Planet Timbers SA P/L v Dey - [2018] SADC 51

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
PLANET TIMBERS SA P/L v DEY
[2018] SADC 51
Reasons for Decision of His Honour Judge Cuthbertson
25 May 2018
MAGISTRATES - APPEAL AND REVIEW
- APPLICATION OUT OF TIME - RULES OF COURT - CONTRACT - FORMATION, VARIATION
Application to review a Minor Civil Decision of Magistrate pursuant to s 38 of the Magistrates Court Act 1991.
Application out of time.
Held: Discretion to dispense with rules exercised, application permitted to be heard out of time.
Whether flooring supplied by applicant to respondent was in accordance with description.
Held: The Magistrate was correct in holding that flooring supplied by the applicant to the respondent did not correspond with description and that the respondent was entitled to damages.
Flooring products remain the property of the applicant, return of which to be organised between the parties.
Decision of Magistrate upheld.
Magistrates Court Act 1991 s 38; Sale of Goods Act 1985 s 13; District Court Civil Rules 2006 r 117, 279A, referred to.
Harradine v District Court of South Australia [2012] SASC 96; Hillier v Lucas (2000) 81 SASR 451, considered.

PLANET TIMBERS SA P/L v DEY
[2018] SADC 51
Introduction

This is an application brought by Planet Timbers seeking a review of a judgment entered by a Magistrate in a Minor Civil Review pursuant to s 38 of the Magistrates Court Act 1991.
On 19 July 2017 the Magistrate entered judgment for the respondent in the sum of $8,678.60 together with costs of $322.20.
The issues in the case are whether the applicant supplied, in the course of its business, the flooring which was specified in a contract between the applicant and the respondent for the applicant to supply and fit flooring at the home of the respondent.
Review out of time
The respondent claims that the appeal should be dismissed on the ground that the applicant was out of time when the application was filed.
Judgment by the Magistrate was entered on 19 July 2017 and the applicant did not file proceedings until 5 October 2017.
Rule 279A(2) of the District Court Civil Rules 2006 states that an application for review “must be commenced within 21 calendar days after the date of the judgment or decision subject to the review.” The applicant was therefore some 57 days out of time.
This court has the discretion to dispense with compliance with a rule of court.[1]
[1] See r 117(2)(a).
A dispensation from compliance with r 279A(2) should be granted in order to do justice in this matter.[2] In my view there is no prejudice to the respondent in granting the applicant such leave. I dispense with so much of r 279A(2) of the District Court Civil Rules (2006) as is necessary to permit the applicant to argue the case on this application to review the decision of the Magistrate in a Minor Civil Review.
[2] See Hillier v Lucas (2000) 81 SASR 451 at [478].
The nature of a minor civil action
The provisions applicable to the trial and any review of a minor civil action are set out in s 38 of the Magistrates Court Act.
Section 38 reads as follows:
38—Minor civil actions
(1)The following provisions are applicable to the trial of a minor civil action:
(a)the trial will take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the parties;
(b)the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c)the Court may itself call and examine witnesses;
(d)the parties are not bound by written pleadings;
(e)the Court is not bound by the rules of evidence;
(f)the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(2)At or before the trial of a minor civil action, the Court should explore any possible avenues of achieving a negotiated settlement of the matters in dispute.
(3)After giving judgment in a minor civil action, the Court—
(a)should advise the unsuccessful party of his or her right to apply for review of the proceedings by the District Court; and
(b)should give the successful party any advice or assistance as to the enforcement of the judgment that the Court considers appropriate in the circumstances; and
(c)if there is a judgment debtor who is present, should proceed immediately to investigate his or her means of satisfying the judgment and to take any further action that appears appropriate in view of the results of that investigation.
(4)The following provisions govern representation in minor civil actions:
(a)representation of a party by a legal practitioner will not be permitted unless—
(i)another party to the action is a legal practitioner; or
(ii)all parties to the action agree; or
(iii)the Court is of the opinion that the party would be unfairly disadvantaged if not represented by a legal practitioner;
(ab)however, the Court may, in its discretion, permit representation of a party by a legal practitioner at the hearing of an interlocutory application;
(b)if a party to the action is a body corporate, the Court must, if the party seeks to be represented by an officer or employee who is not a legal practitioner, permit such representation;
(c)if a person is subrogated to the rights of a party, the Court will permit that person to appear in the proceedings on behalf of that party and to be represented in the same way as if that person were a party;
(d)the Court will permit a party, or a person subrogated to the rights of a party, to be assisted by a person who is not a legal practitioner but only if that person is not acting for fee or reward.
(5)In a minor civil action costs for getting up the case for trial, or by way of counsel fees, will not be awarded unless all parties were represented by counsel, or the Court is of opinion that there are special circumstances justifying the award of such costs.
(6)The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
(7)The following provisions apply to such a review by the District Court:
(a)the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);
(b)the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;
(c)the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;
(d)in determining the matter, the Court may—
(i)affirm the judgment; or
(ii)rescind the judgment and substitute a judgment that the Court considers appropriate; or
(iii)if the review arises from a default judgment or summary judgment, rescind the judgment and—
(A)substitute a judgment that the Court considers appropriate; or
(B)remit the matter to the Magistrates Court for hearing or further hearing;
(e)in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(8)A decision of the District Court on a review is final and not subject to appeal.
(9)However, the District Court may reserve a question of law arising in a review for determination by the Full Court of the Supreme Court which may determine the question and make any consequential orders or directions appropriate to the circumstances of the case.
Summary of the action
As is often the case in a minor civil action the pleadings are unhelpful but the gist of the action is that the respondents claimed that they had agreed to purchase a flooring product, “Green Earth” two strip plank from the applicant and that they were supplied with a different product than the product which was agreed in the contract.
The respondents claimed the amounts they had paid to the respondent together with costs for breach of contract. They succeeded in the proceedings before the Magistrate who found that the applicant had failed to provide the product contracted for.
The grounds of appeal in this application for review are also not entirely clear but would appear to be capable of being summarised as follows:
1The Magistrate should have allowed for the fact that the original invoice matched the purchase invoice and referred to a product of ‘Readyfloor’, which the customer in fact received, so that the customer received that which was agreed.
2The respondent inspected the flooring as it was being installed and made no complaint about the product that was being installed.
3The customer should not be permitted to change his mind about the goods.
4The Magistrate had allowed the respondent to keep the flooring, and
5In the alternative, if the decision of the Magistrate is affirmed, the order should be altered to deduct the cost of removal of damaged floorboards and the installation of acoustic underlay from the final amount awarded to the respondents.
The nature of a review
The nature of a review of a minor civil action was considered by Blue, J in Harradine v District Court of South Australia [2012] SASC 96.
His Honour said at paragraph [53]:
1.     The review is not in the nature of an appeal stricto sensu.
2.     The review is not necessarily a hearing de novo in that the Court is entitled to have regard to the evidence adduced before a magistrate and “may” rehear that evidence.
3.     The review is not necessarily an appeal by way of rehearing in that it is a “review” (not an “appeal”), the Court may inform itself as it thinks fit, the Court must act according to the substantial merits of the case and the Court may rehear evidence without being confined by the “fresh evidence” rules which apply to appeals by way of rehearing.
4.     The Court can tailor the nature of the hearing to the circumstances. In a case where the review will not turn on findings of fact or credibility of witnesses, the Court might simply have regard to the evidence adduced before a magistrate and a magistrate’s findings of fact. In a case which does turn on disputed issues of fact or credibility, the Court might simply proceed to hear the evidence afresh.
5.     If the District Court concludes that a magistrate made an error vitiating the judgment and had not made findings of fact necessary to determine the matter, it will be necessary for the Court itself to hear the evidence relevant to those findings of fact (as it does not have power to remit the matter for rehearing).
6. To the extent that the Court does itself hear evidence, it should proceed in a similar manner to that provided by section 38(1), namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties. This is because section 38(7) provides that the Court may inform itself as it thinks fit and also because it would be incongruous if the District Court were to adopt a radically different approach to the hearing to that required to be adopted by a magistrate at first instance given that there is no power of remitter.
The Magistrate’s findings
The Magistrate conducted an extensive enquiry into the matter and heard evidence from the respondent and a representative for the applicant together with Mr Kodakoff, the person who laid the floor at the residence of the respondent, and Mr Robinson the salesman from the applicant who had the majority of the personal dealings with the respondent.
The Magistrate found that the supply of a “Green Earth” flooring product was important to the respondents, and that the respondents specifically wished to avoid ‘Quick Step’ branded floorboards.
The assertion of the applicant, that the applicant explained to the respondent on 7 June that the product being supplied was different to what was ordered, was rejected by the Magistrate.
The Magistrate relied in part on the fact that the estimate from the applicant to the respondent indicated a “Green Earth” product.[3]
[3] See Exhibit P1.
Whilst it was true that the subsequent invoice[4] referred to a “Readyfloor” product, the Magistrate found that the respondents did not appreciate that this meant that they were not getting “Green Earth” “as specified” not understanding that “Readyfloor” was the brand name for a Quick Step product.
[4] See Exhibit P2.
In any event the contract was clearly made by the time the invoice “Exhibit P2” was sent.
The fact that the respondents got to see the product when it was unpacked and might have appreciated that a different product was being delivered is not to the point. The evidence of the respondents, that they did not know that a different product was being supplied, was accepted by the Magistrate. It is hardly likely that if the respondents went to great pains to specify a particular product, they would acquiesce when obliquely informed by an invoice that a different product was being provided or by seeing the wrong product being delivered.
The Magistrate found that the respondents did not get the product they ordered but instead received a product that they specifically did not want.
The contract was for the supply of a “Green Earth” product and that fact was of great significance to the respondent and the applicant had failed to supply that which had been contracted for.
The Magistrate found that there was a fundamental breach of the contract by the applicant in supplying a different product to that which was agreed. Certainly, the contract was for the sale of goods by description and s 13 of the Sale of Goods Act states that in such circumstance there is an implied condition that goods will correspond with the description.
Since there was a breach of a condition of the contract, the respondent buyer was entitled to reject the goods and sue for damages since they had not received what they had bargained for.
They have elected to regard the contract as at an end and claim for damages the amount of money they have lost in consequence of the breach of the condition.
The review
In my view there is nothing inherently illogical or improbable in the findings of the Magistrate. I have reviewed the decision and permitted the parties to supplement it with further evidence.
In consequence thereof I have heard evidence from the respondent, Mr Ashmead for the applicants and Mr Robinson, the salesman for the applicants. The evidence I have heard tends to support the case of the respondent.
Mr Robinson conceded that the respondents might have said that they wanted a “Green Earth” product.[5]
[5] T30 L4.
Mr Robinson agreed that he said to the respondents that he would present a quote for one strip “and it will be “Green Earth”.[6]
[6] T30 L28.
He conceded that the respondents, after a time, got back to him and told him that they would take the two strip rather than the one strip.[7]
[7] T32 L3.
So the initial quote was for “Green Earth” one strip. The respondents rang up and said they wanted two strip not one strip. At that stage there was no talk of any other product.
I agree with the finding of the Magistrate that the contract as originally made was for “Green Earth” two strip.
To be clear, the contract was initially formed on 10 May 2016 when Mr Dey accepted the applicant’s offer contained in the estimate of 4 May 2016.[8] During this conversation Mr Dey accepted the price, but requested ‘2 strip’ Green Earth rather than ‘1 strip’, Mr Robinson agreed, and the contract was thus varied orally by mutual agreement at this time.[9]
[8] T16 L27-28.
[9] Magistrates Court transcript, T6 L15-16.
After this phone call, the applicant sent the respondent an Invoice on the 10 May 2016 which still said ‘Green Earth 1 strip’. On 25 May 2016 Mr Robinson contacted the respondent and asked for payment of a $3000 deposit, the respondent made the payment via bank transfer and reminded Mr Robinson to update the invoice to ‘Green Earth 2 strip’.
An updated invoice[10] was subsequently sent by the applicant later on 25 May 2016, which now had the product described as ‘ReadyFloor 2 strip’. The respondents weren’t told that this meant that they were not getting what they had originally contracted for. When the question was put to Mr Robinson, “Mrs Dey says that there was no conversation about a change of supply. What do you say about that?” Mr Robinson replied “I would have to agree with her, I don’t believe I told her or Mr Dey that we were changing the supplier.”[11]
[10] See Exhibit P2.
[11] T35 L34.
In my view this is a crucial concession and accords with the finding of the Magistrate, and supports my own view that the applicant made a last minute, unilateral decision to change the supplier.
It may be true that if the respondents were astute, they may have been able to pick up from the change of wording in the invoice and from the printing on the cartons of supplied product that there was a change of product or at least a potentiality of that and thus would have been able to query it.
I accept, however, that the respondents were truthful when they said they did not know there had been a change and the Magistrate so found. A contract cannot be unilaterally changed by one party leaving it to the other party to work out inferentially that the contract has been changed.
I affirm the decision of the Magistrate.
In case it is not clear, the flooring, acoustic undelay, scotia and ‘C’ channels remain the property of the applicant and the parties should, if they have not already done so, make arrangements between themselves for the product to be picked up and taken away by the applicant.
In relation to the final ground of appeal, that the amount awarded to the respondents should be reduced by the amount charged for removal of their damaged floorboards and the installation of acoustic underlay, I decline to make such a deduction as the fault lies in the applicants.
There will be no order as to costs of these proceedings.