Bennett v Overeem
[2010] SADC 2
•15 January 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
BENNETT v OVEREEM
[2010] SADC 2
Judgment of His Honour Judge David Smith
15 January 2010
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT - DAMAGES
Respondent carried out improvements to the outside timber decking of applicant’s house – applicant paid in full for the work – the work was defective – the applicant complained to the respondent - the respondent was turned away when he arrived some time after the purported completion of the works intending to remedy what he accepted as defective work - Magistrate dismissed applicant’s claim for damages for breach of contract on the basis that the applicant refused to allow the respondent to remedy the defects and such refusal was itself a breach of contract in that it precluded the respondent from performing his side of the bargain - on Application for Review that decision pursuant to s 38 of the Magistrates Court Act 1991 – discussion of nature of Application for Review and applicability of general appeal principles – consideration of whether the doctrine of election applied and whether pursuant to it, the applicant, by inviting the respondent to remedy the defects, had forgone her right to sue for damages for breach – consideration of whether instead the principles relating to the so-called duty to mitigate damages applied.
Held – the applicant had not elected but rather her dealings with the respondent in relation to him remedying the defects were relevant to the issue of mitigation of damages.
Respondent had not established that applicant had failed to act reasonably to minimise her losses and therefore failed to mitigate her damages.
Decision of Magistrate rescinded – judgment entered for applicant/plaintiff against respondent/defendant for damages claimed.
Magistrates Court Act 1991 s 38, referred to.
Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979-80) 142 CLR 531; CSR Ltd & Ano v Arturo Della Maddalena [2006] HCA 1; TNT v Brooks (1979) 23 ALR 345; Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722; Smith v Leurs (1945) 70 CLR 256; Cassidy v Engwirda Construction Co (No 2) [1968] Qd R 159; Sargent v ASL Development Ltd & Ors (1974) 131 CLR 634; TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130; Driver v War Service Homes Commissioner (1923) 44 ALT 130, considered.
BENNETT v OVEREEM
[2010] SADC 2Introduction
Early last year, pursuant to an agreement, the respondent Robert Overeem carried out improvements to the outside timber decking of the applicant Joanne Bennett’s house at Onkaparinga Hills. The work started in about mid-May 2008 and was purportedly completed by the 6th June 2008. The applicant paid him in full. The work was defective. The applicant complained. On the 23rd March 2009 the respondent attended at the applicant’s house intending to remedy what he considered were the defects. He was turned away by the applicant and her son.
In an ex tempore Judgment delivered on the 14th August 2009 the Magistrate dismissed the applicant’s claim for the cost of remedying the defective work, on the basis that on the 23rd March 2009, the applicant refused to allow the respondent to do remedial work and that constituted a breach of the contract, in that it precluded the respondent from performing his part of the bargain.
The applicant applies to Review that decision pursuant to s 38 of the Magistrates Court Act 1991.
Nature of application
My powers on Applications for Review are found in s 38 of the Magistrates Court Act 1991 (SA). In particular, on such an application I may inform myself, as I think fit, and I am not bound by the rules of evidence (see s 38(7)(b)). Further, I am empowered to rehear evidence taken before the Magistrates Court (see s 38(7)(c)). I remind myself also that in both the trial of a Minor Civil Action and in the hearing and determination of a Review the “... court must act in accordance with equity, good conscience and with substantial merit of the case without regard to technicalities and legal forms” (see s 38(1)(f) and (7)(e)).
The following accepted precepts concerning the role of an appellate court have guiding application to Reviews under s 38 and particularly have application in this case.
An appellate court is obliged to respect the advantage enjoyed by the trial judge in a situation where the decision is based upon his or her impressions about the credibility of a witness seen by the trial Judge but not by the appellate court. In particular, a finding of fact by a trial judge based on the credibility of a witness may only be set aside on appeal where the decision is:
·manifestly wrong by a reason of error indicated by incontrovertible facts or uncontested testimony;
·glaringly improbable; or
·contrary to compelling inferences in the case.[1]
[1] See Fox v Percy (2003) 214 CLR 118.
However, “... an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it ...”[2]
[2] See Warren v Coombes (1979-1980) 142 CLR 531 of Gibbs ACJ, Jacobs and Murphy JJ at 551; CSR Ltd & Ano v Arturo Della Maddalena [2006] HCA 1 at [22]; and Fox v Percy (supra).
Further, and finally, any inference drawn or relied upon must reasonably arise from proven facts or circumstances.[3]
[3] See TNT v Brooks (1979) 23 ALR 345 Gibbs J at 349; Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722 at 733.
The Review – Evidence – Findings
When I embarked upon this Review I decided to rehear the evidence of the parties as to, in particular, the events of the 23rd March 2009, which were so crucial to the Magistrate’s decision. It was an unusual course given the full hearing below, but I was uncomfortable about the Magistrate’s interpretation of the facts and the application of legal principle. The evidence of both parties in this Court was consistent with their evidence in the Magistrates Court. Apart from some additional detail, the material facts have remained the same. I will prefix Magistrates Court transcript reference with the letters “MC” and District Court reference with the letters “DC”.
Accordingly, in reviewing the decision in the Magistrates Court, I have had regard to the evidence given in both the Magistrates Court and this Court, and to his Honour’s reasons for decision.
I accept that both parties were by and large credible and reliable. In coming to this view, I have not ignored the Magistrate’s view which was, in some respects, adverse to the applicant and nor have I failed to consider the conflict in the evidence relating to whether or not the applicant’s son pushed the respondent as the respondent and his workman, Mr Carter, were packing up to leave on the 23rd March 2009. I will deal with this issue as I traverse the facts.
I now set out the facts.
The following is a narrative of facts drawn, as I have indicated, from the evidence in both courts. I will identify conflicts – and there are a few – and resolve or bypass them as I traverse what happened.
The work commenced in about mid-May 2008 (MC4). It consisted of replacing approximately one-third of the existing decking, replacing 13 rails and posts, and installing horizontal cabling between the posts (MC2). There was further work done upon the recommendation of the respondent, namely, the installation of a ramp, a landing and a concrete step (MC2). The original agreed price was $5,600 (MC2), but taking into account the “extras” the final price became $6,738.80 (MC2, 3).
The works were, purportedly, finished on the 6th June 2008 (MC7). The applicant said in evidence in both courts that she was not happy with the standard of workmanship and raised her concerns with the respondent in the course of the works (MC9). The respondent did not agree that there were complaints about workmanship in the course of the job. He said however that there were complaints about “... just general bits that hadn’t been finished yet, pieces that were missing and still had to be cut in and stuff like that ...” (MC5). Resolving this conflict, concerning poor workmanship in the course of the work, is not necessary because the case in both courts proceeded on the basis that the work was defective and required remedying.
The applicant paid the final instalment of $2,538.80 on the 9th June 2008 (MC8). She had previously paid $4,200 on the 5th May 2008 (MC8). Though she had paid in full she was unhappy with the job (MC9).
I leave the narrative of facts for a moment to address some general matters.
There was no basis for concluding, that because the applicant paid in full, she accepted the job “warts and all” and so had waived or was otherwise precluded from either suing for the cost of rectification or requiring rectification work to be done. The Magistrate did not so conclude and nor would I because, in the months following the purported completion of the works, a number of serious problems, which were spelled out in the experts’ report, emerged (MC9, DC4-5; see report Exhibit P9). Further, the respondent accepted responsibility for some, but not all, of the problems (MC10, 11 and 21).
In the Magistrates Court the applicant called Mr Leonard Riley, who was a building expert from whom she had obtained a building inspection report. His oral testimony and his report were largely unchallenged and established that the improvements carried out by the respondent were not only defective but also, in places, unsafe (45-56, see also report Exhibit P9). The numerous photographs produced by the applicant in both courts showed the poor workmanship. The Magistrate accepted in evidence a quotation for the repair of the defective work from Mr Peter Allan in the sum of $4,893.35 (MC22, see Exhibit P2). When confronted with the quotation the respondent did not challenge its reasonableness (MC23, 24). I accept the quotation as a reasonable estimate (MC27-32).
The applicant agreed in her evidence in both courts that her son had somehow damaged one of the posts. She added that she had specifically arranged that the costs of repairing that damage was not included in the quotation of Mr Allan (MC34, DC26). There was no issue taken about that.
So as the matter stood in early 2009 the applicant had paid the respondent $6,738.80 for work carried out on her decking which was substandard and unsafe and which would cost $4,893.35 to rectify. Further, the negligent construction by the respondent of the ramp and the concrete step had caused the fracture of two water pipes in August of 2008, the repair of which had cost the applicant $750. The applicant’s allegation of negligence in this respect (MC28, 33, 38-41, see also letter Exhibit P9), was supported by the expert Mr Riley (MC50, 51), and not effectively denied by the respondent (MC37).
I turn back to the narrative.
Following the final payment on the 9th June the applicant said, and I accept it, that a number of problems in the work became evident. The posts were not straight and the balustrade railing was bowing. Further, the filler fell out of the joints leaving gaps and some of the new decking “popped” or rose up because it was no longer held down by the nails (DC4, 5). As a result, the applicant rang the Consumer Affairs Department and then on the 16th February 2009 wrote to the respondent listing her concerns (DC5 and letter 16th February 2009 Exhibit A1). In response the respondent telephoned the applicant and made an appointment to attend at her property on the 6th March. He confirmed that arrangement by letter to her (DC6, see also letter undated Exhibit A2).
Accordingly, the parties met at the applicant’s house on the 6th March 2009 (MC10, DC7). The applicant said in her evidence in this Court, which I accept, that the respondent denied many but not all of her complaints (DC7). He agreed to replace the landing which was “popping up through the nails” (DC7), and the bowed railing (DC7). At this meeting it was agreed that he would return on the 23rd March 2009 to affect those repairs (DC7, 8). The respondent entered that appointment in his diary. However, that was not the end of the meeting. Before he left the applicant protested that there were other problems which were also his fault. She said:
... he was quite disparaging about my opinions about the problems with the work. He was questioning my ability to make these judgments and it came around to us both agreeing that an expert’s opinion was needed. At that point I agreed to pay for a building inspection report and I made an undertaking with him that I would send him a copy of that report and that we could then be on firm ground to discuss the problems that I had raised with him. My understanding when he left was that, that is what would happen that he would not come back until we both had a copy of that report to work from ...
(DC8, see also 27)
I accept the above. The applicant had said much the same in her evidence in the Magistrates Court (MC14, 15). The respondent agreed in his evidence in both courts that the applicant intended to procure such a report (MC13, 14, 18, DC33-36). Clearly, it was intended that the report was to be obtained and considered before remedial work was embarked upon. There was some dispute about who insisted on the report. The applicant claimed it was the respondent and vice versa (MC4, DC27).
Accordingly, following the meeting on the 6th, the applicant engaged the expert Mr Riley who inspected the property on the 14th March 2009. However, she did not receive a copy of his report until after the 23rd March 2009 (DC10, 11). Therefore, when the respondent arrived on the 23rd March 2009 neither party had the report.
When asked why he came on the 23rd when the expert’s report had not arrived, the respondent said that the onus was on the applicant to stop him coming if the report was not to hand (DC34, 35). Upon his arrival he was met with a protest by the applicant that she had not yet received the report (MC14, 15 and 18, DC13, 36). There followed acrimonious discussions about the work. The applicant claimed that the respondent indicated to her that he was intending to do less work than he promised he would do in the meeting on the 6th March. For instance, she said that he indicated on the 6th March that he would replace the landing altogether (MC10, 11), but on the 23rd March he said that he was intending to repair the landing by re‑nailing it down and not replacing it (DC13). Resolving all this is not necessary. Suffice it to say that although the applicant was, at some stage during this confrontation, prepared to allow the respondent to do some work, her position was that it was subject to a consideration of the report of Mr Riley who had inspected the works 10 days earlier and whose report was imminent. In the midst of the dissension the applicant’s son emerged and, inter alia, began abusing the respondent for his treatment of his mother. The applicant called upon him to desist. Then as the respondent and his workman were at the vehicle preparing to leave, it is alleged, that the son pushed the respondent. The applicant said in this Court and in the Magistrates that the assault did not happen (MC20, DC16).
The evidence in the Magistrates Court and the Reasons for Decision of the Magistrate are, with respect, preoccupied with the question of whether or not the applicant’s son assaulted the respondent. The applicant is not, in law, responsible for the criminal actions of her son unless they were acting in concert[4]. If driven to a conclusion about whether the man Chris “pushed or shoved” the respondent I would probably make the same finding as the Magistrate did. However, it was not necessary for the Magistrate to make such a finding. I accept that exploring the issue of the assault was arguably relevant to credit but in the end nothing crucial turned upon credibility and reliability. There was no material factual issue which required the tribunal of fact to choose between the evidence of the applicant and the respondent. Indeed I note that the Magistrate confined his adverse credibility finding in relation to the applicant only to the issue of the son’s behaviour [15].
[4] See Smith v Leurs (1945) 70 CLR 256 per Dixon J at 261-2.
The respondent reported the alleged assault to the police immediately on the 23rd March 2009 (MC20, DC36). He considered that, in the light of what the applicant’s son had done to him, the applicant would think better of pursuing him about the work (MC20, DC36).
But the applicant initiated this claim in the Magistrates Court in early June 2009 (MC20). The respondent agreed that in response he telephoned the applicant and suggested that if she agreed not to proceed against him then he would not proceed against her son (DC37).
I draw from the uncontested evidence particularised in the above two paragraphs that the respondent after leaving on the 23rd March 2009 was no longer ready and willing to rectify the defects.
Such are the findings of fact which arise form the evidence in both courts.
Conclusion – Application of Law to the Facts
The Magistrate concluded that the applicant, at some time after the purported completion of the works had decided that she “... did not want the respondent to repair the work that he had carried out ...” (see [17]), and that culminated in her, for that reason, turning him away on the 23rd March. The Magistrate then concluded as a matter of law, that she was in breach of the contract because she had precluded the respondent from performing his contractual obligation to complete the works in a good and tradesman-like fashion.
My respectful view is the Magistrate erred in fact and law in so concluding.
First, the proven facts do not support the inference drawn by the Magistrate that the applicant was determined to prevent the respondent from rectifying the poor work.
In the view I take about the law, the applicant had no legal obligation to extend such an opportunity to the respondent. Nonetheless, the evidence and the inferences arising there from, do not support the Magistrate’s view that the applicant at about the 23rd March was determined to prevent the respondent remedying the work. Rather, though unhappy with his workmanship and her discovery, after June 2008, that he was not a trade‑qualified carpenter, she was prepared to allow him to remedy the defective work. She wrote to him on the 16th February 2009 setting out the defects as she saw them and “... asked him to negotiate some repairs with me ...” (DC5).
There followed the meeting on the 6th March 2009 when he agreed to carry out some, but not all, of her demands. At that meeting, the 23rd March 2009 was set for the carrying out of some of the remedial works. However, before the meeting of the 6th March concluded, the applicant and the respondent began arguing about the extent of the defects and the work to be done. That concluded in an understanding that an expert’s report or building inspection report would be obtained. I deliberately use the word “understanding” rather than “agreement” because, as indicated, the applicant said that it was the respondent who insisted on it (MC14, DC27), whereas the respondent asserted that it was wholly the applicant’s idea (MC14). On the view, I take about the legal consequences, who demanded the report does not matter. When the respondent arrived on the 23rd March, though the report had not arrived, the applicant was reluctantly prepared to permit the respondent to start on some remedial work, but, on her evidence, which I accept, there was argument about what work the respondent was prepared to do, which led to the involvement of the applicant’s son and then the respondent left.
Whilst the Magistrate’s Reasons for Decision allude to the obtaining of a building inspector’s report (see [12]), he gave it no weight despite the evidence from both sides that a report was being obtained. Such evidence had the capacity to undermine his conclusion that, on the 23rd March 2009, the applicant sent the respondent away because she was determined to prevent him from ever doing any rectification work. The Magistrate failed to consider that the applicant was not absolutely precluding the respondent from restoring the defective work, but rather, not unreasonably in the light of the dispute, wanted an independent expert to report on what needed to be done by him to put the job right. In my respectful view, that was the compelling inference and it undermines the Magistrate’s conclusion about the applicant’s intent on the 23rd.
Secondly, in my view, to characterise the applicant’s behaviour in sending the respondent away, as bringing about the impossibility of performance and therefore a breach of contract was erroneous in law.
The time for the respondent to perform his obligation under the contract had long passed. He was in clear breach of the contract. The standard of workmanship as amplified by the evidence of Mr Riley and as illustrated in the photographs was appalling[5]. The contract was repudiated or terminated by those breaches. There was no term requiring the applicant to permit the respondent to carry out any rectification work. Nor in the circumstances was there any obligation at law to afford the respondent an opportunity to do remedial work. Rather, as the defects emerged the applicant was entitled, as a matter of law, to treat the contract as repudiated and sue for damages (see Cassidy v Engwirda Construction Co (No 2)[6]).
[5] See photograph number 2 of the bundle Exhibit P3 which shows a piece of stone or wood inserted between the underside of the ramp cross-beam and a supporting post.
[6] [1968] Qd R 159 per Hoare J at 166.
In particular, in Cassidy’s case Hoare J said at 166 as follows:
Hudson’s Building and Engineering Contracts, 9th Ed., deals with the obligation to give notice of defective work at pp. 285-288. The authors conclude, and in my opinion rightly so, at p. 287, that, in the absence of express provision in the contract, the remedies under maintenance defects clauses are in addition to and not in substitution for common law rights (see Robins v. Goddard (1905) 1 KB at pp. 302, 303 per Stirling LJ), and that, even where the defects have appeared within the period, the employer may sue for damages rather than call on the contractor to do the work.
However, the applicant did not immediately treat the contract as repudiated, but having taking advice from the Consumer Affairs Department, complained to the respondent by letter (see letter 16.02.09 Exhibit A1). Thereafter, there were the meetings and dealings which I have outlined all of which “came to nothing” and then the applicant sued for damages.
The question which remains is whether, by giving the respondent an opportunity to properly perform his side of the bargain, the applicant has elected to forgo her right to sue for damages. The Magistrate effectively concluded she did though he did not couch it in those terms.
In Sargent v ASL Developments Ltd & Ors[7] the High Court explained the doctrine of election. At 641 Stephen J said:
It is not by mere delay that it is said that the right of rescission was lost but rather by conduct evincing an intention to keep the contracts on foot at a time when the alternative, but inconsistent, right of rescission had become available. The vendors having two inconsistent rights were, it is said, bound to elect as between them and having elected to treat the contracts as subsisting they were thereafter bound by their election and thus forfeited their right of rescission.
The doctrine of election as between two inconsistent legal rights is well established but certain of its features are not without their obscurities. The doctrine only applies if the rights are inconsistent the one with the other and it is this concurrent existence of inconsistent sets of rights which explains the doctrine; because they are inconsistent neither one may be enjoyed without the extinction of the other and that extinction confers upon the elector the benefit of enjoying the other, a benefit denied to him so long as both remained in existence. As Williston points out (Contracts, 3rd ed., vol. 5, par. 683) the doctrine is not out of harmony with the general rule that a binding surrender of a right requires a sealed release or consideration; by surrendering one right the elector thereby gains an advantage not previously enjoyed, the ability to exercise to the full the other inconsistent right.
[7] (1974) 131 CLR 634.
Mason J at 655 and 666 explained the doctrine in the following terms:
A person is said to have a right of election when events occur which enable him to exercise alternative and inconsistent rights, i.e. when he has the right to determine an estate or terminate a contract for breach of covenant or contract and the alternative right to insist on the continuation of the estate or the performance of the contract. It matters not whether the right to terminate the contract is conferred by the contract or arises at common law for fundamental breach -- in each instance the alternative right to insist on performance creates a right of election.
...
A person confronted with a choice between the exercise of alternative and inconsistent rights is not bound to elect at once. He may keep the question open, so long as he does not affirm the contract or continuance of the estate and so long as the delay does not cause prejudice to the other side. An election takes place when the conduct of the party is such that it would be justifiable only if an election had been made one way or the other (Tropical Traders Ltd. v. Goonan [94]). So, words or conduct which do not constitute the exercise of a right conferred by or under a contract and merely involve a recognition of the contract may not amount to an election to affirm the contract.
The facts of Sargent do not require any elaboration, but as the above comments imply, the choices open in Sargent were rescinding or treating the contract as subsisting. Here the choices open to the applicant were treating the contract as repudiated and suing for damages or treating the contract as being still on foot and calling on the respondent to do the work. The distinction is not material. The principles explained by the High Court Justices apply.
In my view the doctrine of election has no application in this case. The evidence demonstrates that applicant had not reached the stage of electing to forgo her right to sue for damages. Rather, to use the words of Mason J at 666 above, she kept the question open, waiting for the respondent to accept the responsibility to do the necessary work in a good and tradesman-like manner having regard to the report which was coming. He was not prepared to do so. The work he intended to do on the 23rd March did not amount to performing completely his part of the bargain. When questioned by the Magistrate he claimed to be ready to do much more than he indicated to the applicant that he was prepared to do, but after the 23rd he was not prepared to do any work on the decking. He left the work site counting on the applicant not pursuing him, because of her son’s behaviour. Then later when a claim crystallised he sought to bargain with her again over her son’s behaviour. Accordingly, the most that can be said of the applicant’s behaviour was that she offered the respondent an opportunity to do the work which he did not take up. The trouble which erupted on the 23rd was a smokescreen. The applicant had no obligation to pursue the respondent after the 23rd or at all.
Therefore, I conclude that the applicant is entitled to her remedy in damages subject only to her duty to do what is reasonable to mitigate her damages. The principles relating to this so called duty to mitigate again require consideration of whether what happened between her and the respondent in 2009 proves that she did not do what is reasonable to minimise her damages.
In Brooking on Building Contracts (2nd ed, 1980) by David Bennett, the learned author, at [12.7] of ch 12, in the course of commenting on Cassidy’s case (supra), concluded that where there is defective building work done whether or not the contractor is given an opportunity to remedy the defects, is often a question relevant to “mitigation of damages”. That is the view I take in this case.
As to the so-called duty to mitigate, the most helpful enunciation of the principle is found in the judgments of Priestley JA at 161, 162 and Hope JA at 157, 158 in TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd[8]. Their Honours refer with approval to the judgment of Irvine CJ sitting at first instance in the Supreme Court of Victoria in Driver v War Service Homes Commissioner[9], where the Chief Justice explains the “duty” in the following terms:
... It is sometimes said that it is his duty to do what is reasonable to mitigate his damages. This expression, I think, does not mean that he is under any duty in the ordinary sense, towards the party breaking the contract, but that he cannot be said to have really incurred any loss which might have been avoided by his taking such steps as a reasonably prudent man in his position would have taken to avoid further loss to himself: and the best test is, what would such a man do to avoid such a further loss to himself, supposing that, from insolvency of the other party, or from some other reason, he could not get any damages.
[8] (1989) 16 NSWLR 130.
[9] (1923) 44 ALT 130 at 134.
The following principles emerge:
·Applicant is not under any duty “in the ordinary sense: to the party in breach of contract to mitigate his damages rather the “duty” is not to act unreasonably.
·The onus is upon the respondent to show that the applicant has not done what is reasonable to minimise his damages.
·Whether the applicant has acted reasonably or unreasonably depends on the circumstances of each case.
I now apply those principles to the facts in this case.
Though not obliged to do so, probably at the instigation of the Consumer Affairs Department, the applicant extended an opportunity to the respondent to remedy the defects. The offer remained open even to the 23rd March 2009 when for a time on that day she was prepared for him to do some work subject to a consideration of the expert’s report when it arrived. His resistance to awaiting and considering the expert’s report, coupled with the later attempted bargaining, entitled her to abandon that particular avenue of attempting to reduce her loss. I consider that the applicant behaved reasonably in addressing her losses.
I conclude that the respondent was in breach of the contract and is thereby responsible for the resultant damages being the cost of rectifying work and repairing and safeguarding the damaged water pipes. It has not been proved by him either before the Magistrate or before me that the applicant has not done what is reasonable to minimise her damages.
Final Orders
In determining this matter the courses open to this Court are set out in s 38(7) of the Magistrates Court Act 1991 which provides as follows:
38 (7) The following provisions apply to such a review by the District 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;
I allow the Application for Review and rescind or revoke the order of the Magistrate dismissing the applicant’s claim. I set aside the judgment in favour for the respondent and substitute judgment for the applicant against the respondent for damages as follows:
·Cost of rectifying the defective work $4,893.35
·Cost of repairing the damaged water pipes $750.00
Total $5,643.35
The applicant is entitled to prejudgment interest. She has as yet not expended money to remedy the defective work and so is not entitled to prejudgment interest on the cost of doing so. She has however paid $750 for plumbing repairs made necessary by the respondent’s breach of contract. That payment was made in August 2008 and accordingly I allow $100 interest for that expenditure.
As to costs, I order the respondent to pay the applicant’s costs in respect of the Minor Civil Action and this Application for Review being as follows:
·$220.60 – cost of filing fees for initial action and this Application for Review
·$150.00 – cost of Mr Riley’s Inspection Report
·$675.00 – Mr Riley’s witness fee for court attendance on the 14th August 2009 before the Magistrate;
·$165.00 – cost of quotation for remedial works from Mr Peter Allan;
·$200.00 – for the witness fee for the applicant including cost of procuring transcript.
Therefore the applicant is entitled to judgment against the respondent in the sum of $5,643.35, plus $100 interest and further, she is entitled to costs of the proceedings in the Magistrates Court and this Application for Review in the sum of $1,410.60. I so order.
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