Gupta v Construction Services Australia Pty Ltd

[2014] SASCFC 94

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

GUPTA v CONSTRUCTION SERVICES AUSTRALIA PTY LTD

[2014] SASCFC 94

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Bampton)

2 September 2014

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - IN GENERAL

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - THE CONTRACT - GENERALLY

The applicant seeks permission to appeal against judgment dismissing the appeal against the outcome of proceedings brought in the Magistrates Court. The applicant’s case concerned complaints as to 22 alleged defects in a residential house that the respondent was contracted to build. It is not arguable that either the Magistrate or Kelly J were in error (at [7]).

Held by the Court - Permission to appeal is refused.

Gupta v Construction Services Australia Pty Ltd [2014] SASC 16, discussed.

GUPTA v CONSTRUCTION SERVICES AUSTRALIA PTY LTD
[2014] SASCFC 94

Full Court:  Kourakis CJ, Peek and Bampton JJ

1. THE COURT.       Application for permission to appeal to the Full Court of the Supreme Court.

2. Mr Gupta, the applicant, applies for permission to appeal against the judgment of Kelly J, who dismissed an appeal against the outcome of proceedings brought by Mr and Mrs Gupta (the plaintiffs) in the Magistrates Court against the respondent, Construction Services Australia.  Their case concerned complaints as to various alleged defects in a residential house that the respondent contracted to build for them.  The applicant has at all times been unrepresented.

3. This application does not raise any question of principle or of law, but rather seeks to litigate for a third time numerous factual matters adjudicated upon at trial, and again on appeal before Kelly J.[1]  The resolution of those matters depended on, first, the credibility and reliability of the applicant and the representatives of the respondent (and particularly a Mr Booth) and, second, the consideration of the conflicting opinions of a Mr Robinson (an experienced court-appointed expert with no ties to either party) and a Mr Clarke, who was an associate of the applicant and was called by the plaintiffs as an expert witness.

   [1]    Gupta v Construction Services Australia Pty Ltd [2014] SASC 16.

4. The Magistrate delivered a thorough and detailed judgment dealing with some 22 alleged “defects” put forward by the plaintiffs.  The Magistrate preferred the evidence of the respondent’s witnesses to that of the plaintiffs’ witnesses and preferred the opinions of Mr Robinson to those of Mr Clarke.  His Honour expressed lengthy, logical and substantial reasons for such preferences.  We do not detect any error in the way that he approached the matters for decision or in his ultimate determinations that none of the defects were established as against the respondent (except for one very minor matter noted by Kelly J).

5. At the appeal hearing before Kelly J, the matters presently complained of were ventilated.  Her Honour delivered a thorough and detailed judgment dealing with all of the various grounds of appeal relating to the same 22 alleged “defects” put forward by the applicant.

6. Kelly J closely considered the Magistrate’s reasons for preferring the respondent’s evidence to that of the applicant and the opinions of Mr Robinson to those of Mr Clarke.  Her Honour found those reasons to be clear and that there was no error of fact or law in the way that the Magistrate approached his task.  Her Honour found that only item 22, a very minor matter, was established, and ordered that the respondent remedy it.

7. Finally, the applicant complained before Kelly J (and seeks to complain again) that the Magistrate did not allow the plaintiffs to amend their pleadings at a very late stage, apparently well after closing submissions had been completed, and judgment had been reserved.  The Magistrate refused the application because, in his view, the plaintiffs’ case was unwinnable on any basis and that further prolongation would be unfair to the respondent.  Kelly J considered that the Magistrate was correct to adopt that course in all of the circumstances.  It is not genuinely arguable that either the Magistrate or Kelly J were in error in this regard.

8. Permission to appeal is refused.