Olympic Pool Consultants Pty Ltd v Richardson
[2000] NTSC 61
•27 July 2000
Olympic Pool Consultants Pty Ltd v Richardson [2000] NTSC 61
PARTIES:OLYMPIC POOL CONSULTANTS PTY LTD
v
RICHARDSON, Earle
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:LA5 of 2000 (9927505)
DELIVERED: 27 July 2000
HEARING DATES: 30 May 2000
JUDGMENT OF: MARTIN CJ
CATCHWORDS:
Appeal – general principles – whether to interfere with Judicial Registrar’s finding.
Small Claims Act 1974 (NT)
Local Courts Act 1989 (NT), s19(4)REPRESENTATION:
Counsel:
Appellant:Mr K Parish
Respondent: Self represented
Solicitors:
Appellant:Ken Parish, Barrister & Solicitor
Respondent: Self represented
Judgment category classification: B
Judgment ID Number: mar20021
Number of pages: 5
Mar20021
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINOlympic Pool Consultants Pty Ltd v Richardson [2000] NTSC 61
No. LA5 of 2000 (9927505)
BETWEEN:
OLYMPIC POOL CONSULTANTS PTY LTD
Appellant
AND:
EARLE RICHARDSON
Respondent
CORAM: MARTIN CJ
REASONS FOR JUDGMENT
(Delivered 27 July 2000)
Appeal from the decision of a Judicial Registrar sitting as the Local Court exercising jurisdiction under the Small Claims Act 1974 (NT). It involved a claim by the plaintiff against the defendant for $420.50 (?). The particulars provided with the Statement of Claim refer to “attached invoices”. I have had difficulty in reconciling the amount claimed, copy invoices and the evidence, but suffice it to say that the amount in dispute is somewhere between $307.50 and $457.50.
The plaintiff’s claim was for services rendered pursuant to an oral contract under which the plaintiff was to supply labour and equipment to pump concrete as core fill into block work forming part of extensions to a house being built by the defendant, as an owner builder.
The defence claimed that the job was not completed satisfactorily, that the plaintiff had accepted $150 in full and final settlement, a counter claim was raised for $350 to rectify the workmanship and a further $100 for removal of spilt concrete.
The plaintiff’s case was that it had delivered and pumped the concrete into the cores and it was up to the defendant to supervise and ensure that the cores were filled. The defendant said that the plaintiff was responsible for doing the job properly, and that it had failed to fill all of the cores. The Judicial Registrar upheld the defendant’s case and held that the plaintiff had breached the contract.
An appeal is enabled to this Court by s 19(4) of the Local Courts Act 1989 (NT) upon the grounds that the decision was wrong in law or the conduct of the proceedings was unfair. What is encompassed in the phrase “decision wrong in law” is uncertain. In the context of this appeal it seems to me that it encompasses the findings of fact from which a decision has been made, which decision is not open as a matter of law on the facts found. When exercising jurisdiction under the Small Claims Act, the Local Court is not bound by the rules of evidence and “is to conduct an enquiry into the matters at issue”.
I take the following to be the findings of fact (either express or necessarily implied by the reasons given) arrived at by the Registrar:
1. The plaintiff is a provider of concrete pumping services (par 1).
2. The defendant is an owner builder (par 2).
3. No price was agreed upon (par 3).
4.The plaintiff, through its principal witness, Mr Smith, held itself out as an expert in the area of fill pumping (par 15).
5.Mr Smith would have known that the defendant would rely on him to ensure the fill was properly poured (par 17).
6.Mr Smith had a duty to ensure that the fill was filling in the way it should have. He could have done that easily by checking whether there was slurry coming out at the bottom and whether there was moisture coming out where it ought to be showing (par 17).
8.Mr Smith arrived on site at about 2.30pm (par 21).
9.The time frame is important in that the consistency of the concrete depends on how long it had been mixed for (par 22).
10.By the time Mr Smith arrived at the site, at approximately 2.30pm, the concrete would have been one and a half hours old, and by the time pumping commenced, the concrete would have been two hours old and perhaps already drying out (par 23).
11.Consistency of the concrete was more likely to be what caused the problem rather than obstruction within the core itself (par 24).
12.It was Mr Smith’s responsibility to do the simple checks which were required and to rectify problems straight away. Mr Smith did not do those checks and did not ensure the consistency of the concrete was right for the purpose of the core fill (par 25).
13.The core fill in some places was inadequate (par 5).
I read the transcript and there is some evidence to support each of those findings of fact. I note that Mr Richardson, the defendant, at p 31 and p 32 describes his observations at the completion of the concrete pour, which on other evidence, would indicate that some of the cores had not been filled and that at p 6, Mr Smith in answer to a question from the Registrar, “So do you accept they weren’t filled?” answered “Yes. I believed what he told me”. A dispute between the plaintiff and its witnesses and the defendant and his witnesses as possible causes of the cores not being filled by the concrete poured by the plaintiff was resolved in favour of the defendant, that is, that when the process commenced the concrete was too dry. That was rectified later by the addition of water and the remaining cores were properly filled.
Based upon those findings, the Registrar held that the plaintiff was in breach of its contract with the defendant. That decision was not wrong in law. There was no claim by the plaintiff for that part of the core fill which was completed properly.
That was sufficient to dispose of the plaintiff’s claim. The Registrar, however, embarked upon a consideration of whether the price charged by the plaintiff was reasonable, presumably because it was an issue contested between the parties and because the defendant pleaded that the plaintiff “was not on site at the time stated on account”. That exercise was not completed because the Registrar first found in law that a payment of $150 made by the defendant to the plaintiff was in full and final settlement of the plaintiff’s claim and thus defeated it. Some of the grounds of the appeal went to the Registrar’s decision in that aspect of the matter, but as already indicated, it was not necessary for the Registrar to deal with it and it is not necessary for me to deal with the arguments on appeal.
Other grounds of appeal raised by the Notice of Appeal go to evidential issues which do not, in my opinion, make the decision from which the appeal is brought wrong in law. The Registrar was not bound by the rules of evidence, she had an obligation to enquire, her decision on credibility was wholly unfavourable to the plaintiff’s case, and it was open to her to come to her findings of fact without regard to the matters about which complaint is made.
The appeal is dismissed.
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