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 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.
It is also convenient at this point to set out the particulars of Mr Mayne’s counterclaim, which I will return to later in my reasons:
1. The sum of $100.00 for five litres of acid and four bags of salt used to stabilise the pool being the cost to fix the problem mentioned in paragraph 2.7 above.
2. The sum of $2,300.00 being the estimated cost to fix the problem mentioned in paragraph 2.3 above.
3.[Deleted from counterclaim as amended]
4. The sum of $54.00 for three lengths of hose being the cost to fix the problem mentioned in paragraph 2.8 above.
5. The sum of $5,500.00 being the estimated cost to fix the problem mentioned in paragraph 2.13 above.
6. The sum of $1,000.00 being the estimated cost to fix the problem mentioned in paragraph 2.1 above.
7. The sum of $13,300 being the estimated cost to fix the problems mentioned in paragraphs 2.5, 2.6, 2.14 and 2.18 above.
8. The sum of $475.00 being the estimated cost to replace the pool lights so that they match.
9. The Defendant seeks the relief and remedies as provided by the Building Work Contractors Act.
It is clear from Mr Mayne’s defence and counterclaim that there are numerous factual matters which the respondent contends leads to the conclusion that Freeform Pools is not entitled to payment of the final account under the contract.
The Magistrate considered these factual issues and concluded that in accordance with the terms of the contract the final invoice was not strictly due and payable at the time Freeform Pools rendered the account. The Magistrate found, however, that almost all of the legitimate defects had been addressed by the time of the trial, and those that had not been addressed were minor defects which could easily be fixed had Mr Mayne not denied access to his property to correct them.
The Magistrate held that Freeform Pools was entitled to $5,800 on a quantum meruit basis and entered judgment in that amount.
Mr Lazarevich, for the appellant, contends that the Magistrate erred in applying the principle of quantum meruit, as Freeform Pools’ claim did not fall within any of the recognised categories of situations for the remedy. Specifically, it is contended that: there was no ineffective contract; there was no repudiation of the contract by Mr Mayne; there was no mistake of law or fact; there was no frustration of the contract and no issues about certainty or price arose.
Mr Lazarevich further contends that even if the Magistrate was correct to award damages to Freeform Pools on a quantum meruit basis, no evidence was led at trial as to the fair and reasonable value of the work it performed, and the Magistrate failed to give adequate reasons as to how he arrived at the figure of $5,800.
Mr Livesey QC, for the respondent, did not argue the case on the basis of quantum meruit and it is therefore unnecessary for me to come to a conclusion on that issue. Rather, he contends that the Magistrate could have arrived at the same award for Freeform Pools by either of two methods.
Firstly, the Magistrate could have concluded that payment was due to Freeform Pools under the contract by the time of the trial, and made an allowance on Mr Mayne’s counterclaim to reflect those matters which Freeform Pools had not properly addressed.
Alternatively, Mr Livesey submits that if payment was not strictly due at the time of the trial, the Magistrate was entitled to find that there was an implied term that the contract price might be reduced to reflect the value of what Mr Mayne actually received. Failing the existence of such an implied term, Mr Livesey contends that Mr Mayne would be unjustly enriched.
I reject Mr Livesey’s contention that such a term can be implied into this contract. An implied term such as that propounded by Mr Livesey does not fall into any of the three established categories of implied terms. Firstly, an implied term reducing the contract price to reflect the value of what was received by Mr Mayne is not required to give business efficacy to the contract.[1] The contract is a standard form contract which clearly sets out the rights and obligations of each of the parties. It has business efficacy without requiring an additional implied term.
[1] B.P. Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266 at 283.
Secondly, there was no suggestion that custom or industry usage would require the implication of the term.[2]
[2] Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 at 236.
Finally, there was no course of prior dealing between Freeform Pools and Mr Mayne which would support the implication of the contractual term.[3]
[3] Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 at 391.
Despite that, I accept that Mr Mayne would be unjustly enriched if, as was found by the Magistrate, payment of the final account was not due at the time of trial and Freeform Pools could therefore not make recovery of any of the amount of the final account. Mr Mayne was required to pay Freeform Pools the contract price, less the cost to Mr Mayne of bringing his swimming pool to the contract specifications. Any other result would unjustly enrich one party or the other.
It follows that I accept Mr Livesey’s argument that the Magistrate could possibly have come to the same result in either of two ways. Namely, either Freeform Pools was entitled to the entire contract price, to be offset by Mr Mayne’s counterclaim to the extent that the pool fell short of the contract specifications, or Mr Mayne was required to pay Freeform Pools the fair value of what was provided to prevent Mr Mayne being unjustly enriched. That fair value could be calculated by starting with the entire contract price and subtracting the cost to Mr Mayne of bringing the pool to the contract specifications, such costs having been particularised in Mr Mayne’s counterclaim. In my view, the result is the same by either method.
In other words, regardless of the path taken by the Magistrate, Freeform Pools is entitled to recover the contract price from Mr Mayne, less the total of the valid claims in Mr Mayne’s counterclaim. Although it might be an academic distinction, given the Magistrate’s finding that Freeform Pools did not complete its contractual obligations, in my view the unjust enrichment route to compensation is preferable to that based in contract.
Therefore, in order to determine the amount due to Freeform Pools, it is necessary to assess each of the alleged defects in the pool particularised in Mr Mayne’s counterclaim.
The appellant’s counterclaim
I set out in full the particulars of Mr Mayne’s counterclaim as finally amended in paragraph [13] above. I turn to each of those particulars individually.
Acid and salt to stabilise the pH of the pool
Although this was a ground of appeal in Mr Mayne’s notice of appeal, it was not addressed in either written or oral submissions. The Magistrate found that the pH levels of the pool were within the proper range during the period 5 to 14 June 2007, and rejected Mr Mayne’s contention that no chemicals were applied to the pool.
I accept the Magistrate’s finding on that issue and reject this aspect of the appellant’s counterclaim.
Remediation of soil
It is not in dispute that there was a handwritten amendment to an invoice for progress payment, charging Mr Mayne $400 for Freeform Pools to “Remove concrete to bins and scrape the whole area to a level ready for paving including soil removal”.
The appellant submits that in levelling the relevant area, the respondent removed too much soil. It is contended that Mr Mayne therefore suffered the expense of bringing extra soil onto the site to bring the soil level to an appropriate level for paving.
The Magistrate found, and Mr Lazarevich properly concedes on appeal, that the paving contractor was responsible for providing a certain amount of sand and rubble to assist in the levelling process in any event. As a result, Mr Lazarevich in oral argument did not press for the full $2,300 allowance pleaded and suggested a figure of around $1,000 might be more appropriate.
It was not in dispute at trial that a depth of 100mm was required to provide an adequate base for paving. There was evidence at trial that the depth of the ground levels surrounding the pool varied between 50mm and 200mm. Mr Stuart-Skinner, a building expert called at trial, gave evidence that the average depth after Freeform Pools had levelled the area was in fact 100mm.
Taking that evidence into account, the Magistrate concluded that Mr Mayne had failed to prove on the balance of probabilities that Freeform Pools removed too much soil and dismissed this aspect of the counterclaim. There is no evidence before me which suggests I should take a different view and I reject the appellant’s argument on this issue accordingly.
Vacuum cleaner hoses
It is not in dispute that the vacuum cleaner hoses as provided by the respondent at the time of handover were 1.5m too short. This is a factor which suggests that Freeform Pools was not strictly entitled to final payment under the contract at the time it issued the final invoice.
It is also not in dispute that Mr Smith, a director of Freeform Pools, left additional segments of pipe on site when attending with a court expert for an inspection. In my view, there is no merit in a claim for a defect which has already been remedied by the respondent.
Coping
Clause 2.2 of the contract provided that Freeform Pools was to finish the pool with sandstone coping, which surrounds the pool where its surface meets the ground.
Mr Lazarevich contends that the coping was unsatisfactory due to cracking and chipping in the coping itself, the grouting joining the coping and the concrete between the coping and the concrete base on which the coping lies. Mr Lazarevich further contends that the Magistrate fell into error by focussing on the type of blade that was used to cut the coping, rather than considering the correct question of whether it is acceptable that the coping is chipped.
The Magistrate considered the issue of the coping in some detail in his judgment. It is true, as Mr Lazarevich submits, that the Magistrate put considerable emphasis on the type of blade that was used to cut the coping. However, I do not consider that the Magistrate fell into error by doing so. At trial, the type of blade used was in issue. Mr Mayne’s case was that an abrasive blade was used, that such a blade was inappropriate for the purpose of cutting the coping, and caused the coping to chip. On Freeform Pools’ case, a diamond cutting blade was used and the coping was cut correctly.

Therefore, the blade used was a question of fact to be determined by the Magistrate as a step in the process of determining the ultimate question on this issue, namely whether Freeform Pools had breached its contractual obligations in relation to the coping. The Magistrate was quite correct to consider carefully the evidence on the issue of which blade was used, and concluded that on the balance of probabilities a diamond cutting blade was used to cut the coping.
The Magistrate also carefully considered the evidence of Mr Radford and Mr Daniels who worked on the pool for Freeform Pools on one hand, and Mr Mayne and Mr Stuart-Skinner on the other. He considered photographs of the pool and the coping itself which were tendered at trial. In my opinion, the Magistrate did not place undue emphasis on the type of blade used to cut the coping, as is suggested by Mr Lazarevich.
The Magistrate ultimately preferred the evidence of Mr Radford and Mr Daniels, holding at paragraph [102] of his reasons:
I accept [counsel for the plaintiff’s] submission that the failure to call a tradesperson experienced in the trade to refute the evidence of Mr Radford and Mr Daniels was an important failure in the [defendant’s] case. I also accept Mr Burtt’s submission that the divergence of evidence between Mr Radford and Mr Daniels on the one hand, who are both experienced in the industry, and Mr Stuart-Skinner who is a building expert, on the other hand cannot be safely determined in the defendant’s favour. I agree with Mr Burtt that the defendant has failed to establish that the coping stones require replacement.
In my view it was open to the Magistrate to accept the evidence of Mr Radford and Mr Daniels in preference to Mr Mayne and Mr Stuart-Skinner. Furthermore, he gave considered reasons for doing so. I see no reason to interfere with the Magistrate’s findings of fact on this issue, and reject this aspect of the counterclaim.
Handover
Mr Lazarevich submits that the final handover of the swimming pool was insufficient and the pool was not in a condition ready for swimming at the time of the handover. It is submitted that had a proper handover taken place, the other defects in the pool would have been attended to and there would have been no issue as to payment of the final instalment of the contract price.
It is the appellant’s case that the handover consisted of Mr Bebbington, an employee of Freeform Pools, attending at Mr Mayne’s house for “a two minute period”. Mr Lazarevich submits that it was impossible for a proper handover to occur during this period.
Mr Bebbington gave evidence at trial that a proper handover took place. Mr Bebbington’s evidence was that he conditioned the pool, showed Mr Mayne the swimming pool equipment and its proper usage, and that the pool was in a condition ready for swimming after the handover.
The Magistrate accepted the evidence of Mr Bebbington on this issue. The appeal in relation to the issue of the handover seeks to bring into question the Magistrate’s findings of fact. There is no reason for me to interfere with those findings.
Backwash pipe
Clause 2.5, item 20 of the contract required Freeform Pools to “Provide backwash pipe to existing sewer gully by flexible or rigid pipe”. Immediately after those words in item 20, several words were struck out in handwriting, indicating that they did not form part of the contract. Those words were:
(6 metres max. length) Allowed underground (including air trap)
There is no dispute that Freeform Pools provided a flexible hose of sufficient length to enable backwash water to be discharged into the sewer point. By doing so, Mr Livesey submits that Freeform Pools complied with its contractual obligation as regards the backwash pipe.
Mr Lazarevich contends that the flexible pipe did not satisfy the contract for two reasons. Firstly, he submits that in an oral conversation after the written contract had been signed, the parties had agreed that there would be a combination of flexible and rigid pipe. Mr Lazarevich points to the fact that rigid piping was put on the site by Freeform Pools as suggesting that there was an agreement to install rigid, rather than flexible, pipe under the contract.
In response to that argument, Mr Livesey contends that Freeform Pools provided the fixed pipe with a view to installing it alongside a shed on the property, once the ground adjacent to that shed was cleared of obstructions. It was not disputed that at the time of construction there was heavy metal and other objects in the ground adjacent to the shed. According to the respondent’s case, the ground was never cleared and so the fixed pipe was never installed, resulting in Freeform Pools instead providing the flexible pipe.
I find that Freeform Pools fulfilled its contractual obligations by providing the flexible pipe. The written contract which was signed by the parties gave Freeform Pools the option of providing the backwash pipe “by flexible or rigid pipe” and it did so. Tellingly, the contract has several handwritten amendments to reflect the tailoring of a standard form agreement to the wishes of the parties, including the striking out of part of item 20 of Clause 2.5 as I set out above. If the parties had wished to agree that “rigid pipe” would be used, they could have easily amended item 20 of Clause 2.5 by striking out the words “flexible or”. They did not do so.
Any subsequent agreement, such as the oral agreement raised by Mr Lazarevich, regarding the exact type of pipe to be provided does not appear to have been supported by consideration and does not have contractual force.
The appellant’s second complaint relating to the backwash pipe is that the flexible pipe was unsuitable for its purpose as it was left unconnected and was too heavy for Mr Mayne, who has back problems, to lift.
I reject this submission. These facts do not go towards the suitability for its purpose of the flexible pipe itself. There is no suggestion that the pipe supplied by the respondent was in any way defective.
Therefore, I reject that aspect of the counterclaim on the issue of the suitability of the backwash pipe.
Mr Lazarevich further submits that the backwash pipe was not connected to the sewerage gully in a way that complies with the relevant professional standards or with the Sewerage Act 1929 (SA). Mr Lazarevich contends that further plumbing work was required to fit the backwash pipe to the sewer gully and that the respondent is liable for the cost of such work.
Mr Livesey points to a statement on the front page of the contract which provides:
The customer acknowledges that they are responsible for fencing/bunting of the pool and spa and any [f]urther compliance requirements of government or statutory authorities
Mr Livesey contends that provision shows that Mr Mayne was responsible for compliance with the Sewerage Act and is therefore a complete answer to this aspect of Mr Mayne’s counterclaim. This was also the conclusion reached by the Magistrate
I agree with Mr Livesey’s contention that Freeform Pools had no contractual obligation beyond providing a backwash pipe to the existing sewer gully. It follows that this aspect of the counterclaim fails.
Pool lights
It is common ground that when the pool lights were initially installed there was a defect in the electrical wiring which caused the lights to malfunction. Freeform Pools fixed the wiring and installed new lights, however the colours of the plastic rims on the new lights did not match. Mr Mayne claims the cost of replacing the pool lights so that they matched.
Mr Livesey concedes that the plastic rims of the relevant pool lights should be replaced. He puts that the issue of the pool lights is catered for in the $257 reduction to Freeform Pools’ claim which was made by the Magistrate at trial in applying the quantum meruit approach to award the plaintiff $5,800 rather than the $6,057 allegedly owed under the final tax invoice. I accept Mr Livesey’s submission and will return to this issue later in my reasons.
Although it is not specifically pleaded, Mr Mayne also complains that he was unable to run the pool lights without purchasing extra low resistance cables. He claims an amount of $300 additional expenditure on these cables.
Item 13 of Clause 2.5 of the contract provides that “Electrical supply for or connection to… lighting etc” is excluded from the contract price. Item 21 of the same clause provides that “Lights or power connections from the pool edge” are excluded.
It follows that Freeform Pools had no obligation to connect the pool lights to a power source, and Mr Mayne’s complaint regarding the extra cables is unfounded.
Matters not particularised in the counterclaim
Several matters which are not particularised in Mr Mayne’s counterclaim are relevant to the calculation of Freeform Pools’ entitlement.
Concrete path
Paragraph 2.12 of Mr Mayne’s defence relates to a concrete path which was on the property. I referred previously to a handwritten amendment to an invoice for progress payment for the levelling of the area surrounding the swimming pool. The concrete path in question formed part of that area and was never removed.
Freeform Pools contends that Mr Mayne requested that the concrete path be left as it was and the concrete referred to on the invoice did not include the path in question. Mr Mayne gave evidence at trial that the matter was never discussed.
The Magistrate rejected Mr Mayne’s evidence and rejected this aspect of his counterclaim.
The issue of the concrete path is a discrete issue of fact in relation to which the Magistrate had the advantage of seeing and hearing the evidence. There is no reason for me to reconsider his conclusion on the issue.
Skimmer box
Another issue that was not specifically pleaded but was argued at trial and on appeal is that of the pool’s skimmer box. Mr Mayne complains that because of the way the paving was done, the skimmer box was locked into place and was unable to be opened, emptied or cleaned.
Mr Livesey makes no contrary submission, but puts that the skimmer box is a trivial issue which is catered for in the $257 reduction to Freeform Pools’ claim which was made by the Magistrate at trial. I accept Mr Livesey’s submission.
Chlorinator and gas loop
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.