Paolino v The Leak Specialist - [2010] SADC 121

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
PAOLINO v THE LEAK SPECIALIST
[2010] SADC 121
Judgment of His Honour Judge Tilmouth
15 September 2010
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA
Appeal from a decision of a Magistrate made in small claims jurisdiction, dismissed on merits.

PAOLINO v THE LEAK SPECIALIST
[2010] SADC 121

The appellant Carmine Paolino works in the construction industry. As of late 2009 he was building a swimming pool in the grounds of his residence. In early November he rang Mr Lamb the owner of the business carried on under the trading name ‘The Leak Specialist’ (respondent in these proceedings) to plumb the pool for him. They had not met beforehand. Mr Lamb agreed to do so and ordered the necessary materials for that purpose the following day. He completed the job described as a “first fix” within several days and rendered a modest invoice on 16 November 2009, for a total of $3,500, including materials and GST.[1] This was fully paid by Mr Paolino.
[1] This is invoice no. 1522, Exhibit P2 in the court below.
In early December 2009 Mr Paolino rang again wanting Mr Lamb to install pumps, a filter, pool lights, a salt chlorinator and other associated equipment, requesting him to do so as soon as possible. Once again Mr Lamb agreed. He ordered the appropriate equipment, collected supplies and completed what he described as the “second fix” installation the following day. For this he raised an invoice (no 1527) for a total of $5,193.63 including materials and tax (at less than retail rates), which he presented to Mr Paolino on 12 December 2009.[2]
[2] Exhibit P2 and part of Exhibit D1 in the court below
Several days later he requested payment, only to be told that Mr Paolino wanted copies of the underlying invoices. Thereafter he persisted in refusing to pay. Accordingly Mr Lamb issued proceedings in the name of “The Leak Specialist”, out of the minor civil jurisdiction of the Adelaide Magistrates Court claiming $5,673 (plus court fees) and a search fee of $35. Mr Paolino filed a defence and counter-claim in which he alleged overcharging, that the tax invoice was not adequate (in that it was not properly itemised) and the work done to the skimmer box was unsatisfactory.
The matter came before a Magistrate for trial on 29 July 2010. Mr Lamb gave evidence on his own behalf and called a Mr Daniels, a long-time builder and designer of swimming pools. The Magistrate ultimately gave judgment in favour of The Leak Specialist, in the sum of $4,445.42. He allowed a further $116 “being the cost of issuing proceedings”. Although he did not say so in terms, it is clear that he dismissed the counter-claim.
Mr Paolino now appeals on the basis that the Magistrate allowed $390 more than proved, for an amount expended on the pool chlorinator supplied to him and on the basis that the Magistrate failed to resolve his counter-claim with respect to the filter box, which he claims to have been installed at an inappropriate height.
As to the former issue, the Magistrate allowed the sum of $1590 as charged in the invoice. This was charged at a discounted price anyway. There was no error or no misunderstanding in the Magistrate allowing this sum. On the appeal to this court Mr Lamb proved the payment of associated equipment of $2,286.74 (Exhibit A2) and later he produced the electronic banking records confirming same. It appears that the VX 9 Auto Chlorinator (which has a list price of $1,790),[3] was purchased by Mr Lamb at an actual cost price of $1,320 inclusive of GST. He marked it up by 15 per cent, which yields $1,518 and added $72 for a pick up fee and 1.5 hours “running around”.[4] This was the sum allowed by the Magistrate. The basis of the appeal is reliance on an unsubstantiated quote obtained by Mr Paolino, rather than on the direct evidence of cost. [5] As such if there was any errors by his Honour – and no error is apparent in the state of evidentiary proof proffered by Mr Lamb – it worked in favour of Mr Paolino. Accordingly no basis to interfere with his aspect of the judgment is made out.
[3]    Transcript 7 September 2010 p3.17-.27
[4]    Transcript 7 September 2010 p4.13-.19
[5]    Exhibit D1 Magistrates Court
The second subject of appeal is more complicated. Mr Daniels was an experienced and qualified consultant, with particular expertise in swimming pools and spas.[6] He said in his evidence before the learned Special Magistrate that there was “no limitation or standard or any information in the Building Code of Australia for exactly where [the skimmer box] can be placed as far as the height of it” was concerned and that it could be “set anything from the top of the concrete to the opening of the … skimmer box, anything up to 100mm”.[7] When asked by his Honour to look at a photographs of the pool, he said the difference from the top of the pool to the water level was 170 mm. This is exactly what Mr Paolino says is the problem. He claims it should have been 100 mm.
[6] Exhibit D4 Magistrates Court
[7] Transcript p.14.26-.32
Mr Daniels agreed with the Magistrate that the plumbing contractor should seek instructions as to where the skimmer box is to be set.[8] This is precisely what Mr Lamb says happened. He told the court below that “Mr Paolino set it himself at 100 mm”.[9] He maintained that he “set it 100 mm from the string line which Carmine [Paolino] had placed, to a water level mark which I had”.[10] Later he added:[11]
I did establish that with Carmine, I said, where do you want me to set this, he said, well, where do you normally set them. I said we normally set them about 100 mm from the string line which is all I had to go on and that is basically what I did. Whether there was, whether Carmine misunderstood that he wanted it 100 mm from his finished level or what, but, when I finished, all I have got is string line to go on. If they need to raise the level up to compensate –
[8] Transcript p.15.35-16.21
[9] Transcript p.16.31-17.7
[10] Transcript p. 11.12-.13, p.11.31-12.1
[11] Transcript p. 17.17-.25
During the course of this evidence, Mr Paolino volunteered that a mistake was made “we decided 100 and he made the mistake … put the skimmer box lower and now the level of the water is 170.”[12] In the result the Magistrate made this finding with respect to the counter-claim:
Whilst the defendant is disappointed with the height of water he is partly responsible for this. I am also of the view that the water height is not of great significance. In all the circumstances I can make no allowance for the fact that the filter box is lower than the defendant would prefer.
This finding seems to be based on the evidence of Mr Daniel himself as well as that of Mr Lamb, to the effect that the skimmer box was placed in the position indicated by Mr Paolino all along.
[12] Transcript p. 6.15-19
The same positions were repeated in this court. Mr Lamb illustrated his point by reference to photographs of the “first fix”, showing where the string line was set, and the water level marked, by Mr Paolino himself.[13] The Magistrate’s reasons appear to accept that this must have been the position.
[13] Photograph Exhibit P3 in the court below
Mr Lamb explained in this court that once the owner specifies these levels, he would “set from the water level marked on the skimmer box to the finished string line … the distance of 100 mm … from the string line to the water level … as indicated by the customer”.[14] He added that the problem of the skimmer box being too low might have been due to the owner adding “extra copping … something on top … we have to work on … the string line … that was set by [Mr Paolino].”[15]
[14] Transcript 7 September 2010 p 12.15-13.2
[15] Transcript 7 September 2010 p 13.3-.13
For his part Mr Paolino accepted that he “set the string line and … set the water line as shown in the photograph”.[16] He said it was only later that he realised there was a mistake when doing the tiles, but he conceded not telling Mr Lamb at the time.[17] Mr Paolino endeavoured to suggest in this court that Mr Lamb might have made a mistake, by speculating that “the string line sagged and in the hot weather, setting the skimmer box to that lower level … everybody can make a mistake”.[18]
[16] Transcript 7 September 2010 p 20.23-.26
[17] Transcript 7 September 2010 p 20.15.22
[18] Transcript 7 September 2010 p 19.21-.38
I am not able to accept that an experienced pool builder like Mr Lamb would make such a fundamental mistake. In the first place no such sagging is evident in the photographs. Further it is not sound building practice and it is contrary to common sense to suppose that if the string line had sagged (as to which there is no evidence), it would not be straightened before heights and levels were taken. In any case it is difficult to understand why Mr Paolino did not raise the issue immediately upon detecting the problem, if there was one.
The other portion of the finding that the water height was not of great significance, was also no doubt based on the evidence of Mr Daniel to the effect that there was practically little consequence in the height differences. He told the Magistrate:[19]
A lot of owners have got no idea exactly where it goes. The experience is, that, it basically can work in relation to the water depth of a pool. If you have nominated a certain water depth, say for instance, 1.8 metres, the water in the opening of the skimmer box should be two thirds up the opening of the skimmer box.
[19] Transcript p 15.12-.17
It is therefore perfectly clear that Mr Paolino set the heights for the skimmer box himself and that Mr Lamb installed it according to those levels. Later once the pool was filled, Mr Paolino in retrospect felt the level was unsatisfactory, for aesthetic reasons. That may be so, but it is not due to any fault on the part of The Leak Specialist. The findings of the Magistrate were therefore correct and really the only conclusion he could reasonably reach on the state of the evidence before him.
There is a further procedural matter. Mr Paolino in his counter-claim put no material before the Magistrate as to the cost of rectification. The court is not in a position to make a bare declaration for specific performance, because that begs the question what was agreed in the first place. Two courts have now found that Mr Lamb did precisely what he was asked to, so he has performed that part of the bargain. Before this court, Mr Paolino suggested a number of trades people had looked at the job and simply refused to quote for it. As a person in the industry himself, he presented a bare quote and told the court his estimate was about $4,500. In the absence of a properly costed, detailed and independent quotation, the court is simply not in the position to make any reliable assessment of damages on the counter-claim in any event.
It follows therefore that the appeal must be dismissed and the orders of the Magistrate affirmed. Had Mr Lamb put himself to proper proof in the first place, he would have been entitled to recover more than he has. It was explained to him during this hearing that in the absence of a counter claim, the court has no power to increase the amount he was awarded.
Finally Mr Paolino questioned the order for the payment of $116 court fees for issuing the proceedings. As the respondent succeeded in recovering a significant proportion of the original claim, and successfully resisted the counter-claim, this cost was properly ordered, in effect as following the event. This outcome in any case appears consistent with s 38(5) of the Magistrates Court Act 1991 (SA). There will be no order for costs in this court: s 42G(2) District Court Act 1991 (SA).