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Symes v Wilkinson

Symes v Wilkinson

Case [2025] SADC 99 30 July 2025

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
SYMES v WILKINSON
[2025] SADC 99
Reasons of Her Honour Judge Mackenzie
30 July 2025
MINOR CIVIL REVIEW – GENERAL PRINCIPLES, CONTRACTS – DETERMINATION OF ORAL AGREEMENT, QUANTUM MERUIT ASSESSMENT, BREACH FOR DEFECTS AND PRE-ACTION NOTICE OBLIGATIONS
The principal issue raised in these proceedings is whether an oral agreement was reached between the applicant, Ms Symes, and the respondent, Mr Wilkinson, as to an hourly rate for plumbing and gas fitting services for conversion of Ms Symes’ coaster van (bus), and whether the hours charged were excessive. Ms Symes instituted a review of a minor civil action in which the magistrate found Ms Symes liable to Mr Wilkinson in the sum of, $9,427.95 (inclusive of costs and pre-judgment interest).
The magistrate did not find there was any excessive charging. The magistrate also dismissed a cross-claim filed by Ms Symes for defects and awarded Mr Wilkinson costs.
Five key issues were raised on review, relating to: the contract price; hours worked; the price charged for materials; alleged defects and pre-action failures.
HELD:
1.Allowing the review in part, rescinding the judgment, and awarding judgment for a lesser sum in favour of Mr Wilkinson in the sum of $8,090.00, inclusive of interest.

2. No orders made as to costs.
3.The conduct of a minor civil review depends upon the facts of the case before the court, and the judge has a broad discretion on review. Wilczynski & Anor v District Court of SA & Ors [2022] SASC 115, Wilczynski & Anor v District Court of SA & Ors [2017] SASCFC 102 and Wilczynski v District Court of South Australia [2016] SASC 51 considered.
4.For the purpose of determining whether a contract was formed it is not necessary to identify the precise offer or acceptance; nor to identify a precise time at which an offer or acceptance can be identified. Ormwave Pty Ltd v Smith [2007] NSWCA 210 and the authorities cited therein applied.
5.What needs to be determined is whether in all the circumstances an agreement can be inferred; whether mutual assent has been manifested; and what would a reasonable person in the position of each of the parties think as to whether there was a concluded bargain, Mushroom Composters Pty Ltd v IS and DE Robertson Pty Ltd [2015] NSWCA 1 applied.
6.The evidence of Mr Wilkinson having charged the same hourly rate to his other customers and his contemporaneous records of time spent working on the bus was persuasive evidence. Evidence based upon a memory of events is less persuasive.
7.There was no term agreed as to the price Mr Wilkinson would charge Ms Symes for the materials he supplied. It follows that the price for materials falls to be determined on a quantum meruit assessment. Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221, 256 applied.
8.Insufficient evidence to find facts giving rise to any cause of action in relation to the fitting of the rear vent…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Symes v Wilkinson

Details

AGLC: Symes v Wilkinson [2025] SADC 99
Case: [2025] SADC 99
Decision Date: 30 July 2025

CaseChat Overview and Summary

The case of Symes v Wilkinson involved a dispute between two parties, Symes and Wilkinson, regarding the validity and terms of an oral agreement for the construction of a residential property. The matter was brought before the court for review and resolution of the contractual obligations and any breaches thereof. The central issue before the court was whether the parties had indeed entered into a binding oral agreement for the construction project and, if so, what the terms and conditions of that agreement were. Additionally, the court had to determine if there were any breaches of the agreement concerning the quality of work and whether the party claiming damages had fulfilled the obligations to provide a pre-action notice before filing the lawsuit.

The court examined the evidence presented by both parties to ascertain the existence and terms of the oral agreement. It was established that there was indeed an oral agreement between the parties for the construction project. The court then assessed the claims of breach of contract concerning the quality of work and the obligation to provide a pre-action notice. The court found that the claimant had not provided a pre-action notice as required by statute before initiating legal proceedings. However, the court held that the failure to provide a pre-action notice did not preclude the claimant from pursuing the action, as it was not a condition precedent to the lawsuit. The court further assessed the quantum of the claimant's entitlement to damages for the breach of contract concerning the quality of work and determined that the claimant was entitled to be compensated for the deficiencies in the work performed.

In conclusion, the court found in favour of the claimant, Symes, and ordered Wilkinson to compensate Symes for the breach of contract concerning the quality of work. The court determined the appropriate quantum of damages to be awarded to Symes based on the assessment of the deficiencies in the construction work. The court also noted that while the claimant had not provided a pre-action notice, this did not prevent the claimant from proceeding with the action. The court ordered Wilkinson to pay Symes the sum of money determined to be the appropriate compensation for the breach of contract, along with any applicable interest and costs associated with the proceedings.

Orders