Brown v Caruso Construction Company P/L - [2017] SADC 74

District Court of South Australia
(Civil)
BROWN v CARUSO CONSTRUCTION COMPANY P/L
[2017] SADC 74
Judgment of His Honour Chief Judge Evans (ex tempore)
17 February 2017
ADMINISTRATIVE LAW
Minor Civil Review
Magistrates Court Act 1991 s38, referred to.
Wilczynski & Anor v District Court of South Australia [2016] SASC 51; Harradine v District Court of South Australia (2012) 280 LSJS 572; Tab Corp Holdings Ltd v Bowen Investments P/L (2009) HCA 8, considered.

BROWN v CARUSO CONSTRUCTION COMPANY P/L
[2017] SADC 74

The applicant, Sandra Kaye Brown, was the plaintiff in a minor civil claim in the Magistrates Court of South Australia. The respondent company, Caruso Construction Company Pty Ltd was the defendant, and Mr Paul Caruso, who I refer to as Mr Caruso, was the director and shareholder of the respondent
The applicant owned a strata title unit, at Unit 4/76 O'Sullivan Beach Road, Lonsdale. The applicant had leased the unit to the respondent. The terms of the lease are contained in a written lease, being Exhibit P1, which was tendered in the Magistrates Court.
The lease was for a period of 12 months from 16 November 2013 until 15 November 2014. The lease contained certain rights of extension, however in August 2014 the respondent, through Mr Caruso, advised the applicant that it would not be extending the lease beyond November 2014.
Initially Mr Caruso indicated that the respondent would remain as a monthly tenant, however that did not eventuate.
The respondent vacated the premises in November 2014, but did not immediately remove all of its goods from the unit, nor did it return the keys. The premises were ultimately vacated and the keys returned on 4 December 2014.
The applicant claimed that at the end of the lease the respondent had caused certain loss and damage by the respondent not complying with its obligations under the lease, in particular the applicant claimed, and I will itemise from the claim the details of what was claimed:
1$6,363.50 being the cost of rectifying and reinstating the painted floor surface in the unit.
2$35 for Jims Mowing invoices, which was not disputed by the respondent.
3$160 to repair or remake a kitchen drawer.
4$110 for an annual service of the evaporative air conditioning.
5$40 for replacement of a clay pot.
6$18 for paint remover and other cleaning fluids.
7$450 being for the plaintiff's time in gardening and cleaning and in organising quotes and repairs.
8$112 for various administration costs.
9.$324 for travel and parking costs.
The magistrate found that the applicant was not entitled to any of the damages claimed, except an amount of $486.59 for outstanding rent, and $35 for Jims Mowing invoices.
The magistrate entered judgment for the applicant (the plaintiff) for $529.59.
A security bond of $754 had been lodged by the respondent with the Office of Small Business, the Small Business Commissioner. The magistrate ordered that $529.59 of the security bond be distributed to the applicant, and the balance of $224.41 be distributed to the respondent.
As I have noted, the claim before the magistrate was a minor civil claim with the consequent jurisdictional and procedural considerations required by s.38 of the Magistrates Court Act 1991 (the Act).
Both Ms Brown and Mr Caruso gave evidence before the magistrate. In addition two independent experts gave evidence in relation to the condition of the floor in the unit, they were Mr Alan Feder and Mr Jared Fillmore. The complaint as to the condition of the surface of the floor of the unit was the main part of the claim. The evidence at trial was that when the unit was built in about 1978 the floor was smooth concrete, in 2010 the tenant before the respondent acid-etched the floor and applied a polyurethane coating. The same tenant also 'completely repainted the floor with two coats of the same paint on vacating the premises in late 2013.' This was prior to the respondent commencing its lease and occupation of the premises.
It was in 2014 that the respondent repainted the floor prior to vacating the premises.
The effect of the expert evidence, which was consistent with the evidence as to the flake of paint tendered before the magistrate (Exhibit P6), was that it was the second layer of paint applied by the previous tenant which was coming off or delaminating, it was not the coat applied by the respondent.
When asked whether the coat applied by the respondent would cause the delamination Mr Feder answered 'Absolutely not.'
One of the matters raised by Ms Brown on review was the reference to the specifications for Spescoat Floor-Thane, which was attached as attachment 1 to Ms Brown's application for review. Ms Brown also referred to an email transmission from Mr Feder to her in relation to that specification. I have considered that email.
It was Ms Brown's submission that it was only at trial that Mr Feder found out the product that was used by the respondent, and that caused him to undertake further research after the trial.
The matter comes to this court as a minor civil review. The hearing of a review is governed by s38(7) of the Act. In Wilczynski and Anor v District Court of South Australia and Ors [2016] SASC 51 Doyle J said at [45]:
Under that subsection, the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence. The Court may rehear evidence taken before the Magistrates Court. The Court may affirm the judgment or rescind it and substitute the judgment that the court considers appropriate. 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 approaching the review I bear in mind the principles which apply to a review of this kind, and in particular, I have regard to the matters raised in Harradine v District Court of South Australia (2012) 280 LSJS 572 per Blue J at [40]-[49].
I have reviewed the evidence adduced before the magistrate and have had regard to the findings of fact made by the magistrate. There is no error of the magistrate which would vitiate the judgment. I have further considered the additional matters raised by Ms Brown on review and find that there is nothing that has been raised that would cause me to reach a different conclusion than that reached by the magistrate.
There is nothing in the matters raised by Ms Brown as to the asserted obligation under the lease for the respondent to give notice to obtain permission prior to painting the floor. This was a repainting of an already coated floor. On the evidence there were no alterations or additions carried out.
I make that point bearing in mind, in particular, the reliance that Ms Brown placed on the High Court decision of Tab Corp Holdings Limited v Bowen Investments Pty Ltd (2009) HCA 8. (Ms Brown handed up to the court a copy of this decision.)
In any event it is likely, on the evidence and the matters raised before me by Ms Brown, that the problem with the floor would have needed the applicant to take steps to reinstate it whether or not the respondent had repainted it.
I note the magistrate in [10] of his judgment referred to Ms Brown consulting three experts. I accept Ms Brown's submissions that she sought three quotes but did not consult three experts. However, in my opinion that has no impact on the reasoning or the judgment of the magistrate and does not impact upon my view as to the correctness of that decision.
I further note that neither at trial nor on review was either the agent, who acted for Ms Brown in leasing the unit to the respondent, nor the prior tenant of the unit called to give evidence. They may have been able to give evidence in relation to the condition of the premises immediately prior to the respondent taking possession. I do not draw any adverse inference in relation to the non‑calling of these witnesses but simply note that the evidence in relation to the condition of the premises at the time that the respondent took possession of the premises was therefore confined to the evidence of Ms Brown and the evidence of Mr Caruso, together with the various exhibits which touched on the condition of the unit that were tendered before the magistrate. The magistrate considered that evidence.
I have considered all the matters raised by Ms Brown on review, including the detailed grounds set out by Ms Brown in the Application for Review and the attachments to the Application.
I confirm that on review I find no error of the magistrate which would vitiate the judgment and in all of the circumstances I affirm the judgment of the magistrate pursuant to s38(7)(d)(i) of the Act.
As indicated at the beginning I reserve my right to edit these reasons.
I do not think there is anything that you can say, Ms Brown, in relation to the question of costs so unless there is anything that you have to raise that is my judgment.
As I have indicated those reasons will be typed up and they will be forwarded to you and to Mr Caruso.
[Without the attendance of the parties – No order as to costs.]