DND Building Co Pty Ltd v Jusuf and Fadila Kos trading as J and F Kos - [2022] WADC 8

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DND BUILDING CO PTY LTD -v- JUSUF AND FADILA KOS trading as J & F KOS [2022] WADC 8
CORAM:   PRIOR DCJ
HEARD:   16 JUNE & 27 AUGUST 2021
DELIVERED          :   18 FEBRUARY 2022
FILE NO/S:   APP 65 of 2020
BETWEEN:   DND BUILDING CO PTY LTD
Appellant
AND
JUSUF AND FADILA KOS trading as J & F KOS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE WARD
File Number            :   PER/GCLM 10419 of 2018

Catchwords:

Appeal - Magistrates Court - Contract - Debt - Whether magistrate erred in findings of fact - Whether credibility based findings inconsistent with objective facts - Turns on own facts

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40(1), s 40(4)
District Court Rules 2005 (WA), r 50(1)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr C P K Russell
Respondent	:	Mr W G Vogt

Solicitors:

Appellant	:	Gandhi and Shaw
Respondent	:	Vogt Graham Lawyers

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Auro Pty Ltd v Drage [2020] WADC 24
Avsar v Binning [2009] WASCA 219
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Dinh v Commonwealth Bank of Australia [2021] WASCA 127
Fox v Percy [2003] HCA 22, (2003) 214 CLR 118
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
Palmer v Dolman [2005] NSWCA 361
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] 160 ALR 588

PRIOR DCJ:

Introduction

This is an appeal from the judgment of Magistrate Ward on 9 September 2020 after an eight-day trial in the Perth Magistrates Court. The eight days of trial occurred in September, November and December 2019 and February 2020. The magistrate gave judgment for the respondent in the sum of $66,000. The magistrate ordered the appellant to pay interest in the sum of $8,592.66 and the respondent's costs of the proceedings to be assessed if not agreed, including any reserved costs.
The respondent, a cabinet making firm, sued the appellant, a builder, for $66,000 owing under an alleged subcontract to install cabinets into two homes under construction.[1]
[1] Magistrate's reasons [1].
The appellant defended the claim on the basis that there was no agreement to pay $66,000 or any amount for the cabinetry work and that the respondent agreed to carry out the cabinetry work at no charge to the appellant.
Denis Murselovic set up the appellant's building business. He was originally an employee of the business and the sole director of the business on 22 March 2016.
The homes were being built for the Kos family on 33A and 33B David Street, Yokine (the David Street Project). The Kos family is made up of Jusuf (father), Fadila (mother), Mustafa (adult-son) and Safeta (daughter-in-law).[2] All four family members gave evidence at the trial. For ease of reference and with no disrespect, I will refer to each of the four Kos family members by their first names.
[2] Magistrate's reasons [2].
Jusuf and Fadila were the proprietors of the respondent. Mustafa and Safeta worked in the respondent's business.[3]
[3] Magistrate's reasons [69], [70], [71], [73].
The Kos family's finance application for the building of the homes at David Street, Yokine was rejected and was only able to be approved for a lesser sum.[4]
[4] Magistrate's reasons [5] - [6], [43] - [46], [141].
By January 2017, there had been a fallout in the relationship between the parties. The respondent was no longer the exclusive supplier of cabinets for the appellant.
The respondent issued an invoice for $66,000 on or about 10 July 2018, two years after the final progress payment was made to the appellant. The invoice has never been paid by the appellant.
On 19 July 2018, the respondent commenced proceedings the subject of this appeal in the Magistrates Court.
On the first day of the trial before the magistrate, the parties agreed the following facts:
1.on or about 28 February 2015, Jusuf, Fadila and Safeta signed a cost plus contract with the appellant to build two houses at 33 David Street (Cost Plus Contract);
2.on or about 6 March 2015, QBE issued a contract of insurance for each of 33A and 33B David Street, Yokine in the sum of $650,000 each or $1.3 million combined;
3.on or about 19 March 2015, the City of Stirling issued a building permit for 33A and 33B David Street, Yokine recording the estimated value of the building work to be $1.3 million;
4.on or about 10 April 2015, the Kos family and Mr Murselovic were informed by email from Tania Wilkinson, a representative of the business providing finance to the Kos family, that the Kos family would only be able to obtain finance for a building contract to the value of $1.16 million;
5.on or about 10 April 2015, Jusuf, Fadila, Safeta and Mustafa entered into a lump sum contract with the appellant to build two houses at 33 David Street, Yokine for $1.16 million;
6.between May 2015 and July 2016, the works at 33 David Street, Yokine were carried out and completed by the appellant;
7.between 29 April 2015 and 13 July 2016, the respondent paid the appellant the lump sum price of $1.16 million by way of progress payments without any deduction;
8.the respondent never produced a quote for the cabinetry works at 33 David Street, Yokine to the appellant;
9.no payments were made to the respondent for the cabinetry works at 33A and 33B David Street, Yokine; and
10.the respondent sent an invoice to the appellant on or about 10 July 2018, two years after the final progress payment was made to the appellant.
The critical issue which the magistrate was required to determine at trial was: Who attended at 6 Whimbrel Place, Bennett Springs (the home of Mustafa and Safeta) on 10 April 2015 and what, if anything, was agreed?
The respondent's position was Mr Murselovic attended the meeting at the home of Mustafa and Safeta on 10 April 2015, signed a lump sum contract, and an oral subcontract was made between the parties that the appellant would pay the respondent $66,000 for manufacturing cabinets for the two homes, the subject of the David Street Project.
The appellant's position was Mr Murselovic did not attend a meeting at the home of Mustafa and Safeta on 10 April 2015 and that Jusuf had attended at the appellant's office on 10 April 2015 and signed the lump sum contract, with Mr Murselovic also signing. Vesna Vukicevic, an administrative assistant of the appellant, witnessed the signatures. Jusuf then took the contract with him to obtain the other Kos family signatures.

The magistrate's reasons

The magistrate's reasons for her decision published on 9 September 2020 is 31 pages and comprises 154 paragraphs. The reasons are comprehensive.
The magistrate considered the issue for determination was: What was agreed on 10 April 2015 between the parties? There were no contemporaneous notes taken at this meeting.
The six witnesses who gave evidence at the trial were the four members of the Kos family referred to in [5] in the magistrates' reasons who were called by the respondent. Denis Murselovic and Vesna Vukicevic were called by the appellant. Vesna Vukicevic commenced working with the appellant as an administrative assistant on 19 January 2015.
None of the six witnesses who gave evidence at the trial can be considered as truly independent. All were related to or worked with the parties for which they were called.
In her decision, the magistrate referred to the testimony of the six witnesses who testified at the trial and various documentary exhibits. The magistrate stated that the onus was on the respondent to persuade her on the balance of probabilities that it is more likely than not, that the appellant agreed orally on 10 April 2015 to pay the respondent.
The magistrate noted in her reasons that there was a conflict in the witnesses for the two parties as to when and where events happened and what was discussed. This was, in particular, as to meetings in late February and early April 2015. There was also a contrast in evidence as to the use of purchase orders by the appellant.
As the respondent's claim was based on an oral contract, the magistrate considered her determination of the issue would depend largely on her assessment of the honesty, accuracy and reliability of the six witnesses who gave evidence at the trial. The magistrate also acknowledged she was required to attach great weight to the contemporaneous documents which either supported or contradicted the oral evidence of witnesses.
The magistrate found that the evidence of the four witnesses called by the respondent were closely consistent with one another. In relation to any conflicts of evidence, the magistrate generally preferred the evidence of the four witnesses called by the respondent. She placed the most weight on the evidence of Jusuf and Safeta. She found the evidence of Fadila and Mustafa generally reliable. She had only one difficulty in relation to the evidence of the Kos family witnesses but generally found each of these witnesses to be overall impressive witnesses who did their best to assist the court.
In the magistrate's reasons, she went through in some detail the evidence of each of the six witnesses and her impressions of each of them as a witness.
In relation to the witnesses for the appellant, the magistrate found Denis Murselovic generally to be an unsatisfactory and unreliable witness, who was prepared to give evidence to suit the appellant's case rather than assist the court. She set out a number of reasons for rejecting crucial aspects of Mr Murselovic's evidence. The magistrate was also left with the impression that Ms Vukicevic was an unsatisfactory witness in some critical respects, in particular, as to identifying documents she had witnessed.
The magistrate found the cabinets did form part of the David Street Project and therefore part of the contract between the parties. She gave detailed reasons for making such a finding on the evidence. She found that a Cost Plus Contract was signed at Bennett Springs on the evening of Saturday 28 February 2015. She did not accept Ms Vukicevic had witnessed Mr Murselovic and Jusuf signing this contract.
The magistrate found that the appellant's four page preliminary costing document was never provided in full to any member of the Kos family. She also found the builder's electronic version of this document as at 24 February 2015 was not a reliable document to which any weight could be attached.
The magistrate found that a figure of $1.44 million for the David Street Project was never discussed between Mr Murselovic and Jusuf. She did not accept Mr Murselovic met with Jusuf to discuss the David Street Project matters on 24, 26 and 27 February 2015.
The magistrate found that the Kos family met with Mr Murselovic at Bennett Springs on the evening of 10 April 2015. Ms Vukicevic was not present at that meeting and she applied her signature to the builder's copy of the lump sum contract at a later date. The magistrate found there was discussion at that meeting between Mr Murselovic and Jusuf about the cabinets being included in the David Street Project and Mr Murselovic assured Jusuf the cabinets were included in the David Street Project and a sum of $66,000 inclusive of GST, was agreed by Mr Murselovic. The magistrate found no purchase order was issued by the appellant or written quote made by the respondent.
The magistrate's ultimate conclusion was that the cabinets always formed part of the David Street Project and were included in the building contracts. She was persuaded on the balance of probabilities that it is more likely than not that the appellant and respondent did agree on 10 April 2015 for the respondent to undertake the cabinetry works of the David Street Project and for the respondent to be paid $66,000 by the appellant. As part of her finding, the magistrate found that Mr Murselovic attended a meeting with the representatives of the parties on 10 April 2015 at 6 Whimbrel Parade, Bennett Springs where the agreement was made. She therefore gave judgment for the respondent.
The magistrate's findings were heavily influenced by her assessment of the six witnesses who gave evidence at the trial and how that evidence related to the various documents received as evidence. There were 170 exhibits at the trial.
No substantial issues of law were required to be resolved by the magistrate. As described by counsel for the appellant 'it was a fact‑finding case'.[5] The ultimate conclusion of the magistrate in relation to an agreement made between the parties on 10 April 2015 and who was present, was based on her various factual findings.
[5] Appeal ts 16/6/2021, pages 9 - 10.

The nature of this appeal

A judgment of the Magistrates Court on a general procedure claim may be subject to an appeal to the District Court pursuant to s 40(1) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA).
In this appeal I must reconsider the evidence that was before the magistrate. The appeal is in the nature of a re‑hearing: District Court Rules 2005 (WA) (DCR) r 50(1): s 40(4) MCCPA.
The appellant must demonstrate and satisfy me that there was some legal, factual, or discretionary error on the part of the magistrate: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission.[6] If such an error has been made, I can substitute my decision for that of the magistrate. If no error is shown, I cannot intervene: Allesch v Maunz.[7]
[6] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 203.
[7] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
The fact that the appellant is disappointed with the result does not mean that the appeal court is able to intervene. The appellant must demonstrate that there has been an error of a recognised genre that falls to be corrected and which entitles the appellant to the orders or relief that it seeks: Avsar v Binning.[8]
[8] Avsar v Binning [2009] WASCA 219 [37].

The grounds of appeal

The appeal notice contains 26 grounds of appeal in the appellant's amended grounds of appeal filed on 27 January 2021. The final grounds of appeal are annexed to these reasons. The appellant filed its final written submissions on 11 June 2021 and the respondent filed its final written submissions on 14 June 2021. The appellant filed responsive submissions on 11 June 2021.
In the appeal to this court, the appellant contends in 23 of the 26 grounds of appeal that the learned magistrate made errors of fact.[9]
[9] Grounds 3(a), 4 - 19, 21 - 24 (including 23A) of the appellant's amended grounds of appeal dated 27 January 2021.
As the majority of the appellant's grounds refer to errors of fact, and the appeal to this court is by way of re-hearing, the appellant relies upon what the High Court said in Fox v Percy:[10]
[10] Fox v Percy [2003] HCA 22, (2003) 214 CLR 118 [23], [25], [28] - [29].
23The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
25Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'. In Warren v Coombes, the majority of this Court reiterated the rule that:
[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.
As this Court there said, that approach was 'not only sound in law, but beneficial in … operation'.
…
28Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
29That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences' in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must 'not shrink from giving effect to' its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
…
(footnotes omitted)
More recently, in Lee v Lee[11] the High Court summarised the role of an appellate court as follows:
A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of the witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general, an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'. …
(footnotes omitted)
[11] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 [55].

The appellant also relied upon the comments of Staude DCJ in Auro Pty Ltd v Drage[12] in relation to how an appellate court can displace the magistrate's findings at first instance which involve an acceptance of witnesses' testimony based on credibility findings by reference to objective evidence of what occurred, in particular documentary evidence.[13] In that case his Honour found some of the documentary evidence displaced the magistrate's credibility findings in relation to the respondent as a witness and allowed the appeal in part. The appellant also relies upon State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq)[14] as to when credibility findings can be overturned on appellate review, where in light of other evidence, a primary judge had too fragile a base to support a finding that a witness was unreliable and what Kirby J said in that case about the role of an appellate court when considering factual findings, credibility findings and inferences drawn or facts found made by a court at first instance.
[12] Auro Pty Ltd v Drage [2020] WADC 24.
[13] Auro Pty Ltd v Drage [57], [60], [62] - [63], [98].
[14] State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] 160 ALR 588 607, [63].
In considering each ground of appeal, I remain conscious of the limitations that I have in sitting as an appellate court from the Magistrates Court when I am proceeding on the written record of the trial. I do not have the advantages that the trial magistrate had in respect of the evaluation of the credibility of the six witnesses and of the feeling of the case.[15]
[15] Fox v Percy [23].
As most of the grounds of appeal challenge the magistrate's findings of fact, I am obliged to review the whole of the evidence and, bearing in mind I did not have the advantages enjoyed by the magistrate of having heard and seen the six witnesses, and consider: Was it open to the magistrate to make the findings she did?
Where the appellant's grounds rely upon a factual error having been made by the magistrate, it is not enough to show that an alternative finding was available. The appellant must demonstrate that the magistrate in making her relevant factual findings erred.
The ultimate issue the magistrate was required to decide was: Was there an agreement for the appellant to pay the respondent $66,000 for cabinets installed in the David Street Project? In deciding this issue, a crucial issue for the magistrate to determine was: Which witnesses were telling the truth as to what occurred on 10 April 2015?
Appeal grounds 1 and 2 are referred to by the appellant as errors of law made by the magistrate and are described in the appellant's submissions 'as overarching errors' in the magistrate's approach in coming to her decision.
In ground 1 the appellant submits the magistrate erred in law by failing to have regard or alternatively having any proper regard, to the documentary evidence and the probabilities arising from that evidence as being more reliable foundations for fact finding against the disputed oral evidence of the witnesses. The appellant relies upon the principles I have referred to in Fox v Percy [38] as to the functions of an appeal court on review.
In ground 2 the appellant submits the magistrate erred in law in considering the evidence on a piecemeal basis when she ought to have had regard to the united force of the whole of the evidence. The appellant relies upon the principles expressed in Palmer v Dolman.[16]
[16] Palmer v Dolman [2005] NSWCA 361 [41].
At the hearing of the appeal on 16 June 2021 I questioned the appellant's counsel about the grounds of appeal:
PRIOR DCJ:… So speaking of volume, on my count there's 26 grounds of appeal. Nearly all of them say the learned magistrate at first instance erred as a matter of fact in her findings of fact in relation to evidence before her, whether it be by witnesses, or by documents, or by a combination.
RUSSELL, MR:    Yes
PRIOR DCJ:So is the appellant's position that each of those standalone facts would give rise to an error to the extent that the appeal would be allowed?
RUSSELL, MR:    Not that each of them by themselves. If I can put it this way. One way in which it could have been dones is to have one ground of appeal, which was to say that the magistrate erred by finding that Mr Murselovic attended 6 Whimbrel Parade on 10 April 2015, and then having all of the intermediary findings set out below that as particulars.
But because each of them were effectively a finding of her Honour, it was - I formed the view that the more appropriate way was to set out each of the errors of fact that led to the ultimate finding.
PRIOR DCJ:Yes. So it's not a case where you would be submitting if I found - I'll just pick a random one - ground 5, there was an error of fact, that on its own, if it was an error, would give rise to the appeal succeeding.
RUSSELL, MR:    That's correct, your Honour.
PRIOR DCJ:So it's the combination because - - -
RUSSELL, MR:    It's a combination of one or more. We don't say that each of the grounds - we need to succeed on each of them; that is, all of them, to succeed overall. For example, your Honour could not find for us on the purchase order ground and still find for us in the ultimate ground.
…
I will deal with grounds 3 - 25 dealing with specific factual errors before I deal with grounds 1 and 2 which submit that overarching errors were made by the magistrate.

Ground 3

This ground of appeal submits that the magistrate erred in fact by attaching no evidentiary weight to the last modification date of 24 February 2015 on the electronic copy of the spreadsheet which is exhibit 12, when she ought to have taken that fact into account in her evaluation of the whole of the evidence.
Exhibit 12 is an Excel spreadsheet which Mr Murselovic gave evidence that he prepared containing costings for the David Street Project. Costings items were included relating to the cabinets.
The magistrate at [134] in her reasons referred to exhibit 12 'as the builder's electronic version of what was claimed to be a copy of a preliminary costing document'. She considered it was not a reliable document upon which she could put any weight on. The appellant relied upon the document to support its claim that the $66,000 price of the cabinets was agreed on by Jusuf and Mr Murselovic on 24 February 2015, being the last modification date of the properties on the electronic version of exhibit 12 and there was therefore no need for further discussion on the price of the cabinets on 10 April 2015. The respondent's witnesses gave evidence that the price of the cabinets was changed from $60,000 to $66,000 at a meeting at Bennett Springs on 10 April 2015.
At [135] - [138] the magistrate gave her reasons for doubting the authenticity of exhibit 12 and making a finding that the last modification date was not accurate and reliable.
The appellant submits that the magistrate in coming to her conclusions as to exhibit 12 has ignored the evidence of Mr Murselovic as to how the document was created and reversed the onus of proof as to the issue whether the modification date could be altered.
The electronic and hard copy versions of exhibit 12 do not contain any written acknowledgement of Jusuf seeing this document in February 2015 or agreeing any amendments to the costs.
Mr Murselovic did give evidence in relation to exhibit 12 both in his witness statement and his testimony at the trial including its last modification date being 24 February 2015. No witnesses gave evidence that it was possible to change the last modification date of exhibit 12.
The reliability and weight to be given to exhibit 12 was also dependent on the oral evidence of Mr Murselovic and Jusuf as to whether meetings took place at the appellant's office in February 2015, and if so, what was discussed. The evidence of each witness was directly opposed on this issue. Mr Murselovic was not clear in his evidence as to the date of the February 2015 meeting that the price of the cabinetry work was agreed. As to the possibility that exhibit 12's modification date had been changed, there was only Mr Murselovic's evidence that it had not been modified.
I consider on the totality of the evidence as to exhibit 12, that the exhibit itself had limited weight when considered in view of the oral evidence of Mr Murselovic and Jusuf as to what occurred and was discussed in February 2015. The magistrate's findings in relation to exhibit 12 were also consistent with her findings in [125], [133] and her ultimate factual finding in [144].
The magistrate's factual findings as to exhibit 12 were also assisted by the evidence of Safeta, who gave detailed evidence as to what occurred at the meeting at her house on 10 April 2015 and the document Mr Murselovic presented to the Kos family.
The magistrate may have erred in giving exhibit 12 'no evidentiary weight' but I am satisfied that the limited weight that this exhibit could be given was insufficient to overturn the ultimate findings of the magistrate as to the credibility of the witnesses.
I am not satisfied that the limited weight that could be given to exhibit 12 could overturn the magistrate's findings that the four page preliminary costings document was never provided in full to any member of the Kos family and there were no discussions in February 2015 with Mr Murselovic and Jusuf about the cabinets.
I dismiss this ground of appeal.

Ground 4

This ground submits that the magistrate erred in finding that the meetings between Jusuf and Mr Murselovic did not occur at the appellant's office in February 2015. It is submitted the magistrate failed to have regard or give any regard to diary notes, exhibit 12, and the improbability if a Cost Plus Contract was entered into on 28 February 2015, that cabinetry works would not have been discussed beforehand.
The magistrate's finding in [131] in her reasons as to meetings between Mr Murselovic and Jusuf at the appellant's office late in February 2015 was as follows:
I am not persuaded that Jusuf met with Mr Murselovic on the dates claimed by Mr Murselovic to discuss David Street project matters as claimed.
This finding assisted the magistrate to come to her ultimate finding that the cost of the cabinets for the David Street Project was first discussed by representatives of the parties on 10 April 2015 where the price was amended from $60,000 to $66,000.
Exhibit 11, the diary entries for 24, 26 and 27 February 2015 from Mr Murselovic's diary were not adopted by any witness other than Mr Murselovic. The entries mention Juso (Jusuf) and 33 David Street, Yokine. No mention is made of cabinets or cupboards. Jusuf in his evidence denied he had met with Mr Murselovic at his office on any of these three days.
To describe the diary entries 'as contemporaneous documents that recorded meetings at the appellant's office' is ambitious. The diary entries do not record who was actually present or what was discussed at the meetings. Mr Murselovic is the only witness who confirmed what happened in the meetings. Mr Murselovic's evidence as to what occurred at the meetings was vague.
In my view, these diary entries were of little evidential value and like exhibit 12, did not greatly bolster the credibility of Mr Murselovic as a witness or significantly discredit Jusuf as a witness.
I do not accept that it is inherently improbable that meetings did not occur between Mr Murselovic and Jusuf before the Cost Plus Contract was signed on 28 February 2015.
I am not satisfied that the magistrate erred in giving no weight to the diary entries. In any event, the limitations on these diary entries are such that they could not have significantly impacted on her credibility findings.
In my view, the combination of the diary entries, exhibit 12 and the Cost Plus Contract being signed on 28 February 2015 when compared with the oral evidence of witnesses, could not have been given enough weight for the magistrate to be satisfied that meetings took place between Mr Murselovic and Jusuf at the appellant's offices in late February 2015 where the David Street Project and the cost of the cabinets were discussed.
I dismiss this ground of appeal.

Ground 5

This ground relates to a negative credibility finding the magistrate made at [67] in her reasons in relation to the respondent's witnesses. This finding related to the colour of the pen they used when the lump sum contract was signed on 10 April 2015. The appellant submits the magistrate erred in her assessment of this evidence, in particular, when considering the respondent's witnesses had stated in their supplementary witness statements that they did have a recollection of what colour pen they used.
My reading of the magistrate's reasons as to this issue is, she did not accept or believe the evidence of each of the four respondent's witnesses that they had an actual recollection of the colour of the pen they used to sign the lump sum contract on 10 April 2015. The appellant submits a finding of this nature should have had a significant detrimental impact on the credibility of each of these four witnesses.
In my view, this factual finding is not so significant to undermine the positive credibility findings made by the magistrate of the respondent's witnesses. For me to elevate this finding to a higher level would fail to give proper consideration to the magistrate's overall finding that she found the respondent's witnesses 'to be overall impressive witnesses who did their best to assist the court'. In respect to this ground, I am not in the same position as the magistrate at first instance who saw and heard the respondent's four witnesses give evidence, and therefore could gain an overall impression of them.
I dismiss this ground of appeal.

Ground 6

This ground submits that the magistrate in making an adverse finding in relation to the evidence of Safeta and Mustafa erred in fact by failing to take into account this finding when assessing the whole of the evidence.
The relevant evidence related to what is described as a 'side conversation' between Safeta and Mustafa. The magistrate's findings in relation to this are at parts of [71] and [77] in her reasons as follows:
Safeta Kos
71… One aspect of Safeta's evidence which was called into question is her evidence that she had a private side discussion with Mustafa on 10 April 2015 in relation to whether or not Jusuf would be the cabinetmaker subcontracted by the builder for the cabinet works at David Street. I am not persuaded that Safeta's evidence on this point is more likely than not. This was a conversation that the couple did not need to have. In the circumstances of this case, this was a conversation which might occur between the builder and the cabinetmaker not two of the owners and the builder. While I am not persuaded that it was more likely than not that this side conversation actually took place on 10 April 2015, this finding does not detract from my finding of the overall reliability of Safeta's evidence. Safeta's evidence is otherwise supported by the evidence of the other Kos family members and the contemporaneous documentation. I am persuaded that Safeta's evidence is her actual recollection of the events relating to her direct involvement in the David Street project.
Mustafa Kos
77In relation to the side conversation with Safeta about Jusuf supplying the cabinetry at David Street, Mustafa's evidence was that Jusuf would do the best job and he would not get another cabinetmaker to do the work. This tends to suggest that Jusuf doing the cabinetry at David Street was a given for Mustafa and he said that there was no need to change what had happened in the Golf View and George Street. I am not persuaded that Mustafa and Safeta had such a side conversation for the reasons given by Mustafa - using his father for the cabinetry was a given for him. Otherwise, Mustafa's evidence in relation to what was said on 10 April 2015 I find to be reliable and his actual recollection of the events, which I accept.
There was a direct conflict between Safeta and Mustafa's evidence in relation to whether a 'side conversation' occurred between them on 10 April 2015 as to who would be the cabinetmaker for the David Street Project. Safeta's evidence was inconsistent with Mustafa's ultimate testimony that such a conversation would not have needed to occur. This evidence of Mustafa was inconsistent with his supplementary witness statement. Ultimately, the magistrate was not persuaded on the evidence the 'side conversation' took place. Similar to the magistrate's findings made on the issue the subject of appeal ground 5, this was a finding adverse to some of the respondent's witnesses.
The appellant effectively submits in this ground that this finding should have had a significant impact against the favourable credibility findings the magistrate made of the respondent's witnesses, and in particular, Safeta and Mustafa, and the magistrate erred in fact in failing to do so.
I have difficulty when considering the totality of the evidence of these two witnesses coming to a conclusion, 'it was deliberately false evidence'. As described, it was possibly 'a side conversation' by husband and wife. It did not go to the heart of the evidence of what was discussed with Mr Murselovic at the meeting on 10 April 2015 at Bennett Springs.
I take a similar view as to this factual finding as I did in relation to ground 5 in [75]. In any event, there were two other witnesses called by the respondent. Jusuf and Fadila gave detailed evidence as to what occurred and what was agreed with Mr Murselovic at the meeting on 10 April 2015 at Bennett Springs.
I dismiss this ground of appeal.

Ground 7

By this ground, the respondent submits that, given the amount of money paid by the appellant to the respondent in 2015 and 2016 for various projects, the magistrate erred when she found at [149] in her reasons:
… I accept that Jusuf was told by Mr Murselovic that he did not have money to pay the cabinetmaker when the 50% payment and the final payment were requested.
This factual finding was made by the magistrate when she was dealing with the issue that the respondent did not issue the invoice for the David Street Project cabinetry works until two years after the work was done and why the magistrate placed no weight in the delay in the invoicing by the respondent.
Jusuf gave evidence that his requests for payment for the David Street Project cabinetry works were made in February and April 2016.
There is no merit in this ground of appeal. The comments could have been made by Mr Murselovic, although they may not have been factually correct at the time they were made. In any event, the delay in the respondent's invoicing was further explained in the magistrate's reasons at [8], [57] - [63] and [150] concerning the history of the relationship between Mr Murselovic and Jusuf. The history of previous payments made by the appellant to the respondent needs to be considered in view of the change of the relationship between the parties in 2016. Even if Jusuf's evidence was not credible and reliable as to the comments he attributed to Mr Murselovic about the appellant's ability to pay the respondent for the David Street Project, in my view, it would have a very minor impact on Jusuf's overall credibility as a witness.
I dismiss this ground of appeal.

Ground 8

Ground 8 submits that the magistrate erred in fact in that having made her factual finding at [25] that an inference should have then been drawn by her, that the differing financial circumstances of the respondent from previous projects with the appellant would have led the respondents to not charge for the cabinetry works for the David Street Project.
This was possibly an inference available on the evidence, but it was not the compelling or only reasonable inference available on the evidence. The magistrate generally, in her reasons found that the way the parties conducted business between them and the factual circumstances they found themselves in concerning their various building projects, were not identical nor were the procedures rigorous.[17]
[17] Magistrate's reasons [145] - [147].

I am not satisfied that the magistrate was obliged to draw the inference submitted by the appellant on the evidence and therefore fell into error by not drawing it.
I dismiss this ground of appeal.

Ground 9

Ground 9 is similar to ground 7.
The appellant submits that payments made by the appellant to the respondent for cabinetry works done at 5 and 7 Oxted Place, Morley, and the time of such payments,[18] should have been used by the magistrate as an adverse factual finding in relation to her finding on the respondent's explanation as to why the respondent delayed in issuing the invoice for the David Street Project cabinetry works and by failing to find this way, the magistrate made a factual error.
[18] January and April 2017.
For the reasons I set out in [87] in relation to ground 7, I see no merit in this ground.
I dismiss this ground of appeal.

Ground 10

This ground relies upon the success of grounds 7 and 9 with the further submission that there were no contemporaneous documents to support Jusuf's evidence about the delayed request for payment by the appellant and therefore his evidence was improbable. It is submitted the magistrate ought to have determined Jusuf was not telling the truth when he said he asked for payment for the cabinetry works and Mr Murselovic said he did not have sufficient funds to pay.
As I have dismissed grounds 7 and 9, there is no merit in this ground.
I dismiss this ground of appeal.

Ground 11

This ground submits that the magistrate in dealing with the chronology of events and the deterioration of the relationship between the parties at [8], [57], [58], [59] and [61] in the magistrate's reasons, should have found that the respondents had a motive to send a false invoice for the cabinetry works for the David Street Project. It is submitted by the appellant that the relevant motive for the false invoice would be in response to the appellant's rejection of the respondent's defect claim relating to the David Street Project referred to at [59] in the magistrate's reasons.
There is no merit in this ground of appeal. An equally compellable inference from the chronology of events, the deterioration in the parties' relationship, and the previous strong business relationship which had existed, explained the respondent's delay in issuing the invoice for the David Street Project cabinetry works. On this factual background there was no improper motive in the delay in the respondent sending an invoice which would affect Jusuf's credibility. This was what the magistrate found at [150] in her reasons.
I dismiss this ground of appeal.

Ground 12

Counsel for the appellant referred to this ground as 'not an essential ground'. It relates to other grounds, to the evidence of Safeta about the use of purchase orders between the parties, and her evidence as to not receiving purchase orders for various projects the parties were engaged in.
It is submitted that the evidence should have led to an irresistible inference that Safeta did receive emails for purchase orders from the appellant and this finding would have adversely impacted on Safeta's credibility as a witness. The inference arises, it is submitted, as no plausible explanation was provided by Safeta as to why she did not receive purchase orders from the appellant for other projects involving the parties at the respondent's email address, but received other emails.
The appellant submits, combined with the findings the magistrate should have made in relation to grounds 4 and 6, Safeta must have been giving false evidence that she had not received by email, the purchase orders from the appellant.
I have dismissed grounds 5 and 6. The magistrate was entitled to accept the sworn evidence of Safeta that the relevant purchase orders were not received in preference to a general inference, that emails had been sent by the appellant in the past to the respondent, and therefore must have been sent and received by the appellant for the six purchase orders which were shown to Safeta in her evidence.
I dismiss this ground of appeal.

Ground 13

This ground is linked to grounds 5, 6 and 12. It is submitted the magistrate, having found factually in the way the appellant submits in these three grounds, should have then found Safeta was willing to give false evidence when Safeta believed it suited the case for the respondent or Safeta was an unreliable and/or a dishonest witness.
Having dismissed grounds 5, 6 and 12, there is no merit in this ground. In any event, significant parts of Safeta's evidence as to what occurred at her house on 10 April 2015, which was the key issue in dispute, was corroborated by the respondent's other three witnesses.
I dismiss this ground of appeal.

Ground 14

This ground is linked and dependent upon the success of grounds 4, 5 and 10. It is a ground which attacks the magistrate's credibility findings in relation to Mr Murselovic and Jusuf. I have dismissed these three grounds of appeal and therefore there is no merit in this ground.
The magistrate's reasons adequately justify her factual finding at [131] and there was no factual error on her behalf. She has also made factual findings at [74] and [82] to support this finding.
I do not consider there was any inconsistency on the evidence that the figure of $1.44 million was never discussed between Mr Murselovic and Jusuf or this factual finding was inherently improbable on the totality of the evidence which was before the magistrate. Any documentary evidence contrary to this factual finding was only supported by the evidence of Mr Murselovic. The magistrate was entitled to make the credibility findings in relation to Mr Murselovic and Jusuf as witnesses as she did.
I dismiss this ground of appeal.

Ground 15

This ground is linked and dependent upon the success of grounds 4, 5, 10 and 14. The ground also relates to the positive credibility findings made by the magistrate in relation to Jusuf.
It is submitted if grounds 4, 5, 10 and 14 are successful, the magistrate erred in finding Jusuf a reliable and honest witness. I have dismissed these four grounds of appeal and therefore there is no merit in this ground.
I dismiss this ground of appeal.

Ground 16

This ground submits that because of the factual findings the magistrate made in [8] and [18] in her reasons, the magistrate erred by failing to find that Mr Murselovic and Jusuf would be willing to dispense with the usual requirements for the execution of building contracts due to their close business and personal relationship.
It is further submitted by the appellant that the relationship between the parties was such that Mr Murselovic would have allowed 'some bending of the rules' in the formalities of signing building contracts (witnessing and altering). It is therefore submitted that the adverse credibility findings made against Mr Murselovic at [90] and [91] in her reasons was a factual error made by the magistrate.
In my view, it has not been demonstrated that the magistrate made a factual error. An inference may have been available that there was some bending of the rules between the parties on some occasions, but that was not the only inference available and in particular, in relation to the contracts the subject of the David Street Project.
I note that this was only one of eight reasons the magistrate took into account and described in her reasons for making adverse credibility findings against Mr Murselovic.[19]
[19] Magistrate's reasons [81] - 100].
I dismiss this ground of appeal.

Ground 17

This ground relates to a finding the magistrate made about the witness Ms Vukicevic not witnessing signatures of Jusuf on contracts on 28 February 2015 and 10 April 2015 which led the magistrate to make adverse credibility findings of her at [108] in her reasons.
In her evidence, Ms Vukicevic was unable to recall with certainty what type of contract or paperwork she had signed as a witness.
In her reasons at [103] - [107], the magistrate also provided other particularised reasons for having 'the impression that Ms Vukicevic was an unsatisfactory witness in some critical aspects'. The magistrate had the advantage of seeing and hearing Ms Vukicevic give evidence in first instance. The magistrate also had available to her the evidence of the respondent's four witnesses which directly contrasted with Ms Vukicevic's evidence.
At its highest, this was an issue of what weight the magistrate could give to her credibility findings in relation to Ms Vukicevic as a witness. There is no merit to this ground of appeal.
I dismiss this ground of appeal.

Ground 18

This ground is linked and dependent upon the success of grounds 4, 5, 10, 14 and 15. It is submitted if the factual findings were made by the magistrate in these five grounds, then the magistrate should have found the cost of increasing the cabinetry works from $60,000 to $66,000 was discussed before the meeting on 28 February 2015, and not for the first time on 10 April 2015 and Jusuf's reliability and honesty as a witness should have been significantly questioned by the magistrate.
As I have dismissed these five grounds of appeal, there is no merit in this ground.
I dismiss this ground of appeal.

Ground 19

This ground attacks a finding of fact made at [81] in the magistrate's reasons which was used as one of the eight reasons by the magistrate 'for rejecting crucial aspects of Mr Murselovic's evidence'. The magistrate found the appellant's action (and therefore Mr Murselovic) to request a progress payment in September 2018[20] and then seek to recover the amount sought in October 2018 by an adjudication application, was diametrically opposed with the appellant's earlier request for and acceptance of progress payments from the respondent.
[20] Exhibit 13 tax invoice - appellant to respondent for $97,570 dated 27 September 2018.
The magistrate found on the evidence, and in particular, based on the oral evidence of witnesses for the respondent, that the Cost Plus Contract for the David Street Project agreed on 28 February 2015, no longer applied once the lump sum contract was signed by the parties on 10 April 2015.
As to an alternative basis for the appellant's actions was that Mr Murselovic believed the appellant was entitled to a 'top up payment' because he had reduced the amount of the lump sum contract. Jusuf rejected this in his evidence. The magistrate found Jusuf a more credible and reliable witness than Mr Murselovic.
The appellant's submissions on this ground suggest on the facts, the magistrate should have drawn a different inference in relation to Mr Murselovic's motive for his actions in September and October 2018 and was in error in drawing the inference she did, and then using this inference against Mr Murselovic as a witness.
I am satisfied that on the evidence, the magistrate was entitled to draw the inference she did, and there was an evidential basis for drawing that inference. In drawing this inference, the magistrate obviously placed some weight on what she found was agreed between the parties on 10 April 2015. Her finding on that issue was clearly influenced by her findings, including credibility findings made in relation to what occurred on that date and consideration of the evidence of Mr Murselovic, compared against the evidence of the four witnesses for the respondent.
Even if I am wrong as to my view, that the magistrate's inference at [81] in her reasons was an appropriate inference for the magistrate to draw in relation to the evidence before her, and there was a factual error made by the magistrate, she gave seven other reasons for rejecting crucial aspects of Mr Murselovic's evidence.
I dismiss this ground of appeal.

Ground 20

This ground relates to the magistrate's reasons at [90] where she found that:
Sixth, Mr Murselovic's propensity to give evidence about documents, particularly the cost plus contract and the lump sum building contract, which upon closer examination is shown to be incorrect is of great concern. Errors by Mr Murselovic in relation to crucial documents in these proceedings tend to indicate to me that Mr Murselovic's evidence is generally unreliable and that he approached the builder's defence of this claim in somewhat of a cavalier manner without any particular regard to the truth.
It is submitted the magistrate erred in fact and law when drawing this inference. It is submitted the only appropriate inference to be drawn was Mr Murselovic had not been careful in checking the documents.
This was only one of eight reasons the magistrate at [91] ‑ [92] in her reasons gave, for rejecting aspects of Mr Murselovic's evidence. The magistrate gave examples based on the evidence as to why she came to this conclusion by referring to parts of Mr Murselovic's witness statements which were incorrect or inconsistent with oral evidence or documents.
The magistrate at [91] in her reasons did make a minor error. Not only did Mr Murselovic concede in cross‑examination that his first witness statement was incorrect when he stated that 'I checked to make sure that all of the Kos family had signed the HIA cost plus contract properly'. He had also made that concession in his second witness statement.[21]
[21] Magistrate's reasons [112]; Exhibit 11.
The magistrate was still entitled to give some weight to this error by Mr Murselovic, but it was not the only error in his witness statements she relied upon.
Ultimately, the magistrate accepted that Mr Murselovic's witness statements were not true and correct and that at the very least, he had been careless in their preparation. The magistrate therefore found this reflected on his reliability and accuracy as a witness. I am not satisfied when I consider the totality of the evidence that the magistrate erred in drawing this inference.
In any event, if the magistrate was in error in drawing the inference she did, it was only one of a number of numerous reasons the magistrate referred to for making adverse credibility and/or reliability findings against Mr Murselovic.
I dismiss this ground of appeal.

Ground 21

This ground submits that the magistrate made a factual error in [95] ‑ [97] in her reasons in rejecting Mr Murselovic's evidence as to the initialling of the Cost Plus Contract on 28 February 2015 and the location where some witnesses did this. This was the seventh of the eight reasons the magistrate gave for rejecting crucial aspects of Mr Murselovic's evidence.
It is submitted Mr Murselovic's evidence should have been accepted on this issue, as it is consistent with the informal way which documents were signed and witnessed due to the parties' business and personal relationship. The magistrate in her reasons in finding inconsistencies in Mr Murselovic's evidence on this issue, also relied upon the fact that Safeta and Fadila's evidence also supported Jusuf's version of what occurred as to the initialling of the Cost Plus Contract and the location where this occurred.
No factual error has been demonstrated by the appellant.
I dismiss this ground of appeal.

Ground 22

Ground 22 attacks the magistrate's finding at [98] - [100] in her reasons. These reasons relate to the magistrate rejecting Mr Murselovic's evidence that the lump sum contract was signed in the appellant's office on the morning of 10 April 2015 in the presence of Jusuf and Ms Vukicevic. As part of her reasons for rejecting this evidence, the magistrate made a factual finding that she did not accept Mr Murselovic's evidence as to the timing of when he knew specifically the $1.3 million funding for the Cost Plus Contract was refused and that the respondents were only able to get finance of $1.16 million.
It is submitted on the evidence that the magistrate should have found Mr Murselovic knew of the finance not being approved for the building contract of $1.3 million since 8 April 2015 and therefore the magistrate's factual finding would be consistent with the lump sum contract being signed at the appellant's office early in the morning on 10 April 2015.
This submission centres on the timing of an email sent on 10 April 2015 at 12.17 pm from a representative of the respondent's finance broker to Safeta, advising finance could not be approved and an email from a representative of the finance broker to Mr Murselovic on 8 April 2015 where reference is made to a telephone conversation regarding a valuation at $1.16 million. The magistrate found on the basis of this email, Mr Murselovic would not have been aware of the rejection of the appellant's finance sought for $1.3 million until the afternoon of 10 April 2015 and as a result, would not have been a reason for the signing of the contract in the appellant's office on the morning of 10 April 2015. The submission is that an alternative inference was available on the evidence which supported Mr Murselovic's evidence as to where and when the lump sum contract was signed on 10 April 2015.
The alternative inference the appellant submits the magistrate should have drawn, ignores the oral evidence of Safeta, Fadila and Mustafa that the contract was signed in the afternoon on 10 April 2015 at Bennett Springs. That evidence was accepted by the magistrate and is totally inconsistent with Mr Murselovic's evidence as to where and when the lump sum contract was signed on 10 April 2015.
The email from the finance broker on 8 April 2015 fails to give specific details as to what was specifically discussed earlier other than the valuation. The author of the email was not called as a witness. At best on the evidence, Mr Murselovic may have been aware the respondent was having difficulty obtaining finance before the 10 April 2015.
The appellant submits that the magistrate 'ignored how finance applications are dealt with in real time and in ordinary human experience', that a finance applicant will be told of the 'hurdles' before receiving formal notification that finance is declined. There was no evidence of this.
On the evidence which was before the magistrate, I am unable to be satisfied she erred in drawing the inference that Mr Murselovic was not aware of the appellant's finance approval rejection until later in the day on 10 April 2015, as this would be inconsistent with the respondent's witnesses' evidence as to when and where the lump sum contract was signed.
I dismiss this ground of appeal.

Ground 23A

This ground submits the magistrate erred in fact by failing to find Fadila, Safeta and Mustafa gave false evidence when suggesting the reason Mustafa was not at the meeting on Saturday night, 28 February 2015 at Bennett Springs was, he might have been at a night class for TAFE.
It was not in dispute by Fadila, Safeta and Mustafa that Mustafa was not present at the meeting. The appellant refers to the witnesses' explanation that Mustafa may have been at TAFE when in fact the meeting was on a Saturday night and he attended TAFE Monday to Friday nights. Mustafa, in his evidence, stated that there was a safety course he attended at TAFE on a Saturday night.
The magistrate at [120] in her reasons drew no adverse inference in relation to Mustafa's failure to attend the meeting on 28 February 2015. She found he was expected at the meeting but did not attend.
There is no error of fact by the magistrate on this issue, at best it could be submitted that the explanation by the three witnesses as to why Mustafa did not attend the meeting could have marginally impacted their reliability as witnesses. In my view, this evidence is totally inconsequential when viewed with the other evidence that the magistrate did accept and used, to find these three witnesses reliable. I also give weight to the fact that I am at a significant disadvantage of not 'having watched and listened very carefully'[22] to the evidence of these witnesses.
[22] Magistrate's reasons [64].
Counsel for the appellant conceded at the hearing of the appeal that the success of this ground would be insufficient to set aside the magistrate's judgment.
I dismiss this ground of appeal.

Ground 23

This ground relies ('builds') upon the various factual errors that it is submitted the magistrate made, identified in the previous grounds which ultimately led her into error in finding Mr Murselovic attended at 6 Whimbel Place, Bennett Springs on 28 February 2015 to sign the Cost Plus Contract on 28 February 2015 and the lump sum contract on 10 April 2015 when the magistrate should have found that Jusuf attended the appellant's offices on those dates to sign those contracts.

As I have dismissed the previous grounds of appeal submitting various factual errors made by the magistrate, there is no merit in this ground.
I dismiss this ground of appeal.

Ground 24

This ground is similar to ground 23 and relies ('builds') upon the success of previous grounds of appeal. Ultimately, it is therefore submitted the magistrate should have come to an irresistible inference that Jusuf, Fadila, Safeta and Mustafa gave untruthful evidence that Mr Murselovic attended 6 Whimbrel Place, Bennett Springs on 10 April 2015.
As I have dismissed the previous grounds of appeal, there is no merit in this ground.
I dismiss this ground of appeal.

Ground 25

Ground 25 is described as 'a fall back position' or alternative to grounds 23 and 24. The ground relies upon the success of grounds 5, 6, 13 and 15. It is submitted the success of these grounds would mean the magistrate should not have accepted the evidence of the Kos family members of a meeting on 10 April 2015 at Bennett Springs, what was said at that meeting and agreed by Mr Murselovic at that meeting. It is submitted the Kos family witnesses should have been found as unreliable and if these grounds succeeded, there was insufficient evidence for the respondent to discharge its onus of proof on this issue.
As I have dismissed grounds 5, 6 13 and 15 of appeal, there is no merit in this ground.
I dismiss this ground of appeal.

Ground 1

I have summarised this ground in [46].
As I have stated in [40], the appellant also relies upon Auro Pty Ltd v Drage in support of this ground. That case is distinguishable from this case. In that case, the factual findings made at first instance by the magistrate were based primarily on the oral evidence of the defendant Ms Drage and one other witness. The judgment was overturned on appeal when the evidence was found to be improbable with the documentary evidence. No credibility findings had been made by the magistrate at first instance in relation to two other witnesses called by the defendant. Staude DCJ found at [15] that one solitary example of being circumspect of the plaintiff's key witness was a fragile basis for a generalised and unnecessary reflection on the witness' credibility.
In this case, the magistrate has given a number of examples for making adverse findings in relation to the credibility and reliability of the appellant's two witnesses. Here, there were four witnesses whose oral evidence generally corroborated each other on key issues in dispute and was in direct contrast to the appellant's two witnesses. The key factual issue the magistrate needed to find I have referred to in [16]. Generally, there were four witnesses confirming the respondent's version of events for this issue against two witnesses called by the appellant.
Many of the submissions made in support of the various grounds of appeal rely on an interpretation of certain documents in evidence which requires inferential reasoning. The inferential reasoning in support of the appellant's submissions relies on positive credibility and/or reliability findings in relation to the appellant's witnesses, either Mr Murselovic or Ms Vukicevic. The magistrate gave detailed reasons for finding the respondent's witnesses more credible and reliable than the appellant's witnesses. I did not see or hear these six witnesses give evidence. In considering the principles that apply in Fox I have referred to in [38] I also need to be cognisant of the restraint referred to in Lee v Lee [55]. Staude DCJ in Auro Pty Ltd [57] acknowledged the principles of appellate review required an appellate court 'to respect the advantage enjoyed by the court below where matters of witness credibility are concerned'.
Ultimately, I am not satisfied the magistrate's factual findings in particular as to the core issues in dispute were 'glaringly improbable' or 'contrary to compelling inferences'.
I am satisfied the key issue for resolution the magistrate identified was the correct one. This can be summarised in these questions: What happened on 10 April 2015 between the parties? What was agreed? Where was it agreed?
The oral evidence of all six witnesses about what happened on 10 April 2015 was very important in resolving these questions. The evidence of each party's witnesses in answer to these questions conflicted. The four respondent's witnesses generally corroborated each other. The respondent's witnesses were all related, but neither of the appellant's witnesses could be considered independent. The evidence of the four respondent's witnesses was generally supported by the documentary events.
The appellant's position on appeal and submissions in support of many grounds involves cherry picking individual documents, interpreting them in a certain way and suggesting they should be viewed as supporting the evidence of the appellant's witnesses. I am satisfied there was no error in the magistrate's interpretation of documents or the inferences she drew on various documents in evidence. Her factual findings were not glaringly improbable or contrary to compelling inferences to be drawn on the documents in evidence. The appellant has not satisfied me that, based on other objective evidence available to the magistrate, the evidence of the four Kos family members could not be true.
The magistrate's reasons indicate to me she had proper regard to the documentary evidence.
I dismiss this ground of appeal.

Ground 2

This ground submits the magistrate erred in law by considering each piece of evidence on a piecemeal basis instead of having regard to the united force of the evidence together. The appellant relies upon the principles expressed in Palmer v Dolman [41].
My reading of the magistrate's reasons does not suggest this error. The magistrate's reasons were comprehensive and substantive. They dealt with the key issues in dispute, the chronology of relevant events, the credibility of the six witnesses who gave evidence and resolved the ultimate issue of whether the appellant agreed on 10 April 2015 (at Bennett Springs) to pay the respondent $66,000 for the cabinetry work for the David Street Project. In dealing with her decision on the ultimate issue, the magistrate set out a number of reasons for finding the way she did. Documentary evidence and how it related to oral and documentary evidence were referred to by the magistrate where necessary in her reasons. It was not a piecemeal consideration of the evidence by the magistrate.
At [41] of Palmer the New South Wales Court of Appeal sets out the well‑established principles in determining, in a civil case, whether circumstantial evidence leads to an inference of fraud. This authority does not assist the appellant's case. The only suggestion that the appellant's witness Mr Murselovic engaged in any conduct tantamount to an allegation of fraud is raised in appeal ground 3. I have dismissed this ground. The principles at [41] of Palmer were not required to be applied by the magistrate in her reasons.
I dismiss this ground of appeal.

Conduct of the appeal

One further matter should be mentioned. As most of the appellant's grounds of appeal asserted errors of fact made by the magistrate, it would be extraordinary to think that the magistrate could have made so many errors which are so significant to give rise to this many grounds of appeal.
In Dinh v Commonwealth Bank of Australia[23] the Court of Appeal made the following comment about an appeal containing multiple grounds:
It is regrettable that senior counsel settled grounds of appeal in this form. Advancing grounds of appeal expressed in this form does a disservice to counsel's client, the other parties and the court. It does a disservice to the client because so many prolix and unmeritorious grounds simply tend to disguise and distract the court's attention from any meritorious points the client may have. It does a disservice to the other parties by unnecessarily increasing the legal costs which they are required to incur in responding to the appeal. It does a disservice to the court which has to expend its limited resources dealing with the multiplicity of issues raised by the grounds advanced. …
[23] Dinh v Commonwealth Bank of Australia [2021] WASCA 127 [255].
The comment of the Court of Appeal referred to above is relevant to this appeal in relation to the number and type of grounds of appeal.

Conclusion

For the above reasons, none of the grounds of appeal have been established and the appeal should be dismissed.
I will hear from the parties in relation to the costs of the appeal.

ANNEXURE
AMENDED GROUNDS OF APPEAL

Despite stating that she was going to, the learned Magistrate erred in law by failing to have regard, or alternatively any proper regard, to the documentary evidence and the probabilities arising from that evidence, the positions of the parties, the subject matter of their communications and the prevailing circumstances being more reliable foundations for fact finding than disputed oral evidence consistently with the principles expressed in Fox v Percy (2003) 214 CLR 118 at [31].
The learned Magistrate erred in law by considering each piece of evidence on a piecemeal basis when she ought to have had regard to the united force of the whole of the evidence together consistently with the principles expressed in Palmer v Dolman [2005] NSWCA 361 at [41].
The learned Magistrate erred in fact by attaching no evidentiary weight to the last modification date of 24 February 2015 on the electronic copy of the spreadsheet that was Exhibit 12 when she ought to have taken that fact into account in evaluating the whole of the evidence.
(a)The learned Magistrate erred in fact when she found that Denis had not provided any details in relation to how the electronic version of the preliminary costings was created when in fact he had given evidence about how it had been created: Reasons [136];
(b)The learned Magistrate erred in fact and in law when she found that DND had an onus to show that the operating system of DND operated in a way that which once set the last modification date could not have been altered: Reasons [137].
The learned Magistrate erred in fact by finding that the meetings between Jusuf and Denis at DND's office on 24, 26 and 27 February 2015 did not occur (Reasons [131]) and in doing so failed to have any regard, or alternatively any proper regard, to:
(a)the contemporaneous diary notes that Denis had kept as to the meetings he had with Jusuf on 24 February 2015, 26 February 2015, 27 February 2015;
(b)the last modification date of 24 February 2015 on the electronic copy of the spreadsheet that was Exhibit 12;
(c)the probabilities arising from the undisputed fact that a cost-plus contract was entered into on 28 February 2015 and the inherent probability that Jusuf and Denis would have discussed the cost of the cabinet works and other items before the cost-plus contract was signed.
Having found at Reasons [67] that each of Jusuf, Fadila, Safeta and Mustafa did not have any recollection of which colour pen they used on 10 April 2015 to sign the contract, the learned Magistrate erred in fact by failing to take into account when assessing the whole of the evidence that Jusuf, Fadila, Safeta and Mustafa had each been prepared to sign a supplementary statement of intended evidence on 2 September 2019 before the trial commenced on 9 September 2019 and give evidence consistent with that statement at the trial in circumstances where they had no actual recollection of the colour of the pen used, when the learned Magistrate ought to have taken that into account when assessing the whole of the evidence.
Having found at Reasons [71] and [77], that the side-conversation between Safeta and Mustafa did not occur, the learned Magistrate erred in fact by failing to take into account when assessing the whole of the evidence that:
(a)Safeta and Mustafa had each been prepared to sign a supplementary statement of intended evidence on 2 September 2019 that the side conversation did occur;
(b) Safeta held to that position when giving her evidence at the trial;
(c)Mustafa accepted under cross-examination that the sideconversation had not occurred and there was no need to discuss whether his father would be doing the cabinets as no one else would be doing them,
when the learned Magistrate ought to have taken those facts into account when considering the whole of the evidence.
The learned Magistrate erred in fact in failing to find that in 2015 and 2016:
(a)DND had engaged J & F Kos to undertake the cabinetry works for 20 projects;
(b)on each of those occasions J & F Kos gave DND an invoice for a deposit before the works commenced and an invoice for the balance once the works were complete;
(c)J & F Kos invoiced DND for a total of $841,000 and DND paid $841,000 in total to J & F Kos which was shown in the MYOB records of DND;
(d)J & F Kos had actually received into its bank account $382,800 from DND between 9 October 2015 and 27 June 2016 which was shown in the bank records of J & F Kos.
Having found at [25] that the Golf View and George Street private projects had been 100% financed by bank finance the learned Magistrate erred in fact in failing to go on and find that Jusuf and Fadila (with respect to Golf View) and Jusuf, Fadila, Safeta and Mustafa (with respect to George Street) had no difficulty in obtaining finance for those projects and obtained finance for the total sum of the building contracts sufficient to cover the intended payments to J & F Kos for the cabinets.
The learned Magistrate erred in fact in failing to find that:
(a)the last job carried out by J & F Kos for DND was 5 & 7 Oxted Place, Morley;
(b)J & F Kos issued an invoice for a 50% deposit for the job in the sum of $11,550 on 12 January 2017;
(c) DND paid that invoice;
(d)J & F Kos issued an invoice for the outstanding balance for that job in the sum of $11,550 on 1 April 2017;
(e) DND paid that invoice.
The learned Magistrate erred in failing to find that Jusuf had falsely claimed that:
(a)he had asked for payment of the David Street payment in about February 2016 and again in April 2016; and
(b)Denis had told Jusuf that DND did not have sufficient funds to pay J & F Kos.
Having found at [8], [57], [58] that the relationship between DND and J & F Kos (and also the relationship between Denis and Jusuf) began to deteriorate when J & F Kos stopped getting subcontract work from DND from January 2017 onwards as DND maintained that J & F Kos' quotes were too expensive and at [59] that on 3 July 2018 the Kos family lodged a defect liability form with DND in relation to one of the houses at David Street which DND rejected, the learned Magistrate erred in fact in failing to find that the Kos family (and J & F Kos) had a motive to send the invoice to DND on 10 July 2018 (more than 2 years after the work was completed) and commence proceedings just 9 days later even though there had been no agreement by DND to pay for the cabinets and in fact an express agreement that J & F Kos would not charge for the cabinet work.
The learned Magistrate erred in fact in failing to find that Safeta had received the purchase orders from DND building on behalf of J & F Kos in circumstances where:
(a)Safeta gave evidence that she monitored the email account that they were sent to [email protected];
(b) Safeta sent emails from that same email account;
(c)the timing of quotes received by DND from J & F Kos which were closely followed by purchase orders sent by email from DND to J & F Kos which were closely followed by invoices being sent by J & F Kos asking for the initial deposit from DND.
Having resolved appeal grounds 5, 6 and 12, the learned Magistrate erred in fact because she ought to have taken into account that Safeta denied receiving the emails and purchase orders and persisted in that account when cross‑examined at trial and therefore determined that Safeta willing to give false evidence when she believed it suited the case for J & F Kos.
Having resolved appeal grounds 4, 5 and 10, and therefore finding the following facts:
(a)that the meetings on 24, 26 and 27 February 2015 did occur as Denis alleged;
(b)Jusof and Denis did discuss the cost of the cabinet works and other items before the cost-plus contract was signed;
(c)that Jusof had either not recalled these events or had deliberately given false evidence,
the learned Magistrate erred in fact in finding (Reasons [131]) that a figure of $1.44 million was never discussed between Jusuf and Denis at any time because:
(d)the learned Magistrate erred in stating that a finding that Jusuf and Denis discussed a figure of $1.44 million would be inconsistent with Safeta being in charge of arranging the Kos family finance when in fact it would not be inconsistent;
(e)there was a contemporaneous documentary record that the calculation had been made by Denis to arrive at a figure of $1.44 million and by virtue of it being a cost-plus contract it was inherently probable that Denis discussed this with Jusuf.
Having resolved appeal grounds 4, 5, 10 and 14, and therefore finding the following facts:
(a)that the meetings on 24, 26 and 27 February 2015 did occur as Denis alleged;
(b)Jusof and Denis did discuss the cost of the cabinet works and other items before the cost-plus contract was signed on 28 February 2015;

the learned Magistrate erred in fact because she ought to have taken into account that Jusof denied that the meetings occurred both in his statements of intended evidence and at trial and gave evidence that the increase in price from $60,000 to $66,000 for the cabinets was not discussed until 10 April 2015 and therefore ought to have determined that Jusuf's evidence was either unreliable or Jusuf was willing to give false evidence when he believed it suited the case for J & F Kos.

Having found at [8] and [18] that Denis and Jusuf had worked closely together from 2004 to January 2017 as builder and subcontractor, were also personal friends up to and during 2015 and DND had previously built private residences for Jusuf and Fadila in February 2010 (Golf View) and Jusuf, Fadila, Safeta and Mustafa in July 2013 (George Street) the learned Magistrate erred in fact by failing to find that Jusuf and Denis were willing to dispense with the usual requirements of the execution of building contracts such as witnessing all signatures due to their close business and personal relationship.
The learned Magistrate erred in fact by failing to accept the evidence of Vesna Vukicevic that she witnessed the signature of Jusuf at the office of DND on 28 February 2015 and 10 April 2015 at [108] of the reasons when she ought to have accepted that evidence.
(a)The learned Magistrate so erred by placing undue importance on the fact that Ms Vukicevic could not be sure of the actual documents that were witnessed on those days in circumstances where Jusuf denied being at the DND office on those days at all;
(b)The learned Magistrate so erred by placing undue importance on the fact that Ms Vukicevic had signed as a witness for the other members of the Kos family despite not seeing them actually sign the documents;
(c)The learned Magistrate so erred by failing to accept that Ms Vukicevic's willingness to sign as a witness in circumstances where she had not actually seen the other members of the Kos family sign the documents was adequately explained by the close relationship Denis had with Jusuf.
(d)The learned Magistrate so erred by failing to have any regard, or alternatively any proper regard, to the contemporaneous diary notes that Denis had kept as to the meetings he had with Jusuf on 24 February 2015, 26 February 2015, 27 February 2015, 28 February 2015 and 10 April 2015.

Having resolved appeal grounds 4, 5, 10, 14 and 15 the learned Magistrate erred in fact in finding that the cost of the cabinet making increasing from $60,000 to $66,000 was only discussed on 10 April 2015 for the first time, when the learned Magistrate should have found that it was discussed before the cost-plus contract was signed on 28 February 2015.
The learned Magistrate erred in fact by relying on DND's pursuit of the adjudication application referred to in [81] of the reasons as a reason to reject Denis's evidence when it was adequately explained by the circumstances namely:
(a)DND had reduced the price of the building contract from an initial cost estimate of $1.44 million down to a cost estimate of $1.3 million on the basis that J & F Kos would carry out the cabinetmaking works at no cost to DND;
(b)When the Kos family could not obtain finance for $1.3 million for the building contract, DND further reduced the price of the building contract to $1.16 million on the basis that Jusuf would be responsible for the difference between $1.16 million and $1.3 million;
(c)The close relationship between Denis and Jusuf prior to 2017.
The learned Magistrate erred in fact and in law by drawing the inference that Denis's evidence was generally unreliable and that he approached the builder's defence of this claim in somewhat of a cavalier manner without any particular regard to the truth (Reasons [90]-[93]) when the matters she referred to in support of that inference were not consistent with a finding of a lack of regard for the truth but were only able to found an inference that Denis had not been careful in checking the documents.
The learned Magistrate erred in fact by rejecting Denis's evidence referred to in [95]-[97] of the reasons, namely, that Jusuf initialled the specifications but took the contract away for signing when she ought to have found that given the informal way in which the documents were signed and witnessed that this was consistent with the way both parties (Denis and Jusuf) approached the signing of the contract.
The learned Magistrate erred in fact by rejecting Denis's evidence referred to in [98]-[100] of the reasons, namely, that the lump sum contract could not have been signed during the morning of 10 April 2015 because an email sent by the Kos family's finance broker formally advising that finance could not be approved was only received at 12:17pm, when the learned Magistrate should have found that:
(a)the Kos family and Denis knew since 8 April 2015 that finance would not be approved for a building contract of $1.3 million when the valuation the Kos's bank had carried out only valued the buildings at $1.16 million;
(b)the email on 10 April 2015 referred to an earlier telephone conversation; and
(c)the email being received at 12:17pm was not inconsistent with Jusuf meeting Denis at the DND office during the morning of 10 April 2015 to sign the contract.

23A.The learned Magistrate erred in fact in failing to find that Fadila Kos, Safeta Kos and Mustafa Kos had given false evidence by trying to explain Mustafa Kos's absence from the alleged meeting at 6 Whimbrel Parade Bennett Springs on 28 February 2015, a Saturday, by suggesting that he was at a night class for TAFE.

Because of the errors identified above the learned Magistrate erred in fact in finding against the weight of the evidence that Denis attended at Bennett Springs to sign the cost-plus contract on 28 February 2015 and the lump sum contract on 10 April 2015 when she ought to have found that Jusuf attended DND's office to sign those contracts on those dates.
Because of the errors identified above the learned Magistrate failed draw on the following facts to infer that each of Jusuf, Fadila, Safeta and Mustafa had not been truthful in giving evidence that Denis attended 6 Whimbrel Parade, Bennet Springs on 10 April 2015:
(a)Each of Jusuf, Fadila, Safeta and Mustafa had been prepared to give false evidence where they believed it suited the case of J & F Kos;
(b)On the earlier occasions that the Kos family had engaged DND to build homes for themselves, J & F Kos had carried out the cabinet works and been paid for those cabinet works the Kos family had been able to obtain bank finance for the full building contract sum including the amounts to cover payments to J & F Kos for the cabinets;
(c)On this occasion the Kos family had not been able to obtain bank finance for the full building contract sum of $1.3 million but only to cover a building contract price of $1.16 million;
(d)The inherent probability that DND through Denis would not reduce the price of the building contract from $1.44 million, to $1.3 million and then to $1.16 million but agree to pay for J & F Kos for the cabinets and agree to only receive $1.16 million under the building contract;
(e)The last modification date of 24 February 2015 on the electronic copy of the spreadsheet that was Exhibit 120;
(f)The lack of need to discuss the price for the cabinet making or who was carrying out the cabinet making on 10 April 2015 or at any time after 28 February 2015;
(g)The manner in which the Kos family were prepared to sign contracts with DND, that is for Jusuf to deal with Denis and Jusuf to bring the contract to the other family members to sign;
(h)Having regard to appeal ground 7 and 9, the inherent improbability that Denis told Jusuf that he did not have the money to pay J & F Kos;
(i)The inherent improbability that J & F Kos held off on sending their invoice for the cabinets until 10 July 2018 because of a fear of not receiving work from DND in circumstances where on every other occasion J & F Kos had sent an invoice for a deposit and an invoice on completion of the job and it had been paid, including after the David Street job (see appeal ground 9).
In the alternative to ground 24, because of the findings the learned Magistrate made in:
(a)[71] and [77] of the reasons, that is that a side-conversation between Safeta and Mustafa did not occur;
(b)[67] that each of Jusuf, Fadila, Safeta and Mustafa did not have any recollection of which colour pen they used on 10 April 2015 to sign the contract; and
(c)further, and in the alternative, having resolved grounds of appeal 5, 6, 13 and 15 above,
the learned Magistrate erred in fact in accepting the evidence of Jusuf, Fadila, Safeta and Mustafa as to what they alleged was said at the 6 Whimbrel Parade on 10 April 2015 when the Magistrate ought to have found that she could not be satisfied that it was more likely than not that Denis and Jusuf discussed the cabinets on that day and agreed that J & F Kos would carry out the cabinet work for DND in exchange for $66,000 including GST.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior
17 FEBRUARY 2022