Tony Pappageorge v Frank Albert Crane and Irene Pearl Crane (Trading as F a Crane and Co) No. SCGRG 93/550 Judgment No. 4106 Number of Pages 5 Contracts

[1993] SASC 4106

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Contracts - building, engineering and related contracts remuneration - Contract entered into by parties - claim for moneys due for work and labour done - question of the nature and terms of the contract made - magistrate found in favour of plaintiff - appellant alleged that he believed matter had settled before trial - evidence failed to support allegation appellant unable to demonstrate that magistrate had fallen into error when making findings of fact. Bickmore v Ppiros (Olsson J, 12 February 1992, unreported), considered.

HRNG ADELAIDE, 10 August 1993 #DATE 25:8:1993
Counsel for appellant:     Mr I Margitich
Solicitors for appellant:    Ivan J Margitich
Counsel for respondent:     Mr R Marrone
Solicitors for respondent: M L Sibly and Co

ORDER
Appeal dismissed.

JUDGE1 OLSSON J This is an appeal against a judgment entered by a stipendiary magistrate against the appellant in the civil jurisdiction of the Magistrates Court. 2. On 7 January 1992 the respondents issued a summons against the appellant claiming $9,081 for work and labour done. The appellant entered a simple appearance to that claim. 3. The action was ultimately listed for trial on 10 August 1992. The appellant did not appear and judgment was entered against him by default. 4. On 1 September 1992 the appellant applied to set aside the judgment, because, he said, he had never received the notice of trial and was thus unaware of the hearing date. By order dated 11 September 1992 the judgment was set aside. 5. A conciliation conference was listed for 12 October 1992. As that proved unfruitful the case was again listed for trial on 21 January 1993. The appellant appeared in person, and oral evidence was taken from the respondent and his witness and also from the appellant. 6. At the conclusion of the evidence the learned magistrate delivered an ex tempore judgment. He pointed out that it was not disputed that the plaintiffs had done certain earthworks for the defendant, but recited that disputes had arisen as to what the precise ambit of the contract works was, whether it was a fixed price contract for $5,000 and whether, in any event, the plaintiffs had completed what was asserted to be a single entire contract within the time stipulated. 7. Having reviewed the various areas of dispute the learned magistrate preferred the evidence led on behalf of the plaintiffs and rejected the appellant as an accurate historian as to what had transpired between the parties. 8. The learned magistrate concluded his reasons in these terms:-
    "In my view the arrangement, and I so find, was that which was
    expressed by Mr Freund, that there would be in fact two days work
    performed to remove an identified area of spoil from the site, one
    which was estimated at about 1500 tonnes at the rate of $5,000.00,
    the work being properly estimated in reliance upon the estimate
    provided as to the soil at 2 days and that which followed
    thereafter at the end of day 2 was a further agreement of the
    nature that Mr Freund has given evidence whereby the work or works
    would continue on an hourly rate, that which was identified by Mr
    Freund in his evidence. The claim here, Mr Marone told me at the
    outside of the case in fact was for $9022.75. Now in my opinion
    that arithmetic is not correct. Having regard to the document I
    have made some arithmetical error myself here, Mr Marone. If one
    starts at $5,000 and then has regard to page 2 of P1, the first 2
    items on page 2 are 522 and 240, they form in my opinion part of
    the $5,000 and that leaves a balance of items on that page which I
    total at $4023. Take off $522.50 + $240=$762.50. from 4785.25
=4022.75=$5,000.00. The items at page 2 of P1 has 2 days
    subsequent to Day 1. Total $4022.50. To that must be added
    contract in its unaltered form of $5,000. Total therefore is
    $9022.75. I am told that $748 has been paid. I agree that its
    appropriate there should be judgment for $8,274.75. I am
    prepared to fix interest from the date of summons and I allow
    $827. Total $9,101.75. Plaintiff will have costs of action to be
    taxed. Mr Marone asks for costs in accordance with Rule 53. In
    this matter I have given judgment for $9,101.75 and Mr Marone asks
    for costs to be fixed in accordance with Rule 53.
     In this matter no offer was filed by the defence and Rule 53(2)
    applies to the matter. Mr Marone has taken me through the various
    calculations to arrive at a total of $2,094.00. In my view when
    one has regard to the getting up of the matter, a bill which was
    taxed in August, its appropriate to not allow in this case twice
    the getting up fee. According $440 may be deducted from that
    amount. One is left then with a figure of $1,654. I will allow a
    counsel fee of $1,894.00 made up of firstly costs taxed on the
    28th August less $200.00.
     Further preparation $600 Counsel fee 500 Witness fees 80
    Photostatting 11 $1894 And applying the costs to Rule 53(2) there
    is no reason in my view why that shouldn't apply. I fix costs in
    the sum of $3,988. Judgment sum $9,101.75" 9. By his notice of appeal the appellant expresses his grounds in these terms:-
    "1. The Learned Magistrate erred in that he ordered the trial
    to continue despite protestation from the appellant that he
    thought the matter had been set down for the hearing on question
    of costs only and that he was not prepared for the trial and was
    without legal representation.
    2. The Learned Magistrate erred in that the said Judgment was not
    supported by the oral and documentary evidence.
    3. The Learned Magistrate erred by failing to give proper weight
    to the evidence of the defendant.
    4. Such further grounds of appeal as the appellant may be advised
    upon receiving a copy of the said Judgment and orders and copy of
    transcript." 10. In affidavits filed for the purposes of the appeal it was made to appear that, at the pre-trial conference held on 12 October 1992 before Mr Grasso SM, attempts were made to negotiate a compromise of the claim. These proved fruitless. The appellant offered to settle for $5,200, but rejected a counter offer of $6,000. At the conclusion of the conference Mr Grasso SM listed the action for trial on 21 January 1993 and, it is said, specifically advised the appellant that he ought to get legal advice. 11. On a careful perusal of all relevant materials I consider that the first ground of appeal is patently unsustainable. 12. The very nature of the final disposal of the conference was such as to render it quite apparent that no settlement had been possible and that the action would have to proceed to trial on the merits. There plainly had been no agreement of compromise arrived at, as the appellant now asserts. To suggest, as he does in his affidavit, that agreement had been reached in respect of the claim but that there was an argument over costs cannot be reconciled either with the affidavits of two practitioners or what was done by the presiding magistrate. It is also not compatible with the affidavit of counsel for the respondents to the effect that, on the morning of the trial the offer to settle for $6,000 was renewed, but rejected by the appellant, who was told that the claim would have to proceed to trial. 13. Counsel has deposed that the appellant did not seek an adjournment of the trial or object to it proceeding, when the case was called on. That is confirmed by a total absence of any mention of any such submission made by the appellant in the transcript. Counsel concedes that the appellant did mention to the trial magistrate that he thought that he had settled the plaintiff's claim, but was told that, if that was so, he could put that proposition to the plaintiff's witnesses. He did not do so. 14. In a sense it is no doubt correct that the appellant was not prepared for trial, in that he represented himself and obviously had no real concept of what evidence was required, or how he ought to develop his case in evidentiary terms. For example, it is conceded that, during the trial, he told the learned magistrate that he could call evidence from engineers regarding quantities of soil removed from the site, if the court wanted to hear such evidence. Clearly it was not the province of the learned magistrate to advise the appellant, although he certainly helped him to elicit his own testimony in chief when he personally gave evidence. 15. In essence any difficulty which arose from the appellant's viewpoint stemmed from his decision to conduct his own case and nothing else. Having made that decision he cannot now be heard to complain if the result was less than satisfactory to him. 16. There is no basis of fact before the court which could warrant the upholding of the first ground of appeal and I reject it. 17. The other grounds of appeal essentially gave rise to a detailed attack on the reasoning and findings of the learned trial judge, as set out in his ex tempore reasons. The appellant's case in particular is developed in extenso in his counsel's outline of argument, which speaks for itself. 18. Both counsel subjected certain aspects of the transcript of evidence and the ex tempore reasons to close analysis, but I do not propose to retraverse this material in these reasons although I have carefully considered all that was put to me. It should at once be said that, as has been said so often before, it is quite inappropriate to subject reasons of that type to harsh scrutiny and undiscriminating dismemberment. They must be read reasonably and as a whole, to ascertain from them the substance of the reasoning adopted. (See my dicta on that topic in Bickmore v Ppiros, Olsson J, 12 February 1992, unreported.) Whilst some aspects of the reasons could, with the benefit of hindsight, have been expressed in more felicitous and definitive terms, the essential thrust of the reasoning of the learned magistrate is abundantly clear. 19. As readily appears from the submissions of counsel for the parties on this appeal there were substantial conflicts between the principal witness for the plaintiffs and the defendant concerning the precise contractual arrangement come to. If various segments of evidence are taken in isolation and out of context it is possible to discern apparent inconsistencies and conflicts in what was said by both sides. 20. However, at the end of the day, the learned magistrate was faced with the task of deciding whose version of events was more credible and which witness was to be preferred as most reliable - the plaintiff and the witness Freund being in significant conflict not only as to the nature of the original bargain said to have been struck, but also as to what was arranged at the conclusion of the second day of work. 21. However he may have expressed himself, one aspect of the reasons for decision is crystal clear. It is beyond question that the learned magistrate considered that, as he put it, the appellant had blown hot and cold, and was not a reliable or impressive witness. On the other hand the learned magistrate patently preferred the witness Freund and was disposed to accept the substance of his evidence as accurate. 22. For reasons expressed by counsel for the respondents (and which are encapsulated in the transcript) there was a significant basis of evidence upon which the learned magistrate could fairly have arrived at that assessment, notwithstanding the detailed criticisms advanced by counsel for the appellant, some of which simply cannot be sustained on a careful analysis of the evidence, when read in context and as a totality. 23. This case is a classic example of the trite old adage that, when an appeal court is required to review findings of fact which stem from a relative assessment of credibility of witnesses it is in a position of permanent and irremedial disadvantage, by way of contrast with the judicial officer who presided at the trial. Whilst I am mindful of the careful analysis made by counsel for the appellant I am by no means convinced that the learned magistrate was, in any fundamental respect, plainly in error - especially when the criticisms made are considered in light of the countervailing context put forward by counsel for the respondents. 24. The plain fact is that the learned magistrate opted for a view of the facts and an assessment of the bargain or bargains made by the parties which was fairly open to him upon his assessment of the witnesses and his acceptance of a version of events deposed to by the witness Freund. Whether I would necessarily have come to the same conclusion had I been the trial judge is immaterial. Indeed, on the conflict between the parties, I have no idea what I might have concluded, in absence of having seen and heard the witnesses in the witness box. 25. In short, the conclusions come to by the learned magistrate can be justified by reference to the evidence and it has not been demonstrated to my satisfaction that he manifestly fell into error, even if it can be demonstrated that there are some matters in his reasons which - possibly due to their ex tempore nature - may be capable of contention as to their appropriateness. 26. It seems to me that, on any view, this litigation has been a financial disaster from the point of view of the appellant, but he only has himself to blame for not seeking proper advice when he was counselled by Mr Grasso SM to do so. 27. In all of the circumstances the appeal must be dismissed.