Mayne v Freeform Pools (SA) Pty Ltd - [2011] SASC 148

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
MAYNE v FREEFORM POOLS (SA) PTY LTD
[2011] SASC 148
Judgment of The Honourable Justice David
16 September 2011
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION - RECOVERY
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION - AMOUNT
Appeal against order of Magistrate – appellant contracted to purchase a swimming pool from respondent – payment was to be in instalments – appellant refused to pay final instalment of $6,057 – appellant alleged several defects in pool – Magistrate found respondent had not completed contract – Magistrate ordered appellant to pay $5,800 of final instalment on quantum meruit basis – whether quantum meruit was appropriate in this case – whether there was evidence to support Magistrate’s finding relating to quantum – appellant cross-claimed for $22,729 for remedying defects in pool – Magistrate allowed cross-claim of $194 – appellant appealed in relation to both claim and cross-claim.
Held: appeal dismissed – Magistrate could have come to the same result whether by contract or by unjust enrichment – appellant was required to pay contract price in full less an allowance for defects – any other result would result in one party being unjustly enriched – the issues of defects and the appellant’s cross-claim were largely issues of fact determined by the Magistrate – no reason to interfere with the Magistrate’s findings of fact.
Sewerage Act 1929 (SA), referred to.
B.P. Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266; Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379, considered.

MAYNE v FREEFORM POOLS (SA) PTY LTD
[2011] SASC 148
Magistrates Appeal: Civil

DAVID J: This appeal arises out of a dispute over payment for the installation of a swimming pool. It is not in dispute that the appellant, Laurie Mayne, engaged the services of the respondent, Freeform Pools SA Pty Ltd (“Freeform Pools”) to build a swimming pool at the appellant’s home. The contract price was $45,000.
Mr Mayne was to make progress payments for the pool, with the final payment due and owing upon chemical treatment and handover of the pool and accessories. Payments were made without dispute until the final invoice of $6,057.90, which Mr Mayne refused to pay because of alleged defects in the pool and its handover.
As a result, Freeform Pools commenced these proceedings in the Magistrates Court, claiming $6,057 allegedly owed by Mr Mayne. Mr Mayne made a counterclaim for $22,729 for numerous alleged defects in the swimming pool, which I will later detail.
The Magistrate entered judgment for Freeform Pools in the amount of $5,800. The Magistrate entered judgment for Mr Mayne on the counterclaim in the amount of $194. Mr Mayne now appeals against the decisions on both the primary claim and the counterclaim.
Facts
On 16 January 2007, the appellant entered a standard…

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: [2011] SASC 148
Decision Date: 16 September 2011

CaseChat Overview and Summary

In this case, Mr. Mayne, the appellant, entered into a contract with Freeform Pools (SA) Pty Ltd, the respondent, for the construction of a swimming pool. The contract stipulated the total price and the progress payments, with the final payment being $5,520. After several amendments to the contract, the final invoice amounted to $6,057.90, which was not paid by Mr. Mayne. Freeform Pools subsequently filed a claim for the unpaid amount, while Mr. Mayne filed a counterclaim for $22,729, citing various defects in the pool. The Magistrate ruled in favor of Freeform Pools, ordering Mr. Mayne to pay $5,800 on a quantum meruit basis, and allowed Mr. Mayne's counterclaim for $194. Mr. Mayne appealed the Magistrate's decision on both the claim and counterclaim.

The primary legal issue in this case was whether the Magistrate was correct in ordering Mr. Mayne to pay $5,800 on a quantum meruit basis, considering the alleged defects in the pool. Another issue was whether there was sufficient evidence to support the Magistrate's findings on the defects and the counterclaim. The court needed to determine if the quantum meruit approach was appropriate in this case and if the Magistrate's findings on the defects and counterclaim were supported by evidence.

The court found that the Magistrate could have arrived at the same result using either contractual or unjust enrichment principles. The court held that Mr. Mayne was required to pay the contract price in full, less an allowance for defects, to avoid one party being unjustly enriched. The court noted that the issues of defects and the counterclaim were largely factual matters determined by the Magistrate, and there was no reason to interfere with the Magistrate's findings. Consequently, the appeal was dismissed, upholding the Magistrate's decision.

In conclusion, the court dismissed the appeal against both the claim and counterclaim, affirming the Magistrate's decision. Mr. Mayne was required to pay the contract price in full, less an allowance for defects, to ensure neither party was unjustly enriched. The court found no basis to interfere with the Magistrate's findings on the defects and counterclaim, as they were supported by evidence.

Orders

Orders of the court

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Background

Background to the litigation

The Magistrate entered judgment for Freeform Pools in the amount of $5,800. The Magistrate entered judgment for Mr Mayne on the counterclaim in the amount of $194. Mr Mayne now appeals against the decisions on both the primary claim and the counterclaim.Facts On 16 January 2007, the appellant entered a standard form written contract with Freeform Pools for the supply of a swimming pool at the appellant’s house in Glandore. The named customers on the contract were Mr L and Mrs M Mayne. Only Mr Mayne is a party to these proceedings. The contract set out the total contract price of $45,000, as well as the breakdown of progress payments to be made and the point of construction of the pool at which those payments were to be made. The final payment set out in the contract was to be $5,520. It was to be paid on “Initial chemical treatment to make the pool suitable [f]or swimming and handover of pool & accessories”. That final payment is the only payment in issue in these proceedings. Neither party contends that there was any dispute regarding any of the previous payments. A bundle of invoices was tendered before the Magistrate. It is apparent from the invoices that several amounts were added to the various progress payments in the written contract for changes in the work to be done by Freeform Pools as construction progressed. The last of the invoices, dated 15 May 2007, was for the final progress payment of $5,520. The final invoice also included an amount of $1,075.80 for “Solar blanket & roller [including] delivery”, less $537.90 being “half of cost as per agreement for cancelling gas heater”. The total amount payable according to the invoice was therefore $6,057.90. The final invoice was never paid. On 17 July 2007, Freeform Pools brought proceedings against Mr Mayne, claiming $5,990 for non-payment of the final account for the construction of the swimming pool at Mr Mayne’s address. The reason for not claiming the full amount of the final invoice appears to have been to keep the matter within the Minor Civil Claims jurisdiction of the Magistrates Court. On 6 August 2007, Mr Mayne filed a defence and counterclaim of $5,990. That amount was particularised as the cost to fix several alleged defects with the swimming pool, as well as the cost of 30 tonnes of filling, five litres of acid and four bags of salt. Mr Mayne subsequently filed several amended defence and counterclaims, the last of which was filed on 16 April 2010 and claimed $22,729.The respondent’s claim The claim filed by Freeform Pools is a simple claim for the recovery of a contractual debt. Mr Mayne contends that the final account dated 15 May 2007 is not due and payable as Freeform Pools has not completed the works in accordance with the contract. He sets out the following particulars in his defence, as finally amended:2.1 The Plaintiff has not signed and completed the ‘Consumer Hand Over Book’ and given same to the Defendant.2.2 No warranty, documentation or instructions have been provided to the Defendant with respect to the pool.2.3 The Plaintiff has removed too much soil from around the pool and has not remedied this by bringing on site 30-40 tonnes of filling to raise the height of the surrounding ground to a paving height.2.4 The pool lights do not work as the Plaintiff has installed them too far away from the power point and they have dislodged from where they were installed.2.5 The Plaintiff incorrectly installed a 40mm back wash pipe rather than a 75mm pipe.2.6 The back wash pipe fitted to the filter flows directly into the defendant’s neighbours fowl yard instead of to the nearest sewer connection at the side of the house as per the plans submitted to council and required by regulations.2.7 The plaintiff has not stabilized the water in the pool so that the PH level is between 6.8 and 7.2.2.8 The hoses supplied by the Plaintiff for the pool vacuum cleaner are too short and miss the far corners of the pool by 1.5 metres.2.9 The pool cover supplied and fitted by the Plaintiff was the incorrect size. The Defendant had to personally contact the manufacturer to attend and have a new pool cover of the correct size supplied and fitted.2.10 The pool cover roller supplied by the Plaintiff was incorrectly assembled. The Defendant had to personally contact the manufacturer to attend and have a new pool cover roller supplied and assembled.2.11 No pool [cover] was supplied by the Plaintiff.2.12 The Plaintiff has not removed a concrete path at the side of the pool.2.13 The concrete edge around the pool was too small in some areas for the coping pavers. There are numerous cracks in the cement bonding the slabs of coping and the cement that the slabs are lying on are lifting and cracking. The edges of the coping slabs have chipped. The grouting between the slabs has cracked at almost every join. At both ends of the pool the skimmer box lids have been distorted.2.14 The Plaintiff has inappropriately installed a flat hose from the back wash pipe for approximately 50 metres.2.15 Different coloured pool lights have been installed.2.16 The Plaintiff incorrectly installed 40mm pipe between the pool and the filter.2.17 The Plaintiff did not have the building of the pool supervised by a registered and approved supervisor in breach of Section 12 of the Building Work Contractors Act 1995 as amended.2.18 The Defendant further pleads that the backwash discharge pipe was not connected to a gully riser in accordance with the Australian/ New Zealand standard AS/NZS 3500.2: 2003 Plumbing and Drainage Part 2: sanitary plumbing and drainage and/ or connected to the sewer in the manner required by the Trade Wastes Section of SA Water. Further the filter backwash water must be disposed of in a manner that is not in breach of the South Australian Health Commission code of practice for swimming pools. The plaintiff did not comply with Section 35, regulation 8(1)(a) of the Sewerage Act with respect to pumped discharges into the sewage system and did not obtain approval in writing from SA Water.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

At trial, the Magistrate allowed Mr Mayne’s counterclaim in the amount of $194 for work required to reinstall a salt chlorinator and ensure that there was a working gas loop as required. The respondent does not challenge that aspect of the Magistrate’s judgment.Conclusion This appeal largely seeks to challenge the findings of fact made by the Magistrate, in circumstances where those findings were carefully made and open on the evidence. In my opinion, the Magistrate was entitled to grant judgment for the respondent in the amount of $5,800, taking into account the fact that there were some minor defects with the pool lights and skimmer box. There is no basis to interfere with the Magistrate’s findings. I therefore dismiss the appeal against both the claim and counterclaim.

Ratio Decidendi

Legal Principle Established

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