Ong v Adelaide Retaining Walls - [2022] SASC 37

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Civil)
ONG v ADELAIDE RETAINING WALLS
[2022] SASC 37
Judgment of the Honourable Justice Parker
21 April 2022
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COURT SUPERVISION - AMENDMENT - ORIGINATING PROCESS, PLEADINGS ETC
COURTS AND JUDGES - JUDGES - POWERS AND DUTIES IN RESPECT OF UNREPRESENTED LITIGANTS
The appellant has appealed from a decision of a Magistrate in favour of the respondent in the amount of $67,176.67 (inclusive of GST), making an order for enforcement of a registered lien and awarding a sum of $5,800 in lieu of interest.
The appellant had engaged the respondent in July 2017 to perform substantial outdoor building works at her property, including construction of a retaining wall and fence between the appellant’s property and that of her neighbour. Once works had been substantially completed, the Respondent requested payment in the sum of $70,067.67. The appellant, who had paid only $4,600.68 by way of deposit, considered that the works were incomplete and defective and refused to make further payment.
In January 2019, the respondent filed a claim in the Magistrates Court in the sum of $70,076.67. Before the Court were eight quotations which had been exchanged between the parties relating to various iterations and stages of the works. It was the respondent’s position that the work undertaken was subject to quotes numbered 4, 7 and 8 in the value of $10,734.97, $18,738.50 and $40,603.20 respectively. The appellant claimed that the works were undertaken subject to quote 8 only and that the sum of $36,002.52 (taking into account the deposit) was only payable once the works were completed to a good and proper standard.
The trial was heard over nine days. At the commencement of the trial, the appellant made a written application to seek leave to file a counter claim in the sum of $90,000. The Magistrate refused this application on case management grounds given the inordinate delay in making the application and due to concerns around the prospects of the counter claim’s success. On a subsequent day in the trial, the appellant made an oral application seeking leave to amend her Defence in order to withdraw an unqualified admission in that document. The Magistrate refused to consider the application orally but invited the appellant to file a written application in accordance with the court rules. This did not occur.
Ultimately, the Magistrate found that the agreed works were the subjects of quotes 4, 7 and 8 totalling $70,076.67 and that this sum was due when the works were substantially completed on 17 December 2018. However, her Honour reduced this amount by $2,900 setting-off an amount which represented the appellant’s rectification costs relating to minor defects in the work.
The appellant appealed the decision to the Supreme Court. In an Amended Notice of Appeal, she raised several grounds which can broadly be summarised as follows:
1.The appellant was not afforded the opportunity to fairly put forward her case before the Magistrate including because she had not been permitted in the course of the trial to file a counter claim or make an oral application to amend her Defence.
2.The Magistrate had erred in law in failing to find that a term of the contract between the parties was that the Retaining Wall had to straddle the boundary between the properties.

3.      The Magistrate erred in law in finding that completion of the works had occurred.
Held, per Parker J:
1.      The appeal is dismissed on all grounds.
2.      Parties to be heard on costs.
Development Act 1993 (SA) ss 32, 60; Building Work Contractors Act 1995 (SA) ss 32(2)(a), 31(2)(c); Workers' Liens Act 1893 (SA) s 5; Evidence Act 1929 (SA) s 53; Magistrates Court (Civil) Rules 2013 (SA) r 12(2), 24(1)(c), 24(b), 64(1); Supreme Court Civil Rules 2006 (SA) r 54(4), 100(3); Uniform Civil Rules 2020 (SA), referred to.
Aon Risk Services Australia v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Fox v Percy (2003) 214 CLR 118; J Jarvis & Sons Hill v Westminster [1959] 1 WLR 1448; Murphy Corp Ltd v Acumen Design & Development (Qld) Pty Ltd (1995) 11 BCL 274, applied.
Jones v Dunkel (1959) 101 CLR 298, distinguished.
ACN 007 528 207 Pty Ltd (In Liq) v Bird Cameron (2003) SASC 429; Amatek Limited v Googoorewon Pty Limited (1993) 176 CLR 471; Cachia v Hanes (1994) 179 CLR 403; Centrestate Exports Pty Ltd v Amarantos Shipping Co Ltd [2005] SASC 158; Dietrich v R (1992) 177 CLR 292; Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; Hardie v Cuthbert (1988) 65 LGRA 5; House v The King [1936] 55 CLR 499; Juno Pharmaceuticals Pty Ltd v Millennium Pharmaceuticals Inc [2019] FCA 526; Kenny v Ritter [2009] SASC 139; State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, discussed.

ONG v ADELAIDE RETAINING WALLS
[2022] SASC 37
Civil

PARKER J: This is an appeal against the decision of a Magistrate awarding judgment in favour of the respondent in the amount of $67,176.67 (inclusive of GST), making an order for enforcement of a registered lien and awarding a sum of $5,800 in lieu of interest.
Grounds of appeal
Following an interlocutory application, the grounds of appeal were amended to read as follows (errors in original):
1.The learned Magistrate misdirected herself in holding -
a.     That it was not a term of contract for the retaining wall to be built straddled on the boundary between Mrs Ong and Mr Kapellas properties.
b.    That the discussions between Mrs Ong, Mr Kapellas and Mr Parson on 3 July 2017 was not evident of an agreement where the walled fence was to be built.
c.     That the location of the walled fence by AWR was necessary and reasonable as required by AWR’s engineers.
d.    That AWR had completed its entire obligations under its building contract with Mrs Ong on 17 December 2018.
e.     That Quote 7 of $18,738.50 was part of the works undertaken by AWR.
f. That AWR was not in breach of its statutory obligations under the Building Work Contractors Act 1995 (Building Act) and the Development Act 1995 for building the walled fence at the northern site of the property at the material time.
2.The learned Magistrate ought to have found that AWR had a duty under its contract with Mrs Ong to obtain -
a.     land survey of the boundary for the walled fence and/or ascertain for itself where the boundary was before commencement of work; and
b.    development approval is obtained for the walled fence and other works in the property on commencement of the building works.
3.The learned Magistrate ought to draw adverse inference against AWR for failing to call its engineers to give evidence on the building of the walled fence.
4.The learned Magistrate erred in law for not considering the following issues raised by Mrs Ong unless she filed a formal written application with supporting affidavit -
a.     that the walled fence on the south-eastern site of the property was not built up to the length of 38 meters as stipulated in the drawings.
b.    that AWR had agreed with Mrs Ong to create a 4 metre wide of level terraced garden on the northern site of the property.
c. that AWR had acted intentionally in contraventions of sections 32(2)(a) and (c) of the Building Act and s.32 of the Development Act 1995.
and as result Ms Ong, in the circumstances where she was self-represented, was prevented from adducing evidence and cross-examining on these issues and so aspects of the real controversy between the parties were not determined.
5.The learned Magistrate erred in law for turning down Mrs Ong’s oral application for leave to amend her admission in paragraph 9 of her Defence, and to put in a counter claim in her Defence, unless she filed a formal written application with supporting affidavit and as a result Ms Ong, in the circumstances where she was self-represented, was prevented from adducing evidence and cross-examining on these issues and so aspects of the real controversy between the parties were not determined.
Ms Ong seeks orders that the respondent’s claim be dismissed with costs or, alternatively, that the matter be remitted to the Magistrates Court for retrial.
The Notice of Alternative Contention
The respondent has lodged a Notice of Alternative Contention in the following terms (errors in original):
The Lodging Party contends that the decision could also have been made on the following grounds:
1.In respect of paragraph 4a. of the Notice of Appeal:
1.1    The complaint the subject that paragraph was not pleaded by the Appellant in her Defence.
1.2    To the extent that the complaint should have been addressed by the learned Magistrate (which is denied), the complaint was unmeritorious in that:
1.2.1Variations to the originally quoted works negated the necessity for up to 8 metres of the retaining wall that had been estimated at 38 metres in the original quote.
1.2.2The sleepers from this up to 8 metre section of the retaining wall were allocated by the Respondent towards the works the subject of the variations.
1.2.3Over the entire works, the Respondent supplied more sleepers than it had quoted for the entire works.
1.2.4No evidence as to quantum was adduced by the Appellant in relation to this unpleaded complaint.
1.2.5The Appellant did not establish any basis for a set off, or any other relief, in relation to this unpleaded complaint.
2.In respect of paragraph 4b. of the Notice of Appeal:
2.1    The complaint the subject that paragraph was not pleaded by the Appellant in her Defence.
2.2    To the extent that the complaint should have been addressed by the learned Magistrate (which is denied), the complaint was unmeritorious in that:
2.2.1The alleged 4 metre width requirement was not a term of the contract between the Respondent and the Appellant.
2.2.2Any discussion between the Appellant and Mr Brad Reddaway of the Respondent in relation to the width of the terraced garden occurred on 20 November 2018, being after the quote for the works concerned had been accepted, and did not have any contractual force, or consideration in contract.
2.2.3There was no independent or expert corroboration or evidence in relation to the measurements that were relied upon by the Appellant, and the measurements were therefore not established by the Appellant.
2.2.4If there was any difference between the alleged 4 metre width requirement and what has been constructed by the Respondent (which is not admitted), such difference was negligible and within reasonable tolerances.
2.2.5It was important to the Appellant that the wall of the lower terrace be built no closer than 6.5 metres from her house (as the Appellant acknowledged in her evidence), and in adopting that measurement, as the Respondent did, the lower terrace garden could not have been constructed any wider than it was.
2.2.6No evidence as to quantum was adduced by the Appellant in relation to this unpleaded complaint.
2.2.7The Appellant did not establish any basis for a set off, or any other relief, in relation to this unpleaded complaint.
3. In respect of paragraph 5 of the Notice of Appeal, if leave had been granted to the Appellant to bring a counterclaim alleging that the retaining wall was an encroachment for the purposes of the Encroachments Act (SA) 1944, the counterclaim would have been unsuccessful because the retaining wall is situated entirely on the Appellant’s land (as found by the learned Magistrate) and therefore it could not be an encroachment and the Encroachments Act (SA) 1944 does not apply.
Background
The appellant engaged the respondent in July 2017 to perform works which consisted of two main components. The first component involved the construction of a retaining wall and fence (collectively, the Retaining Wall) between the appellant’s property and that of her neighbour, Mr Kostas Kapellas, at 1 Joseph Avenue, Wattle Park.[1] The second component comprised substantial excavation, retaining and terracing works at the north-eastern side of the appellant’s property.[2] Those works included, amongst other things, a stepped retaining wall adjacent to the boundary with another neighbouring property at 8 Darrell Avenue (the Stepped Wall) and a 2.4 metre retaining wall to an upper terraced area created by the works (the Upper Terrace).
[1] Ultimately, on the Magistrate’s findings, covered by quotes 4 and 7.
[2] The Magistrate found this work to be covered by quote 8.
The respondent issued a total of eight quotes for the various iterations of the works. Quote 1 was issued to the appellant on 13 July 2017 for an amount of $28,435. Quote 2 issued on 17 July 2017 was a revised version of Quote 1 which reduced the amount to $27,500. Quotes 1 and 2 were then replaced by Quotes 3 and 4 issued around 24 July 2017 to Mr Kapellas for $12,164.35 (Quote 3) and the appellant for $15,335.65 (Quote 4) in relation to their respective share of the costs. Quote 5 was issued to the appellant on 24 July 2017 for an amount of $21,193.70. Quote 6 revised Quote 5 for a reduced scope of works for an amount of $14,393.50 which was provided to the appellant on 18 August 2017. Quote 7 was provided to the appellant on 23 October 2018 for an amount of 18,738.50 which was for works the subject of Quote 6 which had been subsequently revised. Quote 8 was issued on 26 October 2018 for an amount of $40,603.20 for additional works requested by the appellant.
A dispute arose between the parties as to which quotes had been accepted. The respondent argued that the appellant had accepted Quotes 4, 7 and 8, whereas the appellant contended that she had accepted only Quote 8 which replaced the earlier quotes. The appellant also contended that the work was incomplete and defective and that the amount of $40,603.20, as outlined in Quote 8, only became payable on completion of the works to a good and proper standard, free from defects. The appellant has not made any payment to the respondent other than a deposit of $4,600.68.
The Magistrate’s reasons
In summary, the Magistrate accepted, contrary to the appellant’s evidence, that the contract agreed between the parties was comprised of three quotes issued by the respondent, being Quote 4 issued around 24 July 2017 for an amount of $15,335.65, Quote 7 issued on 23 October 2018 for an amount of $18,738.50 and Quote 8 issued on 26 October 2018 for $40,603.20. The appellant had paid a deposit of $4,600.68.
The Magistrate held that payment for the works became due when the works were substantially completed on 17 December 2018. Her Honour also held that the appellant was entitled to set-off a total sum of $2,900, inclusive of GST, by way of rectification costs. Accordingly, her Honour awarded judgment in favour of the respondent in the amount of $67,176.67, inclusive of GST, and a sum of $5,800 in lieu of interest.
Breaches of Contract
The first breach of contract alleged by the appellant was that the Retaining Wall had not been “documented correctly in the engineering documentation”, nor had it been constructed in the correct position insofar as it does not straddle the shared boundary between her property and that of Mr Kappellas. The Magistrate held that, contrary to the appellant’s assertion, that it was not a term of the contract that the Retaining Wall would be built to straddle the boundary. Her Honour made that finding for several reasons. First, the contractual documents did not specify a location for the Retaining Wall. Secondly, there was nothing in the evidence of Mr Kapellas to indicate that he had requested or agreed to the Retaining Wall being constructed to straddle the boundary line. Thirdly, the location of the wall accorded with the engineering documents submitted to the Council. Fourthly, and most significantly, the building experts commissioned by the appellant and the respondent respectively, Mr Fred Centofanti and Mr Paul Effingham, both gave evidence that it was appropriate that the Retaining Wall should be situated entirely on the appellant’s property.
In relation to the appellant’s second allegation of breach of contract that the 2.4 metre rear Retaining Wall was only partially approved by the Council and was constructed 400 mm higher than required or documented, the Magistrate held that there was no breach of contract. The Council had approved the height of the Retaining Wall as being 2.4 metres in November 2019. The appellant also accepted in her evidence that Mr Leigh Parsons, a director of the respondent, had told her at the outset that the Retaining Wall would be 2.4 metres high. This evidence was consistent with the height depicted in the Quote 8 documents and the content of SMS messages between the appellant and Mr Greg Rawson, the respondent’s operations manager.
The Magistrate found in relation to the appellant’s third allegation of breach of contract that she was entitled to an amount of $1,600 inclusive of GST by way of set‑off for the supply and installation of extra walling. The Magistrate accepted the evidence of Mr Centofanti that the Retaining Wall should be increased in height in four locations where the driveway sloped to ensure that any soil placed in the garden bed would not build up against the fence sheeting. Mr Centofanti’s evidence was that this would be likely to prevent the fence from rusting. The Magistrate accepted Mr Centofanti’s evidence on this point and held that, to this extent, there had been a breach of the implied term of the contract that the building work would be performed in a proper manner to accepted trade standards.
The Magistrate further found that an amount of $500 should be allowed as a set‑off in relation to the appellant’s fourth allegation of breach of contract in relation to the voids around the steel U beams. However, her Honour accepted the evidence of Mr Effingham that the voids could be rectified by the plastic being cut and the area backfilled “with a bit of dirt” so that water self-drained.
The appellant alleged a further breach of contract that the Retaining Wall had been constructed with temporary timber battens left in situ. The Magistrate allowed a set‑off of $300 for this allegation on the basis that both experts agreed that the timber battens were a temporary measure. The experts also agreed that two sleepers incorrectly fell short of the steel upright between them. Her Honour allowed a further set‑off of $500 (including GST) for rectification of this defect.
The Magistrate held in relation to the appellant’s allegation that the respondent had breached an express term of the contract by failing or refusing to remove approximately 90 tonnes of waste fill, that while the respondent did remove 300 tonnes of soil in accordance with Quote 8, the removal of the remaining soil was not a term of the contract. Her Honour also found that there was no evidence to substantiate the appellant’s assertion that the respondent left stones and debris on site which required removal.
The Magistrate rejected the appellant’s assertion that the respondent broke a PVC stormwater pipe on the basis that Mr Kapellas had repaired the pipe. Her Honour also found that there was no evidence that the respondent’s actions had rendered a gate inoperable as asserted by the appellant.
Completion of the works and certificate of completion
The Magistrate held that the date of completion of the works was 17 December 2018 on the basis that for the purposes of the contract the date of completion must be judged by “practical completion” or “substantial completion” of the on‑site works, amounting to “completion for all practical purposes”. Her Honour observed that the appellant was able to take possession of the works and use them for the intended purpose as at 17 December 2018. Despite the fact that there were some minor deficiencies, they did not impair the integrity of the work. Payment could not be resisted for that reason.

The Magistrate also found that there was no contractual, or other, obligation that required the respondent to obtain a certificate of completion in order to enforce payment.
Unpleaded matters
The Magistrate rejected the appellant’s assertion that she did not need to specifically plead a contention that the respondent performed the work “intentionally in contraventions [sic] of” ss 32(2)(a) and (c) of the Building Work Contractors Act 1995 (SA) (the BWC Act), and that the defence of illegality operates in those circumstances to preclude the respondent from any entitlement. In any event, even if the contention had been pleaded, the Magistrate observed that there could be no illegality arising out of alleged breaches of the BWC Act. Her Honour held that s 32 of the BWC Act operates to imply warranties on the part of the building work contractor as contractual terms in domestic building work contracts but does not create statutory obligations. Thus, non‑compliance cannot give rise to illegality.
The appellant’s submissions on appeal
Fair trial
In essence, the appellant submits that she was not permitted the opportunity to put her case forward at trial. This involves two primary contentions.
The first such contention advanced by the appellant appears directly in ground 5 and indirectly in ground 1(e). She contends that the Magistrate erred in “turning down” her oral application to amend her Defence to withdraw the unqualified admission she had made at [9] and also by not permitting her to make a counterclaim.
Paragraph 9 of the claim alleged that:
On 23 October 2018 Ms Ong of the Defendants instructed the Plaintiff to proceed with the original Works as quoted as well as the First Variation for the previously quoted amount of $18,738.50. The Plaintiff then commenced the Works that included the additional works as quoted in the First Variation.
Paragraph 9 of the appellant’s Defence stated:
Shao admits paragraph 9 of the claim.[3]
[3] Ms Ong’s full name is Shao Ting Ong and she referred to herself as “Shao” in the Defence.
During the trial the appellant sought on several occasions, without making a formal written application, to withdraw that admission. The effect of the admission was that she acknowledged that had accepted Quotes 4 and 7, in addition to Quote 8. The Magistrate required any such application to be made in writing rather than orally but did not reject the application. In other words, her Honour declined to accept an oral application.
The appellant applied for permission to make a counterclaim at the commencement of the trial. The written application was supported by an affidavit. The proposed counterclaim would have alleged that the wall built between her property and that of Mr Kapellas encroached on her land by up to 34 cm. The appellant stated she expected to claim damages of up to $90,000. The Magistrate dismissed the application on case management grounds due to the inordinate delay which had not been satisfactorily explained and because it was strongly arguable that the counterclaim could not succeed.
The appellant submits that the Magistrate erred in finding that she did not make any application to amend her Defence. She had made clear that she wanted to amend her Defence but had not filed a written application and supporting affidavit. The appellant submits that this error affected the whole of the judgment by preventing her from pursuing cross‑examination in the manner that she intended. More specifically, the appellant submits that the Magistrate’s error in preventing her from withdrawing the admission made at [9] in her Defence affects her Honour’s finding at [12]. Her Honour’s finding at [12] was that even on the appellant’s case, $6,000 for the additional works, comparatively speaking, “is an extremely low figure for these works and in view of the appellant’s involvement in the process to that point” only takes effect if the appellant’s admission in relation to Quote 7 is included.
The appellant contends that, as a self-represented litigant, she lacked the understanding necessary to know what was required in order to amend her Defence. She was held to the strict standard of filing a formal application if she wished to ask questions in examination‑in‑chief and cross‑examination that fell outside of the topics raised in her Defence. The Magistrate ought to have allowed the appellant to make an oral application to amend her Defence, particularly in the context of being a self‑represented litigant with an imperfect understanding of the nature of pleadings.
In accordance with the decision of the Full Court of the Federal Court in Flightdeck Geelong Pty Ltd v All Options Pty Ltd (Flightdeck)[4], the appellant submits that while the Court must remain an impartial adjudicator it must also provide the limited assistance necessary to diminish the disadvantage which a self‑represented litigant will ordinarily suffer.[5] In the case of self‑represented litigants, the approach that questions can only be asked on matters that arise out of the pleadings ought not be strictly applied. The appellant submits that modern pleadings do not impose a rigid framework so that evidence which raises fresh issues may be admitted without objection at trial. To put the matter another way, cases are to be determined on the evidence, not the pleadings.
[4] [2020] FCAFC 138.
[5] Ibid at [53] – [54].
The second group of contentions concerning the fairness of the trial appear at grounds 4(a), 4(b) and 4(c). The appellant complains that she unsuccessfully sought at trial to raise the three matters listed in those grounds. Her submissions in relation to the alleged unfairness of the trial in the context of her desire to withdraw the admission that she had made at [9] in her Defence, also extend to those three grounds of appeal.
Location of the Retaining Wall and failure to call engineers
The appellant submits that the Magistrate erred in finding that it was not a term of the contract that the Retaining Wall was to straddle the boundary between the appellant’s property and Mr Kapellas’ property. The appellant submits that the Magistrate erred in the circumstances that:
(1)It was not in dispute that all parties knew that the Retaining Wall was to be a shared wall between the appellant’s property and Mr Kapellas’ property.
(2)The Retaining Wall was to replace an existing brush fence, removal of which was part of the scope of works in Quote 4.
(3)The respondent was responsible for drawing up and submitting the development plan to the Council on behalf of the appellant but did not undertake any boundary survey.
(4)It was the appellant’s responsibility to provide the correct survey marks, boundary/retaining wall locations pursuant to the terms and conditions.
(5)No witness gave evidence that the appellant had been consulted as to the location of the boundary or if the Retaining Wall ought to be built in any place other than along the boundary, nor was there any evidence that an engineer had turned their mind to where the boundary was. The appellant further submits that an adverse Jones v Dunkel[6] inference should have been drawn against the respondent due to its decision not to call an engineer to give evidence.
[6] (1959) 101 CLR 298.
Completion of the works
The appellant’s counsel merely contended in his written submissions in support of ground 1(d) that the Magistrate had erred in finding that completion had occurred despite there still being defects with the Retaining Wall. Counsel did not refer to this issue in his oral submissions.
The respondent’s submissions on appeal
Fair trial
In summary, the respondent submits that appeal grounds 4 and 5 must fail because the Magistrate struck an appropriate balance between providing assistance to the appellant as an unrepresented litigant and ensuring a fair trial for the respondent by not placing the appellant in a position of advantage or privilege. It would have been unwarranted, and prejudicial to the respondent, to dispense with compliance with the Magistrates Court (Civil) Rules 2013 (SA) (the MCR) for the benefit of the appellant.
The respondent submits that the essence of the case advanced by the appellant is that first, the Magistrate erred in failing to exercise her discretion under r 12(2) of the MCR to permit the appellant to amend her Defence during the course of the trial without making written application with a supporting affidavit as then required by r 64(1) of the MCR. Secondly, she should have been allowed to amend her Defence without providing any explanation by way of affidavit in relation to the question of lateness and the circumstances that led to the need for the amendment. Thirdly, the effect of her submission is that the principles stated by the High Court in Aon Risk Services Australia v Australian National University (Aon) should not apply to her.[7] Fourthly, she contends that she should have been able to pursue factual matters and cross‑examine the respondent’s witnesses in relation to matters that did not arise on the pleadings and were therefore irrelevant. Moreover, she contends that she should have been able to do that notwithstanding that the trial, which had been listed for five days actually ran for nine days, which was in no small part due to her being allowed, to a reasonable extent, to cross‑examine and give evidence beyond the scope of the pleadings. However, a line had to be drawn at some point.
[7] (2009) 239 CLR 175.
The respondent observes that the appellant has submitted that these several allowances should be extended to her even though she had the benefit of a defence that had been prepared for her by specialist building and construction lawyers and she also had the benefit of an extension of time that was granted with the consent of the respondent’s solicitors to enable her solicitors to obtain instructions and prepare her Defence. Moreover, the appellant had admitted at trial that she had read and effectively approved the draft Defence prior to it being filed by the solicitors who were then acting for her. Subsequently, both prior to and during the trial, the appellant had the benefit of legal advice from a Mr Lee, who was described as a New Zealand lawyer. At all times during the course of the trial, she was also assisted by a McKenzie friend.
The respondent points to the fact that, although the appellant is not qualified in law, she does have the benefit of an extensive tertiary education. While her solicitors had ceased to act for her some time prior to the commencement of the trial, she was capable of preparing and filing an application for permission to lodge a counterclaim with a supporting affidavit and the proposed counterclaim.
The respondent submits that these several matters establish that the appellant was in a very different position to most unrepresented litigants. Her position was similar to that of the unrepresented litigant whose circumstances were considered by the Full Federal Court in the Flightdeck case.
The respondent also submits that the Magistrate clearly explained on multiple occasions that she was not willing to permit the appellant to withdraw the admission made at [9] in her Defence unless she provided an explanation in an affidavit and submitted herself to cross‑examination. As the trial was conducted in three separate tranches, the appellant had ample opportunity to obtain advice about the issue. While the appellant has asserted that she was under a disadvantage because she was not aware of the rules concerning pleadings, nor of the need to make a formal application to amend a pleading, that contention has not been supported by an affidavit.
The respondent also points out that the appellant was permitted by the Magistrate to cross‑examine witnesses about several issues that had not been pleaded. These included the question as to whether or not she had accepted Quote 7, the fact that the Retaining Wall was not 38 metres in length and the fact that the lower terrace was allegedly not four metres in width. The only issue on which she was not permitted to give evidence or to conduct a cross‑examination was the alleged issue of illegality. However, the respondent submits that this contention had no prospects of success, as the Magistrate ultimately found.
The respondent also observes that neither the written nor the oral submissions advanced on behalf of the appellant, provide any detail as to the cross‑examination that the appellant contends that she was prevented from pursuing at trial. The submissions also do not provide any detail about the credit findings that the appellant says may have arisen in relation to those matters or how those credit findings may have been relevant to the findings made by the Magistrate in respect of other matters.
The respondent submits that the effect of the appellant’s submissions is that the Magistrate erred in the exercise of her discretion under r 12(2) to dispense with the mandatory requirement in r 64. That requires the appellant to demonstrate an error of the type recognised in House v The King[8] but she has failed to demonstrate any such error.
Unpleaded issues
[8] (1936) 55 CLR 499.
Illegality
The appellant contended at trial that the allegation of illegality had been pleaded in her Defence. The Magistrate rejected that contention and reaffirmed that finding on several subsequent occasions. Her Honour gave the appellant the opportunity to make a written application to amend her Defence so as to plead illegality on the part of the respondent but the appellant expressly declined to make such an application. As illegality constituted a “special defence” under r 100(3) of the Supreme Court (Civil) Rules 2006 (SA), that were applied by r 24(b) of the MCR, the allegation of illegality needed to be specifically pleaded. Moreover, that was a new and serious matter which the Magistrate described as a “knock-out blow”. In those circumstances, such a defence needed to be specifically pleaded in the interests of justice, as the Magistrate made clear to the appellant. In any event, the Magistrate correctly found that there could be no illegality arising from the provisions of the BWC Act because s 32 simply implies a warranty as a contractual term and does not impose a statutory obligation. Thus, non‑compliance does not give rise to illegality. The only remedy for breach of s 32 is a claim for a breach of contract. That was precisely the claim being pursued by the appellant.
Length of the boundary wall
Another unpleaded matter that the appellant sought to pursue at trial was the complaint about the length of the boundary wall. The Magistrate explained to the appellant that her late claim about being overcharged based on an allegation that the Retaining Wall was less than 38 metres in length, needed to be the subject of an admission by the respondent because that allegation had not been raised in the Defence. However, the appellant did not make an application to vary the Defence, either orally or in writing. The respondent objected to that issue being raised on the basis of relevance. Although evidence was given on the topic, it was always subject to that objection and therefore received de bene esse. The issue never became part of the real controversy between the parties. The Magistrate ultimately held that the subject was not relevant on the pleadings and did not address it in her judgment. If, contrary to the respondent’s submissions, there is found to be a lack of procedural fairness in relation to this question, the respondent relies upon [1] of its Notice of Alternative Contention where it contends that there is no basis for any set‑off in relation to this issue and that it did not affect the ultimate outcome of the proceedings. If it is necessary for the Court to determine this issue, the respondent submits that it can be decided on appeal without the matter being remitted to the Magistrates Court.
The suggestion that the Retaining Wall should have been 38 metres in length rather than 29.5 metres was not pleaded by the appellant in her Defence. The allegation was first raised by the appellant in cross‑examination of Mr Reddaway, the respondent’s site manager. The appellant contended that the wall needed to be 38 metres long so as to stop water flowing from Mr Kapellas’ property onto her property. Mr Reddaway rejected that suggestion. The expert called by the appellant, Mr Centofanti, stated that all that was required in the particular area was a plinth. He did not suggest that this was required to stop the flow of water but rather to prevent a build‑up of dirt that might come up against the fence. Mr Effingham stated that a plinth was not necessary. Thus, there was no expert evidence to support the contention that the Retaining Wall should have been built in that area. What the appellant said about this issue at trial was inadmissible as it represented a purported expert opinion given by a person who was not an expert. There was also no basis for a set‑off as there was no evidence about either the cost of the retrospective installation of a plinth or the cost of the additional Retaining Wall sought by the appellant.
Width of the lower terrace
The final unpleaded issue that arose at the trial was the width of the lower terrace. The appellant failed to amend her Defence to deal with this issue. The respondent had submitted at trial that the matter was either irrelevant or, at most, of limited relevance. Although evidence was given on the topic, the respondent maintained its objection on the basis that the evidence was neither relevant nor admissible. Thus, this matter did not become part of the real controversy between the parties. The Magistrate ultimately held that the matter was not relevant and did not decide the point.
The position of the Retaining Wall
The respondent submits that the appellant carried the onus of establishing, on her Defence, that the engineer should have specified that the Retaining Wall was to straddle the boundary between her property and that of Mr Kapellas, rather than being built entirely on her land. The appellant asserted that the discussion between her, Mr Kapellas and Mr Parsons gave rise to an oral term of the contract whereby the Retaining Wall was to straddle the boundary. The evidence given by the appellant merely established that the Retaining Wall and the new fence were to replace the existing brush fence. Neither the evidence of Mr Parsons nor that of Mr Kapellas support the appellant’s contention concerning this discussion. In any event, the respondent contends that not only was this discussion not sufficiently specific to give rise to a contractual term, but the discussion was merely preparatory to the provision of the first quote by the respondent.
Quote 4 included a term that the respondent was to arrange for an engineer to visit the site and prepare the necessary plans and calculations which were then to be submitted to the Council in support of the development application that was to be lodged by the respondent. The evidence of the appellant was that she relied upon the respondent to attend to those matters. The respondent submits that the Magistrate correctly found that the location of the boundary wall accorded with the engineering documents that had been submitted to the Council.
The expert witness called by the appellant, Mr Centofanti, and also the expert called by the respondent, Mr Effingham, both gave evidence that it was appropriate that the wall be built in the place specified by the engineer. Mr Centofanti acknowledged that it was clear that the primary need for the Retaining Wall was due to the earlier cutting of the appellant’s land and this made it reasonable for the Retaining Wall to be entirely situated on her property. It was for that reason that the appellant paid considerably more for the Retaining Wall than Mr Kapellas as additional retaining was required due to the cutting of her land. Moreover, Mr Effingham, Mr Parsons and Mr Reddaway all gave evidence that a Retaining Wall should not straddle a boundary. That is because a Retaining Wall serves a particular purpose, that being to retain land rather than to form a boundary.

Furthermore, the evidence of Mr Centofanti established that due to the location of the boundary and the position of the Kapellas driveway, it was not possible for the Retaining Wall to precisely straddle the boundary. That could only have occurred if the Kapellas driveway was cut and then shored up. That would have caused risk to the Kapellas property, required substantial engineering input and substantial additional costs. There would also have been a risk of a contravention of s 60 of the Development Act 1993 (SA) according to the evidence of both Mr Effingham and Mr Centofanti. In this light, the respondent submits that the Magistrate correctly found that it was reasonable to infer that Mr Kapellas would have been unlikely to agree to this interference with his driveway.
Failure to obtain a survey or to identify the location of the boundary
The respondent submits that although the appellant complains in ground 2(a) that the Magistrate should have found that the respondent was under a contractual duty to obtain a land survey of the boundary for the walled fence and/or to ascertain for itself where the boundary was before it commenced work, no contractual or other duty to this effect by the appellant was pleaded in her Defence. On that basis, the respondent submits that this ground of appeal is incompetent. The respondent further submits that the ground is otherwise without merit.
The respondent submits that the terms and conditions relating to Quote 4 and Quote 7 provided that the correct survey marks, boundaries and Retaining Wall locations were the responsibility of the property owner. Neither the appellant nor Mr Kapellas raised with the respondent the prospect of a survey being obtained. The emails between the appellant and Mr Kapellas, and between them and the respondent, did not refer to the appellant or Mr Kapellas acquiring a boundary survey. In fact, the appellant had previously had the boundary between her property and that of Mr Kapellas surveyed but she did not disclose this to the respondent. The respondent submits that the appellant believed and was willing to proceed on the basis that the existing brush fence represented the boundary line between her property and that of Mr Kapellas. He gave evidence in the same terms and also indicated that he considered a survey to be unnecessary.
The respondent further submits that to the extent that it had a contractual duty to identify the location of the boundary, which it denies, it complied with that duty on the basis that it reasonably identified the boundary as being represented by the position of the former brush fence. Mr Reddaway, the site supervisor for the respondent, used a stringline to mark out the location for the construction of the boundary wall and in doing that he adopted the line of the former brush fence as representing the location of the boundary. The approach taken by Mr Reddaway was reasonable and consistent with the understanding of the appellant concerning the location of the boundary. The evidence also suggests that the eastern face of the Retaining Wall was likely to be constructed so that it was as close as reasonably possible to the position of the stringline that was used by the respondent along the line of the former brush fence.
The respondent also referred to the decision of Young J in Hardie v Cuthbert where it was held that as a matter of common sense it was safe to presume that an old fence was on the proper boundary line without the need to resurvey the land, particularly where the neighbour consents to the work.[9] The evidence of both Mr Parsons and Mr Effingham was that it was ordinary industry practice to build retaining walls without a survey being conducted. The evidence of Mr Centofanti was that it was a matter between the neighbours as to whether a survey was necessary, but in circumstances where the survey had previously been carried out for the appellant and she considered that the brush fence represented the position of the boundary, then a survey was not required.
[9] (1988) 65 LGRA 5.
Alleged failure to obtain development approval before commencing works
The reference by the appellant in ground 1(f) of the Amended Notice of Appeal to building “the walled fence at the northern site [sic] of the property at the material time” is apparently intended to suggest that the respondent was in breach of the Development Act 1995 (SA) by commencing work on the Stepped Wall prior to obtaining approval under the Development Act. Ground 2(b) alleges that the Magistrate should have found that the respondent was under a contractual duty to obtain development approval for the Quote 8 works prior to their commencement.
The respondent points to the fact that ground 1(f) goes beyond what was pleaded in [14.4] of the appellant’s Defence where she had alleged, amongst other grounds, that the respondent was not entitled to any payment for the Stepped Wall until development approval was obtained. The appellant had also pleaded at [14.2.2(a)] that the Retaining Wall had only been partially approved by the Council and thus the respondent was not entitled to payment. However, the respondent contends that ground 2(b) of the Amended Notice of Appeal goes beyond the Defence in that it alleges that the respondent was under a duty to obtain development approval for the Quote 8 works prior to their commencement.
The respondent submits that although development approval for the Retaining Wall had been obtained on 7 December 2017, the works did not commence until 23 October 2018. The initial development approval related to a wall of a maximum height of three metres. However, the site conditions ultimately resulted in the Retaining Wall being built to a maximum height of 3.6 metres in accordance with engineering advice provided in November 2018. The Council gave retrospective approval for the increased height on 20 November 2019. Mr Centofanti and Mr Effingham both gave evidence that upon the necessary development approval being obtained retrospectively, nothing further was required.
The engineers, Herriot Consulting, had provided drawings and calculations for the Quote 8 works on about 3 November 2018 prior to the commencement of those works. The evidence of Mr Centofanti and Mr Effingham concerning development approval also related to the Quote 8 works. The Council had granted retrospective approval for those works on 20 November 2019. For these reasons, the respondent submits that the Magistrate correctly found that there was no breach of contract in relation to the obtaining of development approval from the Council in relation to the Stepped Wall and the Upper Terrace Wall.
Pursuant to the development approval for the Quote 8 works, the respondent refers to the email sent by Mr Parsons to the appellant on 26 October 2018, to which Quote 8 was attached, where he stated “[t]his pricing is based on us doing the work while on site and will include an amendment application to council for approval”. As the Quote 8 works were an extension of the other works being conducted by the respondent for the appellant, and were intended to proceed concurrently, it was implicit in this message that the application would involve the seeking of retrospective approval from the Council.
The evidence of Mr Effingham was that retrospective amendment to the development approval was a commonplace occurrence as was the practice of construction work continuing while an amendment was being considered by a council. The evidence of Mr Effingham also indicated that the respondent needed to proceed with the work as it was on a “critical path” that could not be delayed while waiting for the revised development approval and the site could not be left excavated and exposed. The respondent submits that the Magistrate clearly accepted this evidence. The evidence of Mr Parsons was to the effect that he considered the obtaining of a retrospective amendment to the development approval as being a formality. The delay by the respondent in applying for retrospective amendment to the development approval occurred because the appellant had not made payment.
The respondent also submits that the appellant has not established any loss or any entitlement to a set-off or any other form of relief arising from the fact that the Quote 8 works had commenced prior to the grant of development approval.
Adverse inference due to the failure to call any engineer
The respondent submits that the primary issue at trial in relation to the location of the Retaining Wall was not the location of the boundary but whether it should have been constructed wholly on the appellant’s side of the boundary, as occurred. The engineering documentation merely specified that the Retaining Wall should be constructed on the appellant’s edge of the boundary (wherever that may be). It is not the role of an engineer to locate a boundary and the engineer did not do so.
The appellant, the respondent and Mr Kapellas all proceeded on the basis that the brush fence represented the location of the boundary. The evidence also suggests that there was no material difference between the location of the brush fence and the true boundary. Furthermore, the eastern face of the Retaining Wall is likely to be constructed so that it is as close as reasonably possible to the position of the stringline that was used by the respondent along the line of the former brush fence.
The appellant carried the onus of establishing that the engineer should have specified that the Retaining Wall was to straddle the boundary line. She failed to discharge that onus.
The engineering plans and specification were received into evidence as business records under s 53 of the Evidence Act 1929 (SA). Those documents included the location of the boundary wall as specified by the engineers. The documents must also be considered in light of the evidence given about them by the independent building experts, Mr Effingham and Mr Centofanti. Those documents speak for themselves and indicate the location of the Retaining Wall as specified by the engineer.
The engineer attended the site prior to preparing the plans and specifications for the Retaining Wall that were submitted to the Council in September 2017. It can readily be inferred that the location of the Retaining Wall was specified by the engineer following his attendance at the site.
The respondent submits that the drawing of a Jones v Dunkel inference would not be sufficient to elevate the appellant’s case so as to satisfy the onus of proof in circumstances where the business records of the respondent’s engineer provided evidence of the facts contained therein and both of the expert witnesses (including her own expert witness) did not agree with her assertion that the Retaining Wall had been constructed in the wrong place.
Practical completion
The respondent submits that whether works have been practically completed is to be determined on the basis of “substantial completion” or, alternatively, “practical completion”.[10]
[10] Hudson’s Building and Engineering Contracts, 14^th ed. [3-066]-[3-067].
The respondent submits that the date of practical completion of the works under the terms and conditions for the Quote 4, Quote 7 and Quote 8 works was 17 December 2018. From that time, the appellant was able to take possession of the works and use them as intended. The arrangement between the parties was that payment was to be made when the onsite works were completed notwithstanding that the retrospective amendment of the development approval had not yet been granted at that time. The minor deficiencies in the works could be readily remedied, did not impair the integrity of the work, and did not provide a basis for the appellant to refuse payment.
Withdrawal of the admission
Although the appellant complains in ground 5 of the Amended Notice of Appeal that the Magistrate refused her application for leave to amend her Defence by withdrawing the admission made in [9], in fact, the relevant decision was the refusal of permission to make an oral application. The Magistrate required that the appellant make a written application with a supporting affidavit. That decision involved the exercise of a judicial discretion by the Magistrate pursuant to r 12 (2) of the MCR. The appellant has failed to identify any error of the type recognised in House v The King. Moreover, the respondent submits that the Magistrate made the correct decision. Under r 24(1)(c) of the MCR, an amendment to the Defence required leave. Rule 64(1) provided that an interlocutory application must be in Form 21 and accompanied by a supporting affidavit. The decision made by the Magistrate was not only reasonable, but in accordance with the Rules.
In support of its contention that the decision made by the Magistrate was both correct and appropriate, the respondent refers to the following matters. The Defence had been prepared by the firm of solicitors then acting for the appellant, on her instructions, and with the benefit of an extension of time consented to by the respondent. The admission contained in [9] was absolutely clear. That admission was also consistent with other paragraphs of the Defence. Unless those other paragraphs were also amended, the withdrawal of the admission made at [9] would have been of no, or limited, utility.
When the appellant stated that she wished to withdraw the admission, she described it as a “typo error”. The respondent agrees that the observation made by the Magistrate, that the admission was unlikely to consist of a typographical error.
The respondent submits that the appellant has provided an insufficient explanation about the circumstances in which the admission was made and why she sought to withdraw it during the trial. The admission related to a matter of considerable significance in the proceedings. Although the Defence had been filed on 1 March 2019, the appellant did not seek to withdraw the admission until the third day of the trial, on 6 May 2020.
The respondent had relied upon the admission in its opening address on 4 May 2020 and the late withdrawal of the admission was capable of causing substantial prejudice to the respondent. In these circumstances, case management considerations were of significance, having regard to the High Court decision in Aon.
The respondent also observes that the appellant was given multiple opportunities by the Magistrate to make a formal application to withdraw the admission with the support of affidavit evidence. She elected not to do so. As the trial was adjourned on two occasions for substantial periods, the appellant had ample time to make the appropriate application. By failing to make that application, the appellant did not demonstrate that there was a reasonable basis for the amendment of her defence so as to withdraw the admission.
The respondent notes that r 24(b) of the MCR provided that pleadings must comply with the Supreme Court Civil Rules 2006 (SA) (the SCR). The respondent contends that this may have the arguable result that r 54(4) of the SCR applied meaning that an amendment which involved the withdrawal of an admission required the leave of the Court or the consent of the other party.
The respondent also observes that the Uniform Civil Rules 2020 (SA) (the UCR) had not come into operation as at when the withdrawal of the admission was first canvassed by the appellant on 6 May 2020. The UCR commenced on 18 May 2020 and would have applied to any further application to withdraw the admission. UCR 71.1 requires leave of the Court to withdraw an admission.
The respondent submits that the authorities establish that it was reasonable for the Magistrate to require that any application by the appellant to withdraw the admission was to be made by way of a formal application with a supporting affidavit. The affidavit should explain the circumstances in which the admission was made and why it was now sought to be withdrawn during the trial.
The authorities referred to by the respondent were a decision of Duggan J in ACN 007 528 207 Pty Ltd (In Liq) v Bird Cameron[11], and the decision of Debelle J in Centrestate Exports Pty Ltd v Amarantos Shipping Co Ltd.[12]The respondent notes that these two matters were decided before the decision of the High Court in Aon and in the latter case Debelle J had referred to the decision of the High Court in State of Queensland v JL Holdings Pty Ltd[13] where the Court had placed less emphasis on case flow management considerations. The respondent also referred to the statement by Besanko J of the principles to be applied in Juno Pharmaceuticals Pty Ltd v Millennium Pharmaceuticals Inc.[14]
[11] (2003) SASC 429 at [15].
[12] [2005] SASC 158 at [25]-[32].
[13] (1997) 189 CLR 146.
[14] [2019] FCA 526 at [38].
The respondent further submits that the appellant did not take any, or any sufficient, steps to establish that the admission was incorrect in circumstances where, by inference, the late withdrawal of her admission may cause substantial prejudice to the respondent in its conduct of the case from the time that the admission had been made. The respondent also submits that the authorities to which it has referred also support a decision by the Court to refuse an application to withdraw the admission if the Court decided to re-exercise the discretion on appeal.
Quote 7 was part of the works independently of the admission
The respondent submits that even if the appellant succeeds in persuading the Court that the Magistrate erred in not permitting her to make an oral application to withdraw the admission made at [9] in her Defence, this will not affect the outcome of the appeal. The Magistrate found at [9] of her judgment that the appellant had authorised the works set out in Quote 7 because it was implicit that she knew the respondent was doing that work, which was undertaken while she was present without any objection.
The respondent also submits that the evidence supports the finding made by the Magistrate. The appellant had stated that she wished to proceed with the works that were the subject of Quote 6 with some modifications. That resulted in the provision of Quote 7 by email on 23 October 2018. The subsequent emails that passed between the appellant and the respondent made clear that the Quote 7 works were in addition to Quote 8 and that the appellant knew this to be the case. The appellant had also acknowledged by email that she was spending $70,000.
The respondent also submits that the contention by the appellant that she was somehow prevented from adducing the evidence that she wished to lead in relation to her non-acceptance of Quote 7 is baseless. Notwithstanding the admission that she had made at [9] of her Defence, the appellant gave extensive evidence in relation to this issue and was cross-examined at length in relation to the events relating to Quote 7 and the works done pursuant to that quote. The evidence of Mr Rawson was that the appellant had verbally accepted Quote 7 and that he had explained to her that Quote 7 was in addition to Quote 4 and Quote 8. There was no objection to this evidence. In these circumstances the Court was able to and did find that the appellant had authorised the Quote 7 works independently of the admission that she had made at [9] of her Defence.
Consideration
It is convenient to consider the grounds of appeal in an order that differs from that chosen by the appellant.
The written and oral submissions advanced by counsel for the appellant focused upon a complaint that she was denied a fair trial for two reasons. First, she was not permitted to pursue any factual matters that did not strictly arise from her Defence. Secondly, she was not permitted to apply to amend her Defence without filing a formal written application with a supporting affidavit. These matters are primarily pressed under grounds 4 and 5 of the Amended Notice of Appeal. I will deal first with ground 5.
Ground 5

The appellant alleges in ground 5 that the Magistrate erred in law by not permitting her to make an oral application for leave to amend her Defence by withdrawing the admission that she had made at [9], i.e that she had accepted Quotes 4 and 7 in addition to Quote 8. This refusal allegedly prevented her from adducing evidence and cross-examining on issues relevant to that and thus aspects of the real controversy between the parties were not determined. The appellant also complains about the refusal of the Magistrate to allow her to proceed with her counter claim.
The procedural decisions which are the subject of ground 5 occurred in circumstances where the appellant was self-represented. She contends that it was apparent that she did not understand the rules of pleadings nor the consequences of something not being pleaded and the need to make a formal application.
Before considering the specific allegations, it is necessary to refer to the general principles concerning the approach to be adopted where one party to the proceedings is not legally represented.
In Kenny v Ritter, after reviewing a number of authorities, including the decisions of the High Court in Cachia v Hanes[15] and Dietrich v R[16], decisions in New South Wales and in the United States and decisions by single judges of this Court, Gray and Layton JJ summarised the relevant principles in the following terms:[17]
[15] (1994) 179 CLR 403.
[16] (1992) 177 CLR 292.
[17] [2009] SASC 139 at [23].
These authorities clearly demonstrate that when the self-represented litigant is before the court, the judge must ensure that a fair trial takes place. In order to achieve this, the judge is required to assist the self-represented litigant. However, the judge must equally ensure that despite any assistance to the litigant in person, the perception of impartiality is maintained. In our view, the following principles emerge from the authorities discussed.
-A litigant has a fundamental right to appear in person. When faced with a litigant in person, the court is under a duty to give such assistance to that litigant as may be required to ensure that there is a fair trial. The purpose of the assistance is to ensure that as far as possible, the disadvantage that litigants may suffer as a result of lack of representation is adequately addressed.
-Although the duties of the court in relation to self-represented litigants are discussed by numerous authorities, it is difficult to ascertain a common approach as to the manner and form in which assistance is provided which can be applied in practice to all circumstances. This is unsurprising bearing in mind the myriad of circumstances in which litigants may appear in person. However, the authorities do provide general guidance as to principles which can be applied by the courts.
-Judicial assistance would include ensuring that unrepresented litigants are aware of their substantive and procedural rights, which in turn would depend upon the nature and circumstance of the case.
-The degree and form of the judicial assistance required depends upon several factors, including the overall knowledge and skills of the litigant and the particular circumstances of the case.
-Judicial assistance is to be limited to that which is necessary to diminish so far as possible the disadvantage that the unrepresented litigant will suffer when another party or parties are represented by a lawyer. It is a matter of redressing imbalance so far as possible but at the same time ensuring that the party who is represented is not thereby disadvantaged and thereby obtains less entitlements.
-In order to provide assistance to redress any imbalance or disadvantage which may arise by reason of lack of legal representation, the court should first assess the degree to which an unrepresented person may require assistance. This is not to be an automatic assumption.
-It is not part of the role of a judge to become an advocate for the unrepresented person; or stand in the shoes of counsel acting for that litigant; or unduly interfere with the conduct of the trial on the litigant’s behalf. Instead, the court has the difficult task of striving to achieve a balance between these seemingly conflicting duties to ensure that there is a fair trial.
-The court at all times is under an obligation to maintain the appearance of impartiality and neutrality and not be seen to apply preferential rules to the self‑represented litigant to the disadvantage of the represented litigant.
Anderson J held in Kenny v Ritter that it is was unnecessary to decide in that case questions of general importance about unrepresented litigants. Nevertheless, his Honour commented that:[18]
It is very difficult for a trial judge faced with an unrepresented litigant to assist the unrepresented party to the degree regarded as appropriate and, at the same time, ensure that justice is done so that the other side is not unduly prejudiced by the trial judge’s involvement in the evidentiary process.
[18] Ibid at [95].
His Honour also stated that:[19]
It is important that the trial judge should, in my view, adopt a role which ensures that the litigation is completed in an orderly way but protects the unrepresented party from any important omissions on key aspects of the case. The trial judge will assess the particular needs of the litigant and the litigant’s ability to grasp the relevant concepts.
[19] Ibid at [98].
On Friday, 1 May 2020 the appellant lodged an interlocutory application seeking the adjournment of the trial that was to commence on the following Monday morning. The basis for the proposed adjournment was that she wished to make a counter claim against the respondent and possibly also join Mr Kapellas as a party.
Contrary to the suggestion in ground 5 of the Amended Notice of Appeal, the proposed counter claim was the subject of a written, rather than oral, application that was filed with a supporting affidavit. The appellant asserted in her supporting affidavit that as she was unrepresented, she did not know that she could make a counter claim. However, “after getting a solid advice from my legal counsel” she believed she had a proper basis for a counter claim and sought an adjournment so she could work on that claim. The draft counter claim sought damages of $90,000 for “encroachment, damages and overall defects on the whole project”. The appellant asserted in her affidavit that the Retaining Wall had encroached onto her land by up to 34 centimetres along the entire length of the wall.
Prior to the commencement of the trial, the Magistrate heard detailed submissions from counsel for the respondent and from the appellant concerning her proposed counter claim. During those submissions, she also stated that she now wanted to apply for the respondent’s claim to be struck out on the basis it sought to enforce a lien under the Workers Liens Act 1893 (SA). The appellant contended that the respondent could not enforce a lien as it was a contractor rather than an employee.
The respondent opposed the adjournment and strike‑out applications. Counsel submitted that because the Retaining Wall was built entirely within the property of the appellant it could not constitute an encroachment. For there to be an encroachment, it was necessary that a structure straddle the boundaries between adjoining parcels of land. Counsel also noted that s 5 of the Workers Liens Act specifically authorises a contractor or sub‑contractor to place a lien where they have not been paid for work done on land. Counsel also referred to the fact that the appellant had been in possession of a survey report for at least 14 months which established that the Retaining Wall had been built entirely on her land. During that period, she had been legally represented. There had been multiple interlocutory proceedings where the issue could have been raised. Instead, contrary to the case management principles stated by the High Court in Aon, the appellant had delayed action until the commencement of the trial.
After retiring briefly to consider the issues, the Magistrate delivered an ex tempore ruling. Her Honour held that the paramount consideration was the just resolution of the proceedings and the principles set out in Channel Seven Adelaide Pty Ltd v Manock[20]. Her Honour referred to the prejudice likely to be suffered by the respondent, the additional costs likely to be incurred, the inefficiency likely to result from the need to revisit interlocutory processes and the undermining of confidence in the administration of justice. These matters combined so that the adjournment should not be granted.
[20] [2010] SASCFC 59.
The Magistrate indicated that her reasons for reaching that view included her acceptance that there had been an inordinate delay in making the application in circumstances that had not been satisfactorily explained by the appellant. Her Honour also considered that it was at least strongly arguable that the appellant could not succeed on the proposed counter claim as a matter of law.
I understand that the reference by her Honour to the decision in Channel Seven Adelaide Pty Ltd v Manock was to the judgment of the Full Court. In that case, Bleby J (with White J agreeing, Gray J dissenting) discussed and ultimately summarised the principles stated by the High Court in Aon. Bleby J stated: [21]
[21] Ibid at [46].
It follows from these two cases that there are a number of relevant matters that will need to be taken in to account in determining whether a late application for permission to amend should be granted. Those matters include:
(1)Whether there has been undue delay in making the application;
(2)The extent to which there will be wasted public resources in granting the amendment;
(3)Whether there will be inefficiency occasioned by the need to revisit interlocutory processes;
(4)Whether a trial date would need to be vacated or a trial adjourned;
(5)Whether there is any satisfactory reason for the delay in applying;
(6)Whether the point to be raised by the amendment would be raised in any event at the trial;
(7)The likelihood of strain and uncertainty being imposed on the litigants;
(8)Whether any further delay would undermine confidence in the administration of civil justice;
(9)Any other prejudice likely to be suffered by the other party;
(10)The additional costs likely to be incurred.
The Magistrate applied such of those principles as were relevant to the determination of the application made by the appellant. The application to adjourn the trial had been left to the last possible moment even though the appellant had been aware of the facts upon which she now wished to rely for 14 months. Until 26 August 2019, she had been legally represented. She apparently received some informal, but qualified, legal assistance thereafter from Mr Lee. The Magistrate did not err in her assessment of the prospects of the counter claim succeeding on the information then known. As the Retaining Wall was built entirely on the land of the appellant, the decision of the High Court in Amatek Limited v Googoorewon Pty Limited makes clear that her proposed claim for damages could not possibly succeed to the extent that it was based on the Wall being an encroachment.[22]
[22] (1993) 176 CLR 471.
There was no procedural unfairness in the approach adopted by the Magistrate. Both parties were given ample opportunity to make submissions about the proposed adjournment and her Honour sought, where appropriate, to clarify the points being advanced by the appellant. Her Honour’s decision was clearly well within the bounds of her judicial discretion. There was no process error or outcome error in the House v The King sense. I therefore reject the contention in ground 5 that the Magistrate erred in law by refusing to adjourn the proceedings so as to allow the appellant time to prepare her counter claim. In these circumstances, it is unnecessary to consider paragraph 3 of the respondent’s Notice of Alternative Contention.
Although the decision of the Magistrate to dismiss the application for an adjournment of the trial so that the appellant might pursue the proposed counter‑claim is not one of the grounds of appeal, the matter has been referred to in the context of the general submission about the alleged unfairness of the trial. I do not consider that there was any unfairness in the approach adopted by the Magistrate. Both parties were given ample opportunity to make submissions about the proposed adjournment and her Honour sought, where appropriate, to clarify the points being advanced by the appellant. In view of the principles stated in Aon and Manock, the decision made by the Magistrate was clearly well within the bounds of her discretion.
I turn to the further complaint raised in ground 5, that being whether the Magistrate erred by requiring the appellant to lodge a written application for permission to amend her Defence by withdrawing the admission contained at [9]. Ground 5 also complains that the appellant was prevented from adducing evidence and cross‑examining about “these issues” so that aspects of the real controversy between the parties were not determined.
The appellant first made an oral application to amend her Defence on day 3 of the trial. She claimed that the admission was a typographical error. In response to the observation by the Magistrate that it was unlikely that the admission was a typographical error, the appellant stated, “because this was actually prepared by my lawyer”. The Magistrate observed that she would not be quick to assume that experienced lawyers in this field who had prepared the appellant’s Defence would make such a mistake. Her Honour also pointed out that the change in position by the appellant was quite significant as she had filed her Defence on 1 March 2019 (i.e. over 14 months earlier) and was now seeking to move away from the admission part-way through the trial and present a case the opposite of that previously put forward.
The Magistrate went on to explain to the appellant that she would need to make a written application supported by sworn evidence as to the circumstances that led to the admission being made in her Defence. Depending upon what the appellant said about that matter, it may be necessary for documents held by her former lawyers to be produced and the Court may need to hear evidence from them.
The Magistrate stated that she would proceed on the basis that there was no application because there was nothing formally before her. At that point the appellant asked, “so I would need to put in a formal application?” to which the Magistrate answered, “yes”. The Magistrate then reiterated that it would need to be done urgently and supported by detailed sworn evidence in the form of an affidavit to which the appellant responded, “yeah, ok, I will discuss that with my ‑”. While the appellant did not finish the sentence, it is reasonable to infer that she proposed to discuss the matter with the person whom she had stated was providing her with legal advice.
On a number of subsequent occasions, the Magistrate explained to the appellant that if she wished to withdraw the admission contained at [9] in her Defence, or otherwise amend her Defence, it was necessary for her to file a written application supported by a sworn affidavit. The last occasion when that occurred was at 4:55 p.m. on the penultimate day of the trial when the withdrawal of the admission made at [9] of the Defence again became an issue. The Magistrate reiterated to the appellant that if she intended to amend her Defence, she must place a formal application before the Court when the hearing resumed the following morning. That did not occur.
It has been submitted on behalf of the appellant that she did not properly understand the nature of pleadings and what was necessary in order to amend her Defence. Thus, it is submitted that the Magistrate erred by not permitting the appellant to make an oral application. I reject that submission for several reasons.
First, immediately prior to the commencement of the trial the appellant lodged an interlocutory application for adjournment of the trial and lodgement of a counter claim with a supporting affidavit. This indicates that either she had an adequate understanding of court procedure, or had access to advice, that would have been sufficient to enable her to lodge a written application to amend her Defence. Secondly, even if her understanding was limited, the Magistrate provided a clear explanation to the appellant on several occasions as to what steps were required if she intended to seek permission to amend her Defence. Thirdly, throughout the trial the appellant was assisted by a McKenzie friend. More significantly, she was also obtaining advice from a New Zealand lawyer, a Mr Lee, whom she described as her “legal counsel”. Fourthly, the trial was conducted in three stages, i.e., from 4 May 2020 to 8 May 2020; 15 June 2020 to 19 June 2020; and 27 July 2020 to 30 July 2020. The intervals of more than five weeks between each stage of the trial provided the appellant with ample opportunity to prepare the required application. Fifthly, the appellant has the benefit of an extensive tertiary education. She holds a Bachelor of Science degree and a Master of Science in Traffic and Highway Engineering. Both of those degrees were awarded in Canada. She practiced in the field of traffic and highway engineering in that country for some years. She also holds a Certificate IV in Property Services and a Diploma of Property Services, Agency Management. Those two qualifications were awarded by the Real Estate Institute of South Australia. The latter diploma qualifies her to manage a real estate agency. She also holds a qualification as a mortgage broker and had worked in that capacity for five years up until the time of trial. While the appellant’s education is not in law or legal practice and English is not her first language, her various attainments suggest above average intelligence and a sound working knowledge of English. This links back to my second point that she should have been well capable of understanding the clear explanation given by the Magistrate, particularly as what was required was to repeat what she had achieved a few days earlier, i.e. lodge an interlocutory application supported by an affidavit explaining her reasons.
In light of these various matters, but in particular the first three that I have listed (which were known to the Magistrate at the time she first required a formal application on the third day of the trial), I accept the respondent’s contention that the appellant was better placed than many self-represented litigants to respond appropriately to the clear explanations provided by the Magistrate.
Furthermore, I do not accept that the Magistrate erred in requiring that the appellant make a formal written application supported by an appropriate affidavit before the Court could consider her application to amend her Defence. I agree with the observation by the Magistrate that it was very unlikely that the admission was due to a typographical error. It was therefore necessary that the appellant provide a comprehensive explanation of the circumstances that led to the making of the admission, particularly as the Defence was prepared and filed by the solicitors then acting for her. She also needed to explain why she had not sought to withdraw the admission until more than one year after it was made and then only on the third day of the trial after counsel for the respondent (being at that time the plaintiff) had relied upon the admission in his opening address on the first day of the trial. If the appellant intended to maintain her assertion that her former solicitors had failed to act in accordance with her instructions, that very serious allegation needed to be recorded in an affidavit. As the Magistrate explained, because this allegation would constitute a waiver of legal professional privilege, steps could be taken to call for production of her former solicitor’s file and the taking of oral evidence from the solicitor.

For these reasons, I consider that it was well within the reasonable exercise of the Magistrate’s discretion to require a formal application to amend the Defence with an explanation being provided in an affidavit about the matters I have noted in the preceding paragraph. That was particularly important given the suggestion by the appellant (repeated several times during the trial) that there was to be an allegation of professional negligence made against her former solicitor. In these circumstances, the decision by the Magistrate not to allow an oral application to amend the Defence did not give rise to any error of the type recognised in House v The King. I also do not accept that there was any denial of procedural fairness or that her Honour’s decision was contrary to the interests of justice.
For these several reasons I dismiss ground 5 of the Amended Notice of Appeal.
Grounds 1(a), (b) and (c)
The appellant contends in ground 1(a) that the Magistrate misdirected herself in holding that it was not a term of the contract for the Retaining Wall to be built so that it straddled the boundary between her land and that of Mr Kapellas. In essence, ground 1(b) raises the same complaint. The appellant asserts in ground 1(b) that the Magistrate erred in finding that the discussion held on 3 July 2017 between the appellant, Mr Kapellas and Mr Parsons was not evidence of an agreement as to where the Retaining Wall was to be built.
The evidence established that prior to the building of the Retaining Wall entirely on the land of the appellant, a brush fence was located in the position that was apparently the boundary between the appellant’s land and that of Mr Kapellas. I have read and carefully considered the evidence given by the appellant, by Mr Parsons and by Mr Kapellas concerning the meeting held on site on 3 July 2017. There was a discussion to the effect that the Retaining Wall was to replace the existing brush fence. However, it is also clear that there was no specific discussion as to the precise location of the Retaining Wall. Mr Parsons stated that he had told the appellant and Mr Kapellas that the concrete footing for the brush fence needed to be removed to allow construction of the Retaining Wall but he had not said that the wall would be placed in the exact location of the brush fence.
In view of this evidence, I reject the contention that the Magistrate erred by not finding that the discussion on 3 July 2017 was evidence of an agreement as to where the Retaining Wall was to be built. The evidence did no more than establish that the appellant may have assumed the wall was to be built in precisely the same location as the brush fence. It is clear that there was no agreement reached on 3 July 2017 between the contracting parties as to the precise location of the Retaining Wall.
Moreover, as the respondent has submitted, the discussion on 3 July 2017 was a preliminary discussion that led to the issue of Quote 1 on 4 July 2017. That quote made no mention of the location of the Retaining Wall although it did include a specification and description. The quote also noted that an engineer was to visit the site and draw up all relevant plans and calculations.
For these reasons I dismiss ground 1(b).
The appellant complains in ground 1(c) that the Magistrate erred by holding that the location of the Retaining Wall was necessary and reasonable as required by the respondent’s engineers. Quote 4 included a fee for the respondent’s engineer to visit the site and to draw up all relevant plans and calculations which were then to be submitted to the Council with the application prepared by the respondent on behalf of the appellant. The evidence of the appellant was that she was content for the respondent to attend to those matters and trusted it to do so.
The Magistrate found that the Retaining Wall had been constructed in accordance with the engineering documents ultimately approved by the Burnside Council and was located in the correct position. Her Honour’s finding was in accordance with the evidence given by the engineering expert called by the appellant, Mr Centofanti. He also stated that the wall needed to be built entirely on the appellant’s land as the need of the wall had arisen because of the cutting of her land. Mr Centofanti also acknowledged that the Retaining Wall could not be built on the boundary with Mr Kapellas’ land because that would cause damage to his driveway contrary to s 60 of the Development Act.
Mr Centofanti initially suggested that the Retaining Wall might have been built some 10 to 15 centimetres closer to the boundary. However, he later conceded after having been provided with additional information, that the location specified by the engineer was reasonable.
Mr Effingham, the expert engineer called by the respondent, stated that the Retaining Wall could not be built 10 to 15 centimetres closer to the boundary without encroaching on the property of Mr Kapellas. That was because the piers required to support the U beams would need to cross into his land if the beams were to be placed precisely on the boundary. That would require the removal of part of Mr Kapellas’ driveway. This could not occur without the consent of Mr Kapellas. He also suggested that it would be necessary to record such an arrangement on the Certificates of Title for the respective properties. Mr Effingham stated that the industry practice was that whoever was altering the lay of the land, whether by cutting or filling, was required to build the retaining structure on their property. Thus, as the appellant was cutting the land, the Retaining Wall needed to be on her side.
Mr Parsons also stated that it was very rare for a retaining wall to straddle a boundary. While fencing would straddle a boundary, that would only occur with a retaining wall if for some reason an engineer or a council directed that this was to occur. I note that the specifications prepared by the engineers engaged by the respondent did not include any such direction but instead expressly instructed: “Do not excavate over boundary”.
In view of the evidence of Mr Parsons, Mr Effingham and Mr Centofanti, and the advice of the engineers, I reject the contention in ground 1(c) that the Magistrate erred in finding that the location of the Retaining Wall was necessary and reasonable as advised by the engineers retained by the respondent.
In view of my finding that grounds 1(b) and 1(c) must be dismissed, I also reject ground 1(a). I find that the Magistrate did not err in holding that it was not a term of the contract for the Retaining Wall to be built straddling the boundary between the property of the appellant and that of Mr Kapellas.
Ground 2(a)
The appellant contends in ground 2(a) that the Magistrate should have found that the respondent was under a contractual duty to obtain a survey of the boundary and/or to ascertain for itself where the boundary was located before commencement of work.
The respondent submits that ground 2(a) is incompetent as the appellant had not pleaded in her Defence that the respondent was under any contractual duty to obtain a survey before commencing work. Furthermore, the written submissions lodged on behalf of the appellant acknowledge that the contractual terms and conditions specifically provided that “correct survey marks, boundary/retaining wall locations are the responsibility of the contracted client/property owner”.
I also note that the Magistrate simply recorded that although the contractual terms and conditions provided that the appellant was responsible for providing the correct survey marks, boundary/retaining wall locations, and she had the boundary surveyed, there was no evidence that she had given that information to the respondent. Her Honour did not make any specific finding on this issue.
While ground 2(a) is not competent insofar as it asserts a contractual duty that had not been pleaded by the appellant in her Defence, to the extent that this ground might provide further particulars of the matters referred to in grounds 1(a) and 1(c), I will briefly examine the issues.
The evidence of Mr Kapellas was that he did not mention to the respondent that a survey should be obtained and Mr Parsons also stated that the appellant had not raised that matter with him. The emails between the appellant and Mr Kapellas and between them and the respondent also did not refer to a survey being obtained. However, as I have noted, the appellant had previously had a survey of her boundary with Mr Kapellas’ land but did not inform the respondent of that fact. The evidence of the surveyor, Mr Gluis, was that the brush fence was located approximately on the boundary at the southern end and that, although he was not certain of the position of the fence at the northern end, he thought that it was close to the boundary. The appellant believed, and acted on the belief, that the brush fence correctly represented the boundary.
The respondent’s site supervisor, Mr Reddaway, indicated in his evidence that he had used a string line to mark out the location of the construction of the Retaining Wall. He worked on the basis that the position of the brush fence indicated the position of the boundary. That was consistent with the understanding held by the appellant.
As I have found above, ground 2(a) is not competent insofar as it asserts a contractual duty that had not been pleaded by the appellant in her Defence. To the extent that this purported ground constitutes a further particular, I do not consider that it adds anything to the matters contended in support of grounds 1(a) and 1(c).
Ground 2(b)
The appellant contends in ground 2(b) that the Magistrate erred by not finding that the respondent was under a contractual duty to obtain development approval prior to commencing work on the Retaining Wall and the other building works. The words “other works” apparently refer to the Stepped Wall and the Upper Terrace.
The appellant pleaded in her Defence that the respondent was in breach of contract because the Upper Terrace wall had only been partially approved by the Council. On that basis, she pleaded that the respondent was not entitled to any further payment until Council approval was obtained. The respondent contends that ground 2(b) of the Amended Notice of Appeal goes beyond the allegations in the Defence insofar as it alleges a contractual duty to obtain development approval prior to the commencement of the works.
The Burnside Council granted development approval for the Retaining Wall on 7 December 2017 but work did not commence until 23 October 2018. The approval granted by the Council related to a wall with a maximum height of three metres. However, the conditions at the site resulted in the wall being built to a maximum height of 3.6 metres. The respondent’s engineers provided the necessary advice to support the increased height in November 2018. On 20 November 2019 the council granted retrospective approval for the increase in height. The evidence of Mr Centofanti (the expert called by the appellant) and Mr Effingham (the respondent’s expert) stated in evidence that upon the Council granting approval for the increase in height with the appropriate engineering documentation, nothing further was required. Mr Effingham also stated that the retrospective grant by councils of development approval in circumstances such as this was commonplace. It was also the practice for work to continue while the application was being considered by a council.
At the hearing, Mr Parsons gave evidence that he provided Quote 8 to the appellant on 26 October 2018 by email stating that the price was based on the work being done while the respondent firm was on site and included an amended application being made to Council for approval. I accept the correctness of the respondent’s submission that it was implicit in this email that the application would be seeking retrospective approval and that work was to proceed while the respondent remained on site.
Mr Effingham stated in his evidence that it was necessary for the respondent to proceed with the work while its workers remained on site as the site could not be left excavated and exposed. Further evidence given by Mr Parsons was that the delay in applying for retrospective Council approval was because of the failure by the appellant to make payment.
Retrospective development approval was also granted by the Council for the Stepped Wall and the Upper Terrace wall on 20 November 2019. The engineering drawings and calculations for those works had been provided on or around 3 November 2018 prior to the works having commenced. In those circumstances, I find that the Magistrate did not err in concluding that there was no breach of contract arising from the fact that the Stepped Wall and the Upper Terrace wall had not received prior approval from the Council.
For these reasons, I do not consider that the Magistrate erred. There was no breach of contract arising from the fact that retrospective approval was obtained for the building works. I dismiss ground 2(b).
Ground 1(f)
Ground 1(f) complains the Magistrate misdirected herself in holding that the respondent was not in breach of its statutory obligations under the BWC Act and under the Development Act for building the “walled fence at the northern site of the property at the material time”. I understand that this allegation concerns the Stepped Wall and the reference to the BWC Act is apparently to s 32(2)(c). The latter provision implies a term into domestic building contracts that work will be performed in accordance with all statutory requirements.
In view of my finding that the Magistrate did not err in relation to the matters alleged in support of ground 2(b), I also find that her Honour did not err in respect of the contention raised in ground 1(f). I dismiss that ground.
Ground 1(d)
The appellant complains in ground 1(d) that the Magistrate misdirected herself in holding that the respondent had concluded its entire obligations under the contract on 17 December 2018. The Magistrate found that, as at 17 December 2018, the only outstanding matter was the lodgement of the application for retrospective development approval for the additional works. The terms and conditions for the works performed under Quotes 4 and 7 provided that full payment was due “on the day of completion”. Quote 8 similarly provided that full payment was due “on the date of completion of the works”. The contractor had not required progress payments. The respondent had agreed to the appellant’s request that she not be required to pay more than her share of the deposit for the Retaining Wall until the completion date.
In finding that the date of completion of the works was 17 December 2018, the Magistrate accepted the submission of the respondent that the date of completion for the purposes of the contract must be determined by “practical completion” or “substantial completion” of the onsite works in that there was “completion for all practical purposes”. The Magistrate noted that the appellant was able to take possession of the works and use them for the intended purpose on 17 December 2018. While her Honour found that there were some minor defects that needed to be remedied, they did not impair the integrity of the work and did not result in the works not having been substantially completed. On that basis, her Honour held that payment could not be resisted. Her Honour also found that there was no contractual or other obligation for the respondent to obtain a certificate of completion in order to be entitled to payment.
I consider that the finding by the Magistrate was a completely orthodox and correct application of the principle of practical completion. In Murphy Corp Ltd v Acumen Design & Development (Qld) Pty Ltd & Derek Graham Hooper[23] Williams J adopted the statement of Salmon LJ in J Jarvis & Sons Hill Ltd v Westminster Corporation[24] that practical completion means “completion for all practical purposes, that is to say, for the purpose of allowing the employers to take possession of the works and use them as intended”. In the Murphy Corp case, Williams J also noted that practical completion could be established where the owner had taken possession of the works and used them for the intended purpose notwithstanding that some minor work remained outstanding.
[23] (1995) 11 BCL 274.
[24] (1959) 1 WLR 1448 at 1458.
That is clearly the position in the present case. While the Magistrate made a series of orders for the rectification of minor defects in the works, none of those defects prevented the appellant from using the works in the manner or for the purpose for which they had been constructed. I refer to such matters as the orders for the height of the wall to be increased in four locations by installing seven sleepers at a cost of $1,600 (inclusive of GST), the filling of some voids around some steel U‑beams at a cost of $500, removal of some temporary timber battens at a cost of $300, removal and replacement of two sleepers at a cost of $500. I do not consider that delay in obtaining final development approval resulted in the practical completion requirement not being satisfied. This issue did not prevent the appellant making use of the works as at 17 December 2018. I dismiss ground 1(d).
Ground 3
The appellant contends in ground 3 that the Magistrate should have drawn an adverse inference against the respondent for failing to call its engineer to give evidence on the building of the Retaining Wall. The appellant’s written submissions contend that no witness gave any evidence that an engineer had turned their mind to where the boundary between the appellant’s property and that of Mr Kapellas was located. Due to the failure to call an engineer to give evidence about that issue, the appellant contends that an adverse Jones v Dunkel inference should be drawn.
I accept the correctness of the submission by the respondent that the primary issue at trial in relation to the location of the Retaining Wall was not the position of the boundary but instead whether the wall should have been constructed entirely on the appellant’s property. I also accept that it was not the function of an engineer to identify the location of the boundary and that the engineer did not purport to do so. The documentation prepared by Herriot Consulting expressly stated “[r]emove existing masonry wall along boundary and excavate to suit new retaining wall alignment adjacent boundary” and “[d]o not excavate over boundary”. The document also specifically stated that “[b]oundaries have not been checked”. The engineering documents were prepared following an attendance at the site by Herriot Consulting and were the subject of the Development Plan Consent granted by the City of Burnside on 16 November 2017. These documents were admitted into evidence as business records under s 53 of the Evidence Act and are thus evidence of the facts stated in the record.
A Jones v Dunkel inference is not an adverse inference but rather an inference that the evidence, if it had been called, would not have assisted the case of the party who could have been expected to call a particular witness. However, there was no dispute that the wall was built at the location specified by the engineer. There was also no real dispute as to the true location of the boundary. The issue was whether the contract required the wall to be built straddling the boundary. The evidence of the engineer could not assist with that question. Thus, there is no basis to draw a Jones v Dunkel inference. I dismiss ground 3.
Ground 1(e)
The appellant contends in ground 1(e) that the Magistrate erred in holding that Quote 7 in the sum of $18,738.50 was part of the works undertaken by the respondent. The appellant admitted at [9] in her Defence that she had instructed the respondent to proceed with the additional works that were the subject of Quote 7. However, as I have previously discussed, the appellant contended that this admission was a mistake and that she had not accepted Quote 7. However, notwithstanding the explanations provided by the Magistrate as to the steps that she needed to take to withdraw the admission, that did not occur. Regardless of the admission, the Magistrate found that the appellant had authorised the work as that was implicit in the fact that she knew the appellant was doing the work which was undertaken at her home while she was present and without her objection.

The appellant and the respondent agree that the appellant accepted Quote 8 in the sum of $40,603.20 on 19 November 2018. The respondent contends that Quote 8 was in addition to Quotes 4 and 7. However, the appellant argues that Quotes 4 and 7 were superseded by Quote 8. The combined value of Quotes 4 and 7 was slightly in excess of $34,000 while Quote 8 was for $40,603.20. The Magistrate found that on the appellant’s version of the facts, the cost of the extra work comprised in Quote 8 compared to Quotes 4 and 7 was only about $6,000. Her Honour observed that this was an extremely low figure for such works. Given the involvement of the appellant in the process to that point, the Magistrate did not accept the appellant’s assertion that she understood Quote 8 to have replaced Quotes 4 and 7.
The appellant contends that the Magistrate’s finding presumes the correctness of her admission contained in [9] of the Defence that she had accepted Quote 7. However, the Magistrate also found other evidence to support the finding that Quote 8 was in addition to Quotes 4 and 7 and that the appellant had accepted all three of those quotes. I turn to that evidence.
The appellant gave extensive evidence-in-chief with the examination largely being conducted by the Magistrate. She was also cross-examined at length concerning her understanding of Quotes 4, 7 and 8. She strongly denied that Mr Rawson had explained to her that the three quotes were cumulative and that her total liability was approximately $70,000. She was cross-examined about the email that she had sent to Jayne Pugh, an administrator employed by the respondent, on 29 November 2018 in which she stated, “Yes, I have included this amount in my funds coming in”. That message was sent six minutes after an email from Ms Pugh on behalf of the respondent advising that payment of $70,076.67 was now due and payable. She was also taken to an email that she had sent to Mr Rawson dated 4 December 2018 when she stated, “I told him I’m now spending $70k, would I mind few hundreds more”. This message related to the rectification of some work that the appellant was dissatisfied with. The appellant denied that either of the email messages constituted acknowledgments by her prior to the commencement of legal proceedings that she had previously accepted Quotes 4, 7 and 8.
In light of the evidence to which I have referred, the Magistrate found that the appellant had contracted with the respondent for the performance of the works referred to in Quotes 4, 7 and 8 for a total sum of $70,076.67. The Magistrate made those findings after hearing extensive oral evidence from the appellant and contrary oral evidence from Mr Rawson that was corroborated by the email messages to which I have referred. I do not consider that the findings of fact made by the Magistrate were “glaringly improbable” or “contrary to compelling inferences” in the sense discussed by the High Court in Fox v Percy.[25] To the contrary, her Honour’s findings were entirely consistent with the oral and documentary evidence. Accordingly, I am not persuaded that the Magistrate erred in finding that the appellant had accepted Quotes 4, 7 and 8.
[25] (2003) 214 CLR 118.
I also do not accept the appellant’s contention that she was denied the opportunity to adduce evidence concerning her non-acceptance of Quote 7. She gave extensive evidence on that topic in which she persisted in her denial that the admission contained at [9] in her Defence accorded with her instructions to her former solicitor. Notwithstanding that the evidence given by the appellant concerning Quote 7 was contrary to her Defence, and she had not taken the steps required to amend her Defence, she was permitted to give evidence that she had not accepted Quote 7. There is no basis to her complaint that she was prevented from adducing evidence on this topic. I dismiss ground 1(e).
Ground 4
The appellant contends in ground 4 that the Magistrate erred in law by not considering three issues that she had raised unless she filed a written application with a supporting affidavit. Those issues were:
(a) That the Retaining Wall was not built to the length of 38 metres as specified in the design documents;
(b) That the respondent had agreed to create a four-metre wide terraced garden on the northern side of her property; and
(c) That the respondent had potentially breached ss 32(2)(a) and (c) of the BWC Act and s 32 of the Development Act.
She contends that in circumstances where she was self-represented, she was prevented from adducing evidence and cross-examining on these issues and thus aspects of the real controversy between the parties were not determined by the Magistrate.
Ground 4(c)
The appellant pleaded at [5.6] of the Defence that s 32(2)(a) of the BWC Act implied a term into the contract that the works would be performed in a proper manner to accepted trade standards. She also pleaded that in accordance with s 32(2)(c) of that Act, that the works would be performed in accordance with all statutory requirements, including but not limited to statutory approvals and engineered designs. At [14.4] of her Defence the appellant pleaded that unless and until the respondent rectifies the incomplete and defective work and completes the works to a good and proper standard in accordance with the terms of the contract, it is not entitled to further payment. I pause to note that the only payment made by the appellant was the deposit of $4,600.68. The appellant further pleaded at [14.5] of the Defence that in the absence of the respondent rectifying the incomplete and defective work and completing the works to a good and proper standard, she was entitled to terminate the contract, to engage third party contractors to complete the works and to deduct the cost of doing so from the sum otherwise payable to the respondent. At [15.2] of her Defence the appellant pleaded that for the reasons pleaded at [14] the sum demanded by the respondent was neither due nor payable. There was no mention made in the Defence of s 32 of the Development Act.
On day 6 of the trial, while cross-examining Mr Rawson, the appellant referred to an alleged failure by the respondent to comply with s 28 of the BWC Act. Section 28 sets out the formal requirements in relation to a domestic building work contract. Failure to comply with s 28 is an offence punishable by a maximum fine of $5,000.
The appellant stated that she relied upon the principle, ex turpi causa non oritur actio, i.e. no legal action can be based upon an illegal act. She also contended that although her Defence did not refer to s 28 of the BWC Act, the words “[i]t was implied by the Act, including that the works” in [5.6] of the Defence were sufficient to raise the illegality defence. The Magistrate rejected this contention and explained to the appellant that as she had not pleaded a failure to comply with s 28, it would be necessary for her to file an application for permission to amend her Defence with a supporting affidavit. While the appellant was allowed time to do so, no application was made.
The appellant provided written closing submissions to the Magistrate that extended over 13 pages. The style and some of the content of the submissions suggests very strongly that they were prepared by a person qualified in law. There were a number of references to decisions of the High Court and of this Court, to relevant legal textbooks, and to the rules of this Court and the Magistrates Court.
In her written submissions, the appellant contended that her case on illegality was not based on an alleged breach of the BWC Act. Instead, she alleged that the respondent had intentionally acted contrary to an “accepted trade standard” and the “plan and specification as agreed” in terms of s 32(2)(a) of that Act, and also contrary to “statutory requirements” under s 32(2)(c) of that Act. This conduct was said to render the respondent’s claim “immoral” or “illegal” in character and therefore the ex turpi causa non oritur actio principle applied. The appellant advanced the same contention in her oral submissions before the Magistrate.
The Magistrate found that the appellant had not pleaded illegality on the part of the respondent in her Defence. That finding was plainly correct.
Paragraph [5.6] of the Defence alleged that terms were implied into the contract in accordance with ss 32(2)(a) and (c) of the BWC Act. That pleading clearly and unequivocally laid the foundation for [14.4], [14.5] and [15.2] of the Defence. However, none of the matters pleaded therein could possibly be construed as constituting a defence founded on illegality. To the contrary, [5.6] correctly recognised that ss 32(2)(a) and (c) of the BWC Act operated by implying terms into the contract.
Consistently with the terms of the appellant’s own Defence, and also with the clear operation of the BWC Act, the Magistrate correctly found that s 32 operates to imply a series of warranties on the part of the building work contractor into every domestic building work contract. A failure to comply with those statutory warranties gives rise to a breach of contract but does not result in illegality or immorality. The reliance placed by the appellant upon the ex turpi causa non oritur actio principle does not change the clear operation of s 32 of the BWC Act.
The Magistrate declined to give any further consideration to the matters raised by the appellant in relation to the operation of s 32 of the BWC Act on the basis that the alleged illegality had not been pleaded in her Defence nor had she sought to make an amendment. The need to make an amendment was explained to the appellant in straight forward terms and she was given time to think about the issue, however, she elected not to take that course. There is nothing I can add to what I have stated at [108] to [111] concerning this issue. I consider the decision made by the Magistrate on this point was plainly correct. I dismiss ground 4(c).
Ground 4(a)
The appellant’s complaint in ground 4(a) is that the Magistrate erred in law for failing to consider her complaint that the Retaining Wall was not built to a length of 38 metres as originally designed. The wall as built was 29.5 metres in length.
The Magistrate did not consider the appellant’s claim that the Retaining Wall had not been built to the correct length as this matter had not been pleaded in her Defence. The appellant had raised this issue in the context of an assertion that she had been overcharged for the works in that the wall was some 8.5 metres less than the proposal which had formed the basis for Quote 4.
Substantial evidence was given at trial about length of the Retaining Wall, although the respondent maintained its objection that the issue was not relevant as neither the matter of length nor alleged overcharging had been pleaded by the appellant. Mr Rawson, Mr Parsons and Mr Reddaway were each cross-examined by the appellant about this issue. The effect of their evidence was that once the works were commenced, it was found not to be necessary to build the Retaining Wall for the full 38 metres that had been originally proposed.
Mr Rawson stated that at some points it was necessary to build the wall higher than had been originally quoted. The end result was that 310 sleepers had been used for the job rather than 302, on which the quotes were based. However, the respondent had not charged the appellant for the additional materials and labour. The materials that were not used, due to the Retaining Wall being shorter than originally proposed, were all used in the other works done for the appellant.
The evidence of Mr Reddaway, the respondent’s site supervisor, indicated that the scope of the works performed pursuant to Quote 4 had been varied as a result of the subsequent Quote 7 and Quote 8 works. His evidence was that the sleepers that had originally been intended to be used for the longer Retaining Wall were therefore used in the works pursuant to Quote 8 and that reduced the price charged in Quote 8. A fence was erected in the eight-metre strip where the Retaining Wall had originally been proposed.[26]
[26] I note by way of clarification, that the Retaining Wall was also topped by a fence. However, in the eight-metre strip, the fence was at ground level.
The respondent contends in its Notice of Alternative Contention that to the extent that the appellant’s complaint about the length of the Retaining Wall should have been addressed by the Magistrate (which the respondent denies), the complaint was unmeritorious. The basis for this submission is that the wall had been shortened due to variations to the originally quoted works and the material thereby saved was allocated towards the work that was the subject of the variations. The net result was that the respondent had supplied more material than it had quoted for. The appellant did not adduce any evidence about quantum, nor did she establish any basis for a set-off, or any other relief, in relation to the unpleaded complaint about the length of the wall.
I note that the Magistrate specifically advised the appellant on two occasions that if she wished to pursue the issue concerning the length of the Retaining Wall it was necessary for her to apply for permission to amend her Defence. Those explanations were in addition to the other explanations provided to the appellant about the amendment of her Defence. For the reasons I have previously given at [103] to [111], I do not consider that the decision by the Magistrate to require a formal application by the appellant to amend her Defence together with a supporting affidavit gave rise to either a process error or an outcome error in the House v King sense.
I also consider that her Honour’s decision is consistent with the principles stated by the High Court in Aon and the decision of the Full Court in Channel Seven Adelaide Pty Ltd v Manock. I hold that view for a combination of reasons.
The issue concerning the length of the Retaining Wall had been raised at a relatively late stage in a lengthy trial, some 14 months after the Defence had been filed. The appellant’s failure to deal with the issue much earlier had not been explained, even though she had been represented for a substantial part of the period prior to trial. The Magistrate had made quite clear at the outset of the trial what was required to amend the appellant’s Defence. The appellant had demonstrated that she was capable of preparing an interlocutory application with a supporting affidavit but elected not to do so in relation to amending her Defence.
As the appellant lived on site, she must have been aware while work proceeded that the Retaining Wall was being built significantly shorter than had been proposed in Quote 4. The difference between 38 metres and 29.5 metres in the context of a domestic backyard must have been glaringly obvious. If the length of the Retaining Wall was to be pursued at trial it was likely to require that witnesses be recalled, particularly to the extent that the appellant wanted to introduce a claim for set-off on the basis that she had been overcharged due to the reduction in the length of the wall. As this was already a protracted trial relative to the quantum in dispute, further delay may have undermined confidence in the administration of civil justice.
For these several reasons, I find that there was no error by the Magistrate and dismiss ground 4(a). It is therefore unnecessary to consider paragraph 1 of the Notice of Alternative Contention.
Ground 4(b)
The appellant contends in ground 4(b) that the Magistrate erred in law by not considering whether the respondent had agreed with the appellant to create a four‑metre wide area of terraced garden on the northern side of her property unless she filed a formal written application with supporting affidavit. The Magistrate declined to consider this matter as it had not been pleaded in the appellant’s Defence. Although the appellant gave evidence-in-chief on this topic and also cross-examined the respondent’s site supervisor, Mr Reddaway, the respondent maintained its objection to the admissibility of that evidence on the basis that the width of the terraced area had not been pleaded by the appellant in her Defence. Notwithstanding the fact that the Magistrate had explained to the appellant that it was necessary to amend her Defence if she wished to rely on matters that had not been pleaded, that did not occur. For reasons I have stated at [164], I am not persuaded that the Magistrate erred by not considering the allegation that the lower terraced garden area was less than four metres in width.
Furthermore, I consider the substance of the matters raised by the respondent at [2] of its Notice of Alternative Contention to be valid. There is no clear evidence of a contractual obligation that the width of the relevant area was to be four metres. The discussion between Mr Reddaway and the appellant when he prepared a sketch of the relevant works appears to have occurred on 20 November 2018 being the day after the appellant had accepted the quotation for the Quote 8 works. Thus, the terms of the conversation between Mr Reddaway and the appellant, whatever they may have been, were not terms of the contract.
The evidence of Mr Reddaway was that the focus of his discussion with the appellant was upon the need for the lower terrace to be no closer than 6.5 metres from the rear of the appellant’s house so as to permit her to extend the building in the future rather than the width of the upper terrace. Furthermore, it is uncertain as to whether the width of four metres depicted in the sketch prepared by Mr Reddaway included the width of the retaining wall. If so, the width of the terraced area, would be somewhat less. Most importantly, there is no also expert evidence as to the width of the relevant area. The appellant stated in her evidence that the width was 3.4 to 3.6 metres. However, when cross-examining Mr Reddaway, she suggested that the width was 3.76 metres. The measurements referred to by the appellant were said to include the width of the retaining wall.
It is apparent that notwithstanding the objection by the respondent, and although the issue had not been pleaded in her Defence, the appellant was allowed to adduce evidence concerning the width of the terraced area. However, that evidence fell far short of establishing either any contractual obligation on the part of the respondent or a breach of any such obligation. I dismiss ground 4(b).
Conclusion
I dismiss the appeal on all grounds. I will hear the parties as to costs.