Boyle v Ace Waterproofing P/L - [2005] SADC 148

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
BOYLE v ACE WATERPROOFING P/L
Judgment of His Honour Judge Millsteed
25 October 2005
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK
Application to review a decision in a minor civil action - failure by applicant to pay for supply of labour and materials in connection with the installation of a salt damp course - judgment for respondent for part of the work performed - applicant's counterclaim for damages dismissed - whether respondent failed to provide adequate salt damp course - application dismissed - cross application by respondent for total damages claimed - cross application dismissed.

BOYLE v ACE WATERPROOFING P/L
[2005] SADC 148

Martin Patrick Boyle (the applicant) has applied to review a judgment entered on 19 March 2005 by Mr P Foley SM in a minor civil action. Judgment was entered against the applicant in favour of Ace Waterproofing Pty Ltd (the respondent) in the sum of $1,150 plus costs. The respondent has filed a cross-application to review the decision.
Factual Background
The circumstances that gave rise to the action between the parties can be briefly stated.
The respondent conducts a salt damp treatment business that specialises in a method of treatment that involves injecting chemicals into the walls of buildings. The process is designed to create a chemical damp course that prevents rising salt damp.
The applicant contracted the respondent to treat salt damp affected walls in his home at 33 Farrant Street Prospect. The respondent quoted the applicant $4,200 for performing the work in two stages. The first stage involved injecting the walls with chemicals and the second involved replastering the treated walls. The replastering was to commence about four months after the first stage had been completed to give any salt damp present in the walls sufficient time to rise to the surface. At the completion of the first stage the applicant was required to pay the respondent $3,070. The balance was due to be paid upon completion of the second stage.
On 15 and 16 July 2003, an employee of the respondent attended the applicant’s home and injected the walls with chemicals. The applicant was present when the work was performed. He was concerned that an inadequate damp course had been created and communicated his concerns to Mr Williams, the respondent’s Managing Director. On about 18 July 2003 Mr Williams attended the applicant’s home and inspected the work that had been performed. He was satisfied that the walls had been properly treated. During the ensuing months, the applicant continued to express concern to Mr Williams about the adequacy of the chemical damp course and refused to pay for the work that had been carried out to that point (stage 1).
Proceedings in the Magistrates Court
On 17 December 2003, the respondent instituted proceedings in the Magistrates Court seeking to recover from the applicant the sum of $3,070 for work and labour done and materials supplied. On 1 March 2004, the applicant filed a defence asserting that the respondent “did not fulfil their agreement”. On 2 November 2004, the applicant filed, with the leave of the court, a fresh defence. He repeated the particulars of his defence and counterclaimed for damages in the sum of $6,000 to repair “damaged brickwork”, to replace “damaged property” and to meet the cost of inserting an “effective damp course”. The applicant also claimed for pain and suffering, but subsequently abandoned this aspect of his claim.
On the hearing of the action the applicant gave evidence that during the months following the chemical treatment the condition of the walls deteriorated due to salt damp. In support of his case the applicant called Mr Mark Haynes (a certified building inspector) and Mr James Mann (a specialist in testing building materials). Both Mr Haynes and Mr Mann inspected the walls that had been treated by the respondent (except a wall adjacent to the “eating area”). Mr Haynes conducted his inspections on 23 July 2004, 30 June 2004 and 5 July 2004. Mr Mann examined the walls in early November 2004. In addition to their visual inspections Mr Haynes and Mr Mann used instruments designed to measure the level of dampness in walls. The readings they obtained indicated high levels of moisture in the walls.
At the trial of the action the respondent failed to call the employee who carried out the work in the applicant’s home. However, Mr Williams gave evidence for the respondent. Although he was not present when the work was performed he expressed the view, based upon his inspection of the walls approximately two days after the work had been completed and his knowledge of the chemical technique employed, that the walls had been satisfactorily treated.
In relation to the tests conducted by the respondent’s witnesses Mr Williams expressed the view that the high moisture readings they obtained were consistent with the presence of moisture in the atmosphere or moisture that had been drawn to the surface but which had been present in the bricks prior to treatment. Under cross-examination Mr Mann accepted that the nature of the tests he conducted could pick up atmospheric moisture. Mr Haynes was adamant that the nature of the instrument he used would not have produced readings affected by moisture in the atmosphere. Both witnesses rejected Mr Williams second theory.
In the result the learned Magistrate concluded:
Having considered all the evidence it is clear, and I find, that the rising damp treatment to all walls in the lounge/dining rooms was ineffective and did not perform as had been represented by the plaintiff. However, there is no evidence that treatment to the wall adjacent to the eating area was not effective and I find the plaintiff is entitled to the sum of $1,150, plus $264 for solicitor fees in preparing the summons and $74 filing fee.
In relation to the defendant’s counterclaim I am satisfied that the failure of the treatment has led to a deterioration of the walls in the dining and lounge rooms, however there is no evidence before me that would allow me to determine the value of any deterioration attributable to the plaintiff’s work as opposed to pre-existing deterioration caused by rising damp over many years. The quote attached to the defendant’s counterclaim while admissible in accordance with rule 95(2) is so lacking in detail as to make it impossible for me to determine the cost of repair attributable to the plaintiff’s defective work. Consequently the counterclaim must fail.
The appeal
The applicant Mr Boyle accepts that the Magistrate correctly found that the respondent was entitled to be paid for the work conducted on “the wall adjacent to the eating area”. He acknowledged that he had failed to arrange for Mr Mann and Mr Haynes to examine that particular wall. Nonetheless, he submitted that he was entitled to damages due to the respondent’s failure to provide an adequate damp course in respect of the other walls.
The difficulty with the applicant’s argument is that the Magistrate found that it was impossible to determine the extent of the damage caused by the respondent’s installation of an inadequate damp course.
The applicant put before the Magistrate a quote from a company called Premier Salt Damp Removal. The cost of the labour and materials quoted is over $10,000 (far in excess of the applicant’s claim) and includes work to be performed on walls that were not treated by the respondent. Furthermore, in relation to the walls that had been treated by the respondent, the quote includes work (chopping and replastering walls) that would needed to have been carried out even if an adequate salt damp course had been installed.
In short, the quote fails to identify the costs of labour and material required to repair damage to the walls attributable to the respondent’s work. The inadequacy of the quote was the subject of specific comment by the learned Magistrate in his reasons for decision. However, on the hearing of this appeal, the applicant failed to produce any further evidence to clarify the matter.
There is a further difficulty with the applicant’s claim. On the evidence before the Magistrate, it was virtually impossible to determine the extent of the damage to the structure of the walls that was the result of moisture directly attributable to the respondent’s work rather than pre-existing moisture.
Having regard to the state of the evidence it cannot be said that the Magistrate erred in dismissing the applicant’s counterclaim for damages. Accordingly, I dismiss Mr Boyle’s application to review the Magistrate’s decision.
I turn to the respondent’s cross-appeal. In effect this was based on a re-agitation of the arguments put to the Magistrate by Mr Williams. In my opinion, it was clearly open to the Magistrate to accept the evidence given by Mr Boyle and his witnesses and to reject the respondent’s total claim for damages for the reasons that he advanced. That evidence clearly established that the chemical damp course installed by the respondent was inadequate. The respondent has failed to demonstrate error on the part of the Magistrate. The cross-application to review is dismissed.
In my opinion, it is appropriate that each party bears his own costs in relation to this application and cross-application.