T and G Sustainable Builders Pty Ltd v Fitzhum
[2018] WADC 104
•22 AUGUST 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: T & G SUSTAINABLE BUILDERS PTY LTD -v- FITZHUM [2018] WADC 104
CORAM: STAVRIANOU DCJ
HEARD: 22 JUNE 2018
DELIVERED : 22 AUGUST 2018
FILE NO/S: APP 1 of 2018
BETWEEN: T & G SUSTAINABLE BUILDERS PTY LTD
Appellant
AND
BRYAN GEORGE FITZHUM
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE T HALL
File Number : GCLM 110 of 2017
Catchwords:
Appeal - Local court - Self-represented litigant - Procedural fairness - Identification of issues by magistrate
Legislation:
District Court Rules 2005, r 50
Magistrates Court (Civil Proceedings) Act 2005, s 40
Result:
Appeal allowed
Representation:
Counsel:
| Appellant | : | Mr A J Aristei |
| Respondent | : | Mr G J Douglas |
Solicitors:
| Appellant | : | Irwin Legal |
| Respondent | : | Douglas Cheveralls Lawyers |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40 [23]; [2000] HCA 40; (2000) 203 CLR 172
Cameron v Cole (1944) 68 CLR 571
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
National Companies & Securities Commission v News Corp Ltd (1984) 156 CLR 296
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
STAVRIANOU DCJ:
Introduction
The appellant, T & G Sustainable Builders Pty Ltd (T & G), is a builder. In 2016 it engaged the respondent, Bryan George Fitzhum, to carry out earthworks for a home being constructed in Ardross. Mr Fitzhum made a claim against T & G for payment for work done by him.
On 22 June 2018 Magistrate Hall gave judgment for Mr Fitzhum against T&G in the sum of $16,266.
T&G appeals against that decision.
For the reasons that follow, the appeal must be upheld. All the issues that were properly before the court were not considered by the learned magistrate. Accordingly, there must be a retrial.
Background
On 5 February 2016 Mr Fitzhum provided a quotation to T & G dated 4 February 2016 for excavation and site works to 72B McCallum Crescent, Ardross. The quoted sum was $25,163.60.
The quote reads:
Quotation for Excavation Siteworks : 72B McCallum Crescent Ardross
STAGE 1 Excavation rear of block for swimming pool
1.7m x 12m x 9m wide
&
Excavation for underground garage
15m x 8m x 2m
DIGGER – 3 days plus mob and demob $1220.00/day $3,660.00
TRUCK 1 – Truck & pig plus mob & demob – 2 days @ $1728/day $3,456.00
TRUCK 2 – Truck & pig plus mob & demob – 2 days @ $1728/day $3,456.00
BOBCAT – 3 days plus mob and demob $1080.00/day $3,240.00
TIP FEES
Pool – 142 cubic metres @ $22/cube $3,124.00
Garage – 270 cubic metres @ $22/cube $5,940.00
PRE-GST $22,876.00
GST $2,287.60
TOTAL $25,163.60PLEASE NOTE:
If any underground obstacles are encountered that delay the progress of the job more than 2 hours, we will inform you immediately. Additional charges will apply.
If quote is accepted a 25% deposit is required before commencement of work. Full payment on completion of earthworks.
Any sand to be left will be deducted off the cubic metres.
On 10 February 2016 Richard Tinniswood (a director of T & G) accepted the quote.
On 18 February 2016 Mr Fitzhum sent an email to Mr Tinniswood which reads:
Good Morning Richard
Confirmation that I will commence work tomorrow on the above job.
Yet to receive the 25% deposit.
Our bank details:
BSB 633 000
ACCT 1246494679
NAME – Helena Bobcat & Truck Hire
Can you please call me once the money has been transferred.
On 22 February 2016 there was a telephone conversation between Mr Fitzhum and Mr Tinniswood. On that same day Mr Fitzhum sent an email to Mr Tinniswood, the terms of which are as follows:
Good Morning Richard.
Further to our telephone conversation today at 10.30.
An additional 700mm depth of dirt is required to be removed.
All equipment and additional fees will apply.
Please note due to additional dirt removal we take no responsibility for any landslides that may occur.
We will discuss further on Craigs arrival and on your further direction.
Thank you.
On 25 February 2016 Mr Fitzhum forwarded what was described as a final invoice to Mr Tinniswood. The amount claimed was $37,909. The invoice was attached to an email which referred to it being a 'final invoice to date' and reads:
Good Afternoon Richard and Craig
Please find attached final invoice to date.
Payment would be appreciated asap as discussed.
Should you have any queries please do not hesitate to contact me.
On 3 March 2016 Mr Fitzhum sent an email to Mr Tinniswood threatening legal action if payment of the amount outstanding was not received.
On 4 March 2016 Mr Tinniswood replied to Mr Fitzhum's email communications. The email reads:
Good Morning Bryan
With Reference to the Job at 72B McCallum Crescent Ardross The Original Quote for the job was $25,163.30 Including GST Compared to another quote of $30,800.00 including GST. You were awarded the Job we now have an invoice for $39,909.00 and the job is Not as yet finished an increase already of 58.6%
There are several things that concern me. The amount of extra sand that has been removed and if I have an extra cost to bring sand back in.
I know there appeared to be conflict in the level but am surprised on site that a level was not checked back to datum. I am also concerned about tip fees considering when I checked the Price for clean virgin sand was $5.50/m3 I would appreciate confirmation of capacity of sand removed from site, I require this to justify any extra sand that needed to be removed to the Owner.
I have Transferred $20,000 through to your account in the meantime.
Mr Fitzhum responded to Mr Tinniswood's email on 5 March 2016 as follows:
Good Morning Richard
Further to your email dated 04.03.16.
Your first query regarding the extra sand removed. On the 23.02.16 you requested an extra 700mm removed from the swimming pool. Hence the extra sand removal.
Secondly at no time did we quote for clean virgin sand as we were not sure what would be found. Hence why we quoted $22.00/cube which you accepted.
Please find below total sand removed per day.
19.02.016 2 x trucks @ 5 loads each = 200 cubes
22.02.16 2 x trucks @ 5 loads each = 200 cubes
23.02.16 2 x trucks @ 5 loads each = 200 cubes
24.02.16 2 x trucks @ 1 load each = 40 cubes
During this time I also removed 3 loads @ 10 cubes = 30 cubes.
Total cubes as per invoice 670.
Please take note that I did not charge you for my truck hire.
On day 1 yourself and Craig moved the datum point from the road to the right hand top of the block. You set the level which I worked from. The figures I worked off were calculated by you on site.
On day 3 you changed the level for the swimming pool by 700mm which I had to excavate out. This calculates the extra sand & equipment.
On numerous occassions [sic] I contacted you and queried your figures and you assured me they were correct. At no stage did you tell me about the center of the block datum point.
On the last day while packing up I spoke to Craig and told him that the excavation and ongoing costs was a variation to the original quote which Craig agreed upon. You also agreed the day before that the quote would have a variation. As per a previous email to you confirming this.
A balance of $17,909.00 is due for immediate payment. Should this not be received by Tuesday 08.03.16 legal action will be taken.
On 10 March 2016 Mr Fitzhum forwarded an email to Mr Tinniswood which reads:
Craig and Richard
Further to my discussion this morning with Craig. I will agree to deduct $2000.00 from final invoice as per Craig's request. Final amount owing is $15,909.90. Please take note no further deductions will apply or be considered.
This agreement will only apply today or further action will be taken.
I require a payment date to be emailed thru to me asap.
On 10 March 2016 Mr Fitzhum forwarded an amended invoice for $15,909.
On 14 March 2016 Mr Tinniswood emailed Mr Fitzhum as follows:
Hi Bryan
With Regard to the invoice for the Work at 72B McCallum Crescent.
The original Quotation was $25,163.60 including GST
There was an Error in the Datum on the Back wall of 200mm Unfortunately the Pool and Alfresco area were cut down 1metre deeper than required.
Hence an Excess of Sand removed.
Unfortunately I believe you have underestimated your quantities.
My main Concern now is that we will have bring back sand at a Cost.
We are prepared to pay a Total Price of $37,600 including GST to have the job finished to the Correct levels.
If this is not acceptable we will be holding funds to pay for another Contractor to finish off.
Could you confirm your intentions so as not to hold up the job.
On 16 January 2017 Mr Fitzhum commenced proceedings in the Magistrates Court claiming $17,909. The claim refers to there only being a part‑payment made by T & G and that there was 'outstanding $17,909 still owing'.
As part of the proceedings Mr Fitzhum filed a document dated 6 February 2017 which detailed his claim. The document reads:
EARTHWORKS – 72B McCALLUM CRESCENT, ARDROSS.
Details as per the attached.
T & G requested us to do works & then instructed us to complete additional work at the same day rate. I completed all work as requested. This would be forming a contract as we were not asked to leave site.
The defendant did question the invoice. We provided all information he requested but he is yet pay.
$17,909.00.
On 16 February 2017 T & G filed a document in the proceedings described as 'defence to general procedure claim'. In the document there is reference by T & G to the necessity for it to 'engage other contractors to finish the job'.
The Magistrates Court hearing and the judgment
Mr Fitzhum represented himself at the trial. Mr Tinniswood was given leave to appear on behalf of T & G.
At the commencement of the hearing the following exchange occurred:
HIS HONOUR: Thank you. So it's a general procedure claim for $17,909, plus costs – court costs. And I understand that the issue appears to be that there was an original quote to do some works.
TINNISWOOD, MR: Yes.
HIS HONOUR: And that quote was for $25,163.60.
TINNISWOOD, MR: Yes.
HIS HONOUR: That quote was accepted, work commenced.
TINNISWOOD, MR: Yes.
HIS HONOUR: So that's not in issue. The issue is – well, according to the claimant, that there was some additional works required to be done.
TINNISWOOD, MR: There was no additional work required to be done.
HIS HONOUR: Okay. Well, let me just – that's what they're claiming.
TINNISWOOD, MR: Yes, okay.
HIS HONOUR: Okay. So they're claiming there was some additional work that was required to be done, which was done. They're saying it was agreed to and you will be saying that it wasn't required to be done and it wasn't agreed to, and that additional works amounts to $17,909. All right. So look, the matter is listed for hearing today.
FITZTHUM, MR: Yes.
The magistrate correctly identified that there was an issue as to the existence of an agreement to vary the work required to be done. However, he erroneously expressed that the 'additional works amounts to $17,909'. The $17,909 in fact was a claim for the balance due for work done under the original agreement together with money due in relation to work the subject of the variation.
His Honour then explained to the parties the way the hearing was to proceed and that there would be an opportunity to cross-examine witnesses. Neither party made a detailed opening address. Evidence was adduced by Mr Fitzhum and by T & G.
The existence of the variation was referred to in the cross‑examination of Mr Fitzhum. Relevantly, the following exchange occurred:
And then in addition to that, the next day being told to refill the metre? - - - Yes.
You've asked him about the 700 mil - - -
TINNISWOOD, MR: Yes.
HIS HONOUR: - - - variation. You say it was never said,
TINNISWOOD, MR: Yes.
HIS HONOUR: He disagrees. You say that you consistently said dig to 3.6. He agrees with that. And you say there was nothing further said.
TINNISWOOD, MR: Yes.
HIS HONOUR: He disagrees. He says there was the conversation about the 700 mils. He has also given evidence about this direction to refill after he has dug 700 mils extra. He said there was a direction to refill a metre, which has formed part of his extra work, extra quote. Do you want to ask him anything about that or do you want to put your version to him about that?
TINNISWOOD, MR: I would rather put my version, I think, because it's going to be more helpful, basically, because - - -
HIS HONOUR: Yes. What I'm saying – if you disagree with that – if anything you disagree with there's evidence about, you need to put your version to him. So you put to him you disagree about the phone call - - -
Mr Fitzhum gave evidence that on 19 February 2016 Mr Tinniswood had carried out calculations in relation to the depth of the excavations and given them to Mr Fitzhum who wrote the figures onto the plan that had been provided. It was Mr Fitzhum's evidence that following completion of the excavation of the swimming pool and alfresco areas, he received a telephone call from Mr Tinniswood. In the call Mr Tinniswood had requested an extra 700 mm of earth to be excavated from the swimming pool.
Mr Fitzhum's evidence was that the work in accordance with the original quote had been completed. Relevantly, he said:
FITZTHUM, MR: That extra dirt that was getting excavated out of the drive – out of the carport would have sufficed for that so there would be no – pretty well no dirt to be taken away. So that's what we came up with.
HIS HONOUR: Right.
FITZTHUM, MR: Now, all the levels and stuff, we were – that was all done, everything was all cool. The job was finished. All right. On day 4, Rob and myself finished levels – on the swimming pool and the alfresco area. Area to be – area that then – sorry, swimming pool and alfresco area and then excavated underground garage, all part of stage 1. All levels were correct and okayed onsite by Craig. So when we've finished backfilling – digging out of the carport, that was – that was the conclusion of my job. Now - - -
HIS HONOUR: So on day 4 you finished the job.
FITZTHUM, MR: That's correct. Now, all levels were checked and okayed onsite by Craig Griffith and he confirmed that all was to his satisfaction. Craig okayed the variation and said payment will be made asap, in front of my witness.
Mr Fitzhum was cross-examined by Mr Tinniswood and agreed that what he had quoted on was for the excavation of the pool and a garage. He clarified that this was for stage 1 which was the swimming pool and part of the garage excavation. There were, on his evidence, to be two stages in the garage. His evidence was:
HIS HONOUR: Yes. But you're saying there was two stages (indistinct)? - - - That's correct.
Okay? - - - Because of the manner of the ground, it was sandy, there was walls – steel walls and whatever, concrete cladding to go into the – onto the walls of the garage. At the first stage it was excavate out, then put walls up there to shore the dirt up, and then there was a second excavation down for another couple of metres.
Well, he's asking you that was all the work that needed to be done for - - -? - - - That's right.
- - - for the garage? - - - I – sorry. Yes. That two metres deep is – yes. That's what I quoted for.
For stage 1. You're saying for stage 1? - - - That's correct.
But there was more work to be done in the garage? - - - After, yes.
Which was unquoted for? - - - That's correct.
In cross-examination of Mr Fitzhum, the work required pursuant to the quote was explored. Relevantly, the evidence was:
- - - you have quoted – no. You've quoted for the full garage? - - - No, I didn't.
The size - - -
HIS HONOUR: Well, he disagrees with that.
TINNISWOOD, MR: Well - - - ? - - - No, I didn't.
You know, that's (indistinct)? - - - That's – and that's why (indistinct) that's why it's called stage 1.
No. Why would I want a quote for the earthwork? I want a quote for the whole job. Stage 1 and stage 2, all right? There was a (indistinct)? - - - No.
You know - - -? - - - You – look, the quote was for to dig up the garage - - -
Yes. Did (indistinct)? - - - - - - to put up the – excuse me.
HIS HONOUR: Let him answer. Let him finish? - - - Then grout wall it to secure the dirt away from it, then to come back. The second stage was to dig out another two metres to drop the garage another two metres. Right? So that was the job. Stage 1 was first excavation, two metres out of the garage, and the swimming pool. That's stage 1. That's what I quoted for. That's the job I did. There was never – and you tried to say to me, 'I will pay you at the finish of – when you finish the second stage or the digging up the garage'.
TINNISWOOD, MR: (indistinct) that's not the (indistinct)? - - - That was never the quote. The quote was for stage 1, that the excavation of two metres or 17 metres or whatever of the – for the garage and the swimming pool, not to excavate the whole garage. Not at all. 100 per cent wrong.
HIS HONOUR: Just let me understand this. You're putting to him the quote was for the whole garage? - - - Yes.
HIS HONOUR: You're saying no. The quote was for stage 1 - - - ? - - - Well, that would be - - -
- - - which was not the full job. And you – the job you did was what you quoted? - - - That's correct. And the – so therefore the – how deep was the garage? Four metres.
TINNISWOOD, MR: No, no? - - - How deep was it?
It's only just over two metres deep? - - - I don't believe that at all.
Mr Tinniswood and Mr Craig Melvin Griffiths gave evidence on behalf of T & G. Their evidence was that the garage had not been excavated to the required depth of 2 m.
At the completion of the evidence the magistrate summarised the position as follows:
HIS HONOUR: So that now completes all the evidence in this trial. I've heard all the evidence. What remains now is closing submissions. Because it has been a relatively short trial, I don't need you to go over the evidence from start to finish, but, in fact, you're entitled to make whatever closing you want. But, the way I see it, the issue is the 700 mil variation and there's a dispute in the evidence. They're saying there was a phone call to dig an extra 700 mils, which he says he did on instructions, which he says constitutes a variation.
The variation then includes a refill based on instructions to fill in another metre. So his case is original quote. That's a contract. Then there's a variation which he has acted on, and then as a result of that variation there's the extra charges which he has been charged. And, from what I understand, your response to that claim is there was no variation – there was no conversation – because there was no conversation to do the extra 700 mil. So the extra 700 mil was not an instruction by you.
TINNISWOOD, MR: No.
HIS HONOUR: So, therefore, it was not a variation of the contract by you.
TINNISWOOD, MR: No.
HIS HONOUR: And you're saying you don't know why it was dug too deep, but it was. There was an instruction to refill it, but that was because it was dug too deep, which I infer from your – from what you're saying – that that was the area of the claim.
TINNISWOOD, MR: That's right.
HIS HONOUR: That it was dug too deep.
TINNISWOOD, MR: Yes.
The magistrate's summary identified the issue as being the existence of the variation. He did not specifically seek submissions from the parties concerning completion of the work required pursuant to the original agreement.
Consideration
The substituted grounds of appeal read:
1.Having found that the scope of the terms of the additional variation to the original contract ('the Variation') were that:
(i)An additional 700mm depth of dirt was required to be removed by the Respondent; and
(ii)All equipment and additional fees will apply;
the learned Magistrate erred in law and in fact by finding that the additional sum claimed by the Respondent for the Variation was payable in circumstances where:
(a)The amounts stated in the invoice dated 25 February 2016 (Exhibit 5) that were alleged to be attributable to the terms of the Variation did not constitute a debt or liquidated demand (as claimed by the Respondent);
(b)The onus of proof in establishing that the Respondent had suffered any loss (or any loss as claimed) as the result of a breach of the Variation was upon the Respondent;
(c)In order to satisfy the relevant onus of proof, the Respondent was required to prove that the loss or damage was actually caused by a breach of the Variation, and that the loss or damage would not have occurred but for the said breach;
(d)There was no evidence to differentiate the work and fees claimed by the Respondent pursuant to the terms of the Variation from either the work required to be performed under the original contract, or the refilling of dirt by the Respondent (that were both services outside the scope of the Variation);
(e)Contrary to the learned Magistrate's finding that the 'subsequent quote hasn't really been disputed', the Appellant had not admitted or otherwise conceded that the stated claims in the said invoice (Exhibit 5) were attributable to the terms of the Variation, or were otherwise payable on that basis.
2.In the premises, the learned Magistrate should have awarded only nominal damages (if at all) for any finding to the effect that there had been a breach of the terms of the Variation by the Appellant.
3.Further or alternatively, the learned Magistrate erred in law and in fact by finding that the monies claimed under the original contract were payable in the premises of the matters and grounds detailed in paragraphs 1 and 2 herein.
4.Alternatively, the learned Magistrate erred in law or in fact by finding that the original contract and the Variation constituted a payable debt or liquidated demand when those findings were not reasonably open on the evidence.
5.Further, or alternatively, the learned Magistrate denied procedural fairness to the Appellant or otherwise misdirected himself in law by failing to consider or determine the Appellant's denial of the Respondent's claim that the original contract was completed entitling payment.
Ultimately, the appeal primarily focused upon ground 5 which encapsulates each of the previous grounds.
An appeal from a decision of a magistrate to the District Court is by way of a reconsideration of the evidence that was before the primary court: Magistrates Court (Civil Proceedings) Act 2005, s 40, District Court Rules 2004, r 50.
The powers of this court on appeal by way of rehearing are only exercisable if it is demonstrated that the magistrate's decision was the result of some legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40 [23]; [2000] HCA 40; (2000) 203 CLR 172, 180 - 181.
The requirements of natural justice depend upon the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting and the subject matter that is being dealt with: National Companies & Securities Commission v News Corp Ltd (1984) 156 CLR 296, 311 - 312 (Gibbs CJ).
In Cameron v Cole (1944) 68 CLR 571, Rich J said (589):
It is a fundamental principle of natural justice applicable to all Courts, whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle is not observed, the person affected is entitled ex debito justitiae to have any determination which affects him set aside and a Court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside. In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial an leaves the field open for a real trial (Crane v Director of Public Prosecutions [1921] 2 AC at 332 - 333).
Natural justice required that each of the parties be given a fair trial and a reasonable opportunity to present their case. A denial of procedural fairness will lead to a new trial unless a properly conducted hearing could not possibly have produced a different result or, perhaps, could not possibly lead to a different result at a new hearing: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 - 147.
In this case the hearing was made more difficult because each litigant was self‑represented. Assistance from the magistrate was clearly required. I accept the magistrate needed to maintain a balance in relation to the assistance provided. I am mindful of the judgment of the court in Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65, where it was observed by Pullin, Newnes and Murphy JJA [51]:
What a judge ought do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case: Abram v Bank of New Zealand [1996] FCA 635; (1996) ATPR 41-507, 31; Tobin v Dodd [2004] WASCA 288 [14]. The boundaries of intervention are flexible but the lodestar is a fair and just trial. It is clear, however, that a judge must not intervene to such an extent that he or she cannot maintain a position of neutrality or as to give an unrepresented litigant a positive advantage over another party. The advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which that litigant will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which the adversarial procedure offers to the unwary and untutored: Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1, 14; Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 [26] - [29].
The magistrate delivered oral reasons immediately following the completion of the evidence and noted that 'a lot is not in dispute'. Specifically, he identified:
(a)the existence of a meeting;
(b)the acceptance of the quote;
(c)'the hole is dug too deep and refilled'.
The magistrate identified that the question was whether the extra digging done was as a result of a direction by Mr Tinniswood or an error by Mr Fitzhum.
The magistrate summarised the evidence of the witnesses and stated:
I accept that there was the phone call. I accept that it does amount to a variation. I'm satisfied on the balance of probabilities – amounting to a verbal variation. I'm satisfied on the balance of probabilities that Mr Fitzthum could infer from the previous quote that the existing rates and cubic metre rates would apply to the additional work, and I'm therefore satisfied on the balance of probabilities that the extra work was carried out and really, the subsequent quote hasn't really been disputed.
The magistrate then said:
There was a phone call and therefore the defendants are liable for the additional work. So I'm finding in favour of the claimant, but I'm finding in favour of the claimant minus the two amounts that were over‑quoted.
The magistrate was satisfied as to the existence of the variation. There is no challenge to that finding. The magistrate's reference in his reasons ([42] above) to the 'subsequent quote hasn't really been challenged' was not a finding that the work pursuant to the agreement had been done. It related to the quantum only. The magistrate had not considered the completion issue.
The reasons of the magistrate did not refer to or identify any issue as between the parties as to the completion of work required to be carried out by Mr Fitzhum. The completion of the contract between the parties was an issue. The position of T & G was that the garage excavation had not been completed to the depth of 2 m. Mr Fitzhum's position was that there had been performance of the agreement by him. The magistrate needed to make findings as to the performance of the agreement. In not doing so, he erred in law.
In order to succeed on the claim Mr Fitzhum needed to satisfy the magistrate that the work required pursuant to the original agreement had been performed. There was evidence before the magistrate that the work had not been completed. Specifically, there was the email of 4 March 2016 in which Mr Tinniswood referred to the work not being completed. The evidence of Mr Tinniswood and Mr Craig Melvin Griffiths as to the work not having been done in accordance with the agreement was not dealt with in the magistrate's reasons.
There was no examination at trial of the completion issue which was clearly live as between the parties. The issue had been raised by T & G on a number of occasions. First, it was raised in emails. Secondly, it was raised by T & G in documents filed in the proceedings. In a listing conference memorandum filed by T & G there is reference to the fact 'the claimant would not come back to complete the job'. Thirdly, it was raised by Mr Tinniswood in the course of the hearing in his evidence and also in the course of Mr Fitzhum's case. For example, in the course of Mr Fitzhum's evidence Mr Tinniswood said:
It really revolves around that definition of the variation which we're arguing about because – and him not finished the job ...
The magistrate erroneously referred to the 'sole issue' as being whether there was an additional variation to the agreement. He referred to being able to find for Mr Fitzhum if satisfied in his favour of the sole issue.
The determination in Mr Fitzhum's favour of the existence of the variation did not resolve the issues in the case. Mr Fitzhum's claim was for the balance of monies due and owing on the basis he had performed his required obligations pursuant to the agreement. The magistrate was required to consider and determine the issue as to completion of the work. This required an examination of the evidence adduced as to the issue and findings made. Absent an appropriate finding or admission, Mr Fitzhum did not become entitled to judgment simply because of a finding in his favour as to the variation. There was no relevant admission or relevant finding made as to the work done which would have entitled Mr Fitzhum to payment.
The magistrate did not in his reasons deal with the issue as to the completion of the work required pursuant to the agreement between the parties. The issue was never conceded by T & G. The magistrate's obligation was to ensure all issues were dealt with. T & G needed to be given an opportunity to present and have considered by the magistrate a case based upon non-completion of the work. This did not occur. That constitutes an error of law and calls for a new trial.
Conclusion
I would allow the appeal, set the judgment aside and remit the matter for re‑trial by a different magistrate.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
HB
ASSOCIATE TO JUDGE STAVRIANOU22 AUGUST 2018
10
2