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 s 38(7)(e)).
Although there is a power to re-hear evidence taken before the Magistrates Court, should the Court determine to do so, in the present case there was no such application and I did not consider, in any event, that there was any necessity to do so.
I am obliged to accept the advantage enjoyed by the magistrate in a situation where the decision is based upon her impression as to the credibility of witnesses. In particular a finding of fact by the magistrate based on the credibility of a witness may only be set aside on appeal where the decision is either manifestly wrong by reason of error indicated by incontrovertible facts or uncontested testimony or is glaringly improbable or is contrary to compelling inferences in the case. (see for example DeVries v Australian National Railways Commission (1993) 177 CLR 472 at p.479.)
However as was observed in Fox v Percy (2003) 214 CLR 118:
… 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. …
Further, any inference drawn or relied upon must reasonably arise from proven facts or circumstances. (see TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267 at 349.)
Upon the hearing of the review Mr Hann appeared, as did the respondent, Mr Barker.
As I have said, the magistrate found that the plaintiff was precluded from claiming for the work performed because he was not licensed pursuant to the Building Work Contractors Act 1995. Section 6 entitled ‘Obligation of building work contractors to be licensed’ provides:
(1)     A person must not –
(a)     carry on business as a building work contractor except as authorised by a licence under this power or
(b)     advertise or otherwise hold himself or herself out as being entitled to carry on business as a building work contractor unless authorised to carry on business as such a contractor by a licence under this part.
The penalty provided for a breach is a fine of up to $20,000.
(2)A person required by this Act to be licensed as a building work contractor is not entitled to any fee, other consideration or compensation under or in relation to a contract with another on whose behalf the person who performed work as a building work contractor, unless –
(a)     the person was authorised to perform the work under a licence; or
(b)     a court hearing proceedings for recovery of the fee, other consideration or compensation, is satisfied that the person’s failure to be so authorised resulted from inadvertence only.
By s 3 of the Act a “building work contractor” is defined as meaning a person who carries on the business of performing building work for others. “Building work” is defined as the whole or part of the work of constructing, erecting, underpinning, altering, repairing, improving, adding to or demolishing a building.
In my view the magistrate correctly found that the work performed by the plaintiff was building work and that for the purposes of the Act the plaintiff was a building work contractor.
The magistrate correctly found that the circumstances did not fall within the exceptions identified in s 6(2)(a) and (b), given that the plaintiff was not authorised to perform the work under a licence, and she could not be satisfied that the plaintiff’s failure to be so authorised resulted from inadvertence only. Indeed, she found correctly, on the basis of Mr Hann’s own evidence, that he had deliberately never obtained a licence to carry out gyprock flushing work, as he did not deem it necessary to do so. The plaintiff also conceded in evidence before the magistrate that he did not tell the defendant that he was unlicensed and agreed that the defendant had simply assumed that the plaintiff was qualified to carry out the work.
In my view, the magistrate correctly concluded that that was the end of the plaintiff’s claim.
The magistrate had the advantage of seeing the witnesses and preferred the evidence of the defendant. She accepted the defendant’s evidence that he was a licensed electrician and that he would not have knowingly engaged an unlicensed person to perform work on his property.
The defendant had paid the sum of $500 to the plaintiff on the day the plaintiff commenced working. The defendant does not seek recovery of that amount. The defendant paid a Mr David Lane the sum of $950 to perform sanding work in June 2009, shortly after the plaintiff left the site. An invoice was produced to the magistrate. The defendant did not seek recovery of that amount. He had received quotes, however, for rectification work because of the inadequate work performed by the plaintiff. That rectification work has been quoted in the sum of $950 as well. The magistrate awarded the defendant the sum of $950 on the counterclaim, being the cost of that rectification.
The magistrate viewed photographs of the work performed by the plaintiff. She arranged for the court appointed expert, Mr Robinson, to attend on site on 9 September 2011. The plaintiff was given an opportunity to attend with Mr Robinson but chose not to do so. Mr Robinson provided the court with a report which the magistrate summarised briefly as concluding that the workmanship did not comply with the Act and was not performed in a proper manner acceptable to trade standards. The report sets out the failure of the plaintiff to perform the work in an acceptable manner, including the linings on the wall showing “peaking”, that is an obvious bump over the joints rather than a flush finish which was unacceptable, a failure to finish an internal corner of the bulkhead above stairs in a manner which showed a clean straight line; a failure to finish in a proper manner the framed enclosure guarding the side of the stairwell; and the base of an external corner in the living room not being finished in a proper manner. The report concluded that “that the workmanship does not comply with Division 2, part 32(2)(a) of the Building Work Contractors Act 1995 that requires the work to be performed in a proper manner to accepted trade standards.”
By his grounds of appeal, the plaintiff sets out the distance he travelled to perform the work, the number of days he attended, and suggested that the defendant opportunistically discovered that the plaintiff did not have a licence and saw a way of avoiding payment. The plaintiff repeated those assertions in the prosecution of his appeal.
He also asserted by his grounds of appeal that the work was performed properly and that the defendant lied to the court in saying otherwise. The plaintiff repeated his assertion that the work performed was performed properly in submissions before me.
Having heard from both the plaintiff and from the defendant, I am of the view that the magistrate was correct in finding that the plaintiff was not entitled to charge for the work performed on the basis that he was unlicensed and deliberately unlicensed. It was clearly open to the magistrate to find on the basis of the report of the court’s independent expert, 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.
There is no basis to interfere with the magistrate’s decision. Accordingly the application for review is dismissed. I make no order as to costs.