DG Australia Pty Ltd v Alexander No. Scciv-03-139

[2003] SASC 351

DG AUSTRALIA PTY LTD v ALEXANDER
[2003] SASC 351

Full Court:  Doyle CJ, Prior and Vanstone JJ

1. DOYLE CJ, PRIOR and VANSTONE JJ:  This is an application for leave to appeal from a decision of a judge of this court, dismissing an appeal against a decision by a magistrate.

2. The judge refused leave to appeal.  The applicant has renewed the application for leave to appeal to the Full Court under Rule 94.02 of the Supreme Court Rules 1987 (SA).

3. The application was made on notice.  Accordingly, the court has had the benefit of submissions in writing from the applicant and from the respondent.  As well, the court has considered the reasons for decision given by the judge of this court, and the judge’s reasons for refusing to grant leave to appeal.

4. Leave to appeal is usually granted in such cases only if the case involves a question of law of some general significance or importance.  However, ultimately the question for the court is whether the interests of justice require that leave to appeal be given.

5. The applicant was sued in the District Court for the cost of installing an air-conditioning system in a new house being built for the applicant.  The respondent entered into a contract with the applicant for the supply and installation of the air-conditioning system.  The respondent was not the builder of the house.  That was being built by another person. 

6. The applicant was dissatisfied with the capacity of the system.  Behind that lay a dispute as to the terms of the contract.  In particular, as the judge’s reasons indicate, there was a dispute as to the terms upon which the respondent had quoted to carry out the work.  The magistrate found in favour of the respondent.  The judge declined to disturb that finding on appeal.

7. The applicant wishes to challenge the magistrate’s finding as to the terms of the contract.  Grounds 7 and 8 in the proposed Notice of Appeal seek to challenge the magistrate’s findings on that issue.  This is an issue of fact which has now been considered twice.  There is no apparent error in the reasons of the judge.  It is not the practice of the court to grant leave to appeal to enable questions of fact to be re-agitated.  To that extent this is not a proper case for a grant of leave to appeal.

8. The applicant also wishes to argue that the work done by the respondent is “building work” as defined by the Building Work Contractors Act 1995 (SA), and that accordingly the respondent should have had a licence under that Act. The respondent did not have a licence. The significance of this is that by s 6(2) of the Act, a person who should have a licence but does not have a licence is prohibited from recovering any “fee, other consideration or compensation under or in relation to a contract” unless the court is satisfied that the failure to hold a licence “resulted from inadvertence only”.

9. The question of whether the installation of the air-conditioning system amounted to building work appears to have been the main issue before the judge.  The judge deals with it at some length in his reasons.  The judge decided in favour of the respondent that the installation of the air-conditioning system was not building work as defined.  In that respect he upheld the magistrate’s conclusions, although his reasoning was somewhat different.

10. In his reasons the judge refers on several occasions to the paucity of evidence on the topic.  Our impression is that, to a considerable degree, the argument rests on deductions and inferences to be drawn from documents, although clearly enough, evidence was given which bears on the topic.

11. We agree that the proper construction of the expression “building work” is of some general importance.  However, it is unlikely that this case would be a suitable case to lay down any general principles.  It may well be that the expression “building work” is one that cannot usefully be considered other than on a case by case basis.  But the judge’s references to the limited evidence on the topic suggest that in any event this case would not be a suitable vehicle to lay down general principles.

12. That being so, the most that can be said is that if leave to appeal is granted the applicant would have a further opportunity to argue the application of the definition of building work to the particular facts of  this case.  Our view is that while the matter is debatable, there is no apparent error in the approach that the judge took, although for our part we might not give as much emphasis as did the judge to the question of whether the air-conditioning plant was a fixture.

13. Our view is that this is not an appropriate case for leave to appeal on this ground.

14. The applicant also wishes to argue that s 28 of the Act, which sets out in some detail formal requirements to be satisfied by a contract for domestic building work, was not satisfied in this case.  If the work was not building work, then this issue does not arise, because s 28 applies only if the work is “domestic building work” and that raises again the definition of “building work”.  Accordingly, that issue is not an appropriate issue for leave, the issue being subject to the same comments that we made in relation to the issue of whether a licence should be held.  In addition, the judge’s reasons indicate that this ground was not argued before him.  That is another reason for not giving leave to appeal.  Furthermore, the argument foreshadowed is that if there was a failure to comply with s 28, that should be taken into account in determining the terms of the contract.  Our view is that that argument has no realistic prospect of success.  Section 28 is a penal provision, and there is no indication that Parliament intended a failure to comply with its requirements to affect the decision on what in fact are the terms of the contract in any given case.

15. For all those reasons, we consider that this is not a fit case for a grant of leave to appeal, and accordingly leave to appeal is refused.