Waldock v Shams
[2019] WADC 2
•9 JANUARY 2019
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 the appeal are:
As contended by the appellant
1.Jurisdictional error: the learned magistrate was mistaken in concluding that the contractual documents, read together, gave rise to a cost plus building contract. The contractual documents, read together, were a fixed sum building contract so the dispute was not within the jurisdiction of the Magistrates Court and should have been referred to the Building Commission Disputes Tribunal;
2.Denial of natural justice by the learned magistrate because he:
(a)gave no opportunity to the appellant to explain the costings involved in his claim;
(b)gave no, or insufficient, consideration to what was alleged by the appellant to be a deceitful non‑disclosure of amounts paid by the respondent directly to sub‑contractors during the contract on which sums the appellant claimed to be entitled to a profit sum; and
(c)had no regard to any claim in quantum meruit by the appellant.
As contended by the respondent
3.That the magistrate was in error in only awarding the repayment of an over charged sum of $15,000 as opposed to the whole of the respondent's claimed over payment of $25,856.12.
The appellant's notice of appeal contained a ground that the court had taken into account a private document when it set aside a default judgment.[1] This ground was not the subject of written submission or oral submission by the appellant. Accordingly, I have treated this ground as not being pressed.
[1] The default judgment was in matter FRE/CTC/284/2017 and was set aside by Magistrate Malley in Fremantle on 10 May 2017.
FRE/CTC 284 of 2017 was commenced by the appellant as a consumer/trader claim minor case. A minor case is a claim within the jurisdiction of the court where the value of the claim is not more than the minor cases jurisdictional limit, presently being $10,000.
CTC 765 of 2017 was commenced by the respondent in the general division of the Magistrates Court, the value of the claim being at least $25,000.
The basis of an appeal from the minor case matter is different to the basis of the appeal from a general division matter.
Relevant legislative provisions and the law pertaining to appeals in a minor case claim
Magistrates Court (Civil Proceedings) Act 2004
Section 6 of the Act provides that the court has jurisdiction to deal with various matters, such as, a claim for debt or a claim to recover possession of personal property. Certain claims are specifically excluded from the court's jurisdiction including, relevantly, by subsection (5)(e),
a claim that the Building Commissioner or the State Administrative Tribunal has jurisdiction to deal with under the Building Services (Complaint Resolution and Administration) Act 2011.
Part 3 of the Act sets out the general procedure in the Magistrates Court for civil claims, pt 4 sets out the specific procedure for minor cases and pt 7 deals with appeals.
Unless an order is made for a minor case to be dealt with under the general procedure, s 28 of the Act requires the court to deal with a minor case in accordance with the minor case procedure. Such an order can be made pursuant to a request by the parties because the case involves an important principle of law, complex facts or issues. It does not appear that any order was made in this case.
Section 29 of the Act (contained in pt 4) provides as follows:
Proceedings to be private and informal
1.All proceedings of the court when dealing with minor case are to be held in private unless the court orders otherwise.
2.Relatives and friends of a party may be present at the proceeding unless the court orders otherwise.
3.In dealing with the minor case the court is to act with as little formality as the court thinks is reasonable.
4.When dealing with a minor case the court is not bound by rules or practice as to evidence that may inform itself on any matter in such manner as it thinks fit.
There are only limited grounds of appeal against a minor case decision. Section 32(1) and s 32(3) (pt 4) relevantly provide as follows:
(1)Except as provided by this section, no appeal lies against –
(a)an order made by the Court in the course of proceedings in a minor case; or
(b)the judgment of the Court in a minor case.
…
(3)Despite Part 7, an appeal against a judgment in a minor case may only be made on the grounds –
(a)that the minor case –
(i)was not within the jurisdiction of the Court;
or
(ii)was not a minor case; or
(b)that in dealing with a minor case there was a denial of natural justice; or
(c)that the judgment was beyond the Court's jurisdiction.
An appeal from a minor case matter, errors of fact or law or of mixed fact and law normally cannot be corrected by an appeal and a magistrate's decision remains enforceable notwithstanding that type of error: Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [55]; Wise v Proprietors of Strata Plan 2153 [2009] WADC 115 [20]. Errors of law pertaining to jurisdiction plainly fall outside this general statement.
An appeal in a minor case matter is not, therefore, a rehearing on the merits save as to the extent that is necessary to review the hearing to determine if there has been a denial of natural justice: Rankilor v Circuit Travel Pty Ltd [2010] WADC 170 [7].
In Rankilor, Birmingham DCJ discussed the requirements of giving natural justice in the context of a hearing of a minor case claim in the Magistrates Court.
His Honour considered that both the hearing rule and bias rule[2] were encompassed within the meaning of the term 'denial of natural justice'. He also considered the obligations in a court to an unrepresented litigant.
[2] No allegation of bias was raised in this appeal.
Relevantly, in summary his Honour said:
In respect to the hearing rule:
1.Natural justice did not require an inflexible application of a fixed body of rules but rather required fairness in all the circumstances; including the nature of the jurisdiction, rules under which the tribunal was acting, the subject matter of the dispute and statutory provisions governing the power or jurisdiction being exercised. At its heart, the requirement to accord natural justice required a litigant to be given the opportunity to present his or her case: Rankilor [9] – [12], [18] and [67].
2.The law did not impose on the court the impossible case of ensuring that a party to the proceedings took the best advantage of the opportunity to present their case: Rankilor [19] and [68].
3.The primary object of the Magistrates Court in dealing with a minor case is to attempt to bring the parties to a settlement; see 27 of the Act. Section 13 of the Act specifically provides that cases must be dealt with efficiently, economically and expeditiously and that the court's judicial and administrative resources are used as efficiently as possible. Section 29 of the Act provides that the court is also required to act with as little formality as it thinks reasonable, is not bound by formal rules of evidence and may inform itself on any matter in such a manner as it thinks fit: Rankilor [15] – [17].
In respect to unrepresented litigants:
4.The duty of the judicial officer to assist litigants in person will vary and depends on the litigation, the nature of the case and the litigant's intelligence and understanding of the case. Relevantly, the advice and assistance to an unrepresented litigant is what is necessary to reduce, as far as possible, the disadvantage they would suffer when faced by traps which the adversarial system offers to the unwary and the untutored, to ensure that the unrepresented person does not, through a lack of legal skill or experience, fail to claim rights or put up arguments they might not have otherwise have done: Rankilor [70] – [77].
5.The duty might extend to the judicial officer identifying any issue critical to the decision which was not otherwise apparent for the nature of or the terms of the matter under consideration: Rankilor [77].
Further the Court of Appeal observed in Moleirinho v Talbot & Olivier [2014] WASCA 65 [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].
Finally, as Stavrianou DCJ observed in T & G Sustainable Builders Pty Ltd v Fitzhum [2018] WADC 104 at [36] - [38], the requirements of natural justice will depend upon the circumstances of the case, including the nature of the enquiry, the rules under which the court or tribunal is operating and the subject matter being dealt with, but at its heart, is the requirement that the parties be given a fair trial and a reasonable opportunity to present their case. A denial of fairness will lead to a new trial unless there was no prospect that a properly conducted trial would lead to a different result.
Appeal from the general division of the Magistrates Court
Section 40 of the Act provides as follows:
1.A party to a case that is not a minor case may appeal to the District Court against —
(a)any order made by the Magistrates Court in the course of the proceedings; or
(b)the judgment of the Magistrates Court in the case.
Pursuant to s 40(4) of the Act an appeal from the Magistrates Court to the District Court must be decided on the material and evidence that was before the Magistrates Court.
Rule 50(1) of the District Court Rules 2005 also provides that an appeal must be by way of reconsideration of the evidence that was before the primary court, unless the parties otherwise agree. So, the intention of the Act when read with the District Court Rules is that an appeal to the District Court is by way of rehearing: Butler v Bennett [2007] WADC 107 [10].
The District Court may only exercise its powers on an appeal from the general division where the appellant can show that the learned magistrate made a legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172 [23]; Cole & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [203]; Legge v Simonsen [2010] WADC 190 [4]. The fact that a litigant is disappointed with the result in the court below does not mean that the appeal court is able to intervene: Avsar v Binning [2009] WASCA 219 [37].
Before I turn to the substantive issues, I will briefly refer to a difficulty that arose at the hearing with respect to the documents that had been made exhibits at trial and I will set out the background of the matter.
Exhibits at trial
The Magistrates Court file, provided to the court in response to the statutory notice,[3] did not contain copies of the exhibits tendered at the trial. Unfortunately, the exhibits had been destroyed. What exhibits were before the Magistrates Court was explored with the parties at the hearing of the appeal but only by reference to an exhibits list which was in the Magistrates Court file.
[3] Pursuant to r 52 District Court Rules 2005.
The exhibits list[4] did not tie in with either the exhibit numbers ascribed to or the description of the documents in the trial transcript. The parties, on appeal, agreed that some of the descriptions in both the exhibits list and the transcript were not accurate but were agreed that what I find to be exhibits E and F were before the court at trial. Further, on a further close reading of the transcript after the hearing it became obvious to me that there were documents referred to in the evidence and taken into account by the learned magistrate which were not formally tendered and were not given an exhibit number or description.
[4] Which is not part of the record of the trial but is part of the Magistrates Court file.
Section 43(2) of the Magistrates Court (Civil Proceedings) Act provides that this court may ascertain what material or evidence was before the lower court in any manner that it considers sufficient.
The conclusions which I have reached, after taking into account the exhibits list, the transcript, the Magistrates Court files and the parties' positions at the appeal hearing, that the documents before the magistrate and on which he relied are as follows:
Exhibit number by reference to the exhibits list
Description
Source[5]
A
Lump Sum Building Contract
Exhibit list; Agreed between parties and a copy of which filed by each party in pre-trial documentation[6]
B
Contract
Exhibit list; Agreed between parties and a copy of which filed by each party in pre‑trial documentation[7]
C
Plan 1
Exhibit list; ts 26; A copy of which in pre-trial documentation filed by respondent[8]
D
Plan 2[9]
Exhibit list; ts 26
E
1st progress payment invoice to Keystart
Exhibit list; ts 39 - 41; parties agreed at the appeal this was a document before the court
F
Invoices[10]
Exhibit list; ts 32, 54; parties on appeal agreed that:
the trial transcript wrongly described what was before the court; and
these were documents before the court
Additional documents not in exhibits list
1
Lump Sum Contract Statement[11]
ts 41; Agreed between parties on appeal was before the Court and the subject of evidence[12]
2
Email dated 26 August 2016 annexing spreadsheet dated 26 August 2016 setting out final cost of construction[13].
ts 54
3
Email dated 23 December 2016 annexing spreadsheet headed Aiden FINAL Project Cost as at Dec 16[14]
ts 54 - 59
4
Email dated 9 January 2017 annexing spreadsheet headed Aiden Reconciliation 9 Jan 2017[15]
ts 54 – 59, 62; Agreed between parties on appeal was before the Court and the subject of evidence[16]
[5] The source may be the exhibit list or the transcript from trial 20 December 2017. Where the parties were not agreed resolution was on review of the transcript and the documents in the Magistrates Court file.
[6] Part of Attachment 4 to appellant's statement of claim FRE/CTC/ 284/2017/Part of document K to respondent's Statement of Defence filed 7 June 2017.
[7] Part of Attachment 4 to appellant's statement of claim FRE/CTC/ 284/2017/Part of document K to respondent's Statement of Defence filed 7 June 2017.
[8] Set of drawings signed and dated 18 March 2015 as being annexed to the Lump Sum Building Contract and part of document K to respondent's Statement of Defence filed 7 June 2017.
[9] Part of Attachment 4 to appellant's statement of claim in FRE/CTC/284/2017.
[10] Part of Attachment B to respondent's Statement of Defence filed 7 June 2017.
[11] Attachment 1 to appellant's amended statement of claim FRE/CTC/ 284/2017.
[12] Appeal transcript ts 61 – 62.
[13] Appendix A to respondent's Statement of General Procedure Claim filed 7 April 2017.
[14] Appendix 5 to appellant's amended statement of claim FRE/CTC/284/2017/[15] Appendix H to respondent's Statement of General Procedure Claim filed 7 April 2017.
[16] Appeal ts 60.
So there is no confusion I have attached to this judgment the exhibits list and each of the documents before the Magistrates Court as I have found them to be.
Background
At trial and on appeal it was common ground that as at 18 March 2015:
1.Mr Shams, the respondent was not the owner of the property. The property at 440 Canning Highway, Attadale was then the subject of a subdivision application and the purchase by the respondent of the land to be known as 440B by the respondent and the building of the house on that land were conditional on subdivision approval;
2.there were no completed plans or planning approval in place with respect to any house;
3.the price for building a house was based on preliminary plans for a house;
4.the respondent wanted to move quickly and submit an application to a lender, Keystart, for finance approval and the finance sought was for the whole of the contract price specified in a contract that it was then intended would be signed. Keystart would only lend on a fixed price contract;
5.on 18 March 2015, the plans for the house had already been revised from the preliminary plans first shown to the appellant, Mr Waldock, and further changes were anticipated;
6.the parties knew that the house was going to change, potentially radically, after the building contract was signed and before any plans went to council in part because changes were already anticipated and in part because a change in zoning was anticipated for the land and, if that occurred, a larger house could be built.[17]
[17] ts 27, 29 - 31, 46 - 47.
The parties agreed that a document headed 'Housing Industry Association Lump Sum Building Contract', a standard form of contract, was signed by each of them and dated 18 March 2015 (exhibit A).
In very general terms the Lump Sum Contract provides that the appellant will build the house described in item 3 of the Schedule and the annexed plans. Without providing an exhaustive analysis, the Lump Sum Contract also provides:
1.for the appellant to obtain appropriate building insurances and sets out the appellant's duties as builder;
2.that the respondent, as owner, warrants that he has title and promises to obtain finance approval;
3.for the price for the house and times for payment of the price, time for performance of the contract, fixes the defects liability periods, provides for early termination of the contract, for the resolution of dispute and for practical completion.
Special conditions to the Lump Sum Contract were expressed shortly, as:
•Includes all floor coverings and window treatments; subject to receipt of title; subject to council approval; valid for 60 days;
•No receipt whilst awaiting title settlement;
•Finishes – see annexure 'A'.
Clause 10(c) of the Lump Sum Contract provides that:
The price of a 'variation' and/or any item or matter required by the contract to be treated as a variation shall unless previously agreed in writing be calculated as follows:
(i)if the amount is additional to the contract price it should be equal to the costs of the labour and materials supplied together with other costs properly incurred as a consequence thereof plus that percentage of such additional costs as set-forth in Item 11 of the Schedule and shall be added to the contract price, and unless previously paid, shall be added to the next progress payment due after the execution of such works; and
(ii)if it shall result in the decrease in cost the amount of such decrease shall be deducted from the contract price and shall be equal to the costs of labour and materials and other costs properly saved, and any such decrease shall be deducted from the final payment here under.
The Schedule of Particulars to the Lump Sum Building Contract relevantly provided that:
1.Item 4: the amount of finance required was $180,000 to be obtained within 90 working days;
2.Item 6: the contract price for building the house was also $180,000 with the build to be completed within 180 working days;
3.Item 7: there was no deposit and progress payments were to be 38% at the completion of the brickwork which was $68,400, 80% at lockup which was a further $75,600 and the remainder at Practical Completion being a further $36,000;
4.Item 10: there were no provisional sums or prime cost items provided;
5.Item 11: the percentage referred to in clause 10(c) was 10%.
The parties were agreed that there was a plan annexed to the contract dated 18 March 2015[18] but were not agreed as to which plan it was. Having reviewed the Magistrates Court file I find that the plan was one showing a three bedroom house with a one car garage which was signed by the appellant and dated 18 March 2015. This is the document described in the table in [31] above as exhibit C plan 1.
[18] Exhibit D.
It was common ground that the parties signed a second contractual document on the same day and that document was prepared by Mr Waldock. That document was exhibit B before the magistrate.
Exhibit B is headed 'Contract'. After identifying the parties to the contract, where party A was the respondent and party B was the appellant it said (with my annotation to refer to the parties):
Wherein it is agreed between the parties that:
A separate building contract has been signed between the parties for the erection of the residence at 440B Canning Highway, Attadale subject to land title approval and finance approval.
For Party A [the respondent] by Party B [the appellant] to a maximum Contract Sum of $180,000 AUD;
It is agreed between the Parties that:
1.Any cost overrun incurred during the construction of the above residence, the subject of the separate building contract, shall be paid for the Party A [the respondent];
2.Party B [the appellant] shall be remunerated by Party A [the respondent] on a cost plus basis of 10% of costs, payable at each Progress Payment during the building contract;
3.A final payment calculated so that the Total Payment to Party B [the appellant] by Party A [the respondent] shall equal 10% of all costs incurred up to Practical Completion and payable within 10 days of Practical Completion; and
4.Clause 3 above is intended to cover costs overruns and variations incurred during the course of the contract and are over and above costing payable by the Lending Authority.
For clarity it is reiterated that all costs are to be payable by Party A [the respondent] and/or Lending Authority with a sum of 10% of total costs to Practical Completion payable to Party B [the appellant] at intervals as stated above.
It was also common ground at trial that:
1.building was delayed while subdivision was approved and until settlement occurred. Building did not begin until sometime in early 2016;
2.the house was completed by around June 2016;
3.the plan of the house as built was not before the learned magistrate at trial, but the house as built was different in size, it was about 65% larger than the original plan, and had a different layout and finishes from the house proposed at the time of the building contract. The original finishes were anticipated to be fairly basic and the final home had, for example, duel ovens, two dishwashers, built in coffee‑machines and marble throughout[19], aggregate driveways with a luminescent additive and hot and cold water to the toilet pans; and
4.as anticipated, there were, changes that both parties were agreed fell to be treated as cost overruns and variations.
[19] ts 29.
Clearly, as the learned magistrate found, the parties contracted on the basis that instead of treating any changes as variations to the original contract, to the extent that the house cost more than $180,000 to build, they would treat any changes as being 'cost overruns and variations' as referred to in the document headed Contract (exhibit B). In particular Mr Waldock said in his evidence by way of explanation:
So I wouldn't have been pricing five different houses and making variations and everything. (ts 31)
No variation notices pursuant to cl 10(c) of the Lump Sum Contract or any spreadsheet showing any accounting on the basis of variation from the lump sum figure of $180,000 were produced.
The Lump Sum Contract did not provide for either provisional sums or prime cost items[20] and none of the documentation produced at trial accounted for the final price on the basis of differences as to provisional sums or prime cost items recorded in the Lump Sum Contract.
[20] Prime cost items are fixtures or fittings which have not been selected at the time of contract and where estimate is made in the contract by way of provisional sum.
I pause here to note that it was submitted by the appellant at the hearing of the appeal that his evidence at the trial had been that:
1.prior to the contractual documents being signed there was an original plan for a house but that did not have any garage (exhibit D);
2.it was on that plan that he had been asked to prepare an initial quotation;
3.the quote was for the price of $180,000; and
4.the quote had to match the price the earlier builder had quoted and it was calculated on a square meterage basis being $800 per sqm (ts 26 - 31).
Evidence as to what, if any, additional floor plans and documents were discussed by the parties prior to them signing the two contractual documents and the basis used by the appellant for calculation of the price specified in the Lump Sum Contract would, it seems to me, be largely irrelevant to the disposition of this matter because:
1.The plans, exhibit C, attached to and forming part of Exhibit A were expressly adopted by the parties on entering into the Lump Sum Contract as the starting point of a base price for the house; and
2.The parties agreed that the basis for any additional payment over and above that base price would be on the basis of cost (to the builder) plus 10% for profit not on a price per square metre.
Nevertheless, I will discuss below whether any failure of the learned magistrate to give any weight to that evidence together with other evidence, is sufficient for the appellant to establish a basis for his ground of appeal relating to a failure to give natural justice.
For the sake of completeness, it was also common ground that earthworks, surveying and concrete work was performed on the house by a company associated with the respondent and that the respondent sourced a number of the sub-contractors to work on the house and paid some sub-contractors directly.
Given that background, it is wholly unsurprising that a dispute arose as to what the final price should be.
Issue 1: jurisdictional error
Jurisdiction of the Magistrates Court to deal with this matter
Section 6 of the Magistrates Court (Civil Proceedings) Act provides (with my underlining):
(1)The Court has jurisdiction to deal with —
(a)a claim for an amount of money that is —
(i)a debt or damages, whether liquidated or unliquidated
…
(5)Despite subsection (1), the Court does not have jurisdiction to deal with —
…
(e)a claim that the Building Commissioner or the State Administrative Tribunal has jurisdiction to deal with under the Building Services (Complaint Resolution and Administration) Act 2011.
Section 17 of the Home Buildings Contracts Act 1991 relevantly provides that:
If an owner or builder under a contract claims that —
(a)there has been a breach of —
(i)the contract, not being a breach in respect of which a building remedy order may be made under the Building Services (Complaint Resolution and Administration) Act 2011; or
(ii)a provision in Part 2; or
(b)the owner or builder is entitled to compensation under Schedule 1, then, subject to the Building Services (Complaint Resolution and Administration) Act 2011, the owner or builder may make a complaint under section 5(2) of that Act.
The Building Services (Complaint Resolution and Administration) Act 2011 (BSCRA Act), in general terms provides that complaints can be made to the Building Commission and those complaints will be either resolved by the Commission if they are within a certain range of value and if not referred to the State Administrative Tribunal for resolution.
There is competing authority in this court about whether there is jurisdiction in the Magistrates Court to deal with a claim of this nature in the event that a complaint to the Building Commission had not already been made.
In Instant Transportable Offices Pty Ltd v BGC Contracting Pty Ltd [2012] WADC 99 Stevenson DCJ decided that there was jurisdiction in the Magistrates Court unless and until a complaint was made to the Building Commission. That decision was followed by his Honour Goetze DCJ in Eugeniuz Malatynski as trustee for The Malatynski Trust t/as Ultra Modern Patios v Ranclaud [2017] WADC 75.
In each case Stevenson DCJ and Goetze DCJ were not obliged to decide the matter in order to resolve the dispute.
The same issue arose before Troy DCJ in Lewis v Garvey [2017] WADC 76 and his Honour came to the opposite conclusion. He formed the view that the Magistrates Court did not have jurisdiction to deal with matters for which a complaint could be, but had not been, made to the Building Commission. That position seemed to have been assumed in Appleyard v Walker [2009] WASCA 141.
For reasons which I will now set out, it is unnecessary in the circumstance of this case for me to resolve which of those approaches I would have followed.
The nature of the building contract and the way in which the parties approached the matter at trial
Issue 1 in this appeal in part concerns the question: was the contract between the parties a fixed sum building contract as submitted by the appellant on appeal or entirely a cost-plus building contract as submitted by the respondent?
The magistrate decided, in summary, that there were two contracts.[21] The first, the Lump Sum Contract, was for a fixed sum and the second, a cost plus contract, for any costs over and above that fixed sum arising from variations to the initial plans. The cost plus component was being sued upon and that was within jurisdiction.
[21] He expressed a preliminary view during trial 20 December 2017 ts 40 – 41, ts 48 and a final view when giving judgment 17 January 2018 with respect to the appellants claim at ts 20 – 21 and with respect to the respondent's claim at ts 21 – 22.
In my view, that decision was one that was open to the magistrate. I come to the same result in this way:
1.Exhibit B, the Contract, expressly provides that the Lump Sum Contract is a separate building contract: introductory clause and numbered clauses 1 and 4 of the Contract;
2.Clause 1 provides that any cost overrun will be paid by the respondent. It was open for the magistrate to conclude, as he impliedly did, that the term 'cost overrun' should have its usual meaning of any amount spent over the budgeted sum. In other words, if it cost more than $180,000 (including an appropriate profit component) to build the house as finally built then the respondent would pay any additional cost - the over spend;
3.Clause 2 provides firstly, that the overspend would be compensated on a cost to builder plus 10% basis and secondly, for when any additional costs would be paid;
4.Clause 3 deals with the final payment and confirms it will be made at practical completion and that the total payment will be the equal of all costs incurred up to completion plus 10%;
5.Clause 4 makes it clear that the additional payments are for both cost overruns (any overspend over budget) and for any variations made and 'are over and above costings payable by the Lending Authority' (in this case $180,000);
6.The final words do not detract from the introductory words or clauses 1 – 4;
7.All of those clauses are directed towards the recovery of costs additional to those provided for in the Lump Sum Contract whether due to variation, cost overrun or otherwise;
8.Only the Lump Sum Contract was provided to the lender, Keystart, and the appellant's uncontested evidence was that the parties knew that Keystart would require a fixed term contract;
9.The Lump Sum Contract did provide for a fixed price for the house then intended to be built and the standard terms included a variations clause, cl 10(c) but the Contract was open to be construed as a separate contract amending the operation of the fixed price clause and varying, by deletion, clause 10(c) of the Lump Sum Contract while keeping the other terms intact;
10.It is clear that the entirety of the appellant's claim was made on the basis that he was invoking the contractual right to claim for costs over and above the amount of $180,000 which had been paid to him by Keystart. That claim was pursuant to the Contract and the sum claimed was calculated on a cost plus basis;
11.At trial, the respondent agreed that the Contract applied and that the appellant was entitled to more than $180,000 and that any sum over $180,000 was on a cost plus basis. The respondent, however, took issue with the final figure arrived at by the appellant;
12.In circumstance where, at trial, by their respective claims both parties concurred that the calculation of a final cost was pursuant to the Contract on a cost plus basis[22] it cannot now be said that the learned magistrate was wrong in his decision that he had jurisdiction. The learned magistrate was called on by both parties to decide the matter on the basis that he enforce the cost plus component of the deal that the parties had made.
[22] ts 22; 30
Natural justice
I refer to principles outlined at [18] – [22] above. The magistrate was not obliged to ensure that when the matter came on for trial that a party produced necessary evidence either by their oral testimony or documentation to prove their case. To do so may well have resulted in an unfair advantage to the other party.
If the parties did not produce sufficient evidence at trial, the learned magistrate was not obliged to adjourn the matter to enable further evidence to be led. This is particularly so given s 29 of the Act requires a minor case matter to be dealt with expeditiously.
In this case, the Magistrates Court files for each matter and transcripts show that:
1.Prior to trial the parties had each:
a.Filed comprehensive pleadings to which a substantial number of documents had been attached; and
b.Had been ordered to and had filed lists of documents;
2.Had explained to them at the listing conference on 26 July 2017 (for both matters) how the trial would run including that they would have to be sworn to give evidence, they would be cross‑examined on their evidence[23] and that they should bring hard copies of all electronically stored documents they relied on to the trial;[24] and
3.At trial, the magistrate asked questions of both witnesses to clarify the issues but, in doing so, did not take over the conduct of the matter.
[23] 26 July 2017 ts 8.
[24] 26 July 2017 ts 10 – 11.
Turning now to the specific allegations of failure of natural justice outlined at [6] above.
No opportunity to explain the costings
It is alleged there was a denial of natural justice because the learned magistrate gave no opportunity to the appellant to explain the costings involved in his claims. I do not accept that the way the magistrate dealt with the matter at the hearing could be said to have amounted to a denial of natural justice for the following reasons.
The learned magistrate specifically enquired on more than one occasion during the appellant's oral evidence as to how the amounts had been calculated.[25]
[25] ts 33, 34, 37,
By way of example:
His Honour: So you understand that. So how did you do your calculations in relation to the price - your base price compared with what you were now required to do?
Waldock, Mr: We agreed on the costs - of what the building costs were. I had to match the price from the previous builder - - -
His Honour: Yes.
Waldock, Mr: - - - which I did. The agreed price per square metre gave us how much was proffered in the original 180 and which was building cost. Over and above that was 10 per cent of the cost overrun (indistinct). (ts 30 - 31)
...
His Honour: So - because you had a fixed price and then you've gone to - well, look, you know - you're not talking about, 'Okay, well, we've just got to put a garage on there so that's going to be approximately 50,000 to put a garage on, but we will do it cost - whatever it cost that plus my time of 10 per cent on top of that.' That's not what has happened here, is it? This is just, as you say, 65 per cent bigger.
Waldock, Mr: Correct, your Honour.
His Honour: Based on that, which means, based on that, that the price probably was going to be closer to - I don't know - 300,000 in the end. Is it?
Waldock, Mr: More than that once you added the (indistinct) sir. So I would have been pricing five different houses and making variations for everything. (ts 31)
…
His Honour: Okay. So you start building. Yes.
Waldock, Mr: Pardon?
His Honour: You start building.
Waldock, Mr: Yes.
His Honour: Okay. And as you go along, how do you render your accounts?
Waldock, Mr: Purely on Keystart's milestones, brickwork, lock-up, completion.
His Honour: Okay. So have you got a copy of the invoices you rendered for the - have you got a copy of the invoices? (ts 32)
…
His Honour: Yes. But - you claiming money - okay. I want to know what extra money did you charge, what was paid and what was not paid. The contract price of 180 was paid so that just leaves the moneys for cost overruns, as you call it.
Waldock, Mr: Total costing is less than 180, sir. Yes.
His Honour: Yes. Yes. I'm waiting for you.
Waldock, Mr: I thought - yes. We - I put the money in and - over and above, finished the house, worked out the final price which is unascertainable at the moment and, therefore - that's when the conflict started.
His Honour: Okay. Well, we will go back. The invoices can be exhibit E. (ts 33)
…
His Honour: Well, what's I want to know. At some point of time, did you render an invoice to Mr Shams setting out in detail how the account money was made up?
Waldock, Mr: Yes, sir. In the reconciliation that I sent with a letter of claim.
His Honour: Well, at some point prior to that, presumably, you had rendered just a normal invoice to him. You didn't (indistinct) statement of claim. You rendered an invoice, didn’t you, to him? I'm not sure if I'm talking Greek to you, Mr Waldock, but it seems like I am because you don’t seem to have a clue. What I'm saying to you - if I do business with you and you’ve got a contract to do a job and you do the job and then - how do I know what to pay? 'Trust me. There's - there, you owe me 171,000. Just trust me.' No. That's not how business is done. You render an invoice in this particular case setting out what your expenses have been because it's a cost. You’ve got to know what the cost is plus 10 per cent. Yes?
Waldock, Mr: Yes, sir.
His Honour: So you rendered him an invoice setting out what he owed you; yes? At some point after completion of the house?
Waldock, Mr: Yes, sir.
His Honour: Okay. Produce it. That's what I'm asking you to do. Mr Waldock, surely you haven’t come along here just to say to me, 'Look, he owes me 2 thousand-odd dollars. Just order him to pay it. Trust me.' Just doesn’t work that way.
Waldock, Mr: There was a full reconciliation done with all the figures that I had available and I had a - a final cost on that. So that's the costs on - total costs on the job. Some of them aren't there because I haven't received invoices from Mr Shams, but that's the way I originally worked it out, as - on his figures. Then on this one - that's why I amended my claim - I made it as according to the contract. So on a cost-plus basis like he has got there, that's what it is and that is as according to the contract. And that's why it'll come out in an extra thousand dollars.
His Honour: So, the total price of 413 thousand - one hundred - - -
Waldock, Mr: Yes, sir.
His Honour: Plus - one hundred. Is that over and above the 180 thousand?
Waldock, Mr: No, sir, if you look at amendment - my attachment 1, that's got the 180 with the profit and the cost of the 180 and then, ten per cent of the overrun from that. (ts 34 - 35)
…
His Honour: So in relation to all these expenses that you claim occurred, and you say these were - none of these were incurred or paid for as you went along; is that right? By you. By Mr - other than things he organised himself?
Waldock, Mr: Some were paid by Mr Shams. And the majority of the building work was done by myself, paid by myself. (ts 36)
…
His Honour: So but that's a figure effectively, that you've just plucked, it is?
Waldock, Mr: Yes.
His Honour: Okay. Is that the same with compliance?
Waldock, Mr: Yes. I've asked for those figures in writing. I've asked for all the figures with the little no next to them. Everyone one of my invoices has got a purchase order, an invoice and receipt. But there's most of - I mean, most of the trades that Mr Shams has been involved with, there's no invoices or receipts given. He got a lot of prices cheaper because he was working on cash. But that's still of value.
His Honour: But in relation to this, the final figure is simply a best - a guestimate? (ts 37)
…
His Honour: So if your figure of, say, just one of those figures of $20,000 is 10 per cent out, then your claim goes out the window?
Waldock, Mr: No. I invited him to - - -
His Honour: No, no. I'm just saying to you if one of those figures is wrong and you can't tell me what the figure is actually then your claim goes out the door?
Waldock, Mr: But I invited him to correct those figures and let me know what the full figures were but he has kept - all those figures have been kept secret and I don’t know what they are. He had - - -
His Honour: So if you don’t what they are, on what basis do you make your claim?
Waldock, Mr: Because I know what different trades charge. Like cleaners. They - - -
His Honour: So it's an educated guess? (ts 38)
…
His Honour: So you're telling me that during the entire build other than the payments made by Keystart you didn’t render any invoices for work done during that period of time?
Waldock, Mr: No, sir. Because we assumed the surplus was on 10 per cent.
His Honour: Yes. But yes, you might have had somebody come in to do a particular job. They would have rendered you an invoice and you could have then handed the invoice straight on to Mr Shams. That's what I would expect - - - ?
Waldock, Mr: Was getting progress payments and I paid those bills that were presented to me. But ones that I had issued - - -
His Honour: Yes. You paid them but you didn’t send them on at that point in time with a 10 per cent added cost?
Waldock, Mr: No, your Honour.
His Honour: All right. And so all these amounts that you refer to in here that you do know as costings, did you supply the invoices in relation to those?
Waldock, Mr: Sir, we were sharing the same office and Aidin had access. And he was in my office half the time. He had access to those invoices - - -
His Honour: It was a simple question, Mr Waldock. Did you supply the invoices?
Waldock, Mr: I didn't post them, sir, but they were available. They were in front of him. (ts 38 - 39)
…
His Honour: You say there was. And then an overrun. At this point in time you say - this is back in March of 2016 - as agreed, part 2 of our building contract. Balance of deposit $25 payable at first progress payment brickworks. So at that point in time the brickworks had just gone up, presumably. Or the brickworks had occurred. And that was part of the original contract for which you would have been paid 68,000-odd dollars. Or 60 - brickwork, 62,000. So are you saying on top of the 62,000 there was another 25,000?‑‑‑I can't - I cannot recall what was agreed between us at that stage. That is on my letterhead - that is on my letterhead - - - (ts 41)
…
His Honour: Okay. Well, as part of your invoices, is there anything anywhere I can see - try and follow the logic of it?---Payments to date.
His HonourSorry?---Yes. Both of them have got it, both forms, and - both the amendment:
Payments to date.
His Honour: Well, it doesn’t appear in the attachment 1, which is that lump-sum contract statement, and I don’t know if it appears - I can't tell, but it doesn’t - doesn’t appear to be in the statement of expenses. So that can be exhibit F. (ts 41)
The answers to the learned magistrate's questions given by the appellant were either unresponsive or unhelpful. Despite repeated requests, the appellant could not explain how he arrived at the final figure he claimed.
The learned magistrate also had before him various invoices and spreadsheets produced by the appellant between June 2016 and January 2017, being exhibits F, 1, 2, 3 and 4, which show significant differences in how, at various times, the appellant had calculated the amount claimed. By way of example:
1.Exhibit 1, produced close to trial, claimed the total building cost as $344,250 without the 10% margin on the costs overrun;
2.Exhibit 2, dated 26 August 2016, claimed the total building cost as $322,340 inclusive of the 10% margin on the costs overrun;[26]
3.Exhibit 3, dated December 2016, claimed the total building cost as $323,830 inclusive of the 10% margin on the cost overrun; and
4.Exhibit 4, dated January 2018, claimed the total building cost as $413,100.34[27] inclusive of the 10% margin on the cost overrun.
[26] Exhibit 2, ts 65.
[27] Exhibit 4, ts 65.
I refer to [47 - 48] above. It was confirmed at trial by the appellant in his evidence[28] that the alleged agreement for a price of $800 per square metre related only to how the price in the Lump Sum Contract was calculated. None of the spreadsheets referred to by me in [69] above, used as a method of calculation a price of $800 per square metre. Each of those documents used a cost plus margin basis for calculation. In these circumstances, the learned magistrate cannot be said to have denied the appellant natural justice by not relying on the evidence relating to how the price of $180,000 was calculated.
[28] ts 36.
I will say something more below about those parts of the price claimed which relied on estimates of the value of the work done.
In his reasons for judgment the magistrate, after some opening words setting out the nature and extent of the appellant's claim, said:
The defendant has disputed the claim and that a large part of the claim relates to the calculations. The problem, Mr Waldock, is, I mean, as I indicated to you at the time of this trial, is that this entire matter was a mess.
…
What you've done is you have come along to the court and you have chucked up a series of spreadsheets trying to show how the balance is calculated, and the onus is on you to satisfy me how the balance is – how it's calculated. When I look at the spreadsheets, at best, the figures are questionable and estimates. That's partially because, you say, that you haven't received copies of the invoices or expenses paid by the defendant for which you say you are entitled to claim the 10% on as part of the cost plus contract. (emphasis added)
But, in my view, the figures that you used in your spreadsheets (indistinct) as a consequence unreliable. What you had to do was to satisfy me at the end of the day that the balance – on the balance of probabilities, the amount that you claimed, the $2,000 – odd was a legitimate balance outstanding. What I got was, as I say, a whole lot of figures thrown up which, I conclude, are simply unreliable. You've got to satisfy me that I can follow the balancing (sic) ball and reach a conclusion at the end of the day that the amount is correct. And I think, as I expressed during the course of that hearing I'm just not so satisfied.
You can throw up all the documentation that you like, but at the end of the day you have to satisfy me, and the problem arises – simply arises because of the way you chose to run that contract. Now, it appears to me that there were variations in the like and there was nothing in writing. Nothing was in writing. It was just added costs and were worried about that later. It's something that, if you are going to continue in the business, this experience should be one that you should remind you do it by the book. If you don't, then you're going to pay a price.
At the end of the day, as I say, your obligation is to satisfy me that the figure - because that's what we are looking at is a final figure, it's not a particular item that he hasn't paid for, it's a final figure, and we might look at all the spreadsheets you've provided me – and there is a number of them – I am simply unable to follow how that balance is made up. So at the end of the day, if I am not satisfied, in relation to the calculation, then your claim must fail and I am simply not – not so satisfied. So the claim will be dismissed.
The learned magistrate's reasons show that regardless of the difficulties the appellant had in ascertaining what amounts had been paid, he did not accept that the appellant had discharged the onus of proving his claim. There is no denial of natural justice in reaching that finding.
No consideration to alleged deceitful non-disclosure of amounts paid by the respondent to sub-contractors
The ground that the magistrate allegedly denied the appellant natural justice because he gave no consideration to the deceitful non‑disclosure of amounts paid by the respondent during the contract is also unsustainable.
In my view having read the transcript and looked at the documents produced at trial, it cannot be said that the magistrate gave no consideration to the alleged deceitful lack of disclosure of amounts paid by the respondent. His reasons, set out above, show that he did but that he ultimately decided the matter on the basis that he could not be satisfied generally on the claim by the appellant's evidence.
In addition to the evidence set out above, the appellant's evidence was also:
His Honour: As - you were getting progress payments for the amount of the base contract from Keystart. As you went along, were you also getting payments from Mr Shams?
Waldock, Mr: Yes, sir.
His Honour: Okay. So - and, presumably, those payments arose out of invoices that you had rendered.
Waldock, Mr: Some contractors he took on himself, sir, and - - -
His Honour: Well, you're not going to render an invoice to him for - if he took it on himself, are you?
Waldock, Mr: Yes, sir. It's still part of the cost to the building.
His Honour: Yes. But you didn't pay for it.
Waldock, Mr: No. And that's - in that schedule of costs, sir, I put continually the reconciliation. It has got all the moneys that I paid, all the moneys that he paid and which invoices are missing. And - like, I put in 171,000. Obviously, that included my payments from Keystart. (ts 33 - 34)
…
His Honour: So are you saying you paid $20,000 for earthworks, surveyor and concrete work?
Waldock, Mr: No, sir. That's a provisional sum that was allocated to Mr Shams' company.
His Honour: So how do we know what that figure - if that figure is actually - - - ?
Waldock, Mr: I've continually asked for that and other figures, sir.
His Honour: So you don't know whether that figure is accurate or not?
Waldock, Mr: Correct. A provisional sum - he's supposed to give me all the invoices for the materials and pumps and things that he has used, surveyors, put his profit on it, submit it to me. And a provisional sum is when it might be 15, it might be 30. And a provisional sum works like that. I have never received a breakdown or any invoices from the - I received an invoice just saying - putting some slab. That was in February and that was it. (ts 36 - 37)
…
Waldock, Mr: Correct, sir. And when I gave him that I said the ones in with the red on the right-hand column, will you please supply invoices so we can go firm on them. And there's still no breakup. And, I mean, there's some trades, like stonemason who put granite right through the house. Quotation of - a written quotation of 18 and a half thousand. I got a final payment of 6050. The other 12,000 was - I think it was half paid in cash and he got a discount. But there's non‑disclosure right through which makes it very difficult to get the accurate figure. But those figures I've given are all soft figures. They're not over the top. (ts 37)
…
Waldock, Mr: Yes, sir. I mean, cleaners. They were friends that had come through. Friends or Mr Shams. There's no purchase orders. There's no quotes. There's no PA - there's no GST or worker's comp. But yet he has written to contractors saying that I've got to - POs have got to be submitted to me and all monies and stuff have got to go through me. That was fine until we got to finishing traits. (ts 38)
Magistrate Malley was entitled to take into account, as he clearly did, that:
1.The appellant as builder was prepared to enter into a fixed price building contract when he knew that what would be built would change radically and it did change radically;[29]
2.The changes were not documented, or documents supporting the changes were not produced at trial;
3.Within the spreadsheets were estimates of the value of work paid for by the respondent directly. The appellant confirmed these were 'guesstimates' although based on his building experience. There was no independent evidence confirming those estimates;[30]
4.The respondent denied that he had not provided documentation to the appellant;
5.Within the spreadsheets produced by the appellant there are sums that the builder knew to be incorrect. One example was a sum of $20,000 for earthworks and surveying relating to monies payable to a company associated with Mr Shams.[31] The appellant incorrectly described this as a provisional sum.[32] The effect of Mr Shams' evidence was that the amount actually paid to that company by the appellant was $16,500 and further that no request for any detailed breakdown of how that sum was calculated was ever made to the company to whom the sum was paid;[33]
6.A second example relates to the estimate of the cost of granite benchtops installed in the house which was based on a quote obtained by the respondent but which the appellant knew had been discounted on the payment by the respondent of cash;[34]
7.The difficulties that the appellant faced were of his own making. The appellant was the builder but he had allowed, if not encouraged, the respondent to make payments directly to subcontractors and on a cash basis.[35]
[29] ts25, 26, 27, 29.
[30] ts 62-63.
[31] ts 36.
[32] ts 36 - 37.
[33] ts 62 – 63.
[34] ts 37; 62 – 63.
[35] ts 33, 34, 37, 38, 52, 62 - 63.
The learned magistrate's reasons show that generally he was not satisfied by the appellant's evidence in support of the appellant's claim.
No regard to any claim in quantum meruit
In my view this ground is also misconceived, firstly, because the Contract was found to be enforceable by the magistrate. The Contract contained a mechanism by which payment could be calculated, at cost plus 10% basis. Quantum meruit might arise when there is a contract but no pricing mechanism is fixed under it. In that circumstance, the contractor is entitled to be paid a reasonable sum for the work done: Powell v Braun [1954] 1 ALL ER 484.
Quantum meruit may also arise when a contract has failed, when work is done outside a contract or where work is performed under a void, terminated or unenforceable contract: Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221.
Where, as here, there is a contract in which the parties have agreed a pricing mechanism, but the claiming party has not proven that price in accordance with the mechanism, no claim in quantum meruit should arise.
Further, I could not find any reference in the transcript to a claim for quantum meruit at the trial and lastly, there was no independent evidence from which a quantum meruit could have been assessed. Had a claim in quantum meruit been advanced, it would be incumbent on the appellant to have satisfied the magistrate, usually by the independent evidence of a quantity surveyor, or other expert, such as a builder, that a fair and reasonable price was claimed for the work undertaken: Sopov v Kane Constructions (No 2) [2009] VSCA 141.
Magistrate was in error in only awarding the repayment of $15,000 to the respondent
I will turn now to the respondent's cross-appeal.
In order for the respondent to be successful on this ground he must establish an error on the part of the learned magistrate of fact, or law or of mixed fact and law.
The respondent made a claim to be entitled to recover an overpayment of approximately $26,000 but the learned magistrate upheld only that part of the claim which is referred to in exhibit 4 as 'Builders Cost, supervision/variations/extra per AS quote' in the sum of $15,000.
Again I have reviewed the transcript including the evidence that each of Mr Waldock and Mr Shams gave with respect to this matter and the documentation before the learned magistrate.
Mr Shams' evidence about how that sum is made up commences at ts 54. It appears that he asserted the sum to be made up of unnecessary insurances, roof sheeting, plastering and for a sum recorded as 'project management' or 'site supervision' of $15,000. I will not reproduce it, but, his evidence is difficult to follow. It was incomprehensible to me and no doubt to the learned magistrate. The documentation filed by Mr Shams did not bring clarity to the matter.
With respect to the amount of $15,000 the evidence of Mr Waldock ultimately established this sum was for site supervision of the installation of a driveway and services, not with respect to the house, but for the purpose of finalising the sub-division of the land.[36] Mr Waldock's evidence was that he considered the sum claimable because, in his words, those works were 'a collateral contract' to the contract for the house because without the driveway and the subdivisional services being completed the house could not be handed over to the respondent.
[36] Waldock ts 64.
The learned magistrate found that part of the respondent's claim to be made out. The $15,000 sum was not for work on the house, was not part of either building contract and could not be claimed pursuant to the Lump Sum Contract or the Contract.
It is clear from a reading of the learned magistrate's reasons for decision that he otherwise approached Mr Shams' evidence in much the same way that he approached Mr Waldock's evidence. At (ts 21) he said:
It's fair to say that the presentation in Mr Shams' case, as in the case of Mr Waldock frankly, was a shambles. The presentation of evidence was, once again, vague and confusing, and one only has to read his (indistinct) claim, which are rambling and difficult to follow.
At (ts 22):
Like the claim by Mr Waldock, the confusing evidence of Mr Sham's [sic] makes it almost impossible to satisfy the court on the basis of his claim other than, in my view, the amount of $15,000 found under the heading of Building [sic] Costs.
On my reading of the transcript, those findings were open to the learned magistrate. No error of law or fact or principle is made out.
Conclusion
In my view while his exhibit management was not as it should have been, the learned magistrate did the best he could with two poorly conceived and presented cases. As his Honour said, the case was a mess. The difficulties for the most part arose out of the behaviour of the parties, and by their decision to enter two contracts and to allow payments to be made by the respondent. To use the magistrate's expression during the hearing[37] 'everything comes back to the contract, you see, and that's where both parties, in my view, in this case, have been appalling'. I agree with that sentiment.
[37] ts 64.
In my view, the learned magistrate:
1.Considered all of the evidence presented by the parties;
2.Made findings that were available and appropriate given the evidence and the law; and
3.Allowed the parties to be heard.
I dismiss both the appeal and the cross-appeal.
Exhibit List
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit 1
Exhibit 2
Exhibit 3
Exhibit 4
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CDZ
Associate to Judge Gillan
9 JANUARY 2019
Appendix D to respondent's Statement of General Procedure Claim filed 7 April 2017.
0
19
4