Scott v Condo - [2010] SADC 28

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SCOTT v CONDO
[2010] SADC 28
Judgment of His Honour Judge Chivell
12 March 2010
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - OFFER AND ACCEPTANCE
Plaintiff’s claim against defendant for breach of contract, work done materials supplied, failure to pay hiring fees for equipment, wrongful detention of furniture and equipment and a motor vehicle. Whether contract entered with between the parties. Defendant former defacto partner of plaintiff’s son - arrangements of a purely domestic nature and no intention to create contractual relations proved – claims based on contract/quantum merit discussed – claim for wrongful detention of certain chattels upheld. Judgement for plaintiff for $1103.00
Worker’s Liens Act 1893 (SA) s 5, s 32; De-facto Relationships Act 1996 (SA); Real Property Act 1886 (SA) s191(d); Building Work Contractors Act 1995 (SA) s 6, referred to.
Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540; Jones v Dunkel (1959) 101 CLR 298; Payne v Parker [1976] 1 NSWLR 191; Spence v Dimasi (1988) 48 SASR 536; Hagicostas v Adelaide United Soccer Club [2008] SADC 178, considered.

SCOTT v CONDO
[2010] SADC 28

This is a claim by Mrs Scott against her son’s former defacto partner Ms Condo.
The claim is a little confusing and contradictory. Neither Mrs Scott nor Ms Condo were legally represented at the trial, although it will become apparent that Mrs Scott has had legal help in formulating her claims in this action. Her claims can be summarised as follows:
·a contract was entered into by the two women whereby Mrs Scott, along with her son, would undertake work and supply materials to renovate a room in Ms Condo’s premises at Penneshaw so that she could use it in her business as a beautician. The amount claimed in this regard is $8,500 for materials and $2,160 for labour, being 144 hours at $15 per hour, which Mrs Scott alleged was the agreed rate. Obviously, the total of these two figures is $10,660, not $10,160 as alleged in the particulars of claim;
·Mrs Scott also alleged that she lent certain items of equipment to Ms Condo for use in the business on the basis that she would have possession for three months after which time she would purchase them at cost, or hire them for $50 per week, and return them upon request;
·further Mrs Scott alleged that she agreed to lend certain furniture to Ms Condo for 3 months, on the basis that it would be returned at the end of that time;
·Mrs Scott alleged that she agreed to sell to Ms Condo certain beauty products for use in the business;
·finally, Mrs Scott claimed to be the owner of a Chrysler Valiant Pacer motor vehicle which she alleged Ms Condo sold to a third party without her knowledge or consent.
Mrs Scott alleged that Ms Condo has not paid her for the renovation, for the equipment, for the furniture, for the beauty products, nor has she returned any of the items to her.
Mrs Scott claimed that:
·because of the renovations, the value of Ms Condo’s property increased, and that a constructive trust or alternatively an equitable charge in her favour was created;
·on the basis of that claim, Mrs Scott lodged a caveat on the title to the property;
·Mrs Scott also lodged a Notice of Lien pursuant to the Worker’s Liens Act 1893 (SA) in respect of the money she claims to be owed for the renovations;
·since the equipment was not returned, Mrs Scott claimed to be entitled to hire fees of $11,000 being $50 per week from June 2004 to 23 September 2008, plus $2,810 being the alleged value of the equipment.
The remedies sought by Mrs Scott are set out in Part 2 of the Amended Statement of Claim as follows:
23.A declaration that the defendant holds the Land upon a constructive trust, or alternatively an equitable charge, as to the amount of $10,130.
24.     An order extending the time for removal of Caveat No 10944024.
25.The sums of $10,160, $565, $11,000 and ongoing hire fees and $2,160 pursuant to the Contract.
26.In the alternative, damages for breach of contract.
27.An order for the return of the Equipment, the Furniture and the Vehicle, or payment of their value, and damages for their detention.
28.In the alternative, damages for the conversion of the Equipment, the Furniture and the Vehicle.
29.In the alternative to paragraph 23, a declaration that the plaintiff is entitled to a worker’s lien in the amount of $10,130 and an order for the enforcement of the lien.
30.Interest.
31.     Costs.
32.     Such other or further relief as the Court thinks fit.
The Evidence
Mrs Scott gave evidence on oath. She told me that her son Phillip Scott introduced her to Ms Condo in October or November 2002. They had started living together in Ms Condo’s house at Penneshaw by then. Mrs Scott said her son did handyman or building renovation work for a motel on Kangaroo Island. She told me that while Ms Condo was pregnant with her grand-daughter Zahlia they entered into the alleged contractual arrangements. She said in relation to the equipment:
“She talked about wanting to do beauty therapy and she was a massage therapist. I offered to teach her. At the time I was still quite emotionally – I don’t know what word to use but I was still very much grieving and at the time I wasn’t feeling up to working, so that was why I agreed to give her the opportunity of having the equipment to use, and I didn’t ask for anything for it at that time. And she said to me ‘I will probably buy my own but, if not, maybe we can come to an agreement about a payment or something’.[1]
[1] T16
On that basis, Mrs Scott said she gave possession of the equipment to Ms Condo. She said she asked various people the value of the goods, and it all added up to $2,180. She was unable to give any particulars of the value of the individual items. She had no receipts or other documentary evidence to justify her claims about the value.[2] She had no direct knowledge that Ms Condo conducted a business with the equipment; she said it was all based on what she told her.[3]
[2] T18
[3] T19
As to the alleged agreement to hire the equipment at $50 per week, Mrs Scott said:
The conversation was that she said that she didn’t really want to pay out the money to buy equipment of her own at the time, so she was happy to take this – given the fact of how much she was earning she was happy to give me $50 a week, which would make up for most of what I would be earning if I had my equipment myself. I was quite happy with that.
There were no other witnesses to this alleged agreement, it was never reduced to writing, and there was never any payment of $50.[4] Indeed, Mrs Scott conceded that she did not claim any hiring fees until after the relationship between Ms Condo and her son broke up.[5] In a letter dated 6 February 2005[6] Mrs Scott stated:
I hate to mention the agreement we had Nat, and there is no pressure, but it would be nice if you could send me a little bit of money to put back in my bank.
I know you have fees to pay for day care, but I would like just a little bit if you could manage it.
I won’t stipulate an amount or how often, whatever you can manage is ok. And please don’t feel pressured.
[4]    T21
[5]    T22
[6]    Part of Exhibit P1
This is to be contrasted with a letter dated 28 April 2006, after the relationship had ended:
I am writing to (you) about our agreement; I am sure you know by now that I need to get this resolved.
When I loaned you the money and then lent and hired you my equipment I trusted you, to do the right thing, and keep your word.
I need my equipment back to begin working myself again, if you had at least sent me the $50 per week that you agreed on, it wouldn’t be so hard for me, but since you have chosen to ignore me, I am now asking you to please return all of my equipment within 30 days and that will be the end of the matter.
Ms Condo denied having received either letter. By that time, if the alleged hiring agreement was true, Ms Condo would have run up about $5,000 in fees, yet all Mrs Scott was seeking was the return of the equipment. I find this surprising. It is also noteworthy that in this letter there was no mention of the furniture, the beauty products, the car or the building work. Mrs Scott’s explanations for this were unsatisfactory.[7]
[7] at T27
In a letter dated 10 May 2006, Mrs Scott wrote to Ms Condo demanding the return of a number of personal items on behalf of her son Phillip. A number of the items seemed to correspond with items Mrs Scott included in her Statement of Claim on her own behalf. Without mentioning them all, there was, for example, a Pro Hart painting on both lists (Mrs Scott asserted that at least one of these was an original[8]. This also seems surprising as the total claim for furniture is $1,665 and the painting, if original, would be worth much more than that by itself). There was also a baltic pine dresser on both lists, and a half-round table (Mrs Scott conceded that this item had been counted twice). I am deeply suspicious that there has been more than one example of double-counting involved here. Further, Mrs Scott was again unable to give any particulars about values, but would only assert a total amount of $1,665.
[8] at T29
The Agreement to Renovate the Room
In her opening address, Mrs Scott referred to a claim for work done and materials supplied, and this was consistent with the Statement of Claim. However, in evidence Mrs Scott said that in fact this was not the nature of the contract at all.[9] She said she advanced $10,000 to Ms Condo, in cash, to be used in renovating the room. She said she put it in the Statement of Claim in a “different way” by claiming the amount for work done and materials supplied.[10]
[9] at T32
[10] at T32
In her letter to Ms Condo dated 18 December 2007,[11] Mrs Scott indicated that she would waive the rest of her claim if Ms Condo paid the $1,103 for a massage bed, reflexology chair/table and foot spa “in full finalisation of the matter.” The letter implied that the finalization would include waiver of the $10,000 loan.
[11] Part of Exhibit P1
I can have little confidence in any of Mrs Scott’s assertions about these matters – the evidence was confused, confusing and contradictory. Before I could form any judgment about whether a contract existed between her and Ms Condo, I would need to be satisfied about a sufficient number of the agreed terms that are consistent with the formation of a concluded bargain.[12]
[12] (see the remarks of Gleeson CJ in Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at p 548 )
I can have no confidence that there was a concluded bargain between Mrs Scott and Ms Condo to renovate the room – there was no agreement about what work was specified, what work was done, and whether it was done by Mrs Scott, her son, or both of them, whether an hourly rate was agreed or simply unilaterally applied later by Mrs Scott, what materials were purchased and by whom.[13]
[13] See her evidence at T 34 – 38
To complicate matters further, there have already been proceedings between Mrs Scott’s son Phillip and Ms Condo in the Magistrates’ Court (Civil Division) in which many of these issues were also ventilated.
In Scott v Condo[14], Phillip Scott made a claim against Ms Condo pursuant to the De-facto Relationships Act 1996 in which he alleged that he contributed to the household by (among other things):
·purchasing furniture;
·improving the property by painting the interior and exterior, landscaping and installing a garden;
·borrowing money to purchase improvements including “renovations to Zahlia’s room.
(see Exhibit D2)
[14] Action No 1106/06
It is not clear, but I suspect that the money Mr Scott allegedly borrowed may have come from his mother. If that is the case, then she should look to him for repayment rather than to Ms Condo.
It is noteworthy that Mr Scott did not mention the work which Mrs Scott now alleges he did to the room. However, his general references to painting and to “renovating Zahlia’s room” are noted. Mrs Scott told me in her opening remarks that the room to be renovated was “for when the baby was born and so she (Ms Condo) would work at home …..[15]. It seems likely, then, that the renovated room was in fact Zahlia’s room.
[15] T4
It is also noteworthy that there is no mention of the Valiant car in that litigation. Mrs Scott could give no first-hand evidence about the car, and produced no other evidence about it.
Ms Condo asserted in cross-examination that the litigation with Phillip Scott was compromised and he withdrew his claim. Mrs Scott had no first-hand knowledge of this either, but there is a clear inference that all of the outstanding issues arising from the defacto relationship were finalised then. The extent to which those issues overlap with the issues before me is completely unclear. I have a very strong suspicion that Mrs Scott is seeking to relitigate some of those issues here. I am not satisfied that any form of binding contract was entered into. I think it is far more likely that if there was any arrangement between the parties, it was merely of a domestic nature and not legally binding. That is apparent from the alleged written correspondence. Mrs Scott has tried to elevate these arrangements into legally enforceable causes of action since her son’s relationship with Ms Condo ceased, and she was no longer able to see her granddaughter.
The Caveat
The court record indicates that on 6 March 2009, Master Bampton ordered that the caveat be removed pursuant to s 191(d) of the Real Property Act in order to allow Ms Condo to refinance the property, and ordered that she be restrained from otherwise dealing with the property.
The Worker’s Lien
It would appear that a lien pursuant to s 5 of the Worker’s Liens Act 1893 was placed on Ms Condo’s property on 6 March 2009, the day the Master removed the caveat. The court record indicates that Mrs Scott did not mention this on that day. The question of contempt of court was raised.
On 16 April 2009, the Master cancelled the lien pursuant to s 32 of the Worker’s Liens Act and ordered that it be removed from the title. Her Honour published reasons for that order.[16] One of the grounds upon which the Master cancelled the lien was that the amount claimed was for a contract price for work done and materials supplied pursuant to an alleged building work contract, and s 6(1) of the Building Work Contractors Act requires that a person must not carry on business as a building work contractor except as authorised by a licence under the Act. Since there is no evidence that either Mrs Scott or her son were so licensed, the contract was unenforceable having regard to s 6(2).
[16] FDN20
Be all that as it may, I am not satisfied that any such work was performed by the plaintiff or her son. Mrs Scott alleged that her son repaired a wall by removing and replacing some gyprock and timber, the fitting of curtain tracks, timber shelving, painting, fabric for a chair and curtains. Even if such work was done, I reject that it would have cost more than $8,000, and that it took 144 hours. She said that her son did it, and that she “helped”. She kept no records of times or expenses. She said her son bought the materials, yet she had no records and did not call him to give evidence.
There are a number of other reasons why Mrs Scott’s claims lack credibility. In cross-examination, she conceded that if the claim of advancing money to Ms Condo is true, she did so 8 months before the work was done[17] and after Ms Condo, on her version, assaulted her.[18] She then contradicted herself again about that.[19]
[17] T54
[18] T53
[19] T56
Finally, and most importantly, Mrs Scott did not call her son to give evidence about these matters, and his evidence is central to almost everything in dispute here. I pointed this out to Mrs Scott several times during the hearing. It is not that I am drawing an adverse inference from the failure to call Phillip,[20] it is that the failure to call him leaves a huge gap in the plaintiff’s case which has meant that major issues have not been elucidated, and have been left in a state of complete uncertainty.
[20] See Jones v Dunkel (1959) 101 CLR 298, Payne v Parker [1976] 1 NSWLR 191 at 201, Spence v Dimasi (1988) 48 SASR 536 at 547-9, Hagicostas v Adelaide United Soccer Club [2008] SADC 178
Taking all these matters with account, I find that I am not prepared to rely on the evidence of Mrs Scott unless her evidence is supported by credible, independent evidence, or by admissions by Ms Condo.
Mr Wesley Scott, another son of the plaintiff was called by her. He said that Zahlia’s room had been painted, but not completely finished before Zahlia was born in May 2004.[21] This contradicted the plaintiff’s evidence that the work she and Phillip did was in 2005.[22] Mrs Scott said this, obviously, to get around the suggestion, put by Ms Condo in cross-examination, that ferry records indicated that in 2004 the longest time she stayed on Kangaroo Island was 2 ½ days.
[21] T60
[22] T50
Evidence for the Defence
Ms Condo’s evidence consisted almost entirely of denials, except that she admitted that she received a massage table, a “foot chair”, a “wax pot” and a light. She denied that she received any of the other property. She said that Mrs Scott had only ever asked for the return of the “foot chair”.
Ms Condo denied she was conducting a business as a beautician. She denied that there was any discussion of payment, or hiring fees, for any of the equipment. She denied a room was ever prepared for any such business.[23]
[23] T70 – T72
Ms Condo said that she and Phillip Scott built some decking, painted every room in the house, put down lino, put up shade sails and established a garden. She denied that Mrs Scott did any such work.[24]
[24] T73
Ms Condo said that she tried to return the foot chair to Mrs Scott but it was returned because she put the wrong address on it.[25] I have reservations about the credibility of that evidence as well.
[25] T74
Ms Condo denied that Mrs Scott ever advanced her any money, let alone $10,000.
Ms Condo said she thought Phillip Scott did something with the car, the Valiant, but that she didn’t really know.[26] I am sceptical about that evidence as well, but that does not help the plaintiff’s case. Ms Condo denied Mrs Scott’s suggestion that she sold it.[27]
[26] T75
[27] T78
Having regard to my earlier findings about the credibility of Mrs Scott’s case, I find that the only aspect which is supported by either independent evidence or defence admissions is the retention by Ms Condo of the four items of furniture she admits she received. Ms Condo’s attitude was that if Mrs Scott had asked for it back, she would have returned it.[28] However, it was clear from the written correspondence that Mrs Scott was asking for the equipment back. Even if Ms Condo did not receive the correspondence, the issue of proceedings in this matter should have made it clear.
[28] T83-84
I therefore find that Ms Condo has wrongfully detained the following items, and that the value of each, which was not disputed is as follows:
·Massage Table – value asserted in 18/12/07 letter:                 $595.00
·Reflexology foot/chair – value asserted in 18/12/07 letter:    $379.00
·Foot spa – value asserted in 18/12/07 letter:  $129.00
·Light – no value asserted             nil
$1,103.00

The defendant has had plenty of opportunity to return the items to the plaintiff over the years. I do not see any point in making orders for the return of the property. It is more satisfactory that Mrs Scott receive damages for wrongful detention of the property.
I give judgement for the plaintiff for $1,103.00.
In all the circumstances, each party should bear her own costs of the action.