Wang v Gelnar P/L - [2023] SASC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Civil)
WANG v GELNAR P/L
[2023] SASC 43
Judgment of the Honourable Justice Stanley
31 March 2023
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT - DAMAGES
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION - EXTRAS AND ALTERATIONS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE - EVIDENCE NOT AVAILABLE AT HEARING
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - EXCESSIVE OR INADEQUATE DAMAGES - DAMAGES INADEQUATE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - POINTS AND OBJECTIONS NOT TAKEN BELOW
This is an appeal from the judgment of a magistrate who allowed a claim for the cost of unpaid work done pursuant to a building contract and awarded the respondent the sum of $21,581.82 together with interest in an amount of $3,000. The magistrate also dismissed a counterclaim by the appellant for the sum of $70,702.66 for damages for defective works negligently performed.
The appellant alleges that the works were defective due to the provision of understrength concrete in the foundations, resulting in a loss of rental income for a period of 34 weeks.
The trial magistrate found that the use of understrength concrete was a breach of contract, but the weaker concrete was nonetheless fit for purpose and did not cause any defect in the structural integrity of the foundation. Accordingly, the magistrate found that there was no loss suffered as a result of the breach of contract.
The trial magistrate also allowed a claim for $2,700, being the costs of what she found to be variation works which the appellant claimed were rectification works.
The grounds of appeal raised by the appellant are:
1.      That the learned magistrate erred in finding that all of the costs associated with the delay to building works were not “costs that can be directly attributed” to the breach of contract; and
2.      That the learned magistrate erred in accepting a variation claim in the amount of $2,700 because the relevant works formed part of the contractor’s obligations under the contract.
Held:
1.      The magistrate did not err in finding that all of the costs associated with the delay to building works were not “costs that can be directly attributed” to the breach of the contract.
2.      The magistrate did not err in accepting the variation claim.
3.      The appeal is dismissed.
4.      The question of costs is reserved.
Pitt v Commissioner for Consumer Affairs [2021] SASCA 24; Sunlight Nominees Pty Ltd v Zotti & Zotti [2019] SASCFC 11; Taylor v Hayes (1990) 53 SASR 282; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Viscariello v Livesey & Anor [2013] SASC 99; Wade v Australian Railway Historical Society (2000) 77 SASR 221; Warren v Coombes (1979) 142 CLR 531; Water Board v Moustakas (1988) 180 CLR 491, considered.

WANG v GELNAR P/L
[2023]…

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 Wang v Gelnar P/L

Details

AGLC: Wang v Gelnar P/L [2023] SASC 43
Case: [2023] SASC 43
Decision Date

CaseChat Overview and Summary

Wang v Gelnar P/L involves an appeal by the appellant, Wang, against a decision of the magistrate in a dispute related to building works. The appeal focuses on two grounds: the magistrate's decision regarding the costs associated with the delay to the building works and the acceptance of a variation claim amounting to $2,700. The appellant contends that the magistrate erred in these respects.

The court was required to decide whether the magistrate correctly assessed the costs related to the delay in building works and whether the variation claim was appropriately accepted. Specifically, the court needed to consider whether the costs attributed to the delay were directly linked to the breach of contract, as well as whether the variation claim was justified given the contractor's contractual obligations.

In rejecting the appeal, the court held that the magistrate's findings were not in error. The court emphasised the importance of the ability of the appellant to have obtained the evidence at first instance and noted that the public interest in the finality of litigation is a crucial consideration. The detailed testimony and documentary evidence presented by the appellant were deemed not to have a material bearing on the question of error in the magistrate's decision. The court also highlighted that the appellant's failure to present this evidence at the initial trial could not be justified by ordinary diligence.

The appeal was dismissed, and the parties were directed to address the matter of costs. This decision reinforces the principles governing the admission of further evidence on appeal and the importance of the finality of litigation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The revised grounds of appeal are:·That the learned magistrate erred in finding that all of the costs associated with the delay to building works were not “costs that can be directly attributed” to the breach of contract (ground 1); and·That the learned magistrate erred in accepting a variation claim in the amount of $2,700 because the relevant works formed part of the contractor’s obligations under the contract (ground 2).Application to admit fresh evidence On the hearing of the appeal the appellant sought to adduce further evidence which was set out in an affidavit of the appellant of 18 January 2023. The further evidence concerned conduct of the appellant during the period from mid-August 2019 until the structural steel was installed on 17 December 2019. On 7 November 2019 the appellant emailed Mr Popovich instructing him that he should arrange for the next step to be taken in the construction. Most of the events between mid-August and mid-December concerned steps taken by the appellant to obtain advice in relation to the suitability of the concrete. The test results in relation to the concrete were obtained from Adelaide Brighton Cement and Lab SA. Advice was obtained from Concrete Engineering Australia in relation to the test results. I refused the application to adduce fresh evidence on the appeal. I did so for these reasons. The appellant contends that in substance he gave evidence of these matters at trial, although the affidavit includes additional evidence, in the nature of detailed testimony about the steps undertaken by the appellant during this period and documentary exhibits that, with one exception, were not tendered at trial. The exception is an email from the appellant’s wife to Mr Leonardos setting out various complaints to do with aspects of the construction work including, but not limited to, the concrete foundation and its strength. The Court has a discretion pursuant to UCR 217.10(c) to admit further evidence on appeal. In Viscariello v Livesey & Anor,[1] White J summarised the principles relevant to the exercise of a power such as that conferred by UCR 217.10(c) in a passage subsequently approved by the Full Court in Sunlight Nominees Pty Ltd v Zotti& Zotti.[2]White J said:[3]The nature and exercise of a power to receive further evidence such as that contained in r 286(3)(a) was considered by the High Court in CDJ v VAJ. The present appeal is not the occasion to review in detail the principles stated in CDJ. The following principles relevant to the determination of the appellant's application to adduce further evidence may be stated:1.The exercise of the discretion to receive further evidence under r 286(3)(a) is not necessarily to be approached in the same manner as discussed in Wollongong Corporation v Cowan and McCann v Parsons, which are appropriate to the procedures of the common law courts.2.The discretion is to be exercised in the context that the substantive issue before the Court is whether the decision of the Tribunal as to the appellant's standing involved error. The context is not one involving a person's liberty or the care and custody of children (as was the case in CDJ).3.The circumstance that this Court is concerned with the existence or otherwise of error suggests that the further evidence must be capable of having a material bearing on that question, although it need not be decisive.4.The discretion is not so wide that the Court may receive further evidence merely because it is useful.5.The ability or otherwise of the appellant to have obtained the evidence for use at first instance, and any explanation for him not having done so, are important considerations. Ordinarily, further evidence is not received in order to allow a party to patch up deficiencies in its case if those deficiencies could have been addressed by the exercise of ordinary diligence at first instance.6.The public interest in the finality of litigation is an important consideration.[1] [2013] SASC 99.[2] [2019] SASCFC 11 at [42].[3] [2013] SASC 99 at [132].

Decision

Reasons for decision

I reject this ground of appeal. Conclusion I would dismiss the appeal. I would hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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