Siloam International Pty Ltd v Heo - [2015] SADC 62

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
SILOAM INTERNATIONAL PTY LTD v HEO
[2015] SADC 62
Judgment of His Honour Judge Tilmouth
22 April 2015
MAGISTRATES - APPEAL AND REVIEW
Application to review a judgment given in the minor civil jurisdiction of the Magistrates Court rescinded in part.
Chambers v Jobling (1986) 7 NSWLR 1; Galea v Galea (1990) 19 NSWLR 263, referred to.

SILOAM INTERNATIONAL PTY LTD v HEO
[2015] SADC 62

This is an appeal from a judgment given in the minor civil jurisdiction of the Adelaide Magistrates Court on 29 January 2015, in which a claim by the appellant, Siloam International for service fees said to be owing to it for business advice given to the respondent (defendant) was dismissed.
In an ex tempore judgment the learned Magistrate examined the evidence comprising email and SMS messages between Siloam’s principal Mr Kim, and Mr Heo the respondent. His Honour concluded ‘services were not provided because Mr Heo did not instruct Mr Kim to proceed and do any work’. Having examined the relevant correspondence afresh, relevant portions of which are extracted in the Magistrate’s reasons, it is clear there was certainly evidence of an offer, but there was no evidence of an acceptance in the contractual sense. Accordingly the Magistrate was correct in concluding no express agreement was struck between the parties for the provision of such services.
A second aspect of the claim arises from later communications between the same parties. After Siloam attempted to recover the sum claimed of $5,000 pursuant to an invoice it rendered, the respondent, according to Mr Kim, agreed to pay a reduced fee of $1,500. His Honour rejected the suggestion, finding it to be ‘unsupported by any documentary material and I found Mr Kim’s evidence to be unreliable’. In contrast he considered the evidence of Me Heo was ‘supported by the documentation he produced and by the documentation produced by Mr Kim’.
As to this second aspect of the case, there was an email from the appellant to the respondent of 23 April 2013, which read in this respect: ‘I would like to discount the service fee to $1,500’. However two conditions were attached. The second piece of evidence in this connection was another email from Mr Kim of 13 August 2013 stating ‘… based on your request, I discount the service fee to $1,500 from $5,000’.
This material supports the alternative claim to settle for $1,500, insofar as there was no following correspondence from Mr Heo refuting the allegation that $1,500 was discussed or requested. Nevertheless the evidence was of slight weight given its self-serving nature. By the same token there is no documented evidence of acceptance. Accordingly, the conclusion of the Magistrate must be upheld.
A third aspect of the case relates to the finding that ‘services were not provided’. With due deference to the Magistrate, it is a rather fragile basis at the best of times to resolve this aspect of the claim on the basis of demeanour and presentation: Chambers v Jobling,[1] and Galea v Galea.[2] In this instance the two witnesses’ first language is Korean and whose presentation may well have been affected by unfamiliarity with court procedures and on account of cultural differences. Putting that observation aside, there was a considerable body of material suggesting part performance of at least some services.
[1] (1986) 7 NSWLR 1, 9.
[2] (1990) 19 NSWLR 263, 266.
That material comprises an email from the respondent to the plaintiff of 18 June 2012 attaching a Wendy’s spreadsheet, stating ‘thank you very much for helping so far … please look at the attached material that I analysed as I don’t have much knowledge about the buying-selling a business in local field there so I rely on you’. The attached spreadsheet related to a Wendy’s franchise located in the Myer Centre, which analysed income figures of the business in some detail.
Next Mr Kim came into possession of a number of significant business documents belonging to the respondent, related to the Wendy’s business. These included a business profile of the business, a confidential agreement relating to it, a statement regarding financial and investment advice, a number of photographs of the business itself, a policy statement of the Wendy’s franchise and a number of annual financial returns and the like.
Mr Kim says this material was given to him for advice. Mr Heo claims they were handed to him by Mr Heo’s wife at a meeting occupying some 10 minutes and which she inadvertently failed to retrieve from him. This seems unlikely given the detailed financial information contained within it, and Mr Kim’s qualifications as a financial advisor. He holds a PhD from the University of South Australia in Business Management and an MBA from Flinders University. He is a regular financial advisor particularly to members of the Korean Community.
Attached to an email forwarded to this court of 11 March 2015, Mr Heo makes the admission ‘I will pay Jung Ki Kim some amount of money relevant to his work to accompany my wife to see the business broker Pat Versace’. Later he added detail to this ‘on 18 June my wife met Mr Pat Versace with Mr Jung Ki Kim … they had a conversation about the sale status, sale price etc … on that day it took about 1 ½ hours’. There is another admission in the same document that on 21 June Mr Kim attended a second meeting, this time for 30 minutes. Then there is a further email of 23 June 2012 from Mr Kim advising of the proposed service fee, which then proceeds to give advice in some detail about other matters relating to the Wendy’s franchise. Handwritten notes produced by Mr Kim in respect of meetings he claims to have attended, whilst not that decisive, only appear to relate to the giving of financial advice because of the nature of the figures and factual matters contained therein.
These materials in combination demonstrate that although there was no actual agreement, there was part performance of consultancy services, over a number of hours on at least two occasions, for which an alternative claim in quantum meriut should have been allowed by the Magistrate. Mr Kim stated that he spent up to 20 hours advising. The original claim of $5,000 is consistent with that stance. His usual charge rate was $240 per hour. His suggestion that he attended a meeting of two hours duration is supported by the admissions referred to earlier.
Judging by this material, it is clear that Mr Kim did undertake some consultancy or advice work on behalf of and at the behest of Mr Heo. It is impossible to be precise about the number of hours involved. Whether or not there was an agreement to settle at $1,500, the sum presupposes at least six hours work was undertaken, based on the hourly rate referred to earlier. On this footing it is appropriate to allow a claim on a quantum meruit basis of $1,500 doing the best with the evidence as it stands.
To that extent the decision of the Magistrate in which his Honour concluded that no services were provided is rescinded. In lieu of the order dismissing the claim, there will be an order that the appellant recover from the respondent the sum of $1,500. It is not appropriate to make an order for costs. Given that Siloam International has partly succeeded on appeal, the Magistrate’s order allowing the respondent an attendance fee of $150 should, in fairness, and out of consistency, be rescinded. The remaining aspects of the decision of the Magistrate are otherwise affirmed.