Hann v BARKER - [2012] SADC 122

District Court of South Australia
(Civil: Minor Civil Review)
HANN v BARKER
[2012] SADC 122
Judgment of His Honour Judge Soulio (ex tempore)
4 September 2012
MAGISTRATES
Review of minor civil decision pursuant to s 38 of the Magistrates Court Act 1991.
Application for review - dismissed.
Magistrates Court Act 1991 (SA) s 38; Building Contractors Act 1995 (SA) ss 3, 6, 32, referred to.
DeVries v Australian National Railways Commission (1993) 177 CLR 472; Fox v Percy (2003) 214 CLR 118; TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267, considered.

HANN v BARKER
[2012] SADC 122

This is an application to review a minor civil decision made by Ms Kossiavelos SM on 20 April 2012.
The original claim was for payment for work performed by the plaintiff as a gyprock flusher. The plaintiff had claimed the sum of $2050 on the basis that he had performed work for the defendant originally quoted in the sum of $2200 to which was added the sum of $250 for angles, that is right-angle sections of metal using gyprock flushing, a total of $2450 less $400 which the plaintiff conceded had been paid by the defendant.
At the original hearing the plaintiff informally amended the claim by deducting the sum of $250 which he said the defendant would need to pay to have a sander finish off the work performed by the plaintiff. Accordingly he claimed the sum of $1800 as the amount outstanding pursuant to the contract for work.
The defendant, by his particulars of defence, alleged that the plaintiff was trading illegally as he was unlicensed, and that he did not complete the work, requiring the defendant to spend the sum of $950 to complete sanding and internal plasterwork. The defendant counterclaimed an additional sum of $950 in respect of further remedial work which would be required.
In an ex tempore judgment delivered on 20 April 2012, following the hearing of the minor civil claim, the magistrate dismissed the plaintiff’s claim against the defendant and allowed the counter claim in the sum of $950 together with certain costs. She found that the plaintiff was not entitled to payment for the work done, given the provisions of s 6(2) of the Building Contractors Act 1995 (SA) and found that the work performed by the plaintiff was not performed in a proper manner to trade standards. She accepted that further remedial work would be required at an additional cost of $950.
Mr Hann applied to review the magistrate’s decision pursuant to s 38 of the Magistrates Court Act 1991 (SA) which sets out the powers of this Court on an application for review. In particular, the Court may inform itself as it thinks fit and is not bound by the rules of evidence. On a hearing of an application for review the Court must act in accordance with “equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.” (see…

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: [2012] SADC 122
Decision Date: 4 September 2012

CaseChat Overview and Summary

In the case of HANN v BARKER, the applicant, Mr Hann, sought to review a decision made by a magistrate in the District Court of South Australia (Civil: Minor Civil Review). The original claim was for payment for work performed by the plaintiff as a gyprock flusher, amounting to $2050. The defendant, Mr Barker, counterclaimed for $950 in respect of further remedial work which would be required due to the plaintiff's inadequate work. The magistrate dismissed the plaintiff’s claim and allowed the counterclaim, finding that the plaintiff was not entitled to payment for the work done, given the provisions of s 6(2) of the Building Contractors Act 1995 (SA) and that the work performed by the plaintiff was not performed in a proper manner to trade standards.

The legal issues before the court were whether the plaintiff was entitled to payment for work performed without a license and whether the work was performed in a proper manner to trade standards. The court examined the provisions of the Building Contractors Act 1995 (SA) and found that the plaintiff was not licensed to perform the work and that the work was not performed to trade standards. The court also considered the report of the court's independent expert, Mr Robinson, which concluded that the workmanship did not comply with the Act and was not performed in a proper manner acceptable to trade standards.

The court found that the magistrate was correct in her findings and dismissed the application for review. The court held that the plaintiff was not entitled to payment for the work performed as he was unlicensed and deliberately unlicensed. The court also found that the work performed by the plaintiff was not performed to a proper standard and that the defendant has incurred and will incur costs in rectifying the inadequate work. The court held that there was no basis to interfere with the magistrate's decision.

In conclusion, the court dismissed the application for review and held that the magistrate's decision was correct. The court held that the plaintiff was not entitled to payment for the work performed as he was unlicensed and deliberately unlicensed. The court also found that the work performed by the plaintiff was not performed to a proper standard and that the defendant has incurred and will incur costs in rectifying the inadequate work. The court held that there was no basis to interfere with the magistrate's decision.

Orders