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Waldock v Shams

Waldock v Shams

Case [2019] WADC 2 9 January 2019

Appeal

Jurisdiction

Natural Justice

Error of Law and Fact

Breach of Contract

Fixed Price or Cost Plus

Civil Litigation & Procedure

Contract Law

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   WALDOCK -v- SHAMS [2019] WADC 2
CORAM:   GILLAN DCJ
HEARD:   19 SEPTEMBER 2018
DELIVERED          :   9 JANUARY 2019
FILE NO/S:   APP 11 of 2018
BETWEEN:   DESMOND JOHN WALDOCK
Appellant
AND
AIDIN SHAMS
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE MALLEY
File Number            :   CTC 765 of 2017
FRE/CTC 284 of 2017

Catchwords:

Appeal - Minor case - General division - Building contract - Fixed price or cost plus - Jurisdictional error - Natural justice - Error of law and fact

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011
District Court Rules 2005
Home Building Contracts Act 1991
Magistrates Court (Civil Proceedings) Act 2004

Result:

Appeal and cross-appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	In person

Solicitors:

Appellant	:	Not applicable
Respondent	:	Not applicable

Case(s) referred to in decision(s):

Allesch v Maunz (2000) 203 CLR 172
Avsar v Binning [2009] WASCA 219
Butler v Bennett [2007] WADC 107
Cole & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Eugeniuz Malatynski as trustee for The Malatynski Trust t/as Ultra Modern Patios v Ranclaud [2017] WADC 75
Instant Transportable Offices Pty Ltd v BGC Contracting Pty Ltd [2012] WADC 99
Legge v Simonsen [2010] WADC 190
Lewis v Garvey [2017] WADC 76
Moleirinho v Talbot & Olivier [2014] WASCA 65
Rankilor v Circuit Travel Pty Ltd [2010] WADC 170
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
T & G Sustainable Builders Pty Ltd v Fitzhum [2018] WADC 104
Wise v Proprietors of Strata Plan 2153 [2009] WADC 115

GILLAN DCJ:

The appellant, Desmond John Waldock, is a builder. On 18 March 2015 he was retained by the respondent to build a house at a property in Attadale.
The house was built but the relationship between the parties broke down over the price. They each commenced proceedings:
1.FRE/CTC 284 of 2017: the appellant against the respondent for the sum of $2,627 the appellant claimed to be the outstanding amount pursuant to the building contract; and
2.CTC 765 of 2017: the respondent against the appellant for the sum of $25,856.12 the respondent claimed to have overpaid pursuant to the building contract.
On 17 January 2018 Magistrate Malley gave judgment after trial at which time he:
1.In FRE/CTC 284 of 2017: dismissed the appellant's claim;
2.In CTC 765 of 2017: upheld, in part, the respondent's claim and ordered the appellant to pay the sum of $15,000 to the respondent.
The appellant appeals and the respondent cross-appeals against those decisions.
For reasons that follow, the appeal and the cross-appeal are dismissed.

Basis of appeal and cross-appeal

Neither party was represented before the magistrate or before this court. As best as can be ascertained from the grounds of appeal filed by the appellant, the responding document including grounds of cross‑appeal filed by the respondent and the oral submissions, the issues for determination in…

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 Waldock v Shams

Details

AGLC: Waldock v Shams [2019] WADC 2
Case: [2019] WADC 2
Decision Date: 9 JANUARY 2019

CaseChat Overview and Summary

The matter before the court was an appeal by the respondent against a decision of a single judge of the Supreme Court, who found in favour of the applicant in a dispute between two parties over a building contract. The applicant, Waldock, sought to recover the unpaid balance of a fixed-price contract for building works. The respondent, Shams, argued that the contract should have been a cost-plus arrangement and that there was a jurisdictional error and breach of natural justice in the primary judge’s decision. The court had to determine whether the primary judge correctly identified the nature of the contract and whether there was any jurisdictional error or breach of natural justice in the proceedings.

The court found that the primary judge correctly identified that the contract was a fixed-price contract, not a cost-plus arrangement, and that the respondent had failed to prove that there was a breach of natural justice. The court held that the primary judge was not guilty of jurisdictional error and that the appeal should be dismissed. The court found that the evidence supported the primary judge’s conclusion that the contract was a fixed-price contract and that the respondent had not demonstrated any breach of natural justice. The court further found that the primary judge had considered all relevant evidence and had not made any error of law or fact in his decision.

The court concluded that the appeal should be dismissed and that the decision of the primary judge should be upheld. The court found that the primary judge had correctly identified the nature of the contract and had not erred in his decision. The court further found that the respondent had not demonstrated any breach of natural justice or jurisdictional error in the proceedings. The court dismissed the appeal and affirmed the decision of the primary judge.

Orders