Oknalux P/L v Wille - [2018] SADC 75

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
OKNALUX P/L v WILLE
[2018] SADC 75
Judgment of His Honour Judge Clayton
18 July 2018
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
Application to review a judgment in a minor civil claim relating to a claim for payment of unpaid invoices. The plaintiff and the defendant entered into a contract pursuant to which the plaintiff was to supply and install new windows in the defendant's house property. The windows were installed but additional work was needed to fit the windows. The invoice for the additional work has not been paid by the defendant and the plaintiff's claim seeks payment of the invoice for the additional services and materials.
Held: There is no reason to disturb the decision of the Magistrate. Decision affirmed.

OKNALUX P/L v WILLE
[2018] SADC 75

This is an application to review the decision of a Magistrate in a minor civil claim.
The applicant, which was the plaintiff in the proceedings, carries on business supplying and installing windows which are imported from overseas. The plaintiff contracted with the defendant Mr Patrick Wille to supply and fit replacement windows at a residence which is owned by his wife.
In these proceedings the plaintiff claims $3402.25 being the amount of an invoice issued on about 30 December 2015. The invoice is said to relate to work which was additional to the original contracts. (Exhibit P1 – Document 3)
The proceedings have been confused by a number of peripheral issues. When they are stripped to one side the core issue relates to the plaintiffs claim that the defendant requested additional work to have ledges below the windows extended and to have architraves sanded and painted.
The claim comprises the sum of $667.67 being the trade cost of goods obtained from Bunnings and the sum of $2505 plus GST for labour.
Prior to the hearing in the Magistrates Court an inspection was carried out by Mr Peter Jankovic, the Magistrates Court building inspector. In his report he wrote:
3.7.3. It is my opinion from the details provided any cost as a result of the "extra work" required to be carried out such as alterations to front elevation and rear elevation window linings and nosing’s (by laminating timbers to the nosing’s) so that the finish of the works to the internal side of the openings meet the Defendant's expectation (subject to the agreed quotation/contract) was the responsibility of the Plaintiff and not the Defendant
...
3.8. It is my opinion that the Plaintiff should have ensured that the written contractual arrangement/agreement between the parties was clearly spelt out in Plain English on how the window and door openings were to be altered or not altered and what was included and wasn't and the type of materials to be used.
3.9. This was extremely important as the imported European UPVC windows and doors are made in the factory to standard "off the shelf sizes" and not to individual sizes.
...
3.11. Having made that point, following my inspection it is my opinion that the works have been carried out well by the Plaintiff...”
After referring to the report the learned Magistrate said that he agreed with the comments of Mr Jankovic and continued: [1]
The defendant was entitled to expect the new windows would be installed in such a way as to exactly fit the space previously occupied by the original windows. The defendant was entitled to expect the windows would be supplied and installed according to the plaintiff’s quotation and should not be expected to meet additional costs which resulted from a failure by the plaintiff to take account of any idiosyncrasies in the defendant's property.
[1] Judgement of Magistrate Fahey, 26 March 2018 at para [9].
His Honour concluded that the plaintiff had failed to satisfy him as to the merits of its claim and that the plaintiffs claim should be dismissed.
On the review Ms Matejko represented the applicant and Mr Wille, who is a legal practitioner, represented himself.
Ms Matejko eloquently and forcefully raised a number of matters which are not relevant to the invoice in question. For example she gave evidence of a supporting beam (T 17 and T 19) and a cavity in the wall (T 44 and T 46). She also gave evidence that the defendant approached her and advised that he did not like the way in which the work was being finished and stated that he normally sat in a particular position enjoying a glass of wine and that he did not like the ledge that was being created. She said he asked for the bottom sills of the windows to be extended "so for the bottom sill to go all the way to the window." (T 24-29). Later she said:
Mr Wille asks us whether we can actually change the bottom sill, replace them so it's larger and gives him more room that he doesn't have a step in it. That's what this is all about ... We had the discussion and I said to him, I said –... "Patrick do you realise that this is an extra cost?" He said "yeah, I'm quite happy to pay for it". We agreed on a price of that and that was put in. (T 26-2)
She said that the agreed price was $40 per hour per person to do the work and there was a written agreement which she no longer has on file because the supervisor of the project was no longer with the company. Ms Matejko gave evidence that the agreement said "for an additional work of replacing a sill and that it will be replacing the sills and that it would actually cover cost of material and labour and the cost of labour that was there." (T 26-36) Ms Matejko said that the handwritten document was signed by both the supervisor and Mr Wille. She said it was similar to an earlier contract extension which was included in the plaintiff’s document list.
She said that the contract provided that they would use MDF to finish off the work but that Mr Wille requested Tasmanian Oak which was purchased specifically for the contract. I note that the written contract which is in evidence (FN Ex. P1 doc. 2) does not refer to MDF.
An invoice from Bunnings lists the cost of timber and other items which are alleged to relate to the contract.
The issues that arise are whether there was a contract in the terms stated by Ms Matejko and if so what was the reasonable cost of the material and labour.
Ms Matejko referred to a quotation from another company for $4456 to do the work as evidence of the reasonableness of the labour cost. She said that the claim was made up of the cost of the material shown in the Bunnings invoice and the hours reported by the supervisor which purport to be a "summary of extra work". She said that all the work referred to in the summary was additional to the original contract. (T 37-18) In addition to the work extending the ledge work was carried out sanding and painting the architraves. Ms Matejko said that additional work was requested by Mr Wille. (T 64-10)
There is a peripheral issue as to whether the plaintiff had a building licence at the time that it carried out work. I am satisfied that the company did have a license.
Mr Wille gave evidence at the trial and on the review. He said that the work in question would not have been necessary if the original work had been installed properly. It was only because there was a gap between the existing ledge and the newly installed window that there was the need for the work. The gap was a result of the fact that the new window was installed on the outside of the wall whereas the old window was on the inside. The resulting gap had to be filled somehow. (T 71)
In his evidence Mr Wille said that he never asked the supervisor or Ms Matejko to paint or sand the architraves and that the only document which he signed was one which related to cutting bricks. He had no recollection of any other document that would contain an agreement on costs. (T 73)
Mr Wille argued that 70 hours to install roughly 8 or 9 meters of window sill was excessive. (T 80)
The evidence and the submissions are confusing. However the onus rested with the plaintiff to establish its case.
There is a dispute as to whether there was a written agreement for the additional work. The agreement has not been produced and there is a dispute as to whether it actually exists. In the circumstances I am unable to find that there was such an agreement.
It is significant that the defendant asserts that the work in question formed part of the initial contract. I respectfully agree with the observation of the Magistrate that the defendant was entitled to expect that the new windows would be installed in such a way as to exactly fit the space previously occupied by the previous windows, that the defendant was entitled to expect that the windows would be supplied and installed according to the plaintiff’s quotation and that the defendant should not be expected to meet additional costs resulting from the plaintiff's failure to take into account idiosyncrasies in the defendant's property.
If the installation of the new windows on the outside of the wall resulted in a gap between the existing ledge and the window that is something which the plaintiff was required to remedy. However the question arises whether the gap was to be filled by the use of Tasmanian Oak or whether MDF would have been sufficient.
If MDF had been used there would still have been labour to fill the gap. The evidence does not establish why the use of Tasmanian Oak rather than MDF should have involved any additional labour. The plaintiff has not established the reasonableness of the amount claimed for labour.
The plaintiffs claim is itemised in an email from Ms Matejko to Mr Wille dated 8 January 2016. (Exhibit P1 - Document 2) The work referred to in that email related amongst other things to a fly screen to the office door, internal linings posts in the back door, window frame construction, skirtings and flashings around posts and "… measuring up for, requiring, creating the Bullnose effect on the window sills and the installation of these materials. ..." The time for which a claim has been made related partly to the window sills but included other items also. It is impossible to tell what work was part of the original contract and what if anything was the result of the written agreement to which Ms Matejko has referred.
Mr Wille's argued was that the work involved in covering the gap was included in the original contract.
As to work alleged to have been carried out on 4 December 2017 the supervisor reported "I cannot vouch for exactly what James and Yaric were doing most of the time, we were all very busy. Aidan was mainly doing all the filling jobs that took time and left me free to attack the bigger things." The report from the supervisor does not establish what time was spent on replacing the sills and it does not establish the reasonableness of the plaintiffs claim.
On 9 December 2015 the defendant's wife emailed the plaintiff referring to a number of problems with the work which had been carried out and stating "I understand that the extra wood used to build the sills is additional cost." (Exhibit P1 - Document 6) On the basis of that email it would be reasonable for the defendant to pay the extra cost of the Tasmanian Oak. I am satisfied that Tasmanian Oak, rather than MDF, was used for the ledges as a consequence of a request from Mr Wille. However the evidence does not establish that the use of Tasmanian Oak required more labour than would have been required had MDF been used. It is significant that the email did not refer to any additional labour cost.
There are no timesheets from the workers and the evidence does not establish how much time was spent on the sills. Some of the items for which the claim has been made related to other items. There is also the fact that labour would have been required to install the sills even if MDF had been used.
On 22 March 2016 the defendant sent an email to the plaintiff observing "despite my renewed enquiry, there is still no information outlining who did what additional work that we arguably requested and that would exactly would go beyond the scope of the full paid contract, that was not caused by the wrong measurements. We are not sure what your people told you, but I was on site all the time and can most definitely say that, for instance, James and Janek did certainly not work 20 hours on December 3rd and 4th on what could be considered to be additional work commissioned by us." (Exhibit D1 - Document 15) The plaintiff responded by email on 24 March 2016 saying "I don't have the time to type out the work that was done on our windows outside the scope of what was originally quoted, my time is better spent on value added things in the business." (Exhibit D1 - Document 16) The plaintiff’s refusal to provide particulars of the time claimed does not assist the plaintiff’s claim.
I can see no reason to disturb the finding of the Magistrate in so far as it relates to the labour cost.
There is an argument that the defendant should pay the extra cost of the Tasmanian Oak which was used in lieu of the MDF. A number of items on the invoice from Bunnings relate to timber. Only 2 items relate to Tasmanian Oak. One relates to MDF and other items of timber relate to various types of pine. The defendant has complained that not all the timber was used on his job. It is not possible to ascertain from the invoice the extra cost of using Tasmanian Oak rather than MDF.
In my opinion the decision of the learned Magistrate should be affirmed.