Symvine v Hristov
[2001] NSWSC 1073
•23 November 2001
CITATION: Symvine v Hristov [2001] NSWSC 1073 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): SC 11177 of 2001 HEARING DATE(S): 20 November 2001 JUDGMENT DATE:
23 November 2001PARTIES :
Symvine Pty Ltd (Plaintiff)
v
Zivko Hristov & Dragica Hristov (Defendants)
JUDGMENT OF: Master Malpass
LOWER COURT
JURISDICTION :Local Court LOWER COURT
FILE NUMBER(S) :1556 of 2000 LOWER COURT
JUDICIAL OFFICER :Mr R Clugston LCM
COUNSEL : Mr G K J Rich (Plaintiff)
Mr J Wilson (Defendants)SOLICITORS: Burrell Solicitors (Plaintiff)
Slattery Jurd & Co (Defendants)
CATCHWORDS: Implicit refusal to grant adjournment (to explore agreement as to quantum and to make further submissions at a later date) - sufficiency of disclosure of reasoning process - no error of law. LEGISLATION CITED: N/A CASES CITED: N/A DECISION: See Paragraph 27.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
11177 of 2001
FRIDAY 23 NOVEMBER 2001
Master Malpass
Symvine Pty Ltd v Zivko Hristov & Dragica Hristov
Judgment
: The plaintiff (who was the defendant in Local Court proceedings) was a building contractor carrying out certain building operations on the property known as No. 10 Kingsland Road, Bexley. The defendants (who were the plaintiffs in Local Court proceedings) are the owners of adjoining property known as No 8. Kingsland Road, Bexley. During the course of the building operations, damage was effected to the defendants’ property (including to a driveway).
2 In the Local Court, the defendants sought damages on a claim founded in negligence. The proceedings were defended. They came on for hearing before Mr Clugston LCM on 28 March 2001.
3 Due to an oversight on the part of the solicitor for the defendants, there had been a failure to comply with directions earlier given by the Local Court. This involved a failure to file and serve witness statements. Counsel for the defendants (Mr Wilson) informed the court that he proposed to lead oral evidence of the material that should have been in the statements. The solicitor for the plaintiff (Mr Burrell) raised the possibility of disadvantage and prejudice. He suggested a practical approach which involved the parties proceeding with the adducing of the oral evidence, whilst he reserved his position to seek an adjournment. The hearing then proceeded on that basis.
4 During the course of the hearing, the defendants tendered a quotation for inter alia the replacement of the driveway. It was from Concrete One Pty Ltd. The quoted lump sum price was in the sum of $11,260 plus GST. This quotation was admitted without objection. The quotation was expressed to be given in respect of a driveway having the dimensions of approximately 90 m2.
5 At a later stage in the hearing, one of the defendants (Mr Hristov) gave some evidence concerning the dimensions of the driveway. Some additional evidence was also given by an engineer called by the defendant (Mr Hawkins).
6 The effect of Mr Hristov’s evidence was that he hadn’t measured the driveway but gave the information that it was 2.7 – 2.8 metres wide and probably 18 metres long plus “the front”. The effect of what was said by Mr Hawkins was that it had a total width of 2½ metres and that the concrete area adjacent to the house was 16 metres long.
7 The evidence was completed and the learned Magistrate gave an ex tempore judgment on the question of liability. He found in favour of the defendants in relation to the damage to the driveway.
8 Mr Burrell then sought to address on the question of quantum. He raised a matter of inconsistency on the question of the dimensions of the driveway between the oral evidence and what appeared in the quotation. He then raised the possibility of an adjournment to enable the parties either to reach agreement on the question of quantum or to make submissions on that question at a later date.
9 This approach was resisted by Mr Wilson. Mr Burrell then pressed his application. An exchange then took place between the learned Magistrate and Mr Wilson.
10 Following that exchange, the learned Magistrate entered judgment in the sum of $12,386 plus interest. The quantum of the judgment was reached by adding 10% for the GST component to the lump sum price in the quotation.
11 The learned Magistrate did not expressly deal with the adjournment application. However, it was clearly rejected by implication. Mr Burrell did nothing further in relation to his application.
12 The plaintiff brings these proceedings by way of appeal and alleges error of law on the part of the learned Magistrate. The process relied on is an Amended Summons filed on 10 October 2001. Paragraph 4 of that document sets out the grounds upon which the application is made. The plaintiff now relies on one only of those grounds (this is the third of the three grounds). It is in the following terms:-
- “ In denying the Defendant the opportunity to adduce evidence in relation to the quantum of damages, his Worship failed to have due regard to the overriding duty of the Court to do justice between the parties .”
13 The evidence comprises material to be found in two affidavits sworn by Mr Burrell. In substance, it is the material that was before the learned Magistrate and the transcript.
14 Counsel for the plaintiff has prepared a written outline of submissions and has also orally addressed the court. He has taken the court to a number of decided cases.
15 The written submissions had proceeded on the basis that the plaintiff had not sighted the quotation until the hearing and was therefore not in a position to then deal with it. This approach was abandoned shortly after the commencement of oral submissions. It appears that the quotation had in fact been given to the plaintiff about 12 months prior to the hearing. There is nothing to suggest that the plaintiff did anything during that twelve-month period to either investigate the question of quantum or to obtain competing material on that question for the purposes of the hearing.
16 This left the plaintiff to rely only on the submissions concerning the failure to grant an adjournment.
17 In the written submissions, counsel for the plaintiff inter alia advanced the following:-
- “20. The learned Magistrate’s failure to grant the adjournment sought by Symvine meant that judgment was immediately entered for Hristov in the amount of the Quote. His Worship’s failure to give any reasons for refusing the adjournment application means that this is one of those cases referred to in House v The King, where the appellate court cannot discern exactly how the primary judge reached the result he did. However, it is submitted that the result reached by the learned Magistrate was plainly unreasonable or unjust and this Court may infer that in some way there has been a failure to properly exercise the discretion. Specifically, the learned Magistrate did not take into account, or else gave inadequate weight to, the ‘paramount consideration’ of ensuring that justice was done to both parties.
- 21. His Worship failed to define fairly and precisely the particular prejudices that were likely to be suffered by each party in the event of an adjournment and balance them in accordance with that paramount consideration. It cannot be said that the refusal of an adjournment was thought by his Worship to be the only way to do justice to Hristov, or that some irreparable prejudice would have been visited upon Hristov which outweighed the factors in favour of an adjournment. No such prejudice was ever referred to and when the possibility of an adjournment was first flagged by Symvine’s solicitor, Hristov’s counsel said it was an ‘acceptable’ course.”
18 Largely, counsel for the defendants challenged matters of fact upon which the appeal was founded and submitted that there was no error of law.
19 The learned Magistrate made a finding of fact as to the dimensions of the driveway. It was a finding that was open on the evidence. The oral evidence may not have been particularly helpful, but it was not inconsistent with what was contained in the quotation. The learned Magistrate was entitled to rely on what was said in the quotation which had been admitted without objection.
20 It would have been helpful if the learned Magistrate had been more expansive in the disclosure of his reasoning process. However, the rationale for the finding of fact is sufficiently disclosed by what appears in the transcript.
21 Again, it would have been helpful if the learned Magistrate had expressly dealt with the adjournment application. However, it is sufficiently clear from the transcript that he regarded it as an exercise in futility which would not serve the interests of justice between the parties.
22 In my view, a refusal of the adjournment application on those grounds was open to him. It does not seem to me that this denial occasioned any prejudice or injustice.
23 For completeness, I may add that a deficiency in the disclosure of the reasoning process does not inevitably lead to a successful appeal. If there be any error of law, it must justify the disturbing of the decision that is being challenged.
24 The application for adjournment was not made for the purpose of obtaining an opportunity to adduce further evidence. The process of taking evidence had been completed and the parties were then engaged in making submissions on the question of quantum only. The adjournment was pressed only on the basis that it should be granted to enable the parties to explore agreement as to quantum or to address the court at a later date on that question. Accordingly, the plaintiff was not denied the opportunity to adduce evidence in relation to quantum.
25 The learned Magistrate was dealing with a matter which concerned a sum in the order of $12,000 or less. The concern of the plaintiff could relate to part only of that sum. The plaintiff had not placed any evidence before the court on the question of quantum. An adjournment of the hearing could be seen as having the potential to put the parties to yet further expense disproportionate to the relatively modest sum in issue and thereby not serving the interests of justice.
26 A plaintiff can only succeed in an appeal to this Court where an error of law is demonstrated. In my view, the plaintiff has failed to demonstrate any error of law.
27 The Summons is dismissed. The plaintiff is to pay the costs of the Summons.
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