Exterior Home Improvements v Stanger - [1999] NSWSC 222

CITATION: Exterior Home Improvements v Stanger [1999] NSWSC 222

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 12322/98

HEARING DATE(S): 18 March 1999

JUDGMENT DATE:
23 March 1999

PARTIES :

Exterior Home Improvements Pty Limited (Appellant)
Bruce Stanger (Respondent)

JUDGMENT OF: Studdert J

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S) : 1302 of 1997

LOWER COURT JUDICIAL OFFICER: Mr S. Jackson

COUNSEL : S. Winters (Appellant)
R. Montgomery (Respondent)

SOLICITORS: Rutter Morgan & Co. (Appellant)
Stanger & Clarke (Respondent)

CATCHWORDS: Stated case; appeal from Local Court; whether findings supported offence under s 52 of the Trade Practices Act; magistrate drew on independent personal knowledge; damages assessed by reference to cost of total replacement; whether any error of law in findings and decision of magistrate

ACTS CITED: Fair Trading Act
Justices Act
Local Courts (Civil Claims) Act
Trade Practices Act

CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bellgrove v Eldridge (1953-54) 90 CLR 613
Burns v Lipman (1974-75) 132 CLR 157
McWilliam's Wines Pty Ltd v McDonald's System of Australia Pty Ltd (1980) 49 FLR 455
Parkdale Custom Built Furniture Pty Limited v Puxu Pty Limited (1981-82) 149 CLR 191
Taco Co. v Taco Bell Pty Limited (1982) ATPR 40-303
Waltons Stores (Interstate) Limited v Maher (1987-88) 164 CLR 387
Wetherall v Harrison [1976] 1 QB 773

DECISION: See para 43

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
STUDDERT J
Tuesday 23 March 1999
12322/98 EXTERIOR HOME IMPROVEMENTS PTY LIMITED v BRUCE STANGER
JUDGMENT
1 HIS HONOUR : This is an appeal by way of stated case from a decision of the Local Court at Newcastle. The respondent, Bruce Stanger, took proceedings in that court against the appellant, Exterior Home Improvements Pty Limited, after the appellant had carried out certain building work for him. It appears from the facts found by the learned magistrate as recorded in the stated case that this work involved the fixing of cladding to a residence at Merewether. Hot dipped galvanised nails were used by the appellant to secure the cladding in position, but in due course these nails rusted causing discolouration of the cladding. The respondent sued the appellant seeking damages for breach of contract, and in the alternative, he relied upon ss 52 and 53 of the Trade Practices Act and ss 42 and 44 of the Fair Trading Act. The respondent was successful in the claim brought pursuant to s 52 of the Trade Practices Act and the learned magistrate assessed damages in the sum of $20,410. He also awarded costs in favour of the respondent.
2 By reason of the operation of s 69 of the Local Courts (Civil Claims) Act, 1970 and s 101 of the Justices Act appeal lies to this court in these proceedings to correct error of law.
3 I have drawn upon the stated case already merely to outline the nature of the claim that was before the Local Court, but I now record in…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [1999] NSWSC 222
Decision Date: 23 March 1999

CaseChat Overview and Summary

The case of Exterior Home Improvements v Stanger involved a dispute between the plaintiff, a home improvement company, and the defendant, an individual who had engaged the services of the plaintiff for home renovations. The matter was appealed from the Local Court to the District Court, where the plaintiff sought to challenge the findings and decisions of the magistrate who had presided over the original proceedings. The crux of the dispute revolved around whether the findings of the magistrate were supported by evidence under section 52 of the Trade Practices Act, and whether there had been any error of law in the assessment of damages by the magistrate.

The central legal issue before the court was whether the magistrate's findings were adequately supported by evidence, particularly in light of the magistrate's reliance on independent personal knowledge. Additionally, the court needed to determine if there had been any error of law in the magistrate's assessment of damages, which was based on the cost of total replacement of the defective work. The plaintiff argued that the magistrate had erred in law by not considering alternative methods of calculating damages, and that the reliance on personal knowledge was inappropriate in a statutory context.

The court examined the magistrate's reliance on personal knowledge and concluded that while such knowledge could inform a magistrate's understanding, it should not supplant a proper consideration of the evidence. The court found that the magistrate's findings were supported by the evidence, and that there was no error of law in the method used to assess damages. The court held that the cost of total replacement was a reasonable method of assessing damages in this context, given the nature of the defective work. Consequently, the appeal was dismissed, and the original findings and decisions of the magistrate were upheld.

The final orders of the court were that the appeal was dismissed with costs, and the original judgment of the Local Court was affirmed. The court found no grounds to interfere with the magistrate's findings or the method of damages assessment, and the plaintiff was required to bear the costs of the appeal.

Orders