or a reliable witness. There were several bases for this submission, many of which overlapped.
Receipt of Invoices
Ms Cauchi gave evidence that she could not remember ever seeing the invoices. The Applicant submitted that this evidence should be rejected, and was indicative of Ms Cauchi’s general lack of credibility.
The Applicant referred to having received confirmation that the emails he had sent to Ms Cauchi attaching, respectively, the invoices dated 9 December 2017 and 20 December 2017 had been delivered. He relied upon several ‘Successful Mail Delivery Reports’ in Exhibit 6 of the Case Book. These relate to emails sent respectively on 3 December 2017, 6 December 2017, 19 December 2017 and 26 December 2017 – none relate to emails sent on either 9 or 20 December 2017.
Even if there was evidence that emails were delivered to Ms Cauchi bearing those dates, that does not assist the court to determine whether in fact she ever read and/or saw the invoices, or if the invoices were in fact attached to those emails.
Similarly, although an Event Log from the Maintenance Portal dated 20 December 2017 suggests that a tax invoice was intended to be attached,[23] this does not assist the court in determining whether Ms Cauchi did in fact see or read that invoice (and/or if an invoice was in fact attached).
[23] Exhibit 10 of Case Book.
In her evidence before the Magistrate, Ms Cauchi acknowledged she may have received those invoices, but she could not remember having seen them. She explained that she had received many emails from the Applicant and that eventually she blocked his emails. The Applicant agreed that he never heard from Ms Cauchi in response to any of the invoices.
The Applicant submitted Ms Cauchi had given inconsistent evidence on this issue at a hearing at SACAT.
Exhibit 22 in the Case Book is a transcript of what occurred at a SACAT hearing on 14 February 2018. It appears that this material was presented to the Magistrate but she did not receive it as an exhibit as she did not consider it relevant. However, it is clear from that transcript that Ms Cauchi did not attend that hearing – which was instead attended by Ms Pilgrim. As such, there is no material which establishes any alleged inconsistency in evidence given by Ms Cauchi to the Magistrate, on the one hand, and to SACAT on the other.
Age/Character
The Applicant submitted that the Magistrate should not have preferred the evidence of Ms Cauchi as she was a young girl and beholden to her boss, whereas he and his wife were ‘two mature Senior Citizens with a proven track record’.
The Applicant relied on a National Police Certificate by way of proof that he was of good character and a letter from the Government of South Australia, Department for Communities and Social Inclusion dated 23 October 2017, which stated that Mrs Atkins held a ‘Child-Related Employment Screening’ clearance.[24] Simply because a person may not have been convicted of a criminal offence and/or is not considered a risk to the safety of children does not necessarily mean that any evidence given by such a person is reliable and/or credible (or vice versa).
[24] Exhibit 2 of Case Book.
The youthfulness of Ms Cauchi has no bearing on her reliability and credibility as a witness. Further, the claim was not made against Ray White, but against the Respondents. There was no evidence that Ms Cauchi remained employed by Ray White or was in any ongoing contractual relationship with the Respondents.
Incompetence
The Applicant relied on the fact that the boxes on page 7 of the RTA and on the Tenant Acknowledgement Form had not been marked, consistent with his evidence (and that of Mrs Atkins) that the meeting on 10 October 2017 was rushed and they were not afforded the opportunity to read the RTA. The Applicant also noted that the boxes on page 8 of the PMA were similarly unmarked. He submitted this demonstrated incompetence on the part of Ms Cauchi and a basis upon which she should not be believed.
The primary issue in dispute is whether there was any Agreement as alleged by the Applicant. Even if any deficiencies in the paperwork may gave rise to a finding that Ms Cauchi lacked care and attention to detail in the performance of aspects of her employment duties, that does not, of itself, assist the court to make a finding as to her reliability and credibility as a witness and/or to make findings of fact as to what she said, or did not say, at the time the Applicant executed the RTA.
Requests for Assistance
The Applicant submitted that in various emails Ms Cauchi had thanked him for his ‘assistance’ and at one stage referred to them as ‘working together’, consistent with there being an Agreement of the type he claimed.
Ms Cauchi gave evidence that insofar as she had thanked the Applicant for his ‘assistance’ in her correspondence with the Applicant, she was simply being polite, and that these words were not intended to, and were not, a retrospective request for the provision of his paid services as a builder. Ms Cauchi’s evidence is consistent with any reasonable interpretation of those emails.[25]
[25] See Exhibits P9-P12.
As to the comment with respect to ‘working together’, on 18 December 2017, Ms Cauchi sent an email to the Applicant in the context of him having been sent an automated email reminding him his rent was in arrears, and in the context of earlier correspondence between them regarding maintenance he had requested and she had arranged be undertaken by other contractors. She wrote ‘I was under the impression we were working together to get the items sorted on the list of maintenance items you put forward to me, now we’re being sued?’[26]
[26] Exhibit 6 of Case Book.
When properly interpreted in context, the words used by Ms Cauchi do not support the existence of any alleged Agreement in the terms as claimed by the Applicant.
Misconstruction of Transcript
The Applicant submitted that the Magistrate had misconstrued Ms Cauchi’s response of ‘Okay’ as set forth in paragraph 21 of her judgment.[27]
[27] See that paragraph for its full terms and effect and the context in which this response was given.
I reject that contention. There can be no doubt from a review of all of Ms Cauchi’s evidence that she consistently maintained there was no Agreement of the type as claimed by the Applicant. I consider the utterance by Ms Cauchi of the word ‘okay’ in the context of the evidence at that time, simply reflects her acknowledging an understanding of the proposition being put to her by the Magistrate, rather than any agreement with that proposition.
Animosity
The Applicant submitted that in making findings against him, the Magistrate had determined and relied upon the fact that he held animosity towards Ms Cauchi and the Respondents (and not vice versa). This refers to the matters set forth in paragraph 65 of the Judgment.
I do not doubt that there is a degree of anger and animosity as between all parties arising from this longstanding protracted dispute, and other litigation that remains outstanding between them.
However, this is irrelevant to any finding made by the Magistrate as to the reliability and credibility of Ms Cauchi and/or the existence of the Agreement. I am satisfied that the Magistrate’s comments at paragraph 65 of the Judgment were stated simply to explain why, in her view, the Applicant held such strong views as to Ms Cauchi’s honesty and integrity.
Further Findings on Review
General
The Magistrate determined that there was no Agreement based on her acceptance and preference of Ms Cauchi’s evidence, rather than that of the Applicant.
Ms Cauchi consistently denied she had ever entered into the Agreement. She acknowledged that on 10 October 2017 there was a discussion with the Applicant about him being a builder, and recalled him saying he would be happy to fix things, but was adamant that she explained to him that all maintenance had to go through the Maintenance Portal and needed to be approved. She was also adamant that she never discussed with him any $500.00 limit.
The findings made by the Magistrate were open on the evidence which included not only the evidence of Ms Cauchi, but that of the Applicant, and the numerous documents tendered as evidence.
It was for the Applicant to prove on the balance of probabilities that there was a contract in existence between him and the Respondents and the terms of that contract. It was not for Ms Cauchi and/or the Respondents to disprove the existence of any such contract.
The determination of these two issues is intimately connected, as an inability to determine what the terms of a contract may be, may well be determinative of the existence of any contract.
Inconsistencies in the Applicant’s Evidence
Neither the Claim nor the Amended Claim refer to there being any monetary limit on the work undertaken by the Applicant pursuant to the Agreement.
As previously stated, there was nothing in either the Applicant’s affidavit, or that of his wife, both affirmed on 8 February 2018, to the effect that there was any monetary limit on the work to be undertaken pursuant to the Agreement.
However, both the evidence of the Applicant at trial and that of Mrs Atkins at the hearing of the Application for Review, referred to Ms Cauchi specifying that the sum charged could not exceed $500.00. Further, as the trial progressed, the Applicant’s evidence went further than that, namely that Ms Cauchi told him that anything over $500.00 had to be itemised and passed onto the Respondents and that he was authorised to do ‘emergency works’.
When the Applicant commenced giving evidence before the Magistrate, she asked him to outline what was the Agreement, what was it for and for what amount. He answered:[28]
Emma Cauchi said that when we signed up, put down my occupation as builder she said well good, you can do the maintenance work on the property if you wish. I said yep absolutely I would do that.
[28] T 12.33-36.
This evidence is consistent with that in the Applicant’s affidavit.
The Magistrate then asked the Applicant ‘what maintenance on the property was Ms Cauchi referring to that you could do?’ He responded:[29]
Obviously minor works but nothing like rebuild the house. Emergency fixes and anything under $500 she only had the authority without contacting the Hughes’ to spend $500. Every contract I did was under $500 except the air conditioning.
[29] T 13.3-9.
The Magistrate asked the Applicant why was there a discussion about maintenance work on that day at all and he said:[30]
Because I was a builder, just simply I was a builder, she said ‘Oh good you can fix it yourself’. I mean it might’ve been a throw away word or whatever but I said ‘Yeah fine I’ll fix it’. (my emphasis)
[30] T 13.21-24.
Later in his evidence the Applicant was asked by the Magistrate if he said the Agreement was to do ‘whatever maintenance works may be required from time to time’ and he said:[31]
Yes, I believe so. Just, I guess not re-renovate a room or something.
[31] T 19.26-31.
The following evidence was then given:[32]
HH:Well we need to be clear about what was actually said between you. So was it actually said by Ms Cauchi that you because you were a licensed builder were entitled to do maintenance work with respect to the property as long as it did not exceed $500, is that correct.
Mr Atkins:That’s correct.
HH:And Ms Cauchi said that to you.
Mr Atkins:Yes. It’s actually in the contract.
[32] T 19.32-20.2.
Later in his evidence, the Applicant said, as to the occasion when he fixed a burst reticulation pipe ‘That just burst and it was an emergency and an emergency you can fix immediately and that’s what I did’.[33] The Applicant agreed with a proposition put to him by the Magistrate that he considered the terms of the RTA entitled him to fix the burst pipe and be compensated for doing so. When reminded his claim was in contract and not made pursuant to the RTA, noting the Magistrates Court had no jurisdiction to deal with the latter claim, he said ‘Ok, I’ll withdraw that’.[34]
[33] T 37.4-6.
[34] T 31 (where secondly appearing) at lines 1 to 11 and 34.
Later the Applicant referred to the terms of the PMA and what he described as Ray White’s ‘authority to farm out $500.00 jobs’.[35] The following exchange occurred:[36]
Mr Atkins:Anything under $500 Emma was not required to inform Ms Hughes whatsoever and the Hughes say she didn’t.
HH:But you say that was a topic that was raised at that meeting as well, wasn’t it, on 10 October?
Mr Atkins:Yeah, everything had to be under $500.
HH:Yes. You say that you and Ms Cauchi specifically had that conversation to the effect of that yes, you were to do maintenance and repairs work but that work could not exceed $500.
Mr Atkins:That is correct. She said anything above that would have to be itemised and passed by the Hugheses.
[35] T 37 (where secondly appearing) at line 10.
[36] T 37 (where secondly appearing) at lines 16 to 29.
I note that towards the end of the evidence, the following exchange occurred between the Magistrate and the Applicant:[37]
[37] T 155.1-25.
HH:So in that regard I just want to summarise what the court understands to be your evidence about the agreement with Ms Cauchi. So you say that there was a conversation with Ms Cauchi on 10 October 2017 and that was the day on which you were going through that lease agreement, correct?
Mr Atkins:What was the date again?
HH:10 October 2017.
Mr Atkins:That’s correct.
HH:Yes and on this occasion there was this conversation where Ms Cauchi, when she realised that you were a builder, said something to the effect, and it’s in your affidavit, ‘Well that’s good, you can do the repairs on the property.’ Is that correct?
Mr Atkins:That’s correct.
HH:And that she specifically raised the topic of as long as those repairs, your charges for doing those repairs and maintenance didn’t exceed $500.
Mr Atkins:She didn’t quite say – all she said that she is authorised up to $500.
HH:They were her words?
Mr Atkins:Yeah, she was authorised up to $500 without having to report to the landlord.
HH:She was authorised up to $500?
Mr Atkins:Yes, that’s in her landlord contract.
That evidence goes further than and differs from that as pleaded in the Claim and the Amended Claim and as set forth in the Applicant’s affidavit.
The Applicant said that the clause in the PMA was consistent with the terms of the Agreement, however he agreed he was not provided with a copy of the PMA at the time he executed the RTA. Ms Cauchi denied discussing the terms of the PMA with the Applicant at the time he executed the RTA.
The Applicant denied being given any instructions by Ms Cauchi at the time as to any procedure he would need to follow. However, Mrs Atkins gave the following evidence:[38]
QDid Emma say anything to your husband about any procedure he would have to follow to enable Ray White to pay for or approve any work he did?
ANo, I think she said ‘Just write an email’ or something like that, what needs to be done. Kind of let her know but he is going to fix it and she will pay it.
(my emphasis)
[38] Application T 8.27-32.
This evidence is not inconsistent with the Applicant being told by Ms Cauchi, as Ms Cauchi claims, that she would need to be notified of any such work, before it was undertaken (although of course Ms Cauchi’s evidence went further than that, namely that maintenance requests were to go through the portal and be approved).
The inconsistencies in the Applicant’s evidence, his affidavit and what was pleaded were such that it was appropriate for the Magistrate to exercise caution in accepting the Applicant’s evidence (and that of Mrs Atkins). Even if Ms Cauchi’s evidence was completely disregarded by the Magistrate, these inconsistencies give rise to considerable doubt as to what were the terms of any alleged Agreement.
Emergency Work
The Applicant made it clear his claim was not a claim pursuant to the RTA, but a separate claim pursued in contract.
However, if the invoices are carefully assessed, it is apparent that the work he claims to have undertaken pursuant to the Agreement in fact falls predominantly under two categories – work he performed himself and categorised as emergency work or the supervision/assistance/reporting on of work undertaken by independent contractors pursuant to the alleged ‘work orders’.
By reference to Exhibit P25, the following items all relate to purported ‘emergency work’:
·Burst Mains water ‘emergence’ (total charged $422.18).
·Blocked Shower ‘immediate fix’ (total charged $482.50).
·Leaking toilet ‘risk hazard’ (total charged $159.00).
·Blocked vanity pipes ‘Emergency’ (total charged $836.00).[39]
·Air conditioner ‘urgent health risk’ (total charged $1,083.50).[40]
·Glass doors ‘health risk’ (total charged $825.00).[41]
·Leaking laundry taps ‘serious health risk’ (total charged $443.00).
[39] Being a sum in excess of $500 and therefore outside of the terms of the alleged Agreement in any event.
[40] Being a sum in excess of $500 and therefore outside of the terms of the alleged Agreement in any event.
[41] Being a sum in excess of $500 and therefore outside of the terms of the alleged Agreement in any event.
If this work did in fact relate to ‘emergency repairs’ then, in order for the Applicant to be reimbursed for it, he was required to follow the procedure as set forth in the Ray White Adelaide Repairs and Maintenance Procedure and further, the landlord is then only responsible for the ‘reasonable costs’ of having the repairs carried out. Although I am not required to determine either of these issues, the evidence supports a finding that the conditions as set forth in that procedure were not satisfied, nor were the sums charged by the Applicant reasonable.
I have carefully considered the evidence and I agree with the Magistrate’s finding that there was no Agreement in the terms as alleged by the Applicant.
In my view, the only possible entitlement the Applicant may have had to be paid for any alleged emergency work undertaken by him is that pursuant to the RTA. The Magistrate had no jurisdiction to determine such a claim, it being for a sum of less than $40,000.00.[42]
[42] Sections 24(1) and (2a) of the Residential Tenancies Act 1995.
Work Orders
The Magistrate rejected the Applicant’s claims that the alleged ‘work orders’[43] comprised requests for the provision of his building services pursuant to the Agreement. I agree with the Magistrate’s findings.
[43] Exhibits P1, P7, P8, P9, P10, P11, P12, P13, P14 and P15.
By reference to Exhibit P25, the following items all relate to services undertaken by the Applicant in response to alleged ‘work orders’:
·Bee removal – supervision works (total charged $848.95).[44]
·Plumfest – supervision/reporting works (total charged $418.00).
·Puratap – supervision/reporting works (total charged $418.00).
·Electrical works – supervision of contractor/reporting (total charged $418.00).
·Building Reports 3/12/17 ($418.00) and Second Report ($418.00).
[44] Being a sum in excess of $500 and therefore outside of the terms of the alleged Agreement in any event.

On any reasonable interpretation, the documents tendered as Exhibits P1 and P9-P13 comprise written communications from the agent to the Applicant confirming the arrangements that they had made to effect maintenance and repairs at the property as requested by him and enquiring as to whether the work had been completed. Simply put, they do not comprise any ‘request for building services’ and lend no support whatsoever to the Applicant’s claims as to the existence of the alleged Agreement.
Exhibits P7 and P8 are emails from Ms Cauchi to the Applicant wherein she has asked him to assist her in making contact with an electrician in order to arrange a time for the electrician to attend at the property to complete work as requested. While Ms Cauchi could have made those arrangements herself, by making various calls to and from the Applicant and the electrician to arrange a convenient time for the attendance, the simplest and most practical course was for the Applicant and electrician to communicate direct. In requesting the Applicant do so, Ms Cauchi was not retaining his services as a licenced builder. Rather she was simply asking him, as a tenant who had requested electrical work be undertaken at the property, to speak with the electrician to arrange a time to attend. The request went no further than that. Such communication does not give rise to any legally binding agreement for the Respondent to pay the Applicant any sum.
None of the documents give rise to any request for the Applicant to prepare any alleged ‘building reports’, let alone charge and be paid for them.
Exhibit P14 is simply a communication from Ms Cauchi to the Applicant advising him that a request he had made for maintenance work to be undertaken had been declined.
As to Exhibit P15, when all of the evidence is considered, it is clear this document comprises Ms Cauchi’s response to the message sent to her by the Applicant (Exhibit D1) relating to the Applicant performing minor repair work, for which he informed her there would be no charge by way of reimbursement for parts.
These documents do not assist the Applicant to establish that there was ever any agreement in the terms as alleged, nor do they give rise to any contractual obligation on the Respondents to pay any sum to the Applicant for the alleged works.
Other Charges
The only other items included on Exhibit P25, and for which the Applicant sought to be paid pursuant to the Agreement were:
1Charges relating to sorting the keys for the property ($170.00). Insofar as the Applicant took it upon himself to organise and label the keys provided, this could not constitute, on any interpretation, ‘maintenance or repair work’ for the property, being the subject of the alleged Agreement.
2Addressing ‘minor problems’ with the ‘front reticulation’ ($418.00 charged). Although the Applicant made numerous requests to Ms Cauchi to arrange for maintenance and repair work at the property, there is nothing in the ‘Event Log’[45] that relates to any issues with reticulation in the front yard. The only possible basis for the Applicant rendering an invoice for this work would be if the alleged Agreement had been made. For the reasons already outlined, the Magistrate was entitled to prefer and accept the evidence of Ms Cauchi that there was no Agreement.
3The Applicant charged for ‘Accounting Fees’, being the cost of his time to send reminders as to the unpaid invoices. On each such occasion, a sum of $35.00 was charged. If there was any alleged Agreement, (which the Magistrate correctly determined there was not), its terms as described by the Applicant did not, in any event, give rise to any contractual obligation on the Respondents to pay these charges. There was no evidence that there was ever any agreement as to the rate at which the Applicant could charge for any alleged work, what the payment terms would be on any invoice (ie. 7 days, 14 days, 30 days etc) and what, if any charges, would arise in case those payment terms were not met.
4The Applicant charged interest for the months of January ($121.20) and February ($126.16). The interest was therefore charged at a rate of 18% pa. Again, if there was any alleged Agreement, (which the Magistrate correctly determined there was not), its terms as described by the Applicant did not, in any event, give rise to any contractual obligation on the Respondents to pay interest on any outstanding sum at this rate.
[45] Exhibit 20 of the Case Book.
Building and Construction Industry Security of Payment Act 2009 (BCISP Act)
In the Applicant’s written submissions at paragraph 11, the Applicant stated; ‘Agents failed to send a payment schedule as per the act’.
I presume that this is intended to be a reference to the BCISP Act.
Neither the Claim nor the Amended Claim pleaded any claim pursuant to the BCISP Act.
Had such a claim been pleaded, it has no basis. The invoices are not ‘Payment Claims’ within the meaning of s 13 of the BCISP Act, such that neither s 14 or s 15 of the BCISP Act applies.
Observation
Exhibit P18 is an invoice sent by the Applicant to Ray White via their solicitors. It is described as a ‘Summary of Accounts’ and purports to offset rent payments against the amounts the Applicant charged for work performed pursuant to the alleged Agreement. Exhibit P19 is entitled Building Report and Complaint’ and dated 3 December 2017. Throughout that report the Applicant has listed various complaints, for which he sought rent relief in lieu.
It is apparent that there were issues relating to the Applicant and Mrs Atkins falling into arrears with rent by, at the very least, if not earlier, 18 December 2017.[46] Exhibits D1, D2 and D3, being documents all evidencing the Applicant attending to minor matters with respect to the property for free, and without any expectation of payment, were all sent before then, noting the emails comprising Exhibits D1 and D2 were sent on or about 8 December 2017 and the email comprising Exhibit D3 was sent on or about 15 December 2017.[47]
[46] Exhibits 6 and 8 of Case Book.
[47] See page 78 of Exhibit 20 of Case Book, which reproduces Exhibit D3 and confirms the date sent.
As previously stated, the Event Log from the Maintenance Portal dated 20 December 2017 refers to a tax invoice attached thereto. There are however no emails or other documents in evidence to support a finding that the tax invoice dated 9 December 2017 was sent to Ray White at or on 9 December 2017.
A strong inference which arises from the evidence is that the Applicant sought to reduce (or avoid) his obligation to pay rent by way of undertaking the work and charging for it, irrespective of the existence of any alleged agreement.
In this respect, I consider the response to a question asked of Mrs Atkins by the Applicant during her evidence to be telling. The Applicant asked Mrs Atkins ‘Have you ever known me to work for free for anyone at all’, to which she responded ‘No, unless you owe someone. No’.[48]
[48] Application T 12.10-12.
Unjust Enrichment
The Applicant submitted, both before the Magistrate and on the Application for Review, that the Respondents had sold the property for a profit and had been unjustly enriched by virtue of the work he had undertaken at the property.
No such claim was not pleaded, nor was any evidence in support of such a claim before the Magistrate.
Having regard to s 38 MCA, I have no power to make the order as sought. Further, given my findings on the Application, there is no basis for any such claim.
Interest and Costs
As the Applicant’s Claim was unsuccessful, he has no entitlement to interest or costs.
Summary
The Magistrate’s judgment was not affected by bias and the parties were afforded procedural fairness.
Having regard to all of the evidence, I agree with the Magistrate’s findings, namely:
1there was no agreement entered into by Ms Cauchi, for and on behalf of the Respondents, with the Applicant, authorising him to undertake repairs or maintenance work with respect to the property and be reimbursed for such work; and
2none of the ‘work orders’ constitute a request for the Applicant to provide services, for which he would be paid, either pursuant to any such alleged agreement, or at all.
Orders
1The judgment of the Magistrate is affirmed.
2The Application for Review is dismissed.
3There will be no order as to the costs of and incidental to the Application for Review.