Bowden and Coutinho v EK Dunstan and Co Pty Ltd

[2007] SADC 135

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Minor Civil Review)

BOWDEN AND COUTINHO v EK DUNSTAN AND CO PTY LTD

[2007] SADC 135

Judgment of His Honour Judge Barrett

14 December 2007

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK

Application to review a decision in a minor civil action - whether respondent overcharged for electrical work - whether respondent did work competently - whether respondent liable for damage done during work - appeal from finding that respondent not liable and counterclaim dismissed.  Held: appeal dismissed

BOWDEN AND COUTINHO v EK DUNSTAN AND CO PTY LTD
[2007] SADC 135

1. This is an application to review a minor civil decision by Mr JG Fahey SM delivered on 23 August 2007.  Although there are two applicants, it appears plain that only Ms Sonia Coutinho should be a party to these proceedings, or for that matter, the proceedings under review.  She was the lone contractor with the respondent and she made that clear at the outset of my review.  I therefore strike out the name of Mr Bowden from the proceedings.

2. The applicant contracted with the respondent for some electrical work at her house.  Other renovations were being done at the same time.  The work was done in 2005.  Invoices were sent and some payments were made, but when the respondent pressed the applicant for final payment after quite some time had elapsed, she complained about the work.  The complaints were broadly threefold:

3. First it was alleged that the work was defective;

4. Second, the respondent overcharged for the work done;

5. and third, the respondent damaged a ceiling in the course of their work and they did not fix it up.

6. At the hearing before the learned special magistrate the applicant and her partner gave evidence.  For the respondent the workman who did the work was called and a Mr Charles Hoare from the office of the Technical Regulator was called.

7. The learned special magistrate detailed the evidence of both parties about the allegation of defective workmanship.  Mr Hoare from the office of the Technical Regulator, confirmed that there were, in the view of that office, six deficiencies in the work.  The office notified the electrician and the deficiencies were repaired at the respondent’s cost.  One particular defect was alleged and stressed by the applicant.  She said that she had been electrocuted by an exposed wire.  The magistrate was satisfied that that work had nothing to do with the respondent.  Mr Hoare said in his view the shock was not the result of anything done by the respondent.  It was caused by someone else with no connection to the respondent (see judgment para [12]). 

8. On the review before me the applicant complained that a witness she wanted to call from the Office of the Technical Regulator was not available. Mr Hoare replaced him and instead of being a witness for her, he gave evidence for the respondent.  The applicant subpoenaed in this court Mr Schrapel, the witness she had wished to call in the Magistrates Court.  With the consent of the respondent I permitted him to give evidence.  In the event, his evidence was to exactly the same effect as that of Mr Hoare in the lower court.  Far from supporting the claims of the applicant he strengthened the case of the respondent.  At the request of the applicant in examination in chief he produced photographs that had been taken of the deficiencies and he confirmed that they had all been rectified to the satisfaction of the Office of the Technical Regulator. 

9. The applicant filed a five page application to review which was extremely discursive, but insofar as it alleges that the work done by the respondent was defective, I am satisfied that it is without foundation.

10. The second broad ground of review is that the respondent overcharged for the work it did.  The applicant gave evidence at the hearing in the lower court, as did her partner.  The learned special magistrate reviewed that evidence and that of the workman who had done the work.  He found in the evidence of the occupants such inconsistencies that he preferred the evidence of the workman.  Some of the evidence of Mr Hoare from the Office of the Technical Regulator confirmed that of the workman. His Honour was comforted by that independent evidence.  As I have said, Mr Schrapel in the hearing before me confirmed the evidence of Mr Hoare.  In my view the evidence on review demonstrates that the learned special magistrate findings were correct.  I have perused the bundles of documents tendered in the lower court.  They bear out the findings at first instance.

11. Finally there is the issue of the damage undoubtedly done to the ceiling of the applicant’s home by the workman.  At the hearing in the Magistrates Court the workman conceded he had done the damage and said that he had offered to rectify it.  He said the occupiers told him that there was no need for that because the builders undertaking the other renovation work would repair that damage.  The applicant and her partner denied that conversation. 

12. In this regard two factors impressed the learned special magistrate.  First he found that there was no complaint by the occupiers about this damage to the ceiling until they were pressed for payment long after the work was finished.  Second, the worker gave evidence that when he finished the work, the occupiers provided him with money to spend at the hotel because they were pleased with what he had done.  On the review the applicant explained that she did do that but that she only did it because she was sorry for the worker because of the damage he had done to the ceiling and for the trouble he might be in with his employer.  The learned special magistrate accepted the evidence of the worker and found against the applicant on that ground.  I see no error in His Honour’s reasoning.  In fact I am confirmed in my own view that his finding on credit was well justified and gave the applicant no basis to claim otherwise on the review.

13. The learned special magistrate found in favour of the respondent and ordered the applicant to pay the balance of the sum owing to it.  He ordered costs and interest and witness fees.  His final order was that the respondent should issue an outstanding compliance certificate for the work.  Before me Mr Schrapel confirmed that that compliance certificate had been issued in accordance with that order.

14. His Honour dismissed the applicant’s counterclaim claiming damages for electric shock suffered by the applicant and the damage to the bathroom ceiling.  For the reasons already given I see no basis for interfering with that finding.

15. I dismiss the application for review. 

16. Neither party was represented by counsel at the hearing before me and both parties had to travel from the country to be present.  It would put the parties to some expense to come back to court to argue the question of costs.  I will give liberty to the respondent to apply for costs but in the circumstances I expect that only a modest sum would be in contemplation if application were made.