McDonald v Aldridge
[2019] SADC 16
•18 February 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
MCDONALD & ANOR v ALDRIDGE
[2019] SADC 16
Judgment of His Honour Judge Tilmouth
18 February 2019
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT
Decision of a Magistrate made in the small claims jurisdiction rescinded after review of the matter on the merits and in substitution thereof an award of damages made in favour of the applicants.
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - REPUDIATION AND NON-PERFORMANCE - REPUDIATION
The decision of the Magistrate finding the applicants unilaterally rescinded a contract set aside on the basis that the Magistrate failed to consider or resolve the necessary antecedent question of whether the other party was ready, willing and able to perform his part of the agreement. Principles relating to anticipatory breach discussed.
Magistrates Court Act 1991 (SA) s 38(1)(a), s 38(7)(b) and (c), s 38(7)(d)(ii); Nicholas McDonald and Tara Green v Jason Aldridge T/A Gawler Fencing and Pergolas ELCZI-17-241; Harradine v District Court of South Australia (2012) 280 LSJS 572; Fair Trading Act 1987 (SA) s 8A, s 8A(8), (9) and (10); Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245; Photo Production Ltd v Securicor Transport Ltd [1980] AC 827; Hadeler v Antoniou (2009) 266 LSJS 193; Allesch v Maunz (2000) 203 CLR 172; Holland v Wiltshire (1954) 90 CLR 409, referred to.
Foran v Wight (1989) 168 CLR 385; Tropical Traders Ltd v Goonan (1964) 111 CLR 41; Ogle v Comboyuro Investments Pty Ltd (1976) 136 CLR 444; Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; Forslind v Bechely-Crundall [1922] SC(HL) 173; Sindel v Georgiou (1984) 154 CLR 661, applied.
MCDONALD & ANOR v ALDRIDGE
[2019] SADC 16An application for review
Home owners Nicholas McDonald and Tara Green bring this application for the review of a minor civil decision made on 7 July 2018, awarding them judgment in the sum of $1,400 against the defendant (respondent) Jason Aldridge, trading as Gawler Fencing and Pergolas.[1]
[1] Nicholas McDonald and Tara Green v Jason Aldridge T/A Gawler Fencing and Pergolas ELZCI-17‑241 [83].
The grounds contained in the application dated 30 July 2018, are essentially that the trial was unfair because no witnesses were called when details were given and a breach of contract on the defendant’s side was not taken into consideration.
The primary proceedings
The underlying proceedings were commenced on 11 May 2017. The applicants claimed $8,327.00 plus court costs for the rectification of building works uncompleted by Mr Aldridge. A default judgment was initially obtained, but later set aside. As this is of no consequence it is unnecessary to enter into the details.
The particulars of the claim filed in the Elizabeth Magistrates Court were these:
We are wanting the funds to correctly fix the veranda Jason Aldridge T/A Gawler Fencing and Pergolas erected in December 2015. As you can see on the attached quotation for repairs the veranda needs to be pulled down & reerected so the water is running away from the house. We do not wish for Jason Aldridge to return to carry out the work as you can see in the attached emails and agreement signed by Jason Aldridge at Consumer and Business Services in December 2016 Jason still has not completed the repairs nor ordered the materials to repair. We wish to claim the amount of $8327.00 to cover the materials that need to be replaced & the labour to repair it.
The ‘quotation for repairs’ referred to therein was prepared by All Care Building and Improvements Pty Ltd (All Care), on 4 April 2016, totalling the claimed sum of $8,327.00 (inclusive of GST).[2] The proposal entailed the removal and re-building of the verandah erected by Mr Aldridge, with the proviso ‘the unknown is what will come apart without sustaining damage’. In its defence dated 2 June 2017, Gawler Fencing and Pergolas simply stated:
… breach to contract to finish pergola (not allowed on site) April 20th. Did not want me on site
[2] Exhibit P3. All Exhibit numbers were assigned in the Magistrates Court.
Underlying facts
The following distillation of the underlying facts is largely taken from the ex tempore judgment of the Magistrate presiding over the hearing on 18 May 2018. The applicants moved into a new home built on Templers Road, Templers about four years before purchasing a Stratco designed verandah for $8,600.00 in November 2015. Development approval for the project was given by the Light Regional Council on 7 September 2015.[3] The respondent was recommended to them to install the verandah. He visited the home a number of times before an oral agreement was reached to carry out the installation according to the building instructions provided in a ‘Stratco Pack’ which came with the verandah itself.[4] It was estimated that it would take about four days to complete the construction, for which the respondent was paid $1,400.00 in cash. The verandah was eventually erected in the week commencing 1 December 2015 when the applicants were absent interstate.
[3] Exhibit P4.
[4] Exhibit P6.
Following a spate of rainy weather, the verandah roof began leaking, however the respondent was unable to attend to it for about five months because of a leg injury sustained in mid-February 2016. In March 2016 the applicants retained the services of All Care to provide an estimate of the cost of carrying out repairs to the verandah to deal with the leakage problems, which came to the aforementioned $8,327.00.[5]
[5] Exhibit P3.
The present parties took the matter to the Consumer and Business Services of the South Australian Government. All Care was not involved in this process. Following a Conciliation process convened under s 8A of the Fair Trading Act 1987 (SA) they entered into an agreement on 14 December 2016 for remedial works to be carried out by the respondent on the terms referred to therein. These included an obligation on the applicants to supply additional construction materials apart from those contained in the original Stratco Kit, and that the respondent:
… undertakes the required remedial work to ensure the works on the verandah is performed to an acceptable industry standard and meets the performance characteristics under the Building Code of Australia at his cost’ (BCA).
It was further agreed the respondent was ‘required to supply or replace any materials that would have been part of the original Stratco Kit’ at his own cost. Of critical relevance was the following clause of the agreement:
5.Mr Aldridge will contact the consumers by email … on or before Tuesday 28 February 2017 to advise of a date for the commencement of the works, with the works to be completed on or before close of business Saturday 29 April 2017. It is noted the consumers are not able to have the work completed during the period of 10-13 March 2017.
The failure of any party to carry out the terms of such agreements entitles the other party to bring enforcement proceedings in the small claims jurisdiction of the Magistrates Court: ss 8A(8), (9) and (10) of the Fair Trading Act. That was the jurisdiction invoked in this instance.
In the meantime, All Care carried out some repairs to the verandah at a cost of $800.00. Unfortunately these proved unsuccessful as the leakages persisted. After contacting the respondent a number of times, he eventually attended the premises on 20 April 2017. The applicant’s case is that he came without the necessary materials to complete the repairs, stating that he first intended to dismantle the verandah. It was on all accounts raining at the time. The applicants were so concerned about this in light of the protracted course of events, that they refused to allow Mr Aldridge to proceed. Subsequent attempts to contact him went unanswered.
This progression of the facts led the applicants to enforce the conciliation agreement and to claim the stated sum to cover the costs of materials and labour required to replace the verandah, together with court costs according to the original All Care quotation.
The Magistrates Court proceedings
The judgment
In the course of his analysis of the evidence, his Honour considered the substance of a Court building expert’s appraisal and proceeded to make the following findings of fact:[6]
[6] At [69].
1.The verandah installed by the defendant lacks proper falls (grades) and ponds water due to the outer front supporting beam set too high causing backfall.
2. This was because the supporting beams and (sic) been installed upside down.
3.The verandah leaks at the intersection of the verandah and the existing house metal/steel fascia.
4.The correct amount of posts required have not been installed in that 1 post from the north-east corner of the verandah is missing.
5.Colourbond coating on various beams and or materials have been scratched.
6.I thus find that the defects outlined in paragraphs 1, 2, 3 and 4 hereinabove were due to the omission and or failure by the defendant to install the verandah according to its proper specifications.
That report dated 22 October 2017 was tendered before the trial court as Exhibit P2.
This report writer summarised the faults with the verandah in the following manner:
5.2.1The veranda lacks proper falls (grades) and ponds water due to the outer front supporting beam being set too high causing backfall.
5.2.2The verandas leaks at the intersection of the veranda and the existing house metal/steel fascia.
5.2.3The correct amount of posts as detailed has not been installed. (One post has been omitted).
5.2.4 Colourbond coating on various beams have been scratched during construction.
5.2.5 Several structural beams have been installed upside down.
This appraisal accepted that the verandah lacked proper falls or grades which caused the ‘water to pond on the roof’ and which therefore was considered ‘a major concern and appears to be due to the supporting beams being upside down’. The conclusion also recorded that the verandah was not erected in accordance with the Stratco instructions. Further, the leakages at the intersection of the verandah and the existing home ‘may have been caused due to the sagging of the roof frame pulling the decking away from the seal on the main roof channel’. It additionally reported that ‘certainly of concern’ was that insufficient posts were provided and that the ‘coatings should not be damaged’ in the erection process.
The writer recommended the remedial work should be carried out in accordance with the Stratco instructions, that complete replacement and ‘removal of some/various sections of the roof decking’ was required, that the upside down structural beams were to be installed ‘the correct way around’, the missing post was to be installed, the western pitching beam straightened and brought into line, and that the ‘crude roof flashing … should be removed completely’. In summary the writer considered ‘certainly the installation of the verandah was not done well by the Defendant’.
Subsequently a quotation was obtained by Mr McDonald from Stratco for the supply of the materials necessary to rectify the various problems amounting to $3,009.37.[7]
[7] Exhibit P7.
The Magistrate’s reasons
His Honour proceeded to accept that minor adjustments undertaken by All Care in reducing the height of the supporting post did not alleviate the leakage problems.[8] He left it open ‘as to whether such may have factually aggravated the ponding and leak problems’.[9] Whilst concluding that the applicants ‘derived no value whatsoever from the [respondent’s] services for which they paid’ $1,400,00, his Honour considered that by submitting to the conciliation proceedings they remain bound by it.[10] The latter conclusion was plainly correct.
[8] At [22]-[23]
[9] At [71]-[72].
[10] At [74]-[78].
On that basis his Honour reasoned:[11]
[76] Irrespective of the parties’ themselves being remiss on occasion with adhering strictly to the specific terms set out in page 2 of Exhibit P1, I nevertheless find that Mr McDonald on 20 April 2017, by his conduct of refusing the defendant access to and hence preventing the defendant from attempting any works on the verandah, had unilaterally on the part of the plaintiffs brought about a fundamental breach of the agreement Exhibit P1.
[77] I find the agreement terminated by the plaintiffs’ said breach.
[78] Hence whatever legal obligation required of the defendant in the CBS agreement was no longer binding.
This conclusion of unwarranted unilateral recission was reached despite the respondent’s admission and concession that he did not install the verandah properly to specifications as detailed by the facts established in this judgment itself and in the Building Expert’s Appraisal Report.[12]
[11] At [76]-[78].
[12] Exhibit P2, at [69] and [81].
Even so, the Magistrate held it was in the interests of justice for the applicants to be ‘accorded the benefit of an alternative component’, namely ‘their entitlement to a restitution of the $1,400.00 because they had derived no value from the [respondent’s] paid services’.[13] Judgment was entered accordingly for the respondent to pay the plaintiffs ‘the sum of $1,400 only’, with each party to bear their own costs.[14]
[13] At [81].
[14] At [83]-[84].
Evidence in the Magistrates Court
It can be seen then that the critical issue was the course of the events of 20 April 2017. Mr McDonald’s evidence about that topic emerges mostly clearly from the following extracts:[15]
[15] T19.37 – 21.17.
MR MCDONALD: He turned up with no materials and I said to him have you ordered them? And there’s some emails flicking through asking if he has ordered the materials as per the agreement. He said to me he was picking them up in the afternoon, but then he also said that it doesn’t need any materials, there is nothing wrong with the materials, all it needs is flashing and my father was standing there and he said, “Jason, it needs more than flashing”. So he’s outside if you want to call him.
HIS HONOUR: No need for additional materials, except for –
MR MCDONALD: Except for nothing. He had nothing bar his ute and the ladder.
HIS HONOUR: No, but you mentioned that he said that there would be some flashing.
MR MCDONALD: He said that all it requires is flashing and he didn’t even have the flashing. Not to my knowledge he didn’t. I didn’t see any on his ute.
HIS HONOUR: All right and what happened then?
MR MCDONALD: And he said, well he wanted to start taking it down and I said, “It’s not happening”. I said, “If you don’t have the materials as per the agreement”.
HIS HONOUR: When you say he wanted the –
MR MCDONALD: He wanted to start basically, pulling the verandah down. Getting it prepared to do the bits and pieces that he had to rectify and I said to him, “Jason”, I said, “Have you seen the weather forecast, it is going to rain” and he said, “No. It’s not going to rain”. I said, “Well I’m not letting you take my verandah down”. So I said, “No, you are not doing it” basically, “Because you’ve got no materials and you can’t prove to me that you have actually ordered the materials”.
HIS HONOUR: But the thing is Mr McDonald, wasn’t he there on that occasion to carry out whatever remedial works?
MR MCDONALD: Correct, with no –
HIS HONOUR: How do you come to that conclusion that he would be incapable of carrying out the works on that occasion?
MR MCDONALD: His past track history.
HIS HONOUR: Mr McDonald, how do you know? Because had attended to turn up right and you were not there to tell him what to do were you?
MR MCDONALD: I was there, as I said, I was there –
HIS HONOUR: But you were not there to tell him what to do were you? You are not the builder, he is.
MR MCDONALD: Correct.
HIS HONOUR: So why would you prevent him from wanting to carry out the works?
MR MCDONALD: Because he didn’t have any of the required parts and –
HIS HONOUR: But that would be something that would be ultimately his responsibility isn’t it, whether he had or not.
At that point, Mr McDonald’s de facto partner spoke up:[16]
MS GREEN: We actually had 60mm of rain that day, so –
and later she said that they:
Didn’t trust the fact that the verandah was going to come down with 6 mm of rain and not go back up.
[16] T21.18-30.
Records kept by the Australian Bureau of Meteorology demonstrate that there was in fact 0.4mm on 20 April and 15.6mm on 21 April at nearby Freeling.
Returning to the transcript, it continued with the following exchanges:[17]
[17] T21.31–22.38.
HIS HONOUR: No, no.
MR MCDONALD: Regardless of that.
HIS HONOUR: Regardless of that, but the fact remains he had turned up and what if he now turns around and says, “Yes, I attended, I was not given an opportunity to do anything, because you told me not to do it and you asked me to go away”. That could also be interpreted as you frustrating the condition of the contract on his behalf.
You see I hear you well enough Mr McDonald when you say at that stage you were relying on your sentiments, your feelings, you don’t trust him, but the fact remains that he attended in order to provide some work, or services and by your evidence, you stopped him from doing anything.
MR MCDONALD: I did, because I didn’t trust him, sorry, but that’s –
HIS HONOUR: So you refused to allow him to take down the verandah.
MR MCDONALD: I refused to let him take it down, because – unless he could prove to me that he had the materials ordered to carry out the work as per that agreement.
HIS HONOUR: What did he say about that to your query?
MR MCDONALD: He said, he’s ordered it and he’s picking it up this afternoon.
MS GREEN: But in the email from the night before, he had already – he was – in the morning.
HIS HONOUR: And would obtain them that afternoon?
MR MCDONALD: Correct, but then in saying all that, when he did come out, what he kept on saying is, “There’s nothing wrong with the existing materials, all it needs is flashing” and that’s all he kept on saying.
HIS HONOUR: Yes, I hear you Mr McDonald, but the bottom line still remains you did not allow him to carry out the works on that occasion isn’t it?
MR MCDONALD: Correct, because I didn’t trust him.
HIS HONOUR: And so he went away because he was not allowed by you to take down the verandah.
MR MCDONALD: Correct.
HIS HONOUR: And did he come back again?
MR MCDONALD: I tried contacting him several times, with no luck. Texts, voicemails, leaving voicemail messages and I did sent him a email. Tara sent him an email basically stating that if the works weren’t carried out by the – agreement, we would be forwarding it to the courts.
Other exchanges with the Bench demonstrate his Honour continued to press Mr McDonald with the fact that ‘… you have still got to allow people the opportunity to see it through …’,[18] ‘… you must also understand that when it comes to a building dispute it has also to be a situation where you have to let the other party make an attempt to remedy works …’[19] and ‘… you sent him away, you did not allow him to dismantle the roofing.’[20]
[18] T29.28-29.
[19] T30.24-27.
[20] T31.19-21.
For his part, the evidence of Mr Aldridge before the Magistrate contained an acknowledgement that he was ‘supposed to attend with the materials’ he was ‘supposed to have purchased’ and supplied.[21] This exchange with the Magistrate then followed:[22]
[21] T41.15-18.
[22] T41.19 - 42.13.
MR ALDRIDGE: Yes. Now to supply all the materials I need – I need to pull down the structure, have a look at it or the gravity of the problem, I did not know what exactly I’d need. I know a couple of flashings would have fixed the job by memory but I haven’t had a chance to even look at the job. I’m not allowed on the property.
HIS HONOUR: Why didn’t you make an attempt to go back there after 20 April.
MR ALDRIDGE: I did and that’s when I was asked to leave the property.
HIS HONOUR: Sorry.
MR ALDRIDGE: I did and that was the date I was asked to leave the property. I was told not to be –
HIS HONOUR: After 20 April when you were asked to leave the property did you make any further attempts to go back.
MR ALDRIDGE: No, not after, no.
HIS HONOUR: Why was that.
MR ALDRIDGE: After I was told to leave there was nothing more I could do.
HIS HONOUR: If you had to remedy the defects what would be your estimate of the cost that would have been out of your pocket.
MR ALDRIDGE: Okay, to replace those two beams I’m looking half days –
HIS HONOUR: So you would have to, sorry, replace two beams.
MR ALDRIDGE: Replace or roll them over. You don’t know until you actually pull it down. It’s one of those things. To redo that you’re looking at half a days work with two blokes. So you’re probably looking at $500 there.
The application for review
The position of the parties
In the proceedings before the District Court, Mr McDonald repeated the gist of the complaints contained in the application for review itself. He added the additional criticism when he notified a Sheriff’s Officer in the Magistrates Court that he wished to call his father who witnessed the events of 20 April 2017, he:[23]
… wasn’t given the opportunity. He was talking basically the whole time and even my partner tried to say some bits and pieces and we were pretty much closed down by him. He wasn’t really interested in what we had to say.
This assertion is consistent with what was particularised in the application for review itself.
[23] T3.38-4.4.
An examination of the entire transcript of the Magistrates Court proceedings of 18 May 2018 certainly demonstrates an active role was taken by the Magistrate. That is to be expected given the inherently ‘inquisitorial’ nature of minor civil actions: s 38(1)(a) Magistrates Court Act 1991 (SA), Harradine v District Court of South Australia.[24] Whilst it remains somewhat surprising that the prospect of calling Ms McDonald’s father was not expressly raised with the Magistrate, I nevertheless accept his explanation that having given witness details to court staff, he did not expect he had to advise the Magistrate as well.[25]
[24] (2012) 280 LSJS 572, [46]-[47].
[25] T2.18-3.35.
For this reason the initial hearing in this Court was adjourned to enable Mr McDonald senior to be called, as he was hospitalised at the time. This is a course authorised by ss 38(7)(b) and (c) of the Magistrates Court Act, and see Harradine v District Court of South Australia.[26] The review hearing was also adjourned to allow Mr Aldridge to:[27]
… consider whether you want to call these other men that you had dispatched to get the materials but have cancelled, to confirm your account.
This opportunity was afforded to him because of his assertion on this first appearance that his two employees:[28]
… were down the yard picking up all the long materials. I couldn't get them on my ute.
[26] At [53](3).
[27] T10.29-32.
[28] T8.31-38.
The father’s evidence was consistent with the case for the applicants in as much as he told the court:[29]
We had a few spots of rain there and Mr Aldridge said 'Well I'll come round to do the verandah'. He wanted to take it down. We're then going into a period of rain. Well when we paved completely the area under the verandah, you don't want to get soaking wet. So ... said 'No way, unless you've got the stuff to do the verandah, you're not gonna take it down' and he didn't. He was - as far as we knew, he was just gonna go and get some flashing and try and fix it with that.
[29] T27.21-29.
Mr Aldridge conceded he arrived on April 20 only with ‘backing tape, silicone, pop rivets, all the tools …’ whilst his two employees ‘… were in my truck on another job’, and that he ‘came out there to meet up and see what's got to be done’.[30] He claimed it ‘was already pre-booked in’, and that he waited for an hour before he was told to leave the property.[31] He went on to say it was ‘a three-day job’.[32] He further told this Court that Stratco had ‘no record … whatsoever’ of any order he might have placed to complete this job and that he did not propose to call the employees concerned as they ‘left me probably a year and a half ago, and I haven’t had contact … ever since’.[33]
[30] T29.13-30.23.
[31] T29.15-.19.
[32] T31.14.
[33] T21.5-21.21.
The reasons of the Magistrate
With due respect to the reasoning process undertaken by the Magistrate, the fault with the conclusion that the agreement was wrongly repudiated by the applicants, was dependent on an antecedent finding that Mr Aldridge was ready, willing and able to perform his part of the bargain when he attended the property on 20 April 2017. It appears the Magistrate assumed this to be the case without resolving the conflicting evidence on the topic and without making an affirmative finding to that effect.
What in effect transpired in the circumstances of 20 April was repudiation by the applicants for anticipatory breach. This was founded on the expectation by Mr McDonald that Mr Aldridge had no intention of completing the rectification works in a timely manner as he attended without the materials required to effect the rectification work and in light of the preceding history of delay. More is said of this issue later.
Mr Aldridge conceded that he attended to inspect the verandah and that he was not in a position to complete it. He did not dispute the fact that it was raining that day or that he intended to dismantle the verandah despite the rain. On his own admission, he did not endeavour to contact the applicants again or express any desire to complete the job despite the impasse of 20 April. As will become apparent this was varied by mutual agreement. According to the Magistrate’s reasons Mr Aldridge deposed in the lower court that the remedial works ‘would require about ½ a day’s time’,[34] whereas he said in this Court that it was a ‘three-day job’.[35]
[34] ELZCI-17-241, [60].
[35] T31.12-.16.
Anticipatory rescission
Anticipatory breach of a contract arises when prior to the time appointed for performance of a bargain, a party reasonably forms the opinion that the other party does not intend to perform the promise: Ogle v Comboyuro Investments Pty Ltd.[36] This is particularly the case where the prospective breach is of a kind that would give rise to the right to terminate for breach upon it’s occurrence: Federal Commerce and Navigation Co Ltd v Molena Alpha Inc.[37] This is what occurred in this instance. It is clear Mr Aldridge accepted the repudiation by his conduct in not attempting at all to arrange for any further work to be done by him.
[36] (1976) 136 CLR 444, 450.
[37] [1979] AC 757.
Those circumstances then provided the right to claim damages for loss of the bargain: Sunbird Plaza Pty Ltd v Maloney,[38] Photo Production Ltd v Securicor Transport Ltd.[39] More importantly for the purpose of this case, the time stipulation for the performance of the conciliation agreement is as a matter of law treated as of vital importance to the parties, as time is, in that circumstance regarded as of the essence of the bargain, thus conferring a right to rescind for breach: Foran v Wight.[40]
[38] (1988) 166 CLR 245, 260-261, 273.
[39] [1980] AC 827, 849.
[40] (1989) 168 CLR 385, 395, 416-417, 420, 433.
The fact that the parties agreed to vary the time constraints imposed by clause 5 of the agreement to 20 April 2017, does not mean the time for completion did not continue to remain of the essence: Tropical Traders Ltd v Goonan.[41] His Honour adverted in passing to the issue of completion times when observing ‘(I)rrespective of the parties’ themselves being remiss on occasion with adhering strictly to the specific times …’ without considering or resolving the legal implications of that conclusion.[42]
[41] (1964) 111 CLR 41, 52-53, 60-61.
[42] Ibid [76].
The review process
The failure to consider and resolve the necessary pre-requisite issue whether Mr Aldridge was ready, willing and able to perform his part of the agreement, amounts to an error vitiating the judgment, which must therefore be rescinded pursuant to s 38(7)(d)(ii) of the Magistrates Court Act: Harradine v District Court of South Australia,[43] Hadeler v Antoniou.[44] This amounted to legal error in the sense described by the High Court in Allesch v Maunz,[45] Fox v Percy,[46] and CSR Ltd, v Della Maddalena.[47] That error was compounded by the failure of the Magistrate to apply the facts to the specific terms of the conciliation agreement, in so far as the express time limitations went under clause 5 thereof or the legal implications thereof. These rendered time of the essence so far as compliance was concerned.
[43] (2012) 280 LSJS 572, [53](5).
[44] (2009) 266 LSJS 193, [17]-[23].
[45] (2000) 203 CLR 172, [23].
[46] (2003) 214 CLR 118, [22]-[23].
[47] (2006) 80 ALJR 458, [16].
As this Court has no power of remission in minor civil reviews other than those involving a ‘default judgment or summary judgment’, it must now proceed to determine the matter for itself on the merits as required by s 38(7)(c) of the Magistrates Court Act, and to ‘substitute a judgment that the court considers appropriate’ pursuant to s 38(7)(d)(ii) thereof.
Substituting a judgment the court considers appropriate
The core events took place on 20 April 2017. The application was filed in the Magistrates Court on 11 May 2017. Judgment was delivered on 18 May 2018. The agreement to resolve the matter dates back to 14 December 2016. Over two years transpired during which this dispute remained unresolved and the defects in the verandah unrectified. It is clear enough that the erection of the verandah by Mr Aldridge was faulty in a number of significant respects.
The conciliation agreement of 14 December 2016 contemplated completion before Saturday 29 April 2017. It is quite apparent that the applicants made numerous attempts to contact Mr Aldridge with a view to securing an undertaking as to the date(s) he would attend to carry out obligations under the agreement. Many of these communications were by way of SMS or email messages, which became Exhibit P10 before the Magistrate.
Mr McDonald commenced the process no later than shortly before 21 January 2017. There were telephone discussions on 25 January with respect to the required drawings and materials, followed by a text message:
… we will need it completed by the weekend please send me an email or txt to confirm the 22/2/2017-24/2/2017.
Another text to Mr Aldridge of 9 March read:
Hi Jason Any idea on when we are going to get started on the verandah we did agree to the 22/2/2017, then I left a voicemail msg to request we move it forward to the 22/3/17 due to commitments we had I am still waiting on you to confirm a date! Nick.
On 10 April Mr Aldridge advised via email ‘I would like to book you in on the 20th at about 9.00am’. Ms Green responded:
The 20th of this month suits us. Just make sure that you have ordered the materials you need as per the agreement and the quote we forwarded to you.
Another email to Mr Aldridge of 10 April 2017 at 10.25 am read:
Hi Jason, As a result of no communication from you as you would have seen we have issued you with a final notice which I did email you on the 16th of March stating that that would happen should we have no contact from you by close of business Friday 17th March. If you care to re read the agreement that was signed in front of us and Quentin at CBS back on the 14th of December 2016 you had until the 28th of February 2017 to organise when the repairs would be carried out. You spoke with Nick and gave him the date of the 22nd of February in which he called you back and left a message and also text you stating that, that date did not suit us due to my Dads wedding and also my baby shower in which I was having 3 people sitting out the back so it didn’t suit. Nick suggested pushing it a month later t the 22nd March with no response from you. We do not appreciate phone calls from other people in regards to the matter when the matter is between Jason Alderidge trading as Gawler Fencing and pergolas and myself and Nick. As per the final notice you have 21 days from Wednesday 29th of March 2017 or we will be issuing a claim with the courts. Regards Tara Green
Ms Green emailed Mr Aldridge again on 13 April 2017 ‘can you confirm when the materials you have ordered will turn up?’, after having a few hours earlier informed him:
I need to arrange someone to be at our house for you to be there on the 20th of April if that is when you will be doing the work so if you can advise me ASAP so I can arrange this.
In yet another email of 17 April she advised:
Hi Jason, Just confirming that you have ordered the materials you need to do the repairs to the veranda on Thursday this week. Just to confirm the veranda will be taken down and put back up straight away as agreed in the meeting at cbs. I need confirmation that the materials and your self will be here Thursday so i can arrange for one of us to have the time off to be here. If I dont hear back by Wednesday lunch time there will not be anyone arranged to be here therefore you wont have access to the property. Regards Tara Green
No response was forthcoming until 19 April 2017 at 6.06 pm when Mr Aldridge indicated ‘be there tomorrow as I organized with you’, followed with a response from Mr McDonald ‘Do you have the parts as per agreement I have seen nothing!’.
Finally, a subsequent email from Ms Green dated 24 April was equally strident:
Jason, Your 21 days are now up, as Nick advised you when you turned up on Thursday 20th as per your email, the agreement that you signed at CBS stated that you would purchase the materials that needed to be purchased and repair the veranda as per the quote we sent you from Stratco. As you turned up with no materials and not proof that materials had been ordered we were reluctant to let you take the veranda down with the amount of rain we were going to receive that day and in the following days. You stated you were collecting the materials that afternoon but we have still not seen anything nor had any communication from you. Your lack of communication makes it extremely difficult to know what is happening as we don’t get return phones calls and its very difficult to even get a return email most of the time. As Nick said to you, you have until Saturday the 29th of April 2017 at 5pm as per the agreement signed at CBS to have the materials ordered and delivered and the work carried out or we will be lodging a claim with the courts for the amount to repair the veranda and replace all materials Stratco have stated in their quote that we went to the trouble of arranging for you. You quite clearly stated in the meeting at CBS that you were not interested in coming back to do the repairs which is quite obvious to us with the lack of communication. Unfortunately if we do not see the materials delivered and the work carried out by Saturday the 29th of April 2017 you will leave us with no other option but to commence court action. Regards, Tara Green
This correspondence plainly demonstrates the failure to comply with the tenor of the conciliation agreement on the part of Mr Aldridge. He did not turn up as promised at 9.00 am on 20 April 2017, as he told this Court it was not until the ‘mid-morning’ that he arrived at the property.[48] He had not given assurances that he had the materials ‘required to supply or replace the materials that would have been part of the original Stratco Kit …’ in terms of clause 4. Those materials were clearly specified in the Stratco Quotation of 11 January 2017.[49] Mr Aldridge offered no proof other than his own unsupported say-so that he acquired those materials, or that they were in a truck used by his employees on 20 April 2017. His claim that Stratco retained no record of him doing so is questionable, given that the quotation remains on its system, at least according to Mr McDonald.[50] Mr McDonald said that he in fact rang Stratco on 20 April 2017 only to be told there was no record of such an order placed by Mr Aldridge.
[48] T31.17.
[49] Exhibit P7.
[50] T21.35-22.30.
Irrespective of the latter consideration, Mr McDonald was fully entitled to form the view that due compliance on the part of Mr Aldridge with the conciliation agreement was not going to happen. The overwhelming inference is that Mr Aldridge evinced ‘an intention to carry out … [the] … contract only if and when it suits him’: Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd.[51] Moreover there was an inordinate delay on the part of Mr Aldridge in engaging in the process of complying with the agreement, so much so that ‘procrastination … [was] … so persistently practised as to make a most serious inroad into the rights of the other party …’: Forslind v Bechely-Crundall,[52] Sindel v Georgiou,[53] Holland v Wiltshire.[54]
[51] (1989) 166 CLR 623, 634.
[52] [1922] SC(HL) 173, 192.
[53] (1984) 154 CLR 661, 671.
[54] (1954) 90 CLR 409, 420.
In combination, these circumstances fully justified repudiation on the part of the applicants. As explained earlier, repudiation was accepted by Mr Aldridge by his utter failure to re-engage. The applicants are thereby entitled to damages for breach of the conciliation agreement.
Damages
The estimate provided to reinstate the verandah to the Stratco specifications submitted by All Care in 2016 was for the sum claimed of $8,327. This included both labour and materials. Although this estimate is dated, the basis of assessment is more favourable to Mr Aldridge than otherwise might have been the case given a subsequent quotation in April 2018 for $11,350. In any event neither party made any reference to this during the review process. As the $1,400 originally paid to Mr Aldridge is retained in an account controlled by the applicants, that sum must be deducted from the proposed award of damages. The Magistrate properly recognised that this should be done.[55]
[55] ELZCI-17-241, [82].
Conclusion and orders
For the reasons articulated above, the application for review is allowed. The judgment given by the Magistrate is rescinded and an award of $6,927 by way of damages is substituted. The applicants are further entitled to recover the lower court filing fees of $177, in addition to $163 for the cost of filing the application for review with the District Court Registry.
Judgment for the applicants against Mr Aldridge for the total sum of $7,267 is entered accordingly.
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