D G Australia Pty Ltd v Alexander (No 2) No. Scciv-03-139

[2003] SASC 222

D.G. AUSTRALIA PTY LTD v ALEXANDER (NO 2)
[2003] SASC 222

Magistrates Appeal:  Civil

1. PERRY J.  (ex tempore)     In this matter I gave judgment on 17 June 2003 dismissing the appeal by the defendant to an action in the civil division of the Magistrates Court. The judgment appealed from was for $14,600.74. This was held to be the balance of the contract price for the installation by the respondent of an airconditioning system in the appellant’s house.

2. The appellant now seeks leave to appeal to the Full Court.

3. An appeal to the Full Court from an order determining an appeal by a single judge of this Court from the decision of a magistrate will only be granted if the matter involves a point of law or point of principle of general importance, or exceptionally, where there are clear indications of an injustice having occurred.

4. In this case, the principal reason for the dismissal of the appeal was what was perceived to be a lack of evidence as to whether or not the installation of the airconditioner constituted building work within the meaning of the Building Work Contractors Act 1995 (“the Act”). Plainly, the evidentiary basis for the determination of that question was, despite the arguments put to me by Mr Keen for the appellant on the hearing of the application for leave to appeal, not clearly established at the trial.

5. In that sense, the main aspect of the appeal to this Court, or at least the main issue upon which the outcome of the appeal turned, involved purely factual questions. In my view, no important question of principle is involved as to that aspect of the matter.

6. Furthermore, despite Mr Keen’s suggestion that ducted domestic airconditioning systems were “generically” building work, and were necessarily to be regarded as such, in my view what activity constitutes building work which might be associated with the installation of such systems within the meaning of the Act will always depend upon the circumstances of individual cases. There is no overriding principle which can be identified, which will necessarily provide the same answer in all cases.

7. Furthermore, there is nothing to suggest that the question whether the installation of domestic air conditioners by contractors who do not hold a licence under the Act, arises often.

8. Mr Keen raised an argument that a question of policy as to s 28 of the Act arises, namely, what he suggested was the policy implicit in s 28(1)(e) of the Act. He suggested that this was that the builder should obtain the personal signature of the building owner to the contract, to avoid disputes. In this case the document held to constitute the contract was not signed by the building owner. But the necessity for such contract only arises if the work involved was in fact building work under the Act, and for the reasons given in my judgment on the hearing of the appeal, the evidence failed to establish that that was so.

9. Insofar as the proposed notice of appeal challenges the rejection of the appellant’s argument that the magistrate erred in his findings as to the content of the contract pursuant to which the work was performed, this involves a purely factual question, and the evaluation of the evidence of various witnesses.

10. Mr Keen has said everything which could be said in favour of the grant of leave, but for the reasons which I have indicated, I am not persuaded that this is a proper case in which to grant leave. When they are closely scrutinised, it seems to me that none of the issues sought to be agitated on appeal would justify the attention of the Full Court.

11. The application is dismissed.

    [AFTER HEARING SUBMISSIONS AS TO COSTS]

12. There will be no order as to the costs of the application.