Bylhouwer v Travers - [2021] SADC 142

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
BYLHOUWER v TRAVERS
[2021] SADC 142
Reasons for Decision of her Honour Judge Deuter
10 December 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
The applicant sought a review of a judgment entered against him in a minor civil action in the Magistrates Court for the sum of $3,000.00.
The respondent had claimed the cost of rectifying defective concrete spray works undertaken by the applicant at her home.
The Magistrate appointed an independent expert, Kent Hopkins to provide a report. The Magistrate accepted the findings of Mr Hopkins that the concrete spray works had not been carried out in a tradesman like manner, and displayed poor workmanship. The concrete colour used was also not the same or similar to the colour initially requested by the respondent.
The applicant on review contested the expertise of Mr Hopkins, and disputed that the concrete spray works were not the correct colour as per his contract with the respondent. He also disputed that the works displayed poor workmanship.
HELD: There was no appealable error in the manner in which the learned Magistrate conducted the hearing. The findings were clearly open to her on the evidence.
The decision of Magistrate is affirmed. The Application for Review is dismissed.
Magistrates Court Act 1991 (SA) s 38, referred to.
Harradine v District Court of South Australia [2012] SASC 96, considered.

BYLHOUWER v TRAVERS
[2021] SADC 142
Minor Civil Review
Introduction

This is an application brought by Chris Bylhouwer (the Applicant), pursuant to s 38 of the Magistrates Court Act 1991 (the Act), for this Court to review a judgment entered by a Magistrate against him, in a minor civil action.
The Applicant was the respondent in the Magistrates Court proceedings in which Gioia Travers (now the Respondent) claimed damages by way of a refund for, or repair of, spray concreting works performed by the Applicant (the works). Whether there was need to repair the works, and if there was whether that need had been caused by the Applicant, were the issues in dispute. After hearing evidence and ordering an expert building report, the Magistrate entered judgment in favour of the Respondent in the sum of $3,000.00 plus court fees and interest. The sum of $3,000.00 was an assessment by the Magistrate of the approximate cost of rectifying the works.
Background
The background to the proceedings in the Magistrates Court is not in dispute. On 30 April 2019, the Respondent engaged Mr Bylhouwer, to undertake the works at her house at Macclesfield. This involved supplying and spraying a layer of coloured concrete, and a protective clear topcoat, onto approximately 20 sqm of existing concrete paving. The contract price for the works was $2,250.00.
As part of the contract Ms Travers had chosen a coloured oxide described as Lite Mocha. The Applicant commenced the works on 13 May 2019. His evidence is that he began by checking that the concrete was below the 10% moisture content level; conducting concrete preparation and a cleaning process; and masking the surrounding walls, doors and retaining walls to prevent overspray.
On 14 May 2019 the Applicant advised Ms Travers that he did not have stock of the Lite Mocha oxide and proposed two alternative colour options being Leather and Autumn Tan. The Applicant suggested that these were similar in colour to Lite Mocha and were suitable for the works. He did not however have a colour chart of these colours to show Ms Travers. He never showed her those colours on a chart.
It was an issue in dispute in the Magistrates Court as to whether the Leather or Autumn Tan oxides were in fact similar to the Lite Mocha colour, and suitable for the works, given where the concrete was located (ie: near existing coloured brick work). As Mr Bylhouwer could not show the alternative-coloured oxides to the respondent, he suggested spraying one of the alternative colours onto the concrete. If Ms Travers was not satisfied with the appearance, the second alternative colour could then be sprayed over the top. Ms Travers agreed to this process.
The Applicant proceeded to spray a concreate layer using the Leather coloured oxide. Ms Travers did not like that colour, which on her evidence was not at all close to the colour she had initially chosen. Mr Bylhouwer then proceeded to spray the concrete area using the Autumn Tan coloured oxide. Approximately five square metres was sprayed. The concrete was then left overnight to allow it to cure. On 15 May 2019 Ms Travers advised the Applicant via a telephone voice message that she was satisfied with the Autumn Tan colour and agreed to the entire area being sprayed using that oxide in the concrete spray. An additional sample of Autumn Tan coloured concrete had been put onto the brick wall of Ms Travers’ home near the concrete area to test colour suitability. There is a dispute as to who placed this sample on the wall. That issue is of no consequence to the matters to be determined.
Over the course of 15 and 16 May 2019, Mr Bylhouwer carried out the works using the Autumn Tan coloured oxide in the spray concrete. A clear sealer was later applied. It was not in dispute that there would be a slight change in the colour of the concrete after the application of the clear sealer. The invoice for the works was paid in full on the day they were completed.
Four days after payment, and completion of the works, Ms Travers raised concerns regarding the colour of the concrete. There was subsequently an allegation that the colour had turned cloudy. The Applicant’s case is that the reason for the cloudy appearance of the concrete could be due to a number of different factors including, humidity or moisture in the concrete. He further asserts that any cloudy appearance is indemnified by clause 22 of the contract entered into with Ms Travers.
Ms Travers was not happy with the colour of the concrete spray generally, although it was in dispute when complaints about the colour first arose. On the evidence of Ms Traver’s husband, she had raised complaints about the colour not being correct while the works were still being carried out. Mr Bylhouwer was alleged to have stated that the colour would ‘get darker’ over time. Before me, Ms Travers also stated that she called Mr Bylhouwer many times and was advised by him that the colour would ‘settle’.
The proceedings in the Magistrates Court
On 19 November 2019 Ms Travers issued a minor civil claim against Mr Bylhouwer. In summary the position of the respective parties was as follows:
1.Ms Travers claimed that Mr Bylhouwer failed to complete the works in a workmanlike manner. She relied upon the wearing of the clear finish in several areas; over-spraying of the concrete onto surrounding brickwork, damp course and a retaining wall; and areas where the concrete spray had not been applied.
2.Ms Travers also claimed that Mr Bylhouwer failed to use the correct oxide colour, and although told that alternative colours were the same as Lite Mocha, the colour used was clearly too pink. She claimed that she only chose the Autumn Tan colour on being told by Mr Bylhouwer that Lite Mocha was out of stock and not available. She also did not understand the impact of spraying the Autumn Tan coloured concrete over the Leather coloured concrete. She claimed that this changed the original colour.
3.Mr Bylhouwer defended the first claim by asserting that the contract stipulated that he was not liable for the resulting cloudy appearance as that was an issue with the product, and independent of his works. He also denied that the works were faulty and not carried out in a workmanlike manner.
4.He defended the second claim by arguing that Ms Travers had agreed to a variation of the contract regarding the colour of the oxide to be used. Ms Travers saw the colour in the concrete sprayed as a sample on the wall, and expressly agreed to the use of the Autumn Tan colour via a voice message left on his phone.
The relief sought by Ms Travers in her original claim was put on three alternative bases, being a refund of the monies paid of $2,250.00; repair of the works by Mr Bylhouwer; or $3,900.00 being the cost of a repair and redo of the works by a third party contractor.
Evidence was called at the trial from Ms Travers, Mr Bylhouwer, Mr Newbery (Ms Travers’ Husband), and Mr Kent Hopkins (court-appointed building expert).
Mr Hopkins was a court appointed building expert who was instructed by the Magistrate to review and assess the works. He provided two reports dated 30 April 2020 and 9 February 2021. In assessing the works, Mr Hopkins attended Ms Travers’ property. He was shown the works, and Ms Travers’ concerns with the quality of the workmanship. Mr Bylhouwer was not present at that time. Mr Hopkins did have the opportunity to speak to him later by telephone.
Mr Hopkins’ reports were tendered. In his report of 9 February 2021 Mr Hopkins concluded that:
1.The colour of the concrete paving did not match the sample applied to the nearby brickwork.
2.The appearance of the concrete was impacted by the nearby retaining wall not having proper drainage. Without proper drainage the moisture penetrates the wall and leaches onto and under the paving. He was told by Ms Travers that Mr Bylhouwer had failed to raise the moisture conditions, despite his opinion that these were obvious on the older concrete. Those conditions affected the application of the concrete oxide product. The Applicant should have been aware of this prior to commencing the works.
3.Damage appeared to have occurred to the base row of the brick work of the house, as a result of the works. This consisted of an over-spray of a sealer or other preparatory coating.
4.The work was generally of a poor standard, and not carried out in a tradesman-like manner. This included poor application of the concrete product and sealer.
5.The spray paved area was clearly a pinkish colour, and did not represent the Lite Mocha oxide colour originally chosen.
6.Any attempt to respray the concrete surface would now require the surface to be ground back to remove any sealer and to ensure correct bonding of the new coating.
7.To rectify the works, the spray pave application would need to be ground off back to the original concrete and started again, to ensure that the faulty product did not impact on any new spray works.
8. Quotes for repair in the range of $3,000.00 were reasonable.
The nature of a minor civil action
Section 38 of the Act contains the provisions which are applicable to the trial, and any review of a minor civil action. Of relevance here are s.38(6)-(9) in relation to the role of the District Court in any review of a minor civil action:
(1)The following provisions are applicable to the trial of a minor civil action:
(a)     the trial will take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the parties;
(b)     the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c)     the Court may itself call and examine witnesses;
(d)     the parties are not bound by written pleadings;
(e)     the Court is not bound by the rules of evidence;
(f)     the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(2)…(5)
(6)The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
(7)The following provisions govern representation in minor civil actions:
(a)     ….
(ab)   ….
(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.
(8)A decision of the District Court on a review is final and not subject to appeal.
In Harradine v District Court of South Australia,[1] Blue J detailed the legislative history of the minor civil action, and set out that the role of the Court is that of an inquiry by the Magistrate rather than that of managing an adversarial contest between the parties. The clear policy of the Act is to provide an efficient and economical means by which the small claims can be determined in the Magistrates Court.
[1] [2012] SASC 96.
The trial in the Magistrates Court
I do not need to detail the evidence of each witness. I have thoroughly read and considered the transcript. The learned Magistrate swore in the witnesses and as I have set out, she obtained an independent report from Mr Hopkins, a building expert. His initial report dated 30 April 2020 followed analysis of photographs and discussions with Ms Travers at her home. His supplementary report was provided following clarifying questions from the learned Magistrate without a separate, or in-person, analysis of the works.
The conduct of the learned Magistrate in calling witnesses, and the manner in which the witnesses were examined, was entirely appropriate and in accordance with the policy under the Act for the Magistrate to examine them together, informally, and inquisitorially. Each witness was given a full opportunity to put their respective cases to the other.
As noted, Mr Hopkins expressed the opinion that the spray paving had not been carried out in a tradesman like manner, and that there was a need for the works to be ground off back to the original concrete and started again.
The Applicant was critical of Mr Hopkins’ report. He explained that he had over 25 years experience in what was a relatively unique field of work, concrete spraying. He asserted that Mr Hopkins’ expertise was not included in his report, and that the report itself was based on pictures of the works and assertions from Ms Travers, rather than from conducting any independent assessment or review. That is not the case. Mr Hopkins in his first report sets out his attendance at Ms Travers’ property.
Mr Bylhouwer complained that Mr Hopkins did not enquire into his due diligence regarding the alleged timber retaining wall and water seepage. By his response to Mr Hopkins’ report he set out that, prior to commencing the works, he had assessed the retaining wall. He found that it showed damage, but that there was no effect to the existing concrete when tested. Mr Bylhouwer undertook moisture content measurements throughout the concrete slab, which showed variable results at or below 2.5%. He told the Court by his report[2] that this percentage was well below the Australian Standard[3] and below the 10% manufacturer recommendations. He also submitted that there was no mention by Mr Hopkins of moisture issues actually affecting the works.
[2] Exhibit P2.
[3] AS1884-2012.
In relation to the alleged wall damage and the over-spray areas, Mr Bylhouwer submitted that the Respondent never contacted him to come and deal with those issues, which he described as minor. It was an exaggeration to describe the works as being of a poor standard.
Mr Bylhouwer strenuously denied that he had mixed the coloured oxides to create the colour used in the concrete. He insisted that the Respondent had contractually accepted the colour change after the trial spray of the 5 square metres. He submitted that this was one of the areas of the report where Mr Hopkins had simply accepted Ms Travers’ version of events without speaking to him.
Finally, Mr Bylhouwer was very critical of Mr Hopkins’ proposed rectification of the works by grinding back the concrete spray and sealant, alleging that it went beyond the manufacturer’s recommendation. He submitted that grinding off the concrete surface was only used in discrete circumstances, none of which were complained about by the Respondent.
Mr Bylhouwer’s case was that the Respondent had requested an ‘after contract’ colour change via grinding back the works. He proposed the option of applying a new coloured sealant, which would bond the existing sealer and spray paving. This would involve a cost for materials of $300.00.
The Magistrate’s decision
The learned Magistrate correctly defined the two overarching issues in dispute as being whether the correct concrete colour was applied, and whether the application of the spray paving was done in a tradesman-like manner.
The issue in relation to the retaining wall and water seepage was not pursued at trial by Ms Travers. She accepted that the retaining wall was damaged before the works had begun. Her concerns were the colour of the concrete not being what she had ordered, and not close to the Lite Mocha colour she had chosen, and also the poor workmanship of the concrete spray.
In coming to her decision, the Magistrate relied upon the findings and conclusions of Mr Hopkins. Her Honour described him as a man of great experience who had carried out an extensive amount of research. She endorsed and accepted his report in its entirety. The Magistrate concluded that the Applicant’s methodology in this particular job was wrong and that the completed concrete spray paving was not the colour originally requested by Ms Travers. She found that the works were generally of a poor standard, and not carried out in a tradesman-like manner.
In relation to the colour of the concrete the Magistrate inferred from the evidence that the Applicant had used old, or leftover oxide stock. She described the Applicant’s evidence explaining why Leather and Autumn Tan coloured oxides were offered to Ms Travers instead of Lite Mocha as being unsatisfactory.
The Magistrate concluded that Ms Travers was entitled to at least a full refund on the works. In addition, she allowed for some rectification costs; however, did not accept that these would be between $1,300.00 and $1,500.00. She adopted on a broad- brush approach, and judgment was entered for Ms Travers in the sum of $3,000.00 in addition to court fees and interest. I consider that this was the correct approach to take.
The application for Review
The Applicant’s grounds for review are that the learned Magistrate erred by:
1.Failing to consider, or by not giving sufficient weight to, material evidence that established that the parties agreed to amend the contract between them such that the Hi Tech oxide colour Autumn Tan was to be applied to the Respondent’s concrete slab, instead of the Lite Mocha colour oxide;
2.Accepting the expert evidence of Mr Hopkins and by failing to give sufficient weight to the Applicant’s responding written evidence dated 24 March 2021;
3.Ordering judgment in the amount of $3,000.00 plus costs and interest, as this sum was not substantiated by the evidence at trial.

The Applicant sought the following orders:
1.That enforcement of the judgment of the learned Magistrate of 10 May 2021 be stayed pending this review.
2.The judgment of the learned Magistrate dated 10 May 2021 be rescinded and substituted with a judgment that the Respondent’s claim be dismissed.
3.Costs.
The nature of a Review
The review is not necessarily a hearing de novo in that the District Court Judge is entitled to have regard to the evidence adduced before the Magistrate and may rehear that evidence. I am able to inform myself as I think fit. A Judge must act according to the substantial merits of the case and, may rehear evidence without being confined by the fresh evidence rule which apply to appeals by way of rehearing.
If I conclude that the magistrate made an error in her judgment and did not make findings of fact necessary to determine the matter, then I am able to re-hear the evidence relevant to those findings of fact.
To the extent that the Court does itself hear evidence, I am to proceed in a similar manner to that provided by s 38(1) of the Act, namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties. This is because s 38(7) provides that the Court may inform itself as it thinks fit, and the District Court should not adopt a radically different approach to the hearing than that required to be adopted by a magistrate at first instance, given that there is no power of remitter. In hearing the review the Court must act according to equity, good conscience and substantial merits of the case without regard to technicalities and legal forms.
The submissions of the parties
The applicant
It is clear that the Applicant genuinely feels aggrieved by the findings that he failed to complete the works in a tradesman-like manner, and that the appropriate remedy would be to fully grind off the entire works and start again. He further maintains that the colour of the works reflects the colour chosen by the Respondent via oral amendment to the contract.
The Applicant submitted that the colour of the concrete was as agreed, and matched the sample on the wall, at the time the works were completed and paid for. However, when assessed by Mr Hopkins nearly 20 months later, the colour had been impacted by moisture seepage over that time caused by the damaged retaining wall. This was not something he was responsible for. That is, the slow deterioration of the colour, due to moisture.
He repeated in his submissions before me that Mr Hopkins’ report, on which the Magistrate relied, was defective in that Mr Hopkins was not an appropriate expert. He noted that his qualifications were not outlined in his report, and that his conclusions appeared to rely on photos and what Ms Travers told him, rather than his in-person inspection of the works. The Applicant asked that I give consideration to his report in reply to Mr Hopkins’ findings, and also the additional reports of three other persons who work in Spray Paving. I explained during the hearing that I could only give minimal weight to those reports as they were not provided by independent experts, but rather by Mr Bylhouwer himself and other contractors who he had trained or employed. I have nonetheless considered those documents, and Mr Bylhouwer’s submissions as set out in Exhibit P2 regarding the conclusions reached by Mr Hopkins.
The Applicant also expressed concern that the judgment sum of $3,000.00 plus costs and interest was arbitrary, and was based on only the one option for rectification as proposed by Mr Hopkins. It did not take into account the repair option proposed by him, and there was no basis at all for the sum of approximately $750.00 included in the judgment for repairs. There was no quote for that amount.
The respondent
The Respondent relied upon the reasons of the Magistrate. She restated her position that the concrete colour spray was not what she had ordered and later agreed to. She conceded that she had accepted the change to Autumn Tan via a phone message to the Applicant. However, this was only upon the Applicant’s advice that the colour would settle to be similar to the Lite Mocha. She relied upon his representation to enter into the amended contract. She now feels that she was misled.
The Respondent’s evidence was that she agreed to the change when she was told by Mr Bylhouwer that the supplier, Parchem, was out of the Lite Mocha oxide. She was not aware that the Applicant could have obtained the Lite Mocha coloured oxide elsewhere, and it was only that his own supply had all been used. She was not totally convinced that the Autumn Tan colour was the same as Lite Mocha, however the Applicant assured her that it would work, and it would settle over 28 days. She was also told that it was nothing that the Applicant could not change. She felt pressured to accept the alternative colour that was offered.
Ms Travers told me that as the concrete and sealant dried, the colour became pinker and lighter. She immediately telephoned the Applicant who continued to reassure her that the colour would be correct after the works had settled. Ms Travers submitted that once the concrete had dried and she could inspect the works more closely, she then became aware that the edge of the spray on the brickwork was jagged and uneven with some etching of the bricks evident. Ms Travers confirmed that before issuing the claim, the only option she had for repairing the works was the ‘grinding off’ option quoted at $3,000.00 by the Respondent. Mr Hopkins had agreed that was what was the preferred option for changing the colour of the concrete.
Discussion
In reviewing the evidence at the trial, including the reports of Mr Hopkins and the written response of the Applicant, I am of the opinion that there was no procedural unfairness to the Applicant from the manner in which the hearing was conducted by the Magistrate. The trial was conducted in a way consistent with the policy of the Act for the determination of minor civil claims.
The learned Magistrate was confronted with two different versions of what occurred in relation to the selection of the colour for the concrete spray. She found the Applicant’s evidence unsatisfactory. She did so, accepting the opinion of a court appointed expert, and preferring the evidence of the Respondent.
There is nothing to suggest that the version put by the Applicant to the Magistrate, and repeated in this Court, was more probable than the version given by the Respondent. The District Court on review will not interfere with such findings of credit unless they are said to be inconsistent with the incontrovertibly established facts. I cannot find the learned Magistrate failed to understand or failed to give due weight to the Applicant’s evidence.
In assessing the evidence, the learned Magistrate relied upon the expert opinion of Mr Hopkins. It was open to her Honour to accept that evidence having regard to not only the photographs of the works, but also his attendance at the Respondent’s premises. There was no explanation as to why the Applicant did not attend at the inspection of the works with Mr Hopkins and the Respondent. In any event Mr Bylhouwer did have the opportunity to discuss the issues with Mr Hopkins by telephone.
I find that the learned Magistrate weighed all the material presented at trial and came to a considered view as to the state of the works, and what was required to rectify them. The matters submitted during the hearing before me were not different in any significant way to those presented to the Magistrate at trial.
In my opinion, there is no proper basis to interfere with her Honour’s decision. There is no substance to any complaints made by the Applicant in his grounds for review. I appreciate that the Applicant has a different opinion than the decision reached by the learned Magistrate, but that does not mean that her Honour was in error. There is no error of fact or law that forms a proper basis to rescind the judgment under review. Accordingly, I affirm the judgment and the orders of the learned Magistrate. I dismiss the application for review of the Magistrate’s decision.
Costs
There is power for this Court to make an order for the costs of the application. I note, however, s.38(5) of the Act and the intention of Parliament is not to award costs unless there are special circumstances justifying such an award. In my opinion, the appropriate order is that each party bear its own costs.
I make no order as to costs.
Orders
1.That the Application for Review of the Decision of the learned Magistrate dated 10 May 2021 is dismissed.
2.No order as to the costs of the hearing of the Review.