Lapins v Portolesi Nominees Pty Ltd - [2012] SADC 169

District Court of South Australia
(Civil: Minor Civil Review)
LAPINS & ANOR v PORTOLESI NOMINEES PTY LTD
[2012] SADC 169
Judgment of Her Honour Judge Davey (ex tempore)
6 November 2012
MAGISTRATES - APPEAL AND REVIEW
MINOR CIVIL REVIEW
Application to review a Magistrate's decision in a minor civil claim pursuant to s38 of the Magistrates Court Act 1991.
Held: Magistrate's decision rescinded only insofar as the judgment sum is to be reduced by $760 to the sum of $3,465.50 plus a $200 appearance fee. In all other respects, the applicants' application is dismissed.
Magistrates Court Act 1991 s38, referred to.

LAPINS & ANOR v PORTOLESI NOMINEES PTY LTD
[2012] SADC 169

This is an application to review a minor civil decision made in the Christies Beach Magistrates Court on 4 May 2012. The application to review the decision was received in this Court on 20 August 2012. Thus the application is considerably out of time, so you are seeking an extension of time for the hearing of the appeal as well as setting aside a judgment that you failed to appear for, is that correct.
MR LAPINS: Yes, please.
HER HONOUR: I have the power to order an extension of time. Given the nature of the complaints about the hearing I have decided to determine that issue along with the merits of appeal.
The plaintiff’s claim (now the respondent) was for services rendered to the defendants at their request. The services were for repairs to a commercial business at Christies Beach and concern the large front windows of the building. The applicants were concerned about the condition of the lintel and surrounding areas and engaged engineers to inspect that area and provide a report. A report by the engineers was provided and the engineer specified that the remedial works required an additional type of reinforcement. The plaintiff apparently quoted on that report and recommendations, by that I mean the original report provided by the engineers. However, when the concrete was removed from the relevant area, a further inspection was requested by the plaintiff which was carried out by the engineer in January 2010. After that inspection the engineer found that there was less need for reinforcement and he amended the specification. The plaintiff alleges that he performed the work in accordance with the amended specification.
I note that the judgment sum ordered by the learned Magistrate was in accordance with the original quote for the works done and the quote should have been amended (reduced) in light of the actual works performed after the amended engineer’s report was received. Mr Portolesi has conceded that a reduction of the judgment sum should be made in light of the actual work performed.
The applicants (defendants) claim that the contract between the parties was for the specification in the original engineer’s report; that the engineer’s report should have been followed “to the letter” and accordingly, notwithstanding that work has been done, the plaintiffs are not entitled to their claim. In essence, the applicants say that the work has not been performed in accordance with the original agreement between the parties.
After the hearing of the matter commenced before the learned Magistrate he ordered an independent building expert’s report. I note that occurred after attempting to resolve the matter by way of conciliation or mediation before the learned Magistrate. A report was prepared by Mr J.R. Robinson who has experience with respect to building disputes and he attended at the site. His report was provided to the Court and is dated 27 April 2012.
After the report was received by the Court, the matter proceeded for hearing. The defendants failed to appear at the trial which had been listed for 4 May 2012. On that date, the learned Magistrate observed that the hearing date had been fixed during the hearing on 20 March 2012 when the first defendant was present in court. In light of the defendants’ non-attendance and having regard to Mr Robinson’s report, the Court determined the matter in favour of the plaintiff in the sum of $4,225.50 plus a $200 appearance fee.
The applicants assert that they were not aware of the further trial date until the plaintiff attempted to execute the judgment order. The applicants seek to have the judgment of the learned Magistrate set aside. They complain about lack of notification of the hearing date and error of approach by the learned Magistrate.
As to the issue of the applicants’ non- attendance in the Magistrates Court, I note the explanations given by Mr Lapins in his evidence before me today. He agreed that he was aware of an earlier occasion where the plaintiff had failed to appear and that the consequence was that the claim had been dismissed. The claim was subsequently reinstated. Mr Lapins was aware of that process. He also agreed that he was in Court on 20 March 2012 wherein the trial date was fixed for 4 May 2012. He explained that he either did not hear or did not notice the setting of that trial date. Mr Lapins said that he was aware that there was some variation and juggling of the date for the attendance of the court appointed expert at the scene and accordingly he thought that the trial date may also vary. He said that he assumed he would receive some notification. In any event, he did not do anything about the matter until about July when there was an attempt to enforce the judgment debt. He then took some legal advice and made application to this Court for review.
In addition to the matter of the applicants failing to appear at the trial, I have heard additional evidence and submissions from both the applicants and the respondent about the works done. I have heard the views (particularly of the applicants) about the report of the Court appointed expert. I have also seen photographs of the scene (produced to me by the respondent).
I have had regard to all of the materials placed before me; the materials filed in this Court, the written submissions of both parties and all of the materials from the Magistrates Court proceedings and the Court appointed expert report. I have also had regard to all of the evidence and submissions made to me today.
I find that there was no error in approach, no error of fact and no error of law with respect to the decision of the learned Magistrate, save and except the figure that he finally ordered with respect to the claim made by the then plaintiff. The respondent (plaintiff) has properly conceded before me that the judgment sum should be reduced by a total of $760, being the amount by which the original quote should have been reduced and including an allowance (which the respondent acknowledges should be made) in the sum of $200 (to fill some gaps). I note though the respondent points out that that was not a matter covered by the original quote.
I note that pursuant to s38 of the Magistrates Court Act 1991 I must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms, and I have done that in the hearing before me and in my consideration of the matter.
Having regard to all of the circumstances I rescind the judgment for the limited purposes of the reduction conceded by the respondent but otherwise I dismiss the application made by the applicant. I substitute a judgment that I consider to be appropriate which is that there be judgment in the sum of $3,465.50 (that is the judgment sum ordered by Mr Gumpl which has been reduced by $760). Therefore the judgment sum is $3,465.50 plus the $200 appearance fee.