Defendi v Eden Hill Plasterers [No 2] - [2009] WASCA 222

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: DEFENDI -v- EDEN HILL PLASTERERS [No 2] [2009] WASCA 222

CORAM: McLURE P
MILLER JA
NEWNES JA

HEARD: 20 JULY 2009

DELIVERED : 15 DECEMBER 2009

FILE NO/S: CACV 55 of 2008

BETWEEN: SILVANO DEFENDI As Trustee For THE DEFENDI FAMILY TRUST
Appellant
AND
EDEN HILL PLASTERERS
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :COMMISSIONER HERRON
Citation  :DEFENDI ATF THE DEFENDI FAMILY TRUST -v- EDEN HILL PLASTERERS [2008] WADC 70
File No  :APP 32 of 2006

Catchwords:

Contract - Appeal to District Court from decision of Magistrates Court - Appeal against decision of District Court dismissing appeal - Whether decision of magistrate open on the evidence - Whether open on respondent's case - Whether issue fully litigated at trial - Purpose of notice of contention - Whether open to primary judge to find for respondent on ground argued on appeal but not subject of notice of contention

Legislation:

District Court Rules 2005 (WA), Pt 6 r 53

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr J R Ludlow
Respondent: Mr I A Morison

Solicitors:

Appellant: Kitto & Kitto
Respondent: SRB Legal

Case(s) referred to in judgment(s):

CSR Ltd v Maddalena [2006] HCA 1; (2006) 80 ALJR 458
David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416
Defendi atf the Defendi Family Trust v Eden Hill Plasterers [2008] WADC 70
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Lackovic v Insurance Commission of Western Australia [2006] WASCA 38; (2006) 31 WAR 460
Water Board v Moustakas (1988) 180 CLR 491
Whisprun Pty Ltd v Dixon (No 2) [2004] HCA 2; (2004) 204 ALR 22

JUDGMENT OF THE COURT: This is an appeal against a decision of Commissioner Herron in the District Court, dismissing an appeal against a judgment in favour of the respondent in the Magistrates Court: Defendi atf the Defendi Family Trust v Eden Hill Plasterers[2008] WADC 70.

Background

At the relevant time, the appellant was the owner of a house in Hovea which was in the course of construction. The respondent was a partnership comprising Mr Dennis Mercuri and his wife, who carried on a plastering business under the name Eden Hill Plasterers.
In or about January 2001, the respondent entered into an oral agreement with the appellant to render the external walls of the house with a product called Monorustic. Monorustic was a new product the appellant had imported from Italy and neither the respondent nor the appellant had any experience in its use. It consisted of a powder that was to be mixed with water. Once the rendering had been completed, the appellant intended to use the house to promote sales of Monorustic, which he intended to import.
A dispute subsequently arose as to the quality of the work carried out by the respondent. The appellant said that the work…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] WASCA 222
Decision Date: 15 DECEMBER 2009

CaseChat Overview and Summary

Defendi atf the Defendi Family Trust (appellant) brought an appeal against Eden Hill Plasterers (respondent) from a decision of the District Court, which dismissed an appeal from a decision of the Magistrates Court. The dispute originated from an oral agreement for the respondent to render the external walls of a house in Hovea with a product called Monorustic. The appellant, who had imported the product from Italy, claimed that the respondent had not followed the manufacturer’s instructions for mixing and applying the product, resulting in defective rendering work. The appellant sought damages for the cost of rectifying the work, while the respondent denied the allegations and claimed it was owed the balance of $5,136.40 for work completed.

The appeal raised several legal issues. The court needed to determine whether the magistrate's decision was open on the evidence and whether the respondent's case was open. Additionally, the court had to consider whether the issues were fully litigated at trial and whether it was appropriate for the primary judge to find for the respondent on grounds argued on appeal but not subject of the notice of contention.

The court found that the magistrate's decision was open on the evidence and that the respondent's case was open. The court emphasised that the primary judge was not required to find that the issues were fully litigated at trial for the appeal to be dismissed. Furthermore, the court held that it was open to the primary judge to find for the respondent on a ground argued on appeal but not the subject of the notice of contention, provided that the finding was supported by the evidence.

The appeal was dismissed, and the orders of the District Court were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: This is an appeal against a decision of Commissioner Herron in the District Court, dismissing an appeal against a judgment in favour of the respondent in the Magistrates Court: Defendi atf the Defendi Family Trust v Eden Hill Plasterers[2008] WADC 70. At the relevant time, the appellant was the owner of a house in Hovea which was in the course of construction. The respondent was a partnership comprising Mr Dennis Mercuri and his wife, who carried on a plastering business under the name Eden Hill Plasterers. In or about January 2001, the respondent entered into an oral agreement with the appellant to render the external walls of the house with a product called Monorustic. Monorustic was a new product the appellant had imported from Italy and neither the respondent nor the appellant had any experience in its use. It consisted of a powder that was to be mixed with water. Once the rendering had been completed, the appellant intended to use the house to promote sales of Monorustic, which he intended to import. A dispute subsequently arose as to the quality of the work carried out by the respondent. The appellant said that the work was so defective that the render would have to be removed, or rectified so far as it could be rectified. The respondent denied that the work was defective and sought payment of the sum of $5,136.40 still owing in respect of the work. In 2002, the respondent brought proceedings in the Magistrates Court claiming the balance of $5,136.40 owing under the agreement. The appellant did not dispute that that sum remained unpaid, but sought to set off the amount of $56,783.63 which he counterclaimed. In his particulars of counterclaim, the appellant alleged that the oral agreement contained (among others) terms that the respondent would comply with the instructions supplied by the manufacturer of Monorustic regarding the mixing of Monorustic and its application, and that the respondent would follow instructions given by the appellant and/or Mr Franco Fiore, his site supervisor. The appellant alleged in par 9 of the particulars of counterclaim that the respondent had breached the agreement in a number of respects. It is unnecessary to canvass all of the alleged breaches. Relevantly for present purposes, the appellant alleged that the respondent had not followed his instructions or those of Mr Fiore (albeit, it is not alleged in what respects the respondent had not done so), and that it had not followed the instructions provided by the manufacturer of Monorustic with regard to the amount of water to be mixed with the Monorustic. The appellant alleged that the breaches of the agreement by the respondent had caused the rendering to be unsatisfactory and defective. He claimed by way of damages the sum of $56,783.63 as the cost of rectifying the work. In its defence to counterclaim, the respondent admitted that it agreed to use Monorustic to render the exterior walls of the house but otherwise denied the alleged agreement. The respondent pleaded that if there were any deficiencies in the rendering they were caused by the failure of the appellant to follow the respondent's advice concerning the preparation of the surface of the walls.

Ratio Decidendi

Legal Principle Established

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