Couper v O'DEA Electrical Contracting P/L - [2022] SADC 139

District Court of South Australia
(Civil: Minor Civil Review)
COUPER v O'DEA ELECTRICAL CONTRACTING P/L
[2022] SADC 139
Reasons for Decision of her Honour Judge Schammer
29 November 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
In about July 2020, Tina Couper (Ms Couper) contracted with O’Dea Electrical Contracting Pty Ltd (O’Dea), for them to undertake electrical work at a property she had purchased at Burra (the contract).
There is no dispute that O’Dea performed some, but not all, of the work pursuant to the contract.
On 15 September 2020, O’Dea issued to Ms Couper an invoice for payment of that part of the work they had completed as at that date, in the sum of $2,435.99 (the invoice). They requested the invoice be paid before they completed the balance of the work. Ms Couper refused to allow O’Dea to return to her property to complete the work, as she was dissatisfied with the service provided to her. There was no claim that the work they had completed was in any way defective, although O’Dea agreed they made a mistake in supplying and installing a 10 amp power point for Ms Couper’s caravan, rather than the 15 amp power point that she had requested.
On 9 December 2020, Ms Couper paid O’Dea the sum of $922. She has not paid the balance as outstanding.
The matter proceeded to trial before a magistrate in March 2021, at which time the magistrate determined that O’Dea was entitled to be paid, on a quantum meruit basis, for the work they had completed. The magistrate dismissed a Cross-Claim made by Ms O’Dea.
The magistrate awarded judgment in favour of O’Dea in the sum of $1,070.30 plus costs.
Ms Couper applied for a review of the decision.
Orders:
1.    Extending the time for Ms Couper to commence the Review to 1 August 2022.
2.    In lieu of the orders made by the magistrate on 29 March 2022, I substitute the following
orders:
(a)    Judgment for the applicant, O’Dea in the sum of $872.40, plus interest of $94.50, namely
$966.90.

(b)    O’Dea is entitled to costs of $483 (being the amount as ordered by the magistrate).
(c)    The Cross-Claim is dismissed, with no order as to costs.
3.    Each party is to bear its own costs of the Review.
Magistrates Court Act 1991 (SA) ss 38(3), 38(7), referred to.
Harradine v District Court of South Australia [2012] SASC 96, considered.

COUPER v O'DEA ELECTRICAL CONTRACTING P/L
[2022] SADC 139
[Civil]
Introduction

In about July 2020, Tina Couper (Ms Couper) contracted with O’Dea Electrical Contracting Pty Ltd (O’Dea), for them to undertake electrical work at a property she had purchased (the contract).
Ms Couper’s property was located at Burra (the property). O’Dea’s business premises were based in Crystal Brook, about a one-hour drive away.
There is no dispute that O’Dea performed some, but not all, of the work pursuant to the contract.
On 15 September 2020, O’Dea issued to Ms Couper an invoice for payment of that part of the work they had completed as at that date, in the sum of $2,435.99 (the invoice). They requested the invoice be paid, before they completed the balance of the work. On 9 December 2020, Ms Couper paid O’Dea the sum of $922.
Subsequently, Ms Couper did not allow O’Dea to return to the property to complete the outstanding work, nor has she paid the balance of the invoice.
By Claim dated 5 May 2021, O’Dea sought to recover from Ms Couper the outstanding balance of that invoice, namely $1,513.99, plus a filing fee of $156 and a solicitor’s fee of $96, noting they had retained solicitors to draft the proceedings.
Ms Couper denied any liability to pay the Claim. In a Defence dated 23 December 2021, she outlined why she was dissatisfied with the service she had received. By Cross-Claim dated 29 December 2021, Ms Couper sought an order that O’Dea pay to her a sum of $452, said to comprise the costs that had been claimed against her by O’Dea throughout the proceedings. In addition, she sought an order that O’Dea pay for an electrician, of her choice, to complete the work that she claimed was outstanding as per the contract.
The action proceeded to trial before a magistrate over two days in March 2022. The magistrate heard evidence presented by both parties and considered the various documents tendered.
On 29 March 2022, at the conclusion of the trial, the magistrate delivered an ex tempore judgment, wherein she awarded damages in favour of O’Dea in the sum of $1,070.30, plus costs of $483, being a total of $1,553.30. She dismissed the Cross-Claim.
By Notice of Review filed on 1 August 2022, Ms Couper seeks orders that she not be required to pay any further sum to O’Dea and that O’Dea be ordered to refund to her the sum of $922 paid by her.
Application for Review
Section 38 of the Magistrates Court Act 1991 (SA) (MCA) provides a mechanism whereby a party dissatisfied with a judgment given in a minor civil action may apply to the District Court for a review of the matter.[1]
[1] Section 38(6).
Section 38(7) of the MCA states:
38—Minor civil actions
(7)The following provisions apply to such a review by the District Court:
(a)     subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(ab) if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the Court;
(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.
In Harradine v District Court of South Australia,[2] Blue J outlined the principles which apply to a review by a District Court judge of a minor civil action.
[2] [2012] SASC 96 at [53].
The review is not in the nature of an appeal, nor is it necessarily a hearing de novo as the judge is entitled to have regard to the evidence adduced before the magistrate. The judge is not required to re-hear the evidence, although the judge may do so. Where a case turns on disputed facts or credibility the judge may consider it appropriate to hear the evidence afresh. A judge may also receive ‘fresh evidence’ in certain circumstances.
Ultimately s 38(7)(e) of the MCA requires the judge to ‘act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms’.
The Hearing of the Review
Procedure Adopted
The application for review was heard on 10 November 2022. Ms Couper attended in person, with her partner, Mr Masterson, by way of support.
Mr Wilson, O’Dea’s Business Manager, appeared on behalf of O’Dea. Neither party was legally represented.
I heard submissions from both parties. In addition, both parties provided evidence on oath in order to respond to specific queries raised by me, noting both Ms Couper and Mr Wilson had already given detailed evidence before the magistrate. That evidence has been carefully considered, as have the Exhibits that were tendered before the magistrate.
At the conclusion of the hearing, I ordered that Ms Couper provide to the Court and to O’Dea, material to evidence the costs she claims to have incurred as a result of the delay in SAPN connecting her property to the grid and photographs to support a claim made by her at the hearing, for the first time, that a charge on the invoice for the provision of red and black cable was excessive because only 3 m of each such cable was required and supplied, rather than 15 m, being that for which she had been charged in each instance.
I have considered the further material provided by Ms Couper undercover of an email dated 16 November 2022, together with the response provided to that email by Mr Wilson dated 18 November 2022, for and on behalf of O’Dea. In this respect, Ms Couper’s email addressed topics in addition to those as ordered. Notwithstanding this, I have considered the entirety of the email and have taken into account the further matters raised therein, as if they were submissions made at the hearing.
Extension of Time
Pursuant to UCR 214.1, an application for review must be commenced within 21 days after the date of the judgment the subject of the review. The application for review was issued on 1 August 2022, being more than 21 days after the date of the magistrate’s judgment, delivered on 29 March 2022. As such, Ms Couper requires an extension of time to commence the review.
Pursuant to UCR 214.1(5), an application for review and an application for an extension of time to commence that review are to be heard at the same time. I proceeded accordingly.
Ms Couper sought an extension of time to bring the Review, citing the following grounds, namely:
1.   I was not given correct information in court.
2.   I didn’t receive any notice of action.
3.   I have had many problems using the portal.
As to the first ground, Ms Couper acknowledged she was present in court when the magistrate delivered her ex tempore judgment. However, she maintained that the magistrate did not say, at that time, what amount she was required to pay to O’Dea and instead simply listed several items that were to be excluded from the invoice, thus reducing its total.
As to the second ground, Ms Couper said she expected to receive something in writing from the Court confirming how much she had to pay but did not. She acknowledged that she received notice of the fact of the judgment having been recorded against her and notice of an Investigation Summons Hearing.
As to the third ground, once she received those documents, she then took steps to lodge the Notice of Review, but encountered difficulties using the court portal, thus causing further delay.
Mr Wilson was also in court when the magistrate delivered her Reasons. He said that a member of the court staff handed to him and to Ms Couper a two-sided document that explained the various steps necessary to be taken by a party if they were dissatisfied with the decision and sought for it to be reviewed. He produced that document, which is provided, as a matter of course, to litigants following the delivery of a judgment in a minor civil action, to comply with s 38(3) of the MCA. I am satisfied that that such a document was provided to Ms Couper at the time.
As such I am satisfied that Ms Couper was aware, as of 29 March 2022, of her right to challenge the magistrate’s decision and of the procedural steps she needed to take to do so. The magistrate stated, at the end of her Reasons, the total of the judgment to be paid by Ms Couper, such that she knew the sum she had been ordered to pay. The use of the Court Portal can pose some challenges, but Registry staff remain on site to handle in person enquiries from the public and to assist them to lodge documents.
In determining whether to grant an extension of time, the Court must do justice between the parties.
While the delay in the filing of the Notice of Review has led to further delays in the resolution of the dispute, if the application for review has merit, then it should be determined. If the application is without merit, then any prejudice to O’Dea can be ameliorated by the making of an appropriate award of post judgment interest.
As such, I grant Ms Couper an extension of time to 1 August 2022 to commence the application for review.
The Dispute
At the time of retaining O’Dea, Ms Couper had only recently purchased the property, with settlement to occur on 28 August 2020.
There was no power connected to the property, as a storm had wiped out the connection to the grid several years before.
Ms Couper initially intended to go ‘off grid’. However, after discussions with O’Dea as to the costs associated with that, she decided, instead, to reconnect the property to the grid.
There were several steps that needed to be undertaken to restore power to the property, including electrical work required to be undertaken by an electrician, such as O’Dea, and work to be undertaken both by SA Power Networks (SAPN) and the customer’s preferred electricity retailer (ie AGL, Origin, etc).
As to the work to be undertaken by an electrician, three different quotations were submitted by O’Dea to Ms Couper, dated respectively 23 July 2020, 6 August 2020 and 21 August 2020. The first quotation only included work necessary to connect the power supply to the property. The second and third quotations included additional work.
It is clear that Ms Couper regrets making the decision to go off-grid. She claims that she requested O’Dea provide a quotation to include the cost to rewire the entire house.
O’Dea arranged for SAPN to attend at the property on 28 August 2020 to connect the property to the grid. This date was important as it was the date of settlement. Ms Couper had been living in a caravan, at a caravan park, and paying fees associated with that. She could not afford to continue to do so, while also paying for a mortgage on the property. The SAPN appointment was cancelled. Ms Couper blames O’Dea for this, and this remains a significant source of frustration to her. The SAPN appointment was rescheduled for 15 September 2020, at which time SAPN attended at the property and connected the house to the grid.
O’Dea did not attend the property on 15 September 2020. However, there is no dispute that prior to that date, O’Dea undertook the ancillary work necessary to effect that connection, as outlined in a Certificate of Compliance dated 10 September 2020.[3]
[3] Exhibit A1 at pp 20-21.
O’Dea became aware that Ms Couper was unable to pay other tradesmen she had retained to work on the property. As a result, they issued the invoice, seeking payment for the work they had undertaken on 28 August 2020 and 10 September 2020. The invoice stipulated ‘No further work until invoice paid’.[4]
[4] Exhibit A1 at p 22.
The issues in dispute at trial were as follows:
1.What were the terms of the contract as agreed between the parties, and specifically did those terms include a requirement for O’Dea to rewire the whole of the house.
2.Was O’Dea entitled to issue an invoice to Ms Couper by way of a progress payment for the work undertaken by them.
3.Should the invoice be reduced, either because O’Dea had charged more than they had quoted for any item, or had overcharged in any way, and/or specifically because:
(a)O’Dea only provided the final quotation for the works on 21 August 2020.
(b)SAPN did not connect the power supply until 15 September 2020.
(c)O’Dea installed a 10 amp GPO in the Meter Box, rather than the 15 amp GPO as agreed. There was no dispute that O’Dea made this error.
(d)The invoice included labour charges of 9.5 hours (being 5.5 hours on 28 August 2020 and 4 hours on 10 September 2020). Ms Couper claimed O’Dea was only on site for three hours (maximum) on 28 August 2020. She agreed that O’Dea must have attended again at the property, and undertaken further work, on about 10 September 2020, but as she was not present at that time, she did not know how long they were there for.
4.Was Ms Couper entitled to the orders sought on the Cross-Claim.
The Magistrate’s Findings
The magistrate delivered an ‘ex tempore’ judgment. The parties were not provided with a written copy of that judgment. A copy is attached to these Reasons by way of reference.
By way of summary, and using the same numbering, as to those matters which were in dispute, the magistrate determined:
1.The quotations as submitted by O’Dea did not include the cost to rewire the house.[5]
[5] Magistrate’s Judgment at [14].
In making this decision, the magistrate had regard to the express wording used in the quotations and to a quotation Ms Couper obtained from Rolling Electrical to rewire the house, in the sum of $11,336.27. Although that quotation was obtained in March 2022, the items listed therein (and the overall cost) were significantly different from those included in the O’Dea quotations. The magistrate further observed that by her own evidence, Ms Couper was surprised the price quoted by O’Dea was so low.
The magistrate did not make express findings as to the precise scope of the agreed works, however it is implicit from her judgment that she proceeded on the basis that the work listed on the third quotation comprised the agreed scope of works.
2.O’Dea was entitled to issue an invoice seeking part payment for the work undertaken by them, notwithstanding they had not completed all of the works listed on the third quotation.[6]
[6] Magistrate’s Judgment at [15].
In making this decision, the magistrate noted that in the absence of any evidence as to what had been agreed between the parties as to how and when payment would be made, it was reasonable for O’Dea to render an invoice after attending twice at the property in Burra, from Crystal Brook, and completing the work necessary to connect power to the property.
3.That O’Dea was entitled to be paid for the work they had completed on a quantum meruit basis. In determining what sum represented a reasonable sum to compensate O’Dea for that work, the magistrate carefully considered the quotations and the invoice, having regard to Ms Couper’s claim that the invoice had been inflated (or ‘padded out’) and included excessive amounts for the time charged by way of labour, and for some of the other items.
The magistrate spent a considerable amount of time, at trial, adducing evidence from the parties as to precisely what items were included on the invoice and whether each item had been appropriately charged for, having regard to the work in fact completed by O’Dea and the terms of the third quotation. Indeed, she adjourned the trial to a second day in order for the invoice to be better itemised so that it could be more readily compared to that quotation.
The invoice was in the total of $2,435.99 (inclusive of GST). Ms Couper paid $922, leaving a balance of $1,513.99. Having undertaken that process, the magistrate determined that a fair and reasonable sum for Ms Couper to pay O’Dea was the balance of the invoice ($1,513.99) less $443.96. The magistrate calculated this to be the sum of $1,070.30.[7]
[7] Noting that this appears to be an arithmetical error, $1,513.99 less $443.96 is $1,070.03.
The reduction of $443.69 comprised the following items:[8]
(i)$50 to reflect the fact that O’Dea supplied a 10 amp power point instead of a 15 amp power point;
(ii)$4.72 to reflect the difference in the price as quoted, and that charged, for the red cable;
(iii)$4.24 to reflect the difference in the price as quoted, and that charged, for the black cable; and
(iv)to allow for only 3 hours labour, on 28 August 2020, instead of 5.5 hours, being a reduction of $385.[9]
The magistrate also determined that the fact the third quotation was only provided on 21 August 2020 was of no note, as Ms Couper continued to instruct O’Dea to act notwithstanding this. She could have sought alternative quotes, if dissatisfied with the delay.[10]
The magistrate also found O’Dea was not at fault for the delay in SAPN attending to connect the property to the grid.[11]
4.Ms Couper did not assert that any of the work completed by O’Dea was defective. However, because of her dissatisfaction generally in her dealings with them, she refused to allow O’Dea to return to the property to complete the remaining work. As such, the magistrate determined there was no basis for Ms Couper to be awarded any sum by way of cross claim, or for an order to be made that O’Dea pay for the remaining work to be completed.[12]
[8] Magistrate’s Judgment at [19].
[9] Noting that during the hearing on review, I stated, in error the Magistrate had only allowed a total of three hours labour as being fair and reasonable – in fact she allowed a total of seven hours - three hours on 28 August 2020 and four hours on 10 September 2020.
[10] Magistrate’s Judgment at [11].
[11] Magistrate’s Judgment at [12].
[12] Magistrate’s Judgment at [15] and [21].
Grounds of Review

In her Notice of Review, Ms Couper seeks an order that in lieu of the magistrate’s judgment, the Court substitute a judgment that she not be required to pay any further money to O’Dea and that O’Dea be ordered to refund to her the sum of $922 she paid towards the invoice. She has listed two grounds of review, namely:
1.O’Dea did not complete the works detailed in the quotation.
2.O’Dea had purportedly filed ‘fraudulent documents’ as evidence.
Ms Couper stated on the Notice that she could not list further grounds in the absence of receiving the transcript from the hearing. It is apparent that Ms Couper is dissatisfied, generally, with the magistrate’s reasons.
First Ground
As to the first ground, there is no dispute that O’Dea did not complete the works comprised on the third quotation. Similarly, it is not in dispute that the invoice includes a charge or charges for any works that are yet to be completed. That is, while Ms Couper maintains the invoice is unreasonably high, and challenges some of the items in terms of reasonableness, other than O’Dea’s error in installing a 10 amp power point instead of the 15 amp power point she requested, she does not claim that O’Dea have charged her for any work that has not been completed by them.
The issue is, are O’Dea legally entitled to be reimbursed for the work they did perform, notwithstanding they had not performed all of the work for which they were contracted.
The magistrate expressly dealt with this issue and determined that O’Dea was so entitled. She was correct to do so.
As outlined above, the magistrate found that none of the quotations provided by O’Dea included the cost to rewire the entire house. I agree with the magistrate’s decision in this respect and her reasons for making that decision. On their face, none of the quotations use language that could be interpreted to include the cost to rewire the entire house. The sums quoted, in each instance, by O’Dea are significantly less than another quote Ms Couper subsequently obtained from Rolling Electrical to rewire the house. Ms Couper was surprised the sum quoted was so low. Indeed, Ms Couper gave evidence at the trial that the third quotation did not mention anything about wiring the entire house.[13]
[13] Trial transcript at T 15.19-20.
The quotations did not include the cost to rewire the entire house.
The magistrate proceeded on the basis that the scope of the agreed works was that outlined in the third quotation, notwithstanding Ms Couper gave evidence that she only accepted the first quotation (dated 23 July 2020) and the second quotation (dated 6 August 2020), and not the third.
Ms Couper denied she had ever accepted the third (final) quotation dated 21 August 2020, in the sum of $4,060.10. However, throughout the course of her evidence, Ms Couper maintained that O’Dea had not completed the work as quoted, which included the provision of a circuit for the cooktop. This item was only included on this final, third quotation. The magistrate was correct to proceed on that basis.
The owner of the business, Luke O’Dea, who prepared and presented the various quotations to Ms Couper, was not called to give evidence. There is nothing written on the third quotation that refers to payment terms, or the possibility of progress payments.
However, Ms Couper gave evidence before the magistrate that she did not want O’Dea to do any further work at her house after she found they had made the mistake in not providing the 15 amp GPO. She was not prepared to allow them to come back to do any more work on her property, but she was prepared to pay a reasonable price for the work they had done.
As noted by the magistrate, O’Dea had already attended twice at the property, attendances which required them to travel some distance in a rural area. They had performed what were the bulk of the works listed on the third quotation. The exhibits included material on O’Dea’s file to suggest they were concerned at Ms Couper’s capacity to pay them for the works. Ms Couper agreed with a proposition put to her by the magistrate that she was struggling to pay other tradesmen due to the impact of Covid.
I agree with the magistrate’s determination that, in all of the circumstances of this case and in particular Ms Couper’s refusal to allow O’Dea to complete the works, that O’Dea is, nonetheless, entitled to be paid, on a quantum meruit basis, a fair and reasonable sum for the work they did complete.
Second Ground
As to the second ground, in her email dated 16 November 2022, Ms Couper submitted that one item on the invoice had been found to be ‘untrue’. She submitted, that as O’Dea had been found to have submitted ‘false evidence’, they should be precluded from relying upon the invoice.
The invoice submitted by O’Dea included an amount to reimburse them for work they did not in fact do, that is, to supply the 15 amp GPO, as they supplied a 10 amp GPO in error. In determining what sum represented a reasonable sum to compensate O’Dea for the work they had completed, the magistrate excluded from such sum an amount of $50, being her best estimate of the costs of and incidental to that error. The magistrate was correct in excluding this sum from her assessment as to what was a fair and reasonable sum for O’Dea to be charged for the work they had completed, having regard to their acknowledged error in installing the wrong part.
However, as the magistrate explained to Ms Couper at the trial, an allegation of fraud is a serious allegation. A finding that an invoice may contain an error, does not, of itself, amount to fraud.
The fact the invoice may have contained an error, or errors, does not deprive O’Dea from otherwise being paid a fair and reasonable sum for the work they did in fact complete.
What is a fair and reasonable amount for O’Dea to be paid for the work completed?
In order to determine whether the amount the magistrate awarded was fair and reasonable, the magistrate carefully compared the amount in fact charged, with the amounts as quoted, and had regard to both the evidence given by the parties as to the work undertaken and the parties’ respective submissions. This was the best and only evidence available to her. I have completed the same task on review.
In addition to the issue pertaining to the provision of the 10 amp GPO, already addressed, Ms Couper had several specific complaints with respect to amounts/items claimed on the invoice. I will deal with these in turn.
The Half Saddles
The invoice included a charge for six ‘conduit half saddle 25mm, metal zinc plated’ at a cost of $25.62 each, being a total of $169.09. Ms Couper provided to the magistrate a quotation from Clare Valley Hardware confirming the cost of a ‘saddle half metal 25mm’ was only 46 cents (Exhibit R2).
The magistrate questioned Ms Couper, at the trial, as to whether the item in that quotation and the items supplied by O’Dea, being zinc plated, rather than simply metal, were comparable. The magistrate conducted a Google search and stated in her judgment that from that search she found the price for these items varied from between 30 cents to $30 each, with the zinc plated items being substantially more expensive. She considered that the quotation supplied by Ms Couper did not relate to a comparable item. She determined that it was reasonable for Ms Couper to pay the amount as charged for the half saddles.
The third quotation does not include an amount readily identifiable as applying to the six half saddles.
At the hearing on review, Ms Couper produced a plastic bag containing the half saddles. She submitted that the prices to which the magistrate had regard to on Google and as stated in her judgment, in fact were prices for a box of 100 half saddles, rather than the cost per item.
As the magistrate based on finding on this issue in part on the results of her Google search, I informed myself in the same way as the magistrate. Having done so, I accept Ms Couper’s submission. From the searches I conducted, it is apparent that 25mm zinc plated conduit half saddles will cost less if purchased in bulk, than individually. I am satisfied O’Dea would have purchased these items in bulk. While the prices vary, at the upper end, Bolt and Nut Australia Pty Ltd advertise a box of 100 25mm zinc plated conduit half saddles at a cost of $50 and towards the lower end, Clipsal sell boxes of 50 such items for $10.45.
My search was conducted in November 2022, whereas the magistrate’s search was conducted in March 2021 and the items were in fact supplied in August/September 2020, at a time when one may assume they in fact, cost less.
As such, I am satisfied that the amount included in the invoice for the half saddles was in error. It is likely the invoice inadvertently charged Ms Couper for six boxes of half saddles, rather than 6 individual half saddles. In the circumstances, in considering what is a fair and reasonable sum for O’Dea to be paid for the work completed by them, it is appropriate to only allow a cost $3.00 plus GST for the six half saddles, in other words, 50 cents each.
The Red and Black Cable Wiring
The invoice included the cost to supply 15 m of red cable wiring and 15 m of black cable wiring. Ms Couper claims she should have only been charged for 3 m of each of the red and black cable wiring having regard to the distance between the corner of the house, where the SAPN cable joined to the house, and the meter box, which Ms Couper estimated to be no more than 3.5 m.
Ms Couper submitted a photograph of this part of the house, in order to support that submission.[14]
[14] Email of 16 November 2022.
As submitted by Mr Wilson,[15] it is difficult to assess, from the photograph, the actual distance between the corner of the house and the meter box, where this cable wiring was installed. However, it does appear to be more than the 3.5 m estimated by Ms Couper, but significantly less than 15 m. The cable wiring between the mains and the meter box appears to be approximately 5 m. Whether additional cable wiring was used, either there or elsewhere, is uncertain.
[15] Email of 18 November 2022.
The third quotation included the provision of 15 m of both red and black cable wiring. The quotation listed the cost of both the red and black cable wiring at $277.68 + GST for 100 m. The invoice charged $281.02 + GST/100 m for the red cable wiring and $278.16 + GST/100 m for the black cable wiring. Unfortunately, the court is unaware whether that part of the quoted work which O’Dea did not complete also required the provision of any cable wiring (ie the supply of power to a new hot water service). It is certainly possible that it did.
Doing the best I can, on the information before me, I consider it fair and reasonable for O’Dea to be compensated for the provision of 10 m of the red cable wiring at a cost of $277.68/100 m ($27.77 + GST) and the provision of 10 m of the black cable wiring at a cost of $277.68/100 m ($27.77 + GST).
Labour
The magistrate considered it reasonable to allow labour charges representing a total of 7 hours ($980 + GST), rather than the 9.5 hours as charged on the invoice ($1,330 + GST).[16] Ms Couper submitted this was excessive, having regard to the work performed.
[16] Allowing 3 hours only for the attendance on 28/8/20 and 4 hours as charged for 10/09/20.
Ms Couper gave evidence at the trial that O’Dea personnel were working at her property for approximately three hours on 28 August 2020, rather than the five hours they claimed on the invoice for that date. In her email dated 16 November 2022, Ms Couper submitted they were in fact on site for 2 hours and 50 minutes.
Ms Couper did not dispute that O’Dea personnel did attend, again, at her property between 28 August 2020 and 15 September 2020. She was not present when they did. Mr Wilson gave evidence, which I accept, that a qualified electrician would always be accompanied by an apprentice on site, hence the charge of $140/hr + GST. The fact that Ms Couper claimed that O’Dea would not reveal the hourly rate charged until requested by the Court is of no moment.
The technician’s notes suggest that work on the second day of O’Dea’s attendance included the installation of duct, rewiring the board earthing and main board to ensure it was continuous ‘to men point’ and the installation of the GPO and 16a combo. I note that the GPO (power point) installed was the 10 amp, in error, for which the magistrate already made a deduction.
Having regard to the nature of the work as completed, and as listed on the Certificate of Compliance, I consider the amount allowed by the magistrate for labour of 7 hours ($980 + GST), was a fair and reasonable assessment, and in particular when regard is had to the third quotation which included a labour component of $2,386.80 + GST.
Cross Claim
The magistrate considered whether any amount ought to be set-off the amount awarded to O’Dea, by way of Cross-Claim.
The magistrate correctly determined that there being no claim, or evidence led, to support a finding that the work undertaken was defective, Ms Couper was not entitled to have any further work completed at O’Dea’s expense.
The only potential basis for any set off relates to the claim advanced by Ms Couper at the hearing on Review, and not pleaded, that she incurred the cost of remaining at the caravan park between 28 August 2020 and 15 September 2020, because of the delay in SAPN attending to connect the property to the grid.
The magistrate determined that this delay was not the fault of O’Dea. I agree with the magistrate’s finding.
I have carefully reviewed the evidence given at the trial and what is contained in the exhibits. In an email from Mr David Furnell of SAPN to Ms Couper dated 1 October 2021, SAPN confirmed that the SAPN booking was cancelled on 27 August 2020 ‘due to issues with the electricity account set up for this site’.[17] This is consistent with O’Dea’s explanation to Ms Couper, namely that SAPN had advised the appointment was cancelled because SAPN had made an error in that they (SAPN) had (mistakenly) understood Ms Couper was registered with two electricity providers, AGL and Origin, in circumstances where she could only be registered with one provider. In fact, she was only ever registered with one provider, AGL. This was an error on the part of SAPN, rather than O’Dea.[18]
[17] Exhibit A1 at p 28.
[18] Exhibit A1 at p 14.
Ms Couper submitted a letter from the Bon Acord Hotel dated 15 November 2022 confirming that she paid $20 per night as a tenant at their camping grounds, between 23 June 2020 and 15 September 2020. [19]
[19] Email dated 16 November 2022.
Although I am satisfied Ms Couper did incur costs to stay at the camping grounds between 28 August 2020 and 15 September 2020, I am not satisfied that she did so because of any negligence or fault on the part of O’Dea.
The magistrate was correct to dismiss the Cross Claim. There is no basis for an order to be made for O’Dea to reimburse Ms Couper for the sum she has already paid to them.
Conclusion
The magistrate correctly determined that O’Dea was entitled to be paid a fair and reasonable sum for the work they had completed, on a ‘quantum meruit’ basis and that no sum was to be set off as against that sum, as assessed, by way of Cross-Claim.
However, in reviewing the magistrate’s assessment of what is a fair and reasonable sum to compensate O’Dea for the work completed by them, I accept the amount as assessed by the magistrate should be reduced, in two aspects:
1.to reflect the reasonable cost to supply six conduit half saddles at $3.00 + GST per item, in lieu of $25.62 + GST per item; and
2.as to Ms Couper’s submission, raised only on the Review, that the sum allowed should not have included 15 m of each of the red and black cable wiring having regard to the amount actually used in the completed works, and ought to have included a lesser amount.
As such, I am satisfied that it is appropriate to slightly adjust the sum that is due and owing by Ms Couper to O’Dea. I assess that sum as follows:[20]
[20] With all such amounts being inclusive of GST.
Invoice  $2,435.99
Less amount paid  $922.00
Sub Total  $1,513.99
Less:
(a)amount to reflect error re provision of 10-amp GPO  $50.00
(b)2.5 hours of labour, to allow for 7 hours, in lieu of 9.5              $385.00
(c)amount originally charged for red cable wiring  $51.01
(d)amount originally charged for black cable wiring  $50.48
(e)amount originally charged for the six half saddles  $186.00
Plus:
(a)amount to be charged in lieu for red cable wiring (10 m)             $30.55
(b)amount to be charged in lieu for black cable wiring (10 m)         $30.55
(c)amount to be charged in lieu for the six half saddles  $19.80
TOTAL   $872.40
Interest
Pursuant to UCR 182.3, O’Dea is entitled to pre-judgment interest on that sum which is reasonably outstanding and owed to them by Ms Couper, namely $872.40.
I consider it appropriate to award interest on the outstanding balance at a rate of 5% pa from 14 days after the date of the invoice (that is, 29 September 2020), until the date of my judgment (29 November 2022). I award a sum of $94.50 for pre-judgment interest.
Orders
1.Extending the time for Ms Couper to commence this Review to 1 August 2022.
2.In lieu of the orders made by the magistrate on 29 March 2022, I substitute the following orders:
(a)Judgment for the Applicant, O’Dea in the sum of $872.40, plus interest of $94.50, namely $966.90.
(b)O’Dea is entitled to costs of $483 (being the amount as ordered by the magistrate).
(c)The Cross-Claim is dismissed, with no order as to costs.
3.Each party is to bear its own costs of the Review.