Mirage Pools P/L v Colvin

[2003] NSWSC 385

CITATION:	Mirage Pools P/L v Colvin & Anor [2003] NSWSC 385
HEARING DATE(S):	7 May 2003
JUDGMENT DATE:	9 May 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Master Harrison
DECISION:	(1) The appeal is dismissed; (2) The judgment of Walquist LCM dated 23 August 2002 is affirmed; (3) The summons is dismissed; (4) The plaintiff is to pay the defendants' costs as agreed or assessed.
CATCHWORDS:	Appeal decision of Local Court Magistrate
LEGISLATION CITED:	Local Courts (Civil Claims) Act 1970 (NSW) - s 69(2)
CASES CITED:	Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bellgrove v Eldridge (1954) 90 CLR 613 Devries v Australian National Railways Commission (1993) 177 CLR 472 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588 The Australian Gas Light Co v Valuer General [1940] 40 NSWLR 126
PARTIES :	Mirange Pools Pty Limited (Plaintiff) David Colvin and Barbara Colvin (Defendants)
FILE NUMBER(S):	SC 12622/2002
COUNSEL:	Mr A Radojv (Plaintiff) Mr C Millard (Defendants)
SOLICITORS:	Thurlow Fisher (Plaintiff) Taylor & Scott (Defendants)

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	2909/02
LOWER COURT JUDICIAL OFFICER :	Walquist LCM

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 9 MAY 2003

12622/2002 - MIRAGE POOLS PTY LIMITED v
DAVID COLVIN & BARBARA COLVIN

JUDGMENT (Appeal decision of LCM)

1 MASTER: By summons filed 19 September 2002, the plaintiff seeks orders firstly, that the appeal be allowed; secondly, that the decision of the Local Court awarding $13,782.32 on the defendants’ cross claim be set aside; thirdly, a declaration that the plaintiff is entitled to be paid $16,750 by the defendant; fourthly, an order that the defendant pay to the plaintiff the sum of $13,782.32 less reasonable costs of rectification or, in the alternative, an order that the matter be remitted to the Local Court for rehearing of the cross-claim before a differently constituted tribunal; and fifthly, that the defendants pay the plaintiff’s costs of the appeal. The plaintiff relied on three affidavits of Vandhna Devi Narayan sworn 29 November 2002, 8 January 2003 and 12 February 2003. This matter has been referred to a Master for hearing by the list Judge.

2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. It cannot be said that the Tribunal member acted on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588.

3 The plaintiff appeals a decision of Magistrate Wahlquist made on 23 August 2002 in which the Magistrate awarded the defendant $13,782.32 on a cross-claim exceeding $25,000. The grounds of appeal are firstly, that the Magistrate erred at law in finding that the defendants were entitled to rectification work for breach of contract that would “make the place look nice and to their liking”; secondly, that the Magistrate erred at law in finding that the defendant was entitled to more rectification work for breach of contract than was necessary to make the pool adequate; thirdly, that the Magistrate erred at law in finding that the costs of rectification would be $13,482.32, when there was no expert evidence of the rectification costs or the extent to which rectification was required; fourthly, the Magistrate erred at law in finding that the plaintiff was liable to compensate the defendants for a number of incidental items claimed when there was no evidence to support the claims and the claims are unknown to law; and fifthly, that the Magistrate denied the plaintiff natural justice in that she drew an adverse inference against the plaintiff in terms of the weight which could be given to evidence of photographs and measurements taken inside the subject property when the plaintiff was not allowed access to the property. The last ground was not ventilated before the Magistrate.

4 The Court of Appeal in The Australian Gas Light Co v Valuer General [1940] 40 NSWLR 126 (at 137 & 138) define what constitutes an error of law. The statements can be summarised as follows:

(1) The question as to what is the meaning of an ordinary English word or phrase as used in a statute is one of fact not law. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence; although evidence is receivable as to the meaning of technical terms; and the meaning of a technical term is a question of law.

(2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact.

(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding and there is evidence capable of supporting its inferences.

(4) Such a finding can be disturbed only -


(a) if there is no evidence to support its inferences, or

(b) if the facts inferred by it and supported by the evidence are incapable of justifying the finding of fact based upon those inferences, or

(c) if it has mis-directed itself in law.

5 Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior court which can only determine questions of law.

Proceedings in the Local Court

6 On 11 April 1999, the plaintiff entered into a contract with the defendants to construct, on behalf of the defendants, and on land owned and occupied by them at 34 Central Avenue, Mosman, New South Wales, a swimming pool. The contract price for the pool was $55,820. A dispute arose, and the balance of $16,750 remained unpaid. The pool was designed to be flush with an entertainment deck which was being constructed at the rear of the defendants’ premises.

7 The pool was to be constructed in accordance with a development application lodged with Mosman Council in September 1998 and approved on 11 August 1999. The pool was between 150mm and 250mm higher than the adjoining entertainment deck. For this reason the defendants declined to pay the outstanding sum of $16,750. The owners of the property (the defendants in these proceedings and in the Local Court) expended the sum of $13,273 in rectifying the defect.

8 It is common ground that one or two steps need to be built to remedy the defect, namely the gap between the deck and the pool. The plaintiff engaged the services of an architect to design modifications to the pool and had these modifications carried out. Of particular concern to the plaintiff was the installation of the planter boxes with plants at each end of the pool (see photograph in Local Court Ex 7). The plaintiff submitted that these rectifications were extravagant and could not be considered as being reasonable and necessary.

9 The plaintiff and his architect gave evidence to support the claim of $13,273.00. Mr Voltz who was a construction supervisor employed by the defendant also gave evidence. He estimated rectification costs as being in the sum of $1,200.00.

10 The Magistrate in her reasons stated:

“The plaintiff makes a claim for the sum of $16,750 being unpaid money on a contract entered into with the defendants for the building of a pool and the total sum for that job was $55,820 and that was entered into on 11 April 1999.
The facts are that the pool was constructed; it was constructed as a pool, which had a frame around it. The agreed facts are that it was intended that the pool would be built up to a level where it would be flush with the deck that was to be built. The pool was being built along with other renovations to the house and it was heard in evidence that the total costs of the renovations were approximately $400,000. There is no dispute that that was the intention, the pool was to built in that fashion, it was to be flush with the deck, in fact it was not and there is a varying in the evidence as to the difference in the amount to which was in fact too high but there is no dispute the pool was too high. It was not flush with the deck.
The plaintiff’s representative says and he gave evidence today, Mr Voltz, who was the construction supervisor, that when he measured it with the builder it was 150 millimetres too high, approximately six inches that would be on my calculations. The evidence from the defendant, Mr Colvin, is that it was 250 millimetres too high, which is about ten inches. There is documentation, which is attached to Mr Colvin’s affidavit, which indicates that it was 230 millimetres too high but in any event there is no doubt that it was too high and that remedy had to occur. The plaintiff says for the balance of the contract money.
The defendant claims, firstly, in defence that in light of the fact that the pool was not built as required in the contract, as agreed, in that it wasn’t built flush with the deck, that that is sufficient and no further money should be payable by them. Alternatively, they put in a cross-claim for the cost that it was to them to remedy the situation and they set out a series of costs that they incurred, supported by documentary material in order to bring the pool to a finished state which they say was necessary.
I do not think it falls on me to decide determinately as to what the difference in height was, it would seem however, that it was closer to 250 millimetres than the 150 as stated by the plaintiff. It is certainly the case that the pool was not as was contracted, that it was too high, but there has been no dispute about that. The issue really is whether the defendant was entitled to have the pool finished in such a way as the cost he incurred set out in the cross-claim indicate, or as is claimed by the plaintiff, simply to have it finished so that it was adequate, it worked, if you like.
I have photographs, which show what actually is the finished product, and it is clear from those photographs as to what additional work was in fact required in order to finish the pool satisfactorily. I must say I do not accept the claim by the plaintiff that it would have been satisfactory simply to have one step and tile it, in fact, looking at these photographs, the first photograph in the pile would indicate that the top of the pool and the edge of the pool was not level, even with that step, it was not level with the deck. There would have been an area of some distance which would not have met with the deck at all, so it would seem to me to be quite a large step and also there would have been tiles presumably not going on to anything, which I’m not quite sure what the correct technical term for that is, but it seems to me that in light of the fact that this was obviously an expensive property, there were extensive renovation, it was intended to make it look a certain way, the pool being flush with the deck was part of that. That did not occur because of the plaintiff’s mistake and the defendants were then entitled to make the place look nice and to their liking, and not simply to have it adequately finished so that the pool worked and the deck worked.
It was clear that it would have been finished in a way that the whole thing was to the liking of the defendants and I do not think that what is presented here indicates an excessiveness in that regard. There was $16,750 owing to the plaintiff. I think the defendants are entitled to have the set-off met with regard to their reasonable costs and going through all of those the only item, which I do not accept, is the amount for the plants. Looking at the pictures it is hard to see that all of those plants went into the planter box, all the plants set out in the invoice. It would seem to me that in fact some of the plants probably went elsewhere, so I will take $300 off from the cost of the plants.
Otherwise all of the other items that are set out there, it would seem to me in the circumstances where what is being sought is a certain sort of job by the defendants are reasonable and it seems to me the fairest way is the plaintiff had substantially finished the pool, there were some items that weren’t done but rather than take those items off, as is suggested that I should do by the defendant, it seems to me that I should consider what is the appropriate finalisation of the pool by taking from the $16,750, the amount spent by the defendant. I am going to allow a set-off to the amount of $13,482.30. That will be taken from the plaintiff’s claim, which means the plaintiff is entitled to the sum of $3,047.70.
Each party should pay their own costs in light of the decision, which is, the plaintiff is only in fact successful with regard to a very small proportion of what the was claimed. I make an order that each party pay their own costs.”

11 The Magistrate applied the correct law. She determined what remedial work was both “necessary” and “reasonable. This is a question of fact – Bellgrove v Eldridge (1954) 90 CLR 613 at 619 and does not give rise to an appeal in this court.

12 The plaintiff’s counsel submitted that the Magistrate mis-directed herself when she said “I think the defendants are entitled to have the set-off met with regard to their reasonable costs and going through all of those the only item, which I do not accept, is the amount for the plants.” But if the judgment is read as a whole it is clear that she directed herself to which costs of the rectification were reasonable. There is no error of law. The appeal is dismissed. The judgment of Walquist LCM dated 23 August 2002 is affirmed. The summons is dismissed. Costs are discretionary. Normally costs follow the event. The plaintiff is to pay the defendants’ costs as agreed or assessed.

13 The court orders:

(1) The appeal is dismissed.

(2) The judgment of Walquist LCM dated 23 August 2002 is affirmed.

(3) The summons is dismissed.

(4) The plaintiff is to pay the defendants’ costs as agreed or assessed.
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Last Modified: 05/12/2003