Norris v Hanson & Hanson No. Scgrg-98-101 Judgment No. S6882 - [1998] SASC 6882

NORRIS v HANSON & HANSON
[1998] SASC S6882

Magistrates Appeal
OLSSON J

This is an appeal, by a defendant at first instance, against the decision of a stipendiary magistrate sitting in the Civil Jurisdiction of the Magistrates Court.
That decision is supported by detailed written reasons running to some 123 pages. These reflect a close analysis of oral evidence and argument which spanned many hearing days.
As readily appears from the reasons, the learned magistrate was confronted with differing versions of historical fact which were impossible to reconcile. At the end of the day he made specific findings of relative credibility as to the principal parties and certain of the other witnesses called. These findings formed what were, essentially, the linch pin of the conclusions to which he ultimately came.
One of the major features of his findings was that the learned magistrate generally preferred the evidence of the male respondent/defendant and his witnesses to that of the appellant. A perusal of the published reasons readily reveals that there was a substantial body of evidence which supported the conclusion to which he came in that regard. It was a view fairly open to him, with which, on well settled grounds of principle, it is quite inappropriate for this court to interfere.
I do not find it necessary, for present purposes, to embark on a fully definitive analysis of the evidence.
The litigation stemmed from an informal agreement made between the appellant and the respondents in late 1995, whereby the latter, an earthmoving and civil construction contractor, undertook to develop a private airstrip on a property at Springton which had been purchased by the former. Disputes arose between the parties both as to the fundamental terms of the contract and also whether the airstrip works, as executed, conformed with the obligations of the respondents, as originally agreed. Additionally, the claim involved questions concerning the construction of a dam on the property, as incidental to what were the main contract works.
A major issue which arose at trial was as to whether the works related to the airstrip were to be executed for a fixed contract price, or were to be performed on what might be described as a “charge up” basis, reflecting time and plant actually expended and used.
At trial it was virtual common ground that, at the time at which work actually got under way, both parties understood that it was to be performed for an agreed, “all up” sum, “subject to finding rock”.
There is no doubt that this was based on a document signed on behalf of the respondents and expressed in these terms:-
“ 6/9/95
Greg Norris
Springton SA
To carry out works as discussed
1...... Cut & fill to desired falls and batters for airstrip
2...... Supply concrete pipes under airstrip and roadways Rocla 300 concrete pipes
3...... Excavate for dam
4...... Regrade existing road and roll
5...... Shape and form new section of road and supply and compact base material
6......…

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.

Continue reading Norris v Hanson & Hanson No. Scgrg-98-101 Judgment No. S6882

Details

AGLC: Norris v Hanson & Hanson No. Scgrg-98-101 Judgment No. S6882 [1998] SASC 6882
Case: [1998] SASC 6882
Decision Date: 9 October 1998

CaseChat Overview and Summary

In Norris v Hanson & Hanson, the appellant, Greg Norris, appealed against the decision of a stipendiary magistrate in the Civil Jurisdiction of the Magistrates Court. The dispute arose from an informal agreement between Norris and the respondents, Hanson & Hanson, a civil construction contractor, to develop a private airstrip on a property at Springton. The main issues involved the terms of the contract and whether the executed works conformed to the original agreement. The primary focus was on whether the contract was for a fixed price or on an hourly rate basis, and whether the airstrip was constructed according to the agreed specifications.

The court examined the evidence presented and the findings made by the magistrate, which were detailed and based on the relative credibility of the parties and witnesses. The magistrate found that the contract was agreed to be performed for an hourly rate after the initial fixed price agreement was altered due to unforeseen hard rock encountered during the earthmoving activities. The court upheld the magistrate's findings, stating that it was a view fairly open to him and inappropriate for the court to interfere. The court further found that the scope of the work, as described by Norris, was to cut the tops off the hills and fill in the valleys along the length of the runway, and not to create an even gradient as Norris claimed.

The court also rejected the appellant's claims regarding the implied warranty of fitness for the purpose of the airstrip and the mitigation of damages concerning the dam. The court held that the appellant did not rely on the respondents' expertise and skill for constructing the airstrip, and the failure to create an even gradient was a matter within the appellant's expertise. Regarding the dam, the court found that the appellant got what was contracted for and could not now claim additional costs for a larger capacity dam.

Ultimately, the appeal was dismissed on both grounds, affirming the magistrate's decision.

Orders