Jone v Hussaini - [2012] SADC 59

District Court of South Australia
(Civil: Minor Civil Review)
JONE v HUSSAINI
[2012] SADC 59
Judgment of His Honour Judge Beazley (ex tempore)
10 April 2012
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION - RECOVERY ON QUANTUM MERUIT
MINOR CIVIL REVIEW
LIABILITY
Applicant engaged the respondent to undertake paintining work at his house at Smithfield. The price for the work was fixed by reference to the cost of driving lessons to be provided by the applicant to the respondent's two brothers. Applicant asserted that the painting work was unsatisfactory. The respondent was not licensed to undertake the work pursuant to the Building Work Contractors Act. The Learned Magistrate accepted, in most respects but not all, the evidence of the respondent. He concluded that the respondent's painting work was satisfactory. He assessed the respondent's work on a quantum meruit basis, and entered judgment for the respondent in the sum of $2,473 inclusive of interest and costs.
Nature of Minor Civil Review - purpose and objectives of s38 of the Magistrates Court Act 1991 considered - complaints by applicant that the learned Magistrate erred in allegedly failing to properly examine the respondent entirely unjustified.
Held: the learned Magistrate's findings were clearly open to him on the evidence. Decision and orders of the learned Magistrate clearly correct - judgment affirmed - application for review dismissed.
Magistrates Court Act 1991 (SA) s38; Building Work Contractors Act (1995) ss 6 and 40, referred to.
Fox v Percy (2003) 214 CLR 118; Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR 221; Nunkuwarrin Yunti v A L Seeley Constructions (1985) 72 SASR 21, considered.

JONE v HUSSAINI
[2012] SADC 59
Introduction

This is an application by Zahir Jone (“the applicant”) for this Court to review a judgment delivered in a minor civil action pursuant to s 38 of the Magistrates Court Act 1991. The applicant was the defendant in action number 4139 of 2011 in the Adelaide Magistrates Court, in which Abdul Hussaini was the plaintiff (“the respondent”).
On 11 January 2012, a Magistrate entered judgment in favour of the respondent in the sum of $2,473 inclusive of interest and costs.
Upon an application for review, this Court is obliged, pursuant to s 38 of the Act to proceed according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. The clear policy of the Act is to provide an efficient and economical means by which small claims can be determined. The decision of this Court is final and is not subject to appeal.
Factual Background
The respondent commenced proceedings on 15 August 2011. He asserted that there was an oral agreement between himself and the applicant whereby he would undertake the painting of the applicant’s house at Smithfield to a value of $3,000, and that in consideration thereof, the applicant would provide driving lessons to that value to the respondent’s brothers, so as to enable them to obtain driver’s licences. He asserted that he and his brothers had completed the painting work, but the applicant had merely provided short lessons for only one brother.
The applicant, by his Defence filed on 9 September 2011 asserted that the respondent had misrepresented that he had held a licence pursuant to the Building Work Contractors Act, when he did not have such a licence, and that the painting work was unsatisfactory. He denied the terms of the oral agreement asserted by the respondent.
The proceedings in the Magistrates Court
The learned Magistrate heard evidence, principally from the applicant, the respondent and the respondent’s brother, Ghulam.
It is apparent from his Reasons that the learned Magistrate had significant reservations about the reliability of at least some of the evidence of each of those principal witnesses. His Honour did however have the benefit of an independent expert report as to the quality of the painting work from a qualified builder, Mr John Robertson. Based upon that latter evidence, the learned Magistrate concluded that the painting work was satisfactory.
The witnesses who gave evidence for the respondent said that they had worked from 7 am to 10 pm for seven days. The Magistrate did not accept that evidence from the two respondent witnesses. He concluded that they had exaggerated the amount of time that they had spent working at the house.
In the ordinary course the question of time would have been relevant only to the credibility of those witnesses. However, the applicant had submitted that the respondent was entitled to nothing because neither he nor his brother was licensed to undertake painting work pursuant to the Building Work Contractors Act.
The Magistrates Reasons delivered 11 January 2012
The learned Magistrate found as a fact that the respondent was unlicensed and could not therefore succeed in a claim for the contract price of $3,000. The Court however concluded that the respondent was entitled to recover, upon a quantum meruit, the fair price for the painting work. He was, with respect, clearly correct in law in doing so.[1]
[1] See Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR 221; and Nunkuwarrin Yunti v A L Seeley Construction (1998) 72 SASR 21
The Magistrate concluded that a reasonable sum to allow for that work was an hourly rate of $20. Despite the paucity of the evidence the Court was obliged to do its best to determine the number of hours.[2] The learned Magistrate held that on behalf of the respondent, the three brothers had worked a total of 108 hours. He concluded that the total fair price for the work that was done was $2,160. He deducted from that figure a sum of $160 for the driving lesson performed by the applicant, and accordingly entered judgment for the respondent in the sum of $2,000 plus interest plus attendance fees and the cost of the summons. The total judgment in favour of the respondent was for the sum of $2,473.
[2] See The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 125
The grounds of review
The applicant raised various grounds in his Notice dated 31 January 2012. In particular he asserted and repeated that there was:
·No written contract.
·No licence under the Building Work Contractors Act.
·Unsatisfactory work.
·A loss suffered by him in consequence of the alleged poor workmanship.
The hearing on review
On the hearing neither party requested that I should rehear the evidence. In any event there was no proper basis to do so. The applicant repeated the submissions that he had made to the learned Magistrate. He submitted that his Honour had erred in concluding that the work was done in a satisfactory manner and, with leave, produced photographs of that work. He also submitted that the Court had erred in its findings as to the number of hours that were allegedly worked by the respondent. He submitted that the Court had unfairly disregarded documents which were provided by his agent, and indeed, the applicant’s own evidence on oath as to the painting work being unsatisfactory.
Discussion
I did my best to explain to the applicant that the difficulty with his submissions is that the learned Magistrate was in the best position to hear the witnesses and to reach conclusions as to the matters of credibility. Ultimately the learned Magistrate had accepted generally the evidence given by the respondent and his brother rather than the evidence given by the applicant.
The nature of a review under s 38 of the Magistrates Court Act is such that the Court must give due weight to the court hearing the matter because the Magistrate saw the witnesses, he heard the evidence and reached a conclusion based on the findings which he made. However, as I explained, in the case of Fox v Percy,[3] the High Court had said:
[3] (2003) 214 CLR 118
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 the evidence and to draw conclusions from it but viewed as a whole. Nevertheless mistakes, including serious mistakes can occur at a trial and the comprehension, recollection or evaluation of evidence. In part it was to prevent and cure the miscarriage of justice that can arise from such mistakes.
In the 19^th Century the general facility of an appeal was introduced in England and later in the colonies. Within the constraints marked out by the nature of the appellant process, the appellant court is obliged to conduct a real review of the trial and to consider when a judge is sitting alone, the judge’s reasons. The appellant courts are not excused from weighing conflicting evidence and drawing their own conclusion but they must always bear in mind that they have neither seen nor heard the witnesses and must always make due allowance in that respect.
Conclusion
As I have said, the learned Magistrate was confronted with two contradictory accounts as to the terms of contract; how much work had been done; and as to the quality of the work. I repeat that the learned Magistrate had made a decision based upon his assessment of the credibility and reliability of the two parties together with the brother of the respondent who gave evidence.
He preferred the evidence given on behalf of the respondents on the critical issues and gave his reasons for that preference.
He was in the ideal position to assess the respective cases. It is obvious that he well understood the submissions which had been made by the applicant. In my opinion, the findings made by the learned Magistrate were open to him on the evidence.
There is nothing to suggest that the version put by the applicant to the Court, and indeed repeated in this Court, was more probable than the version given by the respondent. A court on review will not interfere with such findings unless they can be said to be inconsistent with incontrovertibly established facts. It cannot be said that the learned Magistrate had in any way failed to understand or give due weight to the applicant’s evidence.
Accordingly, there is no proper basis to interfere with that decision. Indeed the decision was inevitable upon the findings as to credit. Accordingly, I affirm the judgment and the orders of the Magistrate and therefore dismiss the application for review.
Costs
There is power for the Court to award the costs of the Application for Review. In my opinion, however, pursuant to s 38(5) of the Act, the philosophy of Parliament is that in a minor civil action, costs ought not be awarded unless there are special circumstances justifying the award of such costs. In the circumstances I conclude that the Application for Review was properly brought, albeit that the applicant might not have understood the nature of such a Review.
I make no order as to costs.
Orders
The formal orders of the Court are:
1That the Application for Review of the Decision of the learned Magistrate dated 11 January 2012 is dismissed.
2 No order as to the costs of the hearing of the Review.