Kelmendi v Bakker & Anor

[2005] SADC 102

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Minor Civil Review)

KELMENDI v BAKKER & ANOR

Judgment of His Honour Judge Boylan

9 August 2005

MAGISTRATES

Appeal from a decision of a Magistrate pursuant to Section 38(6) of the Magistrates Court Act and District Court Rule 95 - appeal dismissed

KELMENDI v BAKKER & ANOR
[2005] SADC 102

1. This is a review of a judgment of a Magistrate in a minor civil matter.

2. The appellant had supplied to the respondents sewing machines and other items of sewing equipment for use by them in their business.  Disputes arose between them and the respondents sued in the Magistrates Court in respect of four separate items.  The learned Special Magistrate quite rightly stated that there were four separate contracts and he dealt with them separately. 

3. The four items were:

   ·A Rimoldi Overlocker sewing machine bought on the 1^st of June 1998 for $1,500.    The Overlocker was returned by the respondents to the appellant in June 2000 and the purchase price has not been refunded. 

   ·A Pfaff electronic sewing machine bought by the respondent on the 6^th of June 2001 for $2,000.  This machine was traded in for a Seiko at no extra cost.  It was returned in July 2001 and no refund has been paid.

   ·A cutting knife.  The knife was bought in 2003 for $118.  It has been returned to the appellant but no refund has been paid.

   ·A Protex sewing machine bought in November 2004 for $1,600.  The respondents allege that the appellant had represented to them that this machine was of  German manufacture and worth $5,000 unused.  In fact, it was a Chinese copy of a German machine worth only $1,600.  The respondents complained in their original action in respect of this item that they would not have bought the machine had they known that it was not of German manufacture and not worth $5,000.  Their claim was for $3,400 being the difference between the $5,000 and actual value.

4. During the trial there were discussions about settlement and it seems from reasons delivered by the learned Magistrate that the matter was adjourned on one or two occasions to enable settlement to take place.  On the 1^st of April 2005, the parties resolved the dispute about the Protex sewing machine and the cutting knife.  With respect to the resolution, the learned Magistrate said at paragraph 16 of his judgment:

   “On the 1^st of April the defendants provided to the plaintiff a cutting knife and a receipt for the Protex sewing machine, and the plaintiff accepted both, and accordingly those aspects of the plaintiff’s claim were resolved by agreement.”

5. In their cross notice to review, the respondents have complained that they were pressured into settling. I have no jurisdiction to deal with that complaint. The power of this court to review a Magistrate’s decision in a matter such as this is found in Section 38(6) of the Magistrates Court Act 1991. That subsection reads as follows:

   “(6)    The  District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.”

6. Because the parties resolved their disputes about the Protex sewing machine and the cutting knife, the learned Special Magistrate delivered no judgment in respect of them.  I am only empowered to review a matter where a judgment, with which one of the parties is dissatisfied, has been given.  As no judgment was given in respect of those items, this court cannot entertain any complaint about the way those matters were resolved.

7. There remain the review and cross review about the   Rimoldi overlocker and the Pfaff sewing machine.  With respect to the Rimoldi overlocker, the learned Special Magistrate found that the claim was statute barred and he dismissed it.  His Honour referred to Section 35 of the Limitations of Actions Act 1936.  That section reads, where relevant, as follows:

   “35 – Actions on Simple Contract and in Tort.

   The following actions namely:

   (a)     Actions founded upon any simple contract express or implied … 

   shall, save as otherwise provided in this Act be commenced within six years next after the cause of action accrued and not after.”

8. It is a principle of contract law that a breach of contract is actionable per se, that is, without proof of damage.  It follows that time begins to run from the breach of contract, and not from the time when the damage is suffered, for the purposes of the Limitations of Actions Act.  In the case of the Rimoldi overlocker,  Mr and Mrs Bakker complained from the time they acquired it on the 1^st of June 1998 that it was not fit for its purpose.  Accordingly, there was a breach almost immediately after the date of the contract.  Accordingly, their action in respect of the Rimoldi overlocker was, indeed, statute barred.  The learned Special Magistrate said that he would not grant an extension of time.  Given the history of the dealings between the parties about the Rimoldi, I can see no reason why an extension of time should be granted and I, too, refuse to do so.  Accordingly, I will not interfere with the Magistrate’s judgment about the Rimoldi overlocker.  The only other item in dispute is the Pfaff electronic sewing machine.

9. In relation to that item, the learned Special Magistrate accepted the evidence given by the respondents but went on to say that he was not prepared to conclude that the appellant had misrepresented that item to them.  His honour was in a much better position to make findings of credibility than I am and I am not prepared to interfere with his findings on that topic.  His honour went on to find that the respondents were entitled to rely upon Section 14 of the Sale of Goods Act 1995 in particular, his Honour was of the view that there was an implied condition, in the circumstances of the contract, that the goods should be reasonably fit for the purpose.  His Honour found that the goods were not fit for their purpose.  I am not prepared to interfere with that finding.  There is no basis upon which I could do so.  The learned Special Magistrate then went on to find that the respondents, Mr and Mrs Bakker, are entitled to recover the purchase price of the Pfaff sewing machine from the defendant.  The price was $2,000.  His Honour had heard the evidence from the parties.  As I have said, he preferred the evidence of the respondents.  On the basis of that finding, his Honour was entitled to form the view which he did and I decline to interfere with it.  Accordingly I dismiss the notices of review and cross review.