Roumeliotis v Abdekerem - [2017] SADC 75

District Court of South Australia
(Civil: Minor Civil Review)
ROUMELIOTIS v ABDEKEREM
[2017] SADC 75
Judgment of His Honour Chief Judge Evans (ex tempore)
10 February 2017
ADMINISTRATIVE LAW
Minor Civil Review
Magistrates Court Act s38(7), referred to.
Wilczynski & Anor v District Court of South Australia & Ors (2016) SASC 51; Harradine v District Court of South Australia (2012) 280 LSJS 572, considered.

ROUMELIOTIS v ABDEKEREM
[2017] SADC 75

The respondent, Mr Abdekerem, undertook certain fixing and flushing work for the applicant, Mr Roumeliotis, at three units at 27, 27A, and 27B Coventry Street, Mawson Lakes. The respondent claimed that the work was done pursuant to an agreement with Mr Roumeliotis which relevantly provided for a total price of $19,500, including scaffold hiring; required payment of $6,000 up front; the scope of the work agreed did not include certain areas including areas under the staircases, the balconies or areas around the skylights.
It was not in dispute that the respondent had only been paid $5,000. The applicant did not dispute there was an agreement, but asserted that the relevant terms of that agreement were different to those asserted by Mr Abdekerem. In particular the applicant asserted that the agreement provided for a total price of $16,000 and that the scope of the work included the areas that Mr Abdekerem claimed were excluded.
The applicant filed a defence and counterclaim, claiming:
1That the workmanship of the respondent was defective;
2The costs of making good the defective workmanship; and
3Other heads of damage including interest, loss for delay and the cost of the preparation of a report
The claim was a minor civil claim with the consequent jurisdictional and procedural considerations required by s38 of the Magistrates Court Act 1991.
The claim came on for hearing before a magistrate at Holden Hill on 19 February 2015. Both the applicant and respondent gave evidence and both parties called witnesses as to the work.
Relevantly the magistrate made the following findings:
1The terms of the agreement as to price and scope were as contended for by the respondent, Mr Abdekerem.
2Certain of the work was defective.
3The total cost to fix the poor workmanship was $5,632.
4The cost of a report prepared by Mr Stankovic was $600 and was recoverable by the applicant.
The magistrate assessed the counterclaim at $6,232 and found that the respondent was owed $14,500 under the original contract. The magistrate entered judgment for $8,268 in favour of Mr Abdekerem being the difference between the $14,500 and the $6,232 allowed on the counterclaim
The applicant has applied for a review. The hearing of a review is governed by s38(7) of the Magistrates Court Act.
I am conscious of the principles which apply to the hearing of such a review. In Wilczynski and Anor v District Court of South Australia and Ors (2016) SASC 51 Doyle J said at [45]:
The hearing of a District Court review is governed by s38(7). Under that subsection the court may inform itself as it thinks fit and in doing so is not bound by the rules of evidence. The Court may rehear evidence taken before the Magistrates Court. The Court may affirm the judgment or rescind it and substitute the judgment that the Court considers appropriate. In hearing and determining the review, the Court must act according to equity, good conscious and the substantial merits of the case without regard to technicalities and legal forms.
Justice Doyle at [47] referred to Harradine v District Court of South Australia (2012) 280 LSJS 572 where Blue J at [40]-[49] set out certain principles that apply to a review such as this. I do not repeat them here but I indicate that I am aware of those principles and have been guided by them when considering this review.
A report of Mr Carlo Petris dated 20 March 2017 was tendered by the Applicant during the course of the review. (Exhibit A1) That report carries little weight and provides little assistance in relation to ascertaining the terms of the agreement between the two parties, given the methodology and the way in which the report was prepared.
Neither the author nor Mr Khoumsamatong, who was the fixer who undertook the repair work at the units, were called to give evidence either before the magistrate or before me.
It was asserted by the Applicant that the report could be relied on as support of the quantum that was agreed between the two parties for the work that was undertaken. Mr Petris purported to set out what was in his view the market rate per square metre for the type of work that was undertaken and by undertaking a calculation of the total square metres that were involved in each of the units. Mr Petris prepared a sheet setting out a calculation which came to a market rate as I understand his calculation of $18,166.96 for the work the subject of the agreement.
To the extent that that may be supportive of one side or the other, and it may in fact marginally support Mr Abdekerem, I do not place any weight on that calculation for that purpose. Mr Petris was not present during the course of the negotiations as to the agreement or the finalisation of the agreement itself.
I have reviewed all of the evidence before the magistrate, and I do not discern any error in her reasoning as to either the scope of the work or the contract price.
There is no further evidence or material that would cause the finding of the magistrate as to the scope of the work that was agreed to to be changed.
The applicant by the review submitted that the report Exhibit A1 showed that the true cost of the rectification work was in part as set out in the three invoices of S K Fixing & Gyprock (Exhibit D2).
I note here that from the submissions today and from a review of the report of Mr Petris it became apparent that firstly Mr Petris in effect simply inspected the properties and interviewed Mr Khoumsamatong in relation to the work that Mr Khoumsamatong said that he had done on the three units and Mr Petris found that Mr Khoumsamatong was 'honest and accountable'.
Mr Petris in those circumstances accepted the information that Mr Khoumsamatong provided him and therefore accepted the dollar amount in the three invoices of S K Fixing & Gyprock. Mr Petris did not undertake a separate calculation of the cost of the work that was undertaken by S K Fixing & Gyprock or if he did that was not discernible on the face of the three reports.
Secondly, in relation to the report Exhibit A1, no reliable independent calculations were undertaken in relation to the cost of the repairs that the applicant says were necessary to correct the defective work. The calculations that were undertaken rely as I have said on the position of Mr Khoumsamatong.
The magistrate set out her calculations in relation to the counterclaim at [19] of her judgment.
The magistrate did not allow the claim for any of the invoices of S K Fixing & Gyprock. Instead she calculated the cost of rectifying the faulty work at a daily rate of $350 for five days for each of the three units ($5,250). That calculation applied equally to the unit that invoice 285A related to. Having assessed damages on this basis and noting that invoice 285A had not been paid or reimbursed by the respondent the calculation of the applicant’s loss did not require the amount of that invoice to be deducted. The $2,618 should not have been deducted from the $5,250.
I have reviewed all of the material and taken into account the submissions of the parties today and taken into account the report that has been prepared, Exhibit A1. Apart from the matter of the deduction of the $2,618, there is no basis to interfere with the magistrate's findings or the magistrate's judgment. There is no error of the magistrate which would vitiate the judgment except for the deduction of the $2,618.
In all of the circumstances, and pursuant to s38(7)(d)(ii), I rescind the judgment of the magistrate Tracey and substitute a judgment in the sum of $5,650 in Mr Abdekerem's favour.
Orders
1Rescinding judgment handed down by Magistrate Tracey on 2 March 2015.
2Judgment of $5659 in favour of the respondent substituted.
3No order as to costs.
4Stay imposed by Magistrate Sprod and order that the amount of $5650 payable as of 10 February 2017 is removed.