Wilczynski v Banasiak

[2020] SADC 153

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Application for Review)

WILCZYNSKI AND ANOR v BANASIAK AND ORS

[2020] SADC 153

Reasons for Decision of His Honour Judge Slattery

29 October 2020

ADMINISTRATIVE LAW - JUDICIAL REVIEW

The applicant, Mrs Ewa Wilczynski, was sued by a Mr Banasiak upon an alleged debt arising from him installing double glazed windows and doors of a home owned by her with her husband Mr Joseph Wilczynski. Mr Banasiak sued for recovery of the sum of $1,750 being the alleged unpaid price for labour for the installation. This is a minor civil claim.

Mr Banasiak was a partner of a business called Varmhus, a partnership formerly comprising a Mr Banasiak, a Mr Dubec and a Mrs Matejko. That partnership quoted for and contracted to supply the windows and doors to be sourced from a company, Drutec, in Poland. The date of the contract was 6 September 2013.

The partnership of Varmhus was dissolved on 11 November 2013 by Mrs Matejko who then incorporated a company called Oknalux Pty Ltd to carry on the same business of supplying the same products sourced from the same company in Poland.

In or about December 2013, or January 2014, Mr Banasiak as a continuing partner of Varmhus, entered into a contract with the applicants to install the doors and windows in their home. Mr Banasiak was not a licensed builder. He commenced work on 2 January 2014 but by 8 or 9 January 2014 he was put offsite by Mrs Wilczynski. The applicants approached Mrs Matejko and Oknalux Pty Ltd to finish the work for a fixed price. That work was completed by March 2014.

Mr Banasiak sued Mrs Wilczynski for the payment of $1,750. Mrs Wilczynski counterclaimed against Mr Banasiak, Mrs Matejko and Mr Dubec for the cost of the work charged by Oknalux Pty Ltd. The learned magistrate dismissed a quantum meruit claim of Mr Banasiak and made orders on the counterclaim in favour of Mrs Wilczynski. The learned magistrate dismissed the claim against Mrs Matejko and gave judgment against Mr Banasiak and Mr Dubec on the counterclaim. Mr Dubec has always lived in Poland and at that time he had not been served with the counterclaim.

Mrs Wilczynski then commenced an application for review of the minor civil judgment. At that time, Mr Joseph Wilczynski was joined as an applicant on the review application and Oknalux Pty Ltd was joined as a defendant to the counterclaim. The learned judge dismissed the application for review which had at that time not been served on Mr Dubec in Poland. His Honour did not decide any aspect of the counterclaim against Oknalux Pty Ltd.

The applicants sought judicial review of the decision of the learned judge. That application was not served upon Mr Dubec in Poland. The application was dismissed.

The applicants sought and obtained leave to appeal from the dismissal of the application for judicial review. The appeal was allowed on two principal basis: the learned judge on the application for a minor civil review had not pronounced on the obligations, if any, of Oknalux Pty Ltd; and that the courts below had not properly dealt with the question of the joint liability of the partners of Varmhus (in 2014) and as reflected under r 33 of the Magistrates Court Rules (2013). The matter was remitted for rehearing of the minor civil review.

On 24 January 2020, this court made orders for service of the minor civil review application upon Mr Dubec out of Australia and in Poland and upon Mr Banasiak at an email address, which was his last known address. The applicants failed or refused to comply with the orders for service upon Mr Dubec or upon Mr Banasiak.

On 17 July 2020, the court proceeded to conduct this minor civil review in respect of the claims against Mrs Matejko and against Oknalux Pty Ltd only as Mr Dubec and Mr Banasiak were not responding parties before the court due to the failure of the applicants to comply with the orders of the court for service.

At the hearing on 17 July 2020, the court admitted into evidence a report of SA Building Consultants of 13 October 2014 which the learned magistrate had refused to accept into evidence and further received viva voce evidence from the applicants and from Mrs Matejko on the liability of Oknalux Pty Ltd and generally.

Held:

1. The application for review of the decision of the learned magistrate about the liability of the partners of Varmhus for the supply of windows and doors is dismissed;

2. The counterclaim against Oknalux Pty Ltd is dismissed;

3. The court is not in a position to pronounce upon the rights of the applicants against Mr Dubec or Mr Banasiak as those persons have not been served with the application for review and are not responding parties before the court.

Partnership Act 1935 ss 9, 12; Magistrates Court Act s 38; Magistrates Court Civil Rules 2013 (SA) rr 33, 40(2)(a), 49(2); Building Work Contractors Act 1995 (SA) s 6, referred to.
Harradine v District Court of South Australia (2012) 280 LSJS 572; [2012] SASC 96, discussed.
Wilczynski & Anor v District Court of SA & Ors [2017] SASCFC 102; Wilczynski & Anor v District Court of SA & Ors [2016] SASC 51; Lawrence v Sambevski (1996) 189 LSJS 451, considered.

WILCZYNSKI AND ANOR v BANASIAK AND ORS
[2020] SADC 153

Overview

1. In this action, the applicants for minor civil review, Mr and Mrs Wilczynski, are the owners of a home at Aberfoyle Park. I will hereafter refer to Mr and Mrs Wilczynski as “the applicants”.

2. In 2013, they decided to replace the windows and a door in their home so that the windows would all be double glazed.

3. At that time in 2013, Mr Miraslaw Banasiak, Ms Alicja Matejko and Mr Andrezj Dubec were partners in a business called Varmhus which supplied double glazed windows manufactured in Poland. Mr Banasiak visited the home of the applicants, measured the windows and then provided a quotation for the supply of the windows. The quote was accepted, the windows were ordered, to be manufactured in Poland and delivered into Australia in December 2013.

4. On 11 November 2013, the Varmhus partnership was dissolved when Mrs Matejko left the business. Although the evidence is not altogether clear, it is a reasonable inference that Mr Banasiak and Mr Dubec carried on the Varmhus business for some time. The evidence led before me on 17 July 2020 from Mrs Matejko satisfies me that Mr Banasiak became the most active partner in the business. The evidence of Ms Matejko also satisfies me that Mr Dubec has never lived in Australia and lives in Poland. In more recent times, Mr Banasiak has resided in Queensland.

5. The quote of Varmhus for the windows was accepted by the applicants on 9 September 2013, and the work on the installation occurred in January 2014. I am satisfied from the evidence led before me by Mrs Matejko on 17 July 2020 that the initial contract with Varmhus was for the partnership to only supply the windows and a door. The installation contract for them was arranged under a separate contract with Mr Banasiak. This arrangement was accepted by the applicants in the hearing before me on 17 July 2020. Mr Banasiak undertook the installation under a separate agreement with the applicants, and for a separate price. By January 2014, Mrs Matejko had incorporated a new corporate vehicle to carry on the business of supply and installation of these windows called Oknalux Pty Ltd. That company traded in competition with Varmhus.

6. The windows supplied did not snugly fit the window spaces. Building apertures are rarely, if ever, properly square, rectangular or such other shape as required. Buildings are invariably not symmetrical in the horizontal and vertical planes. Builders have developed many methods to acceptably cover these discrepancies.

7. When it became apparent that the windows were smaller than the window apertures and did not fit snugly into those apertures, the applicants called a halt to the work and refused to pay Mr Banasiak for his work. The finishing of the installation work was completed several months later by Oknalux Pty Ltd (the company run by Mrs Matejko).

8. Mr Banasiak sued the applicant Mrs Wilczynski in the Magistrates Court for the outstanding sum of $1,260.00 for work and labour supplied. The claim was defended and a counterclaim was issued against Mrs Matejko and Mr Dubec.

9. It is important to recognise that the partnership of Mr Banasiak, Mrs Matejko and Mr Dubec made the agreement to supply the windows. The second Varmhus partnership of Mr Banasiak and Mr Dubec made the agreement for installation of the windows.

10. Under ss 9 and 12 of the Partnership Act 1935, the liability of partners was joint insofar as there has been a breach of contract, and joint and several insofar as there has been a tort committed by a partner. If a partner breached the contract for the measurement and supply of the windows, their liability is joint.

11. Mr Banasiak did not hold a builders license and so was not permitted to charge for building work. The learned magistrate held that he was entitled to claim a quantum meruit but this was defeated by the fact that Oknalux Pty Ltd had completed the installation work commenced by Mr Banasiak on his own account. Therefore, the learned magistrate found that the applicants were entitled to damages of $2,902.35 (amount paid to Oknalux) less the amount outstanding to Mr Banasiak of $1,760 leaving $1,142.

12. The learned magistrate allowed the counterclaim in part and required the applicants to pay the Oknalux Pty Ltd account. The evidence before the learned magistrate was that Oknalux Pty Ltd was not asked to remove the fitted windows but merely to make good the finishes to ensure that the window edges were complete, water tight and that the windows performed the required function of double-glazed windows.

13. The evidence before the learned magistrate discloses that the work of Oknalux Pty Ltd was not required to repair any intrinsic fault in the work performed by Mr Banasiak when he installed the windows with the surrounding 10 mm gap. That is not to say this could not be done if instructions were given to do so. The report of SA Building Consultants of 13 October 2014, delivered after the hearing before the learned magistrate (on 30 September 2014) but before the date of judgment (being 22 October 2014), said as follows:

    2.1 Are the dimensions of windows/doors correct?

    2.1.1 We were advised that a representative from Varmhus Energy Efficient windows attended site and recorded the original window and door dimensions as well as the opening sizes between existing openings.

    2.1.2 As an experienced contractor it is my opinion that the windows should have been made with less tolerance that they have and would be a correct fit into the existing timber reveals and brickwork as in fact is the case with the sliding door. Due to the gaps around the frames this means that non-shrinking and solid blocking should have been used to prevent future movement.

    2.1.3 Inadequate screw embedment now leaves the windows with poor and incorrect fixings.

    2.2 Is this defect of too small windows can be corrected?

    2.2.1 It is not uncommon for new windows to be installed into older existing frames.

    2.2.2 A common form of securely fixing the frames in place is to install powder coated reverse aluminium angles to the existing timber reveal allowing for concealed and proper fixing to the frame.

    2.2.3 The windows/door frames are then slotted into the frame and a small bead of flexible sealant is installed around the frame. Colour matching rivets and/or screw fixings installed allows for a stable and solid/correct installation. The external brick reveal is then sealed with a powder coated aluminium angles fixed to the face of the frame by rivets and/or screw fixings and flexible sealant to seal the edges of the window/door frame so as to prevent water egress into the cavity. This system can in my opinion be used to resolve this issue.

    2.3 Could these too small and incorrectly installed windows cause damage to the building?

    2.3.1 It is my opinions that due to the poor embedment and lack of adequate blocking the windows are subject to movement and wind loadings. The flexing in the windows may cause the poorly installed fixings screws to become loose over time. Although the window is not a structural element of the building the following damage could well occur over time.

    2.3.1.1 Window may allow moisture ingress into the inner parts of the building and cause damage to the linings, wall and floor coverings.

    2.3.1.2 The windows at worse may become unsafe (loose on the frame due to poor fixings) and could cause damage or injury.

    2.3.1.3 Thin PVA external trims are not considered adequate to prevent moisture ingress into the building. The trim also blocks the sill drainage holes and prevents water from escaping he sills.

    …

    3. Further matter:

    3.1 It should be noted that the cracking of the external bricks around the window and door openings would be of a concern as the sides of the openings act as a support for the lintels above the openings which in turn support the roof frame and roof cover loads (earthquake and wind loadings).

    3.2 Dependent on the amount of cracking to the brickwork, the support at the sides of the openings could be compromised.

14. The learned magistrate refused to accept this report. The learned magistrate appears to have relied upon his own assessment of the look of the windows which occurred reasonably soon after the work undertaken by Oknalux Pty Ltd. That work was only finishing work and it did not and was not required to perform the work set out in the SA Building Consultants’ report. I consider that the refusal of the learned magistrate to receive this report was in error. The learned magistrate appears to have mistakenly proceeded upon the basis that the work done by Oknalux Pty Ltd was of the equivalent effect to the work proposed by the expert. This is not the case. The work of Oknalux Pty Ltd finished the work of Mr Banasiak. I am satisfied from the evidence that the proper method of installation was as described in paragraph 2.2 of the report dated 13 October 2014. There is only one quotation for repair work by an independent contractor, Australian Windows Solutions, and it is dated 13 January 2015. It is unclear if this quotation addresses the report of SA Building Contractors.

15. The claim for work made by Mr Banasiak was dismissed. The learned magistrate allowed the counterclaim against Mr Banasiak (first defendant by counterclaim) and Mr Dubec (third defendant by counterclaim). The counterclaim against Oknalux Pty Ltd was dismissed. The counterclaim allowed was in the sum of $3,177.35. This was calculated by taking the balance of the Oknalux Pty Ltd account ($2,902.35) minus the sum of $1,760 leaving a balance of $1,142.35 plus an amount of $2,035 for repair of the brick reveals likely to be damaged at the time of the repair. This came to a total of $3,177.35.

16. The learned magistrate held that the supply contract did not include installation. If that contract was breached, each of the three partners of Varmhus would have been jointly liable. The learned magistrate did not make a finding of breach of contract in the supply of the windows.

17. The learned magistrate accepted that the contract for installation was a separate contract made in January 2014 with the “new” partners of Varmhus, Mr Banasiak and Mr Dubec. That finding is consistent with the report of SA Building Consultants of 13 October 2014 (despite the learned magistrate refusing to accept the report into evidence) at paragraph 2.2.

18. The failure of the learned magistrate to accept into evidence the report of the expert of 13 October 2014 is a significant error. Absent that report, the learned magistrate was apt to rely upon his own impressions of the state of the windows taken from photographs. He also rejected criticisms of the finishing work performed by Oknalux Pty Ltd on the same basis. These views were expressed after the learned magistrate accepted that because of the exigencies of putting new windows into an older building that some gaps are inevitable, as I have earlier discussed.

    The further hearing in the court

19. This matter has been returned to this Court for hearing pursuant to s 38 of the Magistrates Court Act following a decision in the Full Court of the Supreme Court of South Australia dated 15 August 2017.[1]

    [1]    Wilczynski & Anor v District Court of SA & Ors [2017] SASCFC 102.

20. The decision of the Full Court concerned an appeal against the dismissal of an application for judicial review heard by Doyle J in the Supreme Court. The complaint before the Full Court was that a District Court Judge, when reviewing and affirming a minor civil decision, failed to afford the Wilczynskis’ procedural fairness. This was because the District Court Judge had permitted an expansion of the controversy in a minor civil review to include a company Oknalux Pty Ltd, a company controlled by Mrs Matejko. That controversy was not heard or determined by the learned District Court Judge. The order of the Full Court of the Supreme Court was to set aside the orders of the District Court and remit the matter back to the District Court for rehearing of the minor civil review and for a hearing and proper determination of the controversy between the applicants and Oknalux Pty Ltd.

21. There was a second issue ventilated in the judgment of Bampton J in the Full Court. Her Honour found that the issues of contribution and indemnity as between the defendants to the counterclaim also needed to be resolved. This was because there were three respondents to the counterclaim, Mr Banasiak, Mr Dubec, and Oknalux Pty Ltd. Her Honour said at [96]-[98] in her judgment as follows:[2]

    [96] I have referred to the issue of service on Mr Dubec that permeates this matter from the time of the filing of the amended defence and counterclaim.  There is no record of any order made giving permission to serve the minor civil claim, the application to review the minor civil decision or the application for judicial review outside the Commonwealth on Mr Dubec in compliance with the Magistrates Court, District Court or Supreme Court Rules.  There is also no evidence that Mr Dubec was served with the Magistrate’s decision.

    [97] As the Wilczynskis did not seek permission to serve Mr Dubec with the amended defence and counterclaim, no judgment could be awarded against him.  Further, as Mr Banasiak, by virtue of r 33 of the Magistrates Court Rules,[3] is taken to claim contribution from Mrs Matejko and Mr Dubec and Mrs Matejko has pleaded that she is entitled to indemnity from Mr Banasiak and Mr Dubec, the judgment is, in my view, irregular and arguably void as there has been no service on Mr Dubec, and no determination of the claims for contribution and indemnity.

    [98] It follows, in my opinion, that the District Court Judge’s order affirming the Magistrate’s judgment is also irregular as it is founded on an irregular judgment.[4]  In addition to the issues regarding service on Mr Dubec, the District Court Judge could not have been satisfied that Mr Banasiak had been notified of the date of the hearing for the minor civil review as the Court’s notifications had been sent to an address other than the Wingfield address at which he had been served.

    [2] [2017] SASCFC 102.

    [3]    Magistrates Court Civil Rules 2013 (SA) r 33 provides that “where there is more than one defendant to a claim, each defendant will be taken to claim contribution from any other defendant”.

    [4]    MacFoy v United Africa Co. Ltd. [1961] 3 All ER 1169 (Lord Denning).

22. For the sake of completeness, on 24 January 2020, I made an order for service by the applicants, Mr and Mrs Wilczynski, in accordance with the Magistrates Court Rules of the application to review the minor civil decision upon Mr Banasiak at an email address supplied by Mrs Matejko and also outside the Commonwealth on Mr Dubec and at a number of addresses in Poland also supplied by Mrs Matejko. I am not satisfied that Mr Dubec has been served with those documents by email or by any other method. Mrs Matejko informed the Court that she corresponded with Mr Dubec through the email address to which the documents were sent. A response was received from one of these email addresses suggesting Mr Dubec was not at that address. However, Mrs Matejko informed me in her evidence on 17 July 2020 that she has corresponded with Mr Dubec through that email address, that she has spoken to Mr Dubec via the telephone number provided to the Court and she has sent text messages to Mr Dubec via that telephone number informing him of the attempts to serve him with the application. She said on occasions, she had rung the mobile telephone number and Mr Dubec had answered. As soon as she had identified herself, he hung up the phone. I am satisfied from all of the information provided to me by Mrs Matejko that Mr Dubec has not yet been served with copies of the application for review; he is not formally on notice of the existence of the application and the date for hearing. I am satisfied that he has deliberately chosen to avoid contact about this matter from Mrs Matejko but that does not affect my conclusion that service has not been properly effected. This is because the applicants openly admit that they have not complied with my orders.

1. Similarly, I am satisfied from the evidence given to me by Mrs Matejko that Mr Banasiak is now resident in Queensland; he is trading through a business in Queensland and is generally involved in the same type of industry as Varmhus was involved in whilst he was in Adelaide. The Court received information from Mrs Matejko about an email address for a business conducted by Mr Banasiak. I ordered that a copy of the application to review the minor civil decision be sent by the applicants to that email address. There has been no compliance by the applicants with the orders for service upon Mr Banasiak that were made by me.

2. I therefore cannot be satisfied that both Mr Dubec and Mr Banasiak were served (or were fully informed of the existence of) the application for minor civil review and the date of the hearing on 17 July 2020. I am satisfied from my review of the documentation before me that Mr Banasiak actively involved himself in the application before the Supreme Court. He filed submissions and documents.

3. One of the primary issues before the Full Court was the joint liability of Mr Dubec and Mr Banasiak under the Magistrates Court Rules and their entitlement to be heard as parties served. That joint liability as partners arises primarily under the Partnership Act. The partners are all jointly liable in contract.

4. The intention of the orders made by me was for the proceedings to be brought to the attention of all of the partners of Varmhus apart from Mrs Matejko. In that way, arrangements could be made for them to be heard on the issues. Alternatively, they could choose not to be heard and suffer a judgment of the court. In order for any of these things to occur, they had to be served with a notice of the proceedings to avoid any judgment becoming a nullity.

5. The applicants have deliberately refused to comply with the orders made by me on 24 January 2020. There has been no service upon Mr Dubec or Mr Banasiak. Mrs Matejko remains before the Court as a respondent and as a defendant to a counterclaim. Oknalux Pty Ltd remains a defendant to the counterclaim. Notwithstanding the absence of Mr Dubec and Mr Banasiak, it is equally unfair for Mrs Matejko and Oknalux Pty Ltd to be left facing these claims and applications for review without having their rights and obligations determined. That is an unsatisfactory position that must not continue. That is so for a broad range of reasons, not least of which is that this is a minor civil claim. Parliament has legislated for it to be dealt with in a particular way that accords with plain common sense and experience. The application of these provisions must have as their touchstone the quick and cheap disposition of minor claims.

6. In that background, I have decided to proceed to hear the matter and to decide on the application for review, on the liability of Mrs Matejko as a partner and the position of Oknalux Pty Ltd. I will, in the end, not be able to finally pronounce upon the rights of the applicants because not all respondents are before the Court. If the applicants wish to pursue the matter, they will have to serve Mr Banasiak and Mr Dubec. That has not occurred and no final order can be made against them.

7. In order to comprehend the issues for my consideration, it is necessary to give some further history of this matter. That history is thoroughly set out in the judgment of Doyle J in his Honour’s decision in Wilczynski & Anor v District Court of SA & Ors.[5] What follows is my extract of the content of his Honour’s decision.

   [5] [2016] SASC 51.

   Historical background

8. In September 2013, a contract was made between the applicants and Varmhus for the supply of double glazed windows and doors. These were to be of a particular type manufactured by a company called Drutec (or Drutex) in Poland. The applicants are Polish by nationality. At the time, Varmhus was a partnership of Mr Banasiak, Mrs Matejko and Mr Dubec.

9. The evidence of both Mr Wilczynki and Mrs Matejko satisfy me that initially Mrs Matejko did some measurements of one or two of the windows and doors in the home of the applicants. She provided to them a form of a quotation which they could use as a guide to determine whether or not they wished to proceed to replace all (or any of) the windows of their home. It was agreed between Mrs Matejko and the applicants that this was not the basis of the order going forward.

10. The applicants decided to proceed to purchase the doors and windows. Upon confirmation of that intention, Mr Banasiak attended at the home of the applicants, re-measured and provided a final quote for the installation of the windows and doors.

11. The evidence satisfies me that the windows and doors were delivered to Australia in December 2013. I am also satisfied that the contract made in September 2013 was for supply only. The reason was that no one in the partnership held a builders license and it would be necessary for a licenced builder to be retained to install the doors and windows. This was a stipulation made by Mrs Matejko; it appears that Mr Banasiak did not agree. There were a number of irreconcilable differences that arose between the partners of Varmhus.

12. On 11 November 2013, Mrs Matejko resigned from the partnership and (implicitly at least) a further partnership of Mr Dubec and Mr Banasiak was formed and proceeded to trade as Varmhus. On 26 November 2013, Mrs Matejko incorporated a company, Oknalux Pty Ltd, to carry on the same business as Varmhus and used the same supplier from Poland. In December 2013, the windows and doors arrived in Australia and Mr Banasiak made a contract with the applicants to do the installation. He commenced work on 2 January 2014. In performing that work, he came into conflict with Mrs Wilczynski. He was ordered off site.

13. The applicants and Mrs Matejko were friends. They live in the same general area and are all of Polish heritage. The applicants approached Mrs Matejko and asked her to attend to the completion of the installation of the doors and windows that had been done by Mr Banasiak. By that time, Mrs Matejko was operating under a business called Oknalux Pty Ltd. That company did not hold a builders license. In respect of any word that it would do, it intended to subcontract to a licensed builder.

14. At the time that he was put off site, Mr Banasiak had done work on the installation of the doors and windows. He rendered an invoice for $1,760 against a quoted price of installation of $1,600. That invoice is dated 9 January 2014 and is unpaid.

15. I am satisfied on the evidence that there were two contracts involved here; the supply contract and the installation contract. So much is apparent on the face of the supply contract. It is also obvious from the evidence that Mr Banasiak was attempting to keep for the partnership Varmhus all of the work he could gather for payment. It appears he did not subcontract to a licensed builder to do the work.

16. In accordance with the request made of her, Mrs Matejko organised for Oknalux Pty Ltd to make arrangements for the completion of the installation of the windows and doors. I am satisfied on the evidence that this work only required completion of the finishing work for the doors and windows. The evidence given by Mrs Matejko before me satisfies me that she sought guidance from the manufacturers (Drutec) about the method of finalising the installation of the windows and doors. That work was completed by March 2014, an invoice was rendered and was not fully unpaid. There is some dispute in relation to some of the work done by Oknalux Pty Ltd. For example, some of the sliding doors installed and supplied by Varmhus required replacement. Mrs Matejko has satisfied me on the evidence that she has procured replacement doors but the applicants have refused to allow her to come to the site to replace those doors. The applicants have arranged for replacement doors to be installed by another builder.

17. The contract sum claimed by Mr Banasiak for work done from 2 February 2014 remain unpaid. On 28 February 2014, he commenced a minor civil claim against Mrs Wilczynski for that amount. It is unclear why the proceeding was not commenced against Mr Wilczynski, the husband of Mrs Wilczynski, a joint contractor and an owner of the property. Mrs Wilczynski filed a defence and counterclaim alleging that the work carried out was defective, that the windows installed were of the incorrect size and that it became necessary to pay another contractor some $3,398.26 to finish the work. That contractor was Oknalux Pty Ltd. Mrs Wilczynski sought a refund of $7,590 paid for the windows and doors together with the costs paid to Oknalux Pty Ltd. She listed seven complaints in relation to the work done.

18. Two reports were obtained by Mrs Wilczynski in support of the application. The first of 4 June 2014 from Mr Waring from Australian Windows Solution and the second, a report of 21 July 2014 from SA Building Consultants. It purports to be signed by Mr Jankovic and Mr Effingham however, it is accepted that Mr Jankovic has never seen the work and only Mr Effingham has been involved in the work for the report.

19. The trial was listed for hearing on 23 July 2014 but did not proceed because of the ill health of Mr Banasiak. On that day, evidence was heard from Mr Effingham, his report was received and the trial was adjourned to 18 September 2014. Leave was also given to Mrs Wilczynski to join Mrs Matejko (as a partner) and Mr Dubec (the other partner of Varmhus) as defendants to the counterclaim. An amended defence and counterclaim was filed on 23 July 2014 but no separate plea was made against Mrs Matejko and, it may be inferred, that the claim against her was made as a partner of the first Varmhus partnership.

20. On 18 September 2014, the trial recommenced with Mrs Matejko in attendance. The learned magistrate received the report of Mr Waring of 4 June 2014 and the report of SA Building Consultants of 21 July 2014. Judgment was reserved after the evidence was completed. Soon afterwards, and before judgment was delivered on 22 October 2014, the applicants sought to place a further report from SA Building Consultants of 13 October 2014 before the Court. This application was denied.

21. In his judgment of 22 October 2014, the learned magistrate dismissed the claim of Mr Banasiak and partially allowed Mrs Wilczynski’s counterclaim, but only as against the partners Mr Banasiak and Mr Dubec. There was no remedy against Mrs Matejko.

22. The learned magistrate made findings of fact and accepted the evidence of Mrs Matejko that her part in the formation of the contract was administrative only, specifically, the verification of the contract. The learned magistrate considered the 23 July 2014 report of Mr Effingham and the measurement of the 10 millemetre gap on all four sides of the windows generally. His Honour did not accept that a 10 millemetre gap was excessive however, his Honour did not say how he came to that conclusion. In the report of 13 October 2014, Mr Effingham at paragraph 2.2 explains that there is usually a difficulty in putting new windows into old buildings because of the movement of the buildings and the inability to ensure that windows are plumb. The usual way to ensure proper attachment of the windows is to use a metal bracket to attach the windows to the timber reveals of the structure to ensure connection between the window and the structure and that the windows are as plumb as possible. The learned magistrate also rejected the criticism of Mr Effingham about the external batten covers used to finish the window installation restricting design weep holes in the window seals. In doing so, his Honour implicitly accepted the evidence of Mrs Matejko that the weep holes in the window seals were not required to be uncovered because those specific windows did not open. The learned magistrate rejected the possibility of the building work causing the cracking in brick work however, the learned magistrate did make an allowance for the possibility of that damage in his assessment of damages. He allowed for damage to the external brick reveals which he determined occurred when the existing windows were removed.

23. Mr Banasiak did not hold a builder’s licence; this was the evidence of Mrs Matejko. He was prohibited under s 6 of the Building Work Contractors Act 1995 from recovering a contract price but the learned magistrate that a quantum meruit was available to Mr Banasiak. The learned magistrate then held that because the work was done by Oknalux Pty Ltd and a fee was charged by that company, no quantum meruit was available to Mr Banasiak.

24. On the counter claim, the learned magistrate rejected the claim of Mrs Wilczynski for the whole of the cost paid for the windows. Implicitly, his Honour did not accept the contention that there had been a total failure of consideration. He found that the windows were adequate for their design purpose. He found that the final installation was, to his eyes, satisfactory. However, that was after work was done by Oknalux Pty Ltd to finish off the installation work by Mr Banasiak.

25. Much like Doyle J, I am unable to identify any evidence where Mr Effingham did not dissent from the proposition that the windows were adequate for their design, purpose and final installation. In his report of 13 October 2014, Mr Effingham said that it was not uncommon for new windows to be installed using a metal frame and a common form of securely fixing the frames is to install powder coated reverse aluminium angles to the existing timber reveals to allow for concealed and proper fixing to the frame. The windows and door frames would then be slotted into that frame and small bead of flexible sealant would be installed around the frame. Matching rivets or screw fixings would then allow for a stable and solid installation. The external brick reveals would then be sealed with a powder coated aluminium angle fixed to the face of the frame by screw fixings and flexible sealant to seal the edges of the window and door frames. Mr Effingham was of the opinion that the system could be used to resolve the issues facing the applicants.

26. The learned magistrate allowed the counterclaim to the extent of $3,177.35. That sum is made up by the addition of the difference between the amount claimed by Mr Banasiak and the amount claimed by Oknalux Pty Ltd, which leaves a balance of $1,142.35. To that is added the figure of $2,035, being the quoted price of repairing the brick reveals. The total amount is $3,177.35. A claim for the repair of the brick work had not been pleaded. The learned magistrate said that this price was obtained as a consequence of Mr Effingham’s report and he did not believe that Mr Banasiak would be procedurally disadvantaged by allowing what would amount to a late amendment to that counterclaim.

27. No counterclaim was allowed against Mrs Matejko because the learned magistrate was satisfied that she was not a partner of Varmhus at the time of the installation work in January 2014. The work done in January 2014 by Mr Banasiak in his capacity as a partner of the second Varmhus partnership was pursuant to a separate contract for installation of the windows.

28. On 11 November 2014, Mrs Wilczynski filed an application of review of the Magistrate’s decision. Orders were sought for the joinder of Mr Wilczynski as a joint applicant and Oknalux Pty Ltd as an additional respondent. The applicant sought orders that the respondents, Mr Banasiak, Mrs Matejko, Mr Dubec and Oknalux Pty Ltd pay the applicants $12,441.36, made up of the initial Varmhus contract price of $7,590, the amount paid to Oknalux Pty Ltd of $2,902.35 and the amount of $2,035.00 on account of the repair works (plus interest and costs). The applicants challenged the whole of the basis of the applicants’ decision. There is no evidence of the service of any documents upon Mr Dubec. I am satisfied that throughout this time he remained in Poland.

29. In the application, the applicant sought to rely upon a report of 13 October 2014 from SA Building Consultants. This was the report provided after the decision was reserved and before judgment on 22 October 2014. Reliance was also placed upon a report of 15 January 2015, also from SA Building Consultants, which covered the doors as well as the windows, a quotation to repair the floors, information about an alleged injury to the daughter of the applicant and a quotation from Australian Windows Solutions for $3,600.00 plus GST to remove, clean and refit the double glazed windows.

30. I have been unable to identify any evidence of service of the application upon Mr Dubec. Orders were made for joinder of Mr Wilczynski and Oknalux Pty Ltd as applicant and defendant to the cross-claim respectively. Mrs Matejko, as a respondent and defendant to the cross-claim was allowed to provide a document setting out her answers to the expert reports of SA Building Consultants and Mr Waring. The learned Judge in the District Court rejected the application for review. He accepted the decision of the learned Magistrate to reject the application for tender in evidence of the report of SA Building Consultants of 13 October 2014. He also rejected an application to receive five further documents on the basis that there had been adequate opportunity to put those documents before the learned Magistrate at first instance. The learned Judge accepted that there was a real contest on the evidence between the assertions made by SA Building Consultants and their reports and the position of, for example, Mrs Matejko and Oknalux Pty Ltd. In rejecting the application for review, the learned Judge did not proceed to determine the claim against Oknalux Pty Ltd.

31. The applicants then sought judicial review of the decision of the learned District Court Judge. In particular, there was a complaint that because of the failure by the learned Judge to admit new expert evidence, a failure to enquire into potential inconsistencies there was a failure to allow the plaintiff to properly present their case. That application for judicial review was heard by Doyle J. In his Honour’s decision, Wilczynski & Anor v District Court of South Australia & Ors,[6] his Honour rejected ground three and characterised grounds one, two and four as allegations of a denial of procedural fairness. His Honour identified that only Mrs Matejko and Oknalux Pty Ltd as respondents to the application for judicial review appeared before him and were represented by counsel. Mr Banasiak did not appear and Mr Dubec again did not appear.

    [6] [2016] SASC 51 at [53].

32. In relation to the decision to refuse reliance on the report by SA Building Consultants of 13 October 2014, his Honour considered the operation of s 38 of the Magistrates Court Act and identified a number of possibilities about how a District Court judge might proceed to hear such an application. One was to refuse to hear further evidence and to base a decision entirely upon the evidence in the Magistrates Court. That depended upon whether the circumstances of the case as to whether that procedure could be adopted. The learned District Court Judge proceeded on the basis of the evidence before the learned Magistrate. On the question of whether or not further evidence should have been allowed, his Honour referred the decision of Judge Lunn in Lawrence v Sambevski.[7]

    [7] (1996) 189 LSJS 451 at [453-4].

33. At [64], Doyle J held that it was an appropriate exercise of the Judge’s discretion to decline to receive additional material because the applicants already had sufficient time to prepare their case before the hearing. However, his Honour also said that even though there were sufficient grounds to refuse to receive the additional material, a consideration of the material sought to be adduced reinforced the conclusion. For example, the reports of SA Building Consultants did not add to the first report. The other documents were irrelevant.

34. Doyle J then made observations of assessment of the evidence before the learned Magistrate and in particular his treatment of the evidence given by Mr Effingham.

1. On the question of the failure to enquire into inconsistencies in the evidence, his Honour referred to the decision of Blue J in Harradine v District Court of South Australia.[8] In that decision, his Honour held that there would be a failure to afford procedural fairness by way of a fair hearing if a judge failed to enquire into apparent inconsistencies in evidence particularly where, as in Harradine, the judge heard evidence afresh and the determination of the outcome depended upon an issue of contested facts about whether two witnesses gave directly conflicting evidence.

   [8] (2012) 280 LSJS 572; [2012] SASC 96 at [91].

2. Doyle J also identified that the learned magistrate in this case did enquire into and ascertain the applicants’ evidence on the central issues about the defective work and identified that the true complaints of the applicants were that the Magistrate resolved inconsistencies against their evidence rather than failing to enquire into those matters.

3. In relation to the failure to enquire into the absence of a builder’s licence held by Mrs Matejko or Oknalux Pty Ltd, Doyle J found that those matters were not an error sufficient to grant an order for intervention in a judicial review proceeding. It was not a central issue in the matter. His Honour gave permission to proceed in respect of grounds of review one, two and four but dismissed the application.

4. The matter then came before the Full Court on an appeal against the dismissal of the application for judicial review. The Full Court held that the learned District Court Judge had permitted an expansion of the controversy on the minor civil review to include Oknalux Pty Ltd, but did not adjudicate upon that controversy. [9] The Chief Justice allowed the appeal for the reasons given by Bampton J. Lovell J provided separate reasons and agreed with the orders proposed Bampton J and generally with her reasons. Her Honour recorded the background history of the matter and identified the pleading before the learned magistrate and the records of attempts to serve Mr Banasiak. Her Honour recorded that on 23 July 2014, the Magistrate proceeded to hear the matter in the absence of Mr Banasiak. Her Honour identified that the learned magistrate had given permission for an amended defence and counterclaim to be filed including Mrs Matejko as a defendant with Mr Banasiak and Mr Dubec. Mr Banasiak was served with the amended pleading but Mr Dubec was not served. As I recounted earlier, Mr Dubec has never lived in Australia. No application was made under r 40(2)(a) of the Magistrates Court Rules for service outside of Australia and in Poland of the proceedings issued against Mr Dubec. The Court was not asked to grant leave.

   [9] [2017] SASCFC 102.

5. Her Honour then recounted the detail of the hearing before the learned magistrate, his decision and then considered the hearing of the review of the minor civil decision before a judge of this Court. Her Honour identified FDN 15 in the District Court file, being the affidavit of service of the application to join the male applicant and the company Oknalux Pty Ltd as a respondent to the counterclaim. This application was served upon both Mrs Matejko at the address of her solicitors and Mr Banasiak at his new address at 70 Wing Street, Wingfield. There was no service upon Mr Dubec.

6. Bampton J recounted the hearing before a judge of the District Court on the application for review of the minor civil decision, the discussion by his Honour in relation to the joinder of the male applicant and Oknalux Pty Ltd as respondents and then reviewed the decision of the learned Judge.

7. Her Honour then canvassed the application for judicial review heard before Doyle J and at [75] identified that his Honour had asked the applicants whether Mr Banasiak, Mr Dubec and Varmhus had been served with the application for judicial review. His Honour was told that Mr Banasiak was not in Australia anymore, Mr Dubec was not in Australia and that Varmhus did not exist anymore.

8. The evidence before this Court is that an attempt was made to serve Mr Banasiak at Commerical Road, Port Adelaide but was unsuccessful.[10] The service agent was told that Mr Banasiak had left that address 12 months prior. There was no evidence in the Supreme Court proceedings of any attempt to serve Mr Dubec. The application for judicial review was dismissed.

   [10] FDN 9.

9. Bampton J held at [90] that there had not been a proper hearing and a proper determination of the controversy between the applicants and Oknalux Pty Ltd and the issues of contribution and indemnity between the defendants to the counterclaim. At [96], Bampton J identified that there was no record of any order being made giving permission to serve the minor civil claim; the application to review it or the application for judicial review outside of the Australia on Mr Dubec in compliance with the relevant rule. There was no evidence that Mr Dubec had been served with the magistrate’s decision.

10. At [97], Bampton J identified that as no permission had been sought to serve Mr Dubec with those documents, no judgment could be awarded against him. Further, as Mr Banasiak is taken to claim contribution from Mrs Matejko and Mr Dubec by virtue of the operation of r 33 of the Magistrates Court Rules (which provides that where there is more than one defendant to a claim, each defendant will take to claim contribution from the other defendant) and that Mrs Matejko has pleaded that she is entitled to indemnity from Mr Banasiak and Mr Dubec, the judgment was irregular and arguably void because there has been no service on Mr Dubec and no determination had been made in respect of the claim for contribution and indemnity. Therefore, the opinion expressed by the learned District Court Judge affirming the learned magistrate’s judgment was also irregular as it was founded on an irregular judgment. The District Court Judge could not have been satisfied that Mr Banasiak had been notified of the date of the hearing of the minor civil review as the Court’s notifications have been sent to an address other than the Wingfield address at which he had been served.

11. The matter was remitted back to this Court for re-hearing.

12. At the time that I became seized of this matter, I learned that notwithstanding that they had succeeded before the Full Court, the applicants sought leave to appeal against that decision in the High Court. The leave application was refused. The applicants were not able to explain to me why it was that notwithstanding their success in the Full Court, they had sought leave to appeal from that decision.

13. Prior to the hearing of the matter before me on 17 July 2020, I held four directions hearings. I do not intend to recount everything that occurred during those directions hearings. At the initial directions hearing on 24 January 2020, the applicants informed me that they did not know why they were again before the court. At the time that the first directions hearing was held, there was no proof before the court that there had been service upon Mr Dubec or Mr Banasiak of any of the documents connected with the application before Doyle J or the hearing before the Full Court. The applicants did not understand that there was to be a further hearing of the application for review of a minor civil action. They informed me that they had no documents and that all of their documents had been lost by the Supreme Court. I authorised enquiries to be made in relation to those documents. I was not able to obtain a satisfactory answer in relation to the whereabouts of the documents that had previously comprised the Supreme Court files. They could not be found.

14. At the directions hearing on 24 January 2020, I made orders for compliance with the rules in relation to service including service overseas. I made the following orders:

    The Judge did this day make the following orders:

    1.   Leave to Mr Joseph and Mrs Ewa Wilczynski (the Wilczynskis) under rule 49(2) of the Magistrates Court (Civil Rules) to personally serve upon and to deliver by registered post to Mr Andrezj Dubec at Ulica Lipowa14, 62-660 Grabini Poland, at Ulica Slowianska 1/9, 93-101 Lodz Poland and send by email at <ANONYMISED> the following documents in the English language and translated into the Polish language:

    a.   a copy of the minor civil claim lodged in the Magistrates Court by the first respondent Mr Banasiak;

    b.   a copy of the amended defence and counterclaim lodged by the Wilczynskis;

    c.   a copy of the defence of the second defendant to the amended defence and counter-claim;

    d.   a copy of the decision of Magistrate Milazzo of 22 October 2014;

    e.   copies of all the exhibits tendered before Magistrate Milazzo in the Magistrates Court;

    f. a copy of the Application for Review to the District Court under s 38 of the Magistrates Court Act and r 279A of the District Court Civil Rules;

    g.   a copy of the decision of Judge Boylan dated 1 May 2015;

    h.   a copy of the decision of Justice Doyle dated 20 April 2016;

    i.    a copy of the decision of the Full Court of the Supreme Court of South Australia dated 15 August 2017;

    j.    a letter from a solicitor, setting out an explanation of:

    i.the claim made by Mr Banasiak;

    ii.the basis of the defence filed by the Wilczynskis;

    iii.the basis of the counterclaim filed by the Wilczynskis;

    iv.the basis of the defence to the counterclaim;

    v.that as a partner of the business of Varmhus, Mr Dubec may be held liable jointly with the other partners of Varmhus for the claim of the Wilczynskis under their counterclaim;

    vi.that in the event that Mr Dubec wishes to defend the proceedings, he may within 42 days of the date of personal service upon him of the documents above described file an appearance (in the form of an address for service or notice of acting) in this Court and within a further 63 days enter a defence to the counterclaim of the Wilczynskis;

    vii.that on 29 May 2020 at 9 am, the Court will conduct a directions hearing at which the Court will give directions and set a further hearing date for this application for review;

    viii.that in the event that no appearance is filed, orders will be made for the review to proceed and for judgment to be delivered and, depending on the decision of the Court, judgment may be made against the partners personally.

    2.   That the Wilczynskis shall serve upon the defendants by counterclaim all of the documents described in paragraph 1 hereof at the following addresses:

    a.   The addresses of Mr Dubec as set out in paragraph 1;

    b.   Mr Banasiak at the email address <ANONYMISED>;

    c.   Mrs Matejko at <AN ADDRESS>, O’Halloran Hill SA 5158.

    3.   The Wilczynaskis shall pay the whole of the costs of compliance with the orders set out in orders 1 and 2 hereof.

    4.   The Wilczynaskis shall within 28 days of today file in this Court an affidavit of their compliance with orders 1 and 2, together with an affidavit of proof of personal service upon Mr Dubec, of the documents described in order 1 of these orders.

    5.   A copy of these orders is to be provided to the Wilczynskis, Mrs Matejko and Mr Banasiak.

    6.   The application is adjourned to a directions hearing (before Judge Slattery) on Friday, 29 May 2020 at 9 am.

15. The two addresses shown in paragraph 1 are the addresses that have been provided to the Court by Mrs Matejko. These were the addresses used by Mrs Matejko to communicate with Mr Dubec. The email address was also the address used by her to communicate with Mr Dubec. This is the address to which I referred at the commencement of these reasons. Also, the email address described in paragraph 2(b) of the order is the email address given to me by Mrs Matejko and through which emails have been exchanged between Mr Banasiak and Mrs Matejko.

16. On Wednesday 5 February 2020, I caused a further email to be sent to the email address. It attached correspondence relating to the minor civil review and a copy of the record of outcome which I have set out above. It informed Mr Dubec that the matter was next before the Court on 10 February 2020. That detail was provided to the Court by Mrs Matejko by an email of that date.

17. On Thursday 6 February 2020, a response was received from the addressee of the email in the following terms:

    Dear Ladies and Gentlemen,

    Unfortunately, there must have been a mistake. We know nothing about the case and the persons that are mentioned in your conversation.

    We are a construction company and we only build houses in Poland. Even more, we have never undertaken work in Australia before.

    [The email is signed FRAMHUS]

18. At the time, the position of the applicants was that they had no documents, they did not understand why the matter was before me, they insisted that their legal and other rights were being abused, and they did not know what to do. I gave them time to review their position and to decide what they wanted to do. The directions hearing was adjourned.

19. There was then a further directions hearing on 10 February 2020. That directions hearing was called because the Court had received an indication from the applicants that they had decided to proceed with the application. I reiterated that it was then necessary to comply with the orders made by the Court on 24 January 2020. I confirmed those orders had to be complied with by 29 May 2020. I informed Mrs Matejko that “Framhus” had indicated that they do not know Mr Dubec. She expressed her surprise.[11] Mrs Matejko was asked for any other email address or address generally. She had no other contacts for Mr Dubec or for Mr Banasiak. Mrs Matejko said that if she had any liability as a partner of Varmhus then she wished to seek contribution from Mr Dubec and Mr Banasiak. The applicants had elected to sue the three of them as partners.

    [11]  Evidence of 10 February 2020, T6.5.

20. The matter next came before the Court on 29 May 2020. I explained to the applicants the content of my order. There was a discussion about the merits of the matter. On that day, the applicants informed me that they had refused to comply with my orders of 24 January 2020. Therefore, the position became that the applicants wished to proceed with their claim in the absence of Mr Banasiak (who was originally joined to the claim) and Mr Dubec (who was later joined). At all times, Mrs Matejko appeared before me on her own behalf and on behalf of Oknalux Pty Ltd. As matters have transpired, although Mrs Matejko wished to claim contribution from her former partners if she was found to have any primary liability as a partner, she was content to proceed to a hearing of a minor civil review in this Court under ss 38(6), (7) and (8) of the Magistrates Court Act. She was also content to proceed in relation to Oknalux Pty Ltd.

21. On 26 June 2020, there was a further directions hearing at which time the parties identified that they had gathered together sufficient material to enable them to proceed with the hearing of the minor civil review claim as directed by the Full Court. On that date, I decided to proceed to hear the claim.

    The issues for determination

22. The issues for my determination are as follows:

    1.The liability for, and quantum of, the claims by the applicants against Mr Banasiak, Mr Dubec and Mrs Matejko as the partners of the first Varmhus partnership;

    2.The liability, and quantum of, any claims against Mr Banasiak and Mr Dubec as partners of the second Varmhus partnership;

    3.The counterclaim against Oknalux Pty Ltd and Mrs Matejko; and

    4.In the event that Mrs Matejko is liable as a former partner of the first Varmhus partnership, is she entitled to contribution from Mr Dubec and Mr Banasiak?

23. The matters described in paragraph one, two, three and four concern the minor civil review. Procedurally, other matters that I had to decide are:

    5.Whether fresh evidence should be admitted;

    6.Whether further evidence should be admitted on the review; and

    7.Have Mr Dubec and Mr Banasiak been properly served?

24. Sections 38(6), (7) and (8) of the Magistrates Court Act provide as follows:

    38—Minor civil actions

    (6)The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.

    (7)     The following provisions apply to such a review by the District Court:

    (a)     subject to paragraph (ab), the right of a party to be represented by a legal practitioner at the review will be determined in accordance with subsection (4);

    (ab) if, in the case of a review that relates to a minor civil action in respect of a transferred proceeding within the meaning of Part 3A of the South Australian Civil and Administrative Tribunal Act 2013, a party was represented by a legal practitioner at the proceeding, then the party may be represented by a legal practitioner at the review by the Court;

    (b)     the Court may inform itself as it thinks fit and, in doing so, is not bound by the rules of evidence;

    (c)     the Court may, if it thinks fit, re-hear evidence taken before the Magistrates Court;

    (d)     in determining the matter, the Court may—

    (i)    affirm the judgment; or

    (ii)     rescind the judgment and substitute a judgment that the Court considers appropriate; or

    (iii)    if the review arises from a default judgment or summary judgment, rescind the judgment and—

    (A)    substitute a judgment that the Court considers appropriate; or

    (B)    remit the matter to the Magistrates Court for hearing or further hearing;

    (e)     in hearing and determining the review, the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

    (8)     A decision of the District Court on a review is final and not subject to appeal.

25. In light of the fact that the other courts which have heard this matter had not received evidence in relation to any claim against Oknalux Pty Ltd apart from general material in experts’ reports, I decided that evidence should be led on that topic. At pages 2-12 of the transcript of the hearing on 17 July 2020, I explained to the parties the operation of s 38(7) of the Magistrates Court Act. I also identified the documentation before this Court, the history of the claim by Mr Banasiak before the learned Magistrate, the history of the involvement of Mrs Matejko, the work done by Oknalux Pty Ltd and the assessment of damages. I then recounted to the parties the hearing before a Judge of the District Court, the decision of that learned Judge, the application before Justice Doyle, his Honour’s decision and the subsequent decision of the Full Court.

26. The issues for my consideration are the review of the decision of the learned Magistrate, the question of the liability of any of the parties jointly and the liability of Oknalux Pty Ltd on the counterclaim. Earlier in these reasons, I have referred to the report of SA Building Consultants of 13 October 2014. I have set out the contents of paragraphs 2.1, 2.2 and 2.3. In particular, I have referred to the fact that using a commonly accepted method, the windows and door frames could be adjusted to resolve all of the complaints of the applicants. This report was not accepted by the learned Magistrate. It was brought forward after his decision was reserved but before judgment was delivered. Different from other judges who have considered this matter, I consider that the learned Magistrate should have accepted this report into evidence. It sets out a detailed and helpful description of the steps that could be taken to ensure a resolution of the complaints of the applicants. I am also satisfied that no prejudice would be suffered by any of the parties to the proceedings by virtue of the receipt of this report.  I share the views expressed by Doyle J that the receipt of the report makes little difference to the result however, I consider that it is an important and logical step in the framework of evidence in this matter. In the exercise of my discretion, I would admit the document into evidence.

1. On 24 January 2020, I made orders for service of the proceedings, the decisions of the District Court, the decisions of Doyle J and the Full Court and an explanation of the claim upon Mr Dubec at the addresses that I have been given in Poland as well as upon Mr Banasiak at the business address referred to in paragraph 2(b) of my orders. I was informed on 29 May 2020 that the applicants had failed or refused to comply with those orders. I am therefore satisfied that there has been no service of those documents upon Mr Dubec or Mr Banasiak.

2. Next, I am required to make a determination of the liability, if any, of Oknalux Pty Ltd under the terms of the counterclaim. I turn to that issue now.

3. For the purposes of the hearing, each of the parties gave evidence on oath or affirmation. At the bar table were, from the right, Mrs Matejko, then the interpreter, then Mrs Wilczynski and then Mr Wilczynski. I decided to receive evidence first from Mrs Matejko. I adopted this approach because it has become very clear to me that Mrs Matejko has a very sound grasp of the facts and is able to focus upon the particular issues for determination. In the usual course, I would call upon the applicants to put their case first. There are a number of reasons why I did not do so here. I have read the transcripts of the evidence before the learned Magistrate, the learned Judge and before the Full Court. I am well aware of the claim of the applicants and I have had the benefit of expert reports and photos. I have heard from the applicants now on five occasions and I have a clear understanding of their position. This includes the benefit of photographic evidence of the windows and doors. On those occasions, I have found it almost impossible to keep this matter within bounds in a way that allows me to identify and understand the relevant issues. The discussions ordinarily became a rambling discourse that ranged over a broad range of largely irrelevant topics and perceived wrongs. I decided that the only way I could keep the matter within reasonable bounds was to ask Mrs Matejko to lead her evidence on liability of herself and of Oknalux Pty Ltd on the counterclaim first.

4. Mrs Matejko informed me that sometime in or about September 2013, she was friendly with the applicants. They lived in the same general area. They were Polish by heritage and had a strong connection as a result. The applicants wished to replace a door and nine windows in their home. Contact was made with Mrs Matejko at the business of Varmhus about the possibility of that work being done. Mrs Matejko attended at the home of the applicants in her role as a partner of Varmhus. She agreed to give an assessment of the costs of replacement of some windows and doors to give an idea to the applicants of what the overall price might be. She did so. She did some initial measurements; if there was to be a contract there would have to be a final measurement by Mr Banasiak.

5. The applicants decided to proceed with the replacement of the windows and some doors. They desired a particular type of double glazed product manufactured in Poland by a company called Drutec.[12] Mr Banasiak then came and did a full measurement and produced a quotation for acceptance for the price of the replacement windows and doors. At the time that that quotation was given, Mrs Matejko remained a partner of Varmhus. Soon afterwards, the partnership dissolved on 11 November 2013 and Mr Dubec, who had always been in Poland, and Mr Banasiak went their own separate ways (it appears as the “second Varmhus partnership”). The contract that was formed was for supply only. By virtue of its terms, it was a supply only contract. This at first appeared somewhat curious. In the usual course, a contract such as this would be for supply and installation. It was not until evidence was given by Mrs Matejko on 20 July 2020 that the reason for such became apparent. Varmhus was not then in a position where it could contract to do such building work. Mrs Matejko said that as the partnership did not have a builder’s licence, an arrangement was made for a licenced builder to do the measurements. This was Mr Milenko Babic of the business 4B Constructions. Those arrangements were made by Mr Banasiak. Mr Babic was also to be engaged to do the quote on installation. The initial quote that he gave in the estimation of $2,300.00 or $2,600.00. The applicants did not accept that quote. Their stated intention was to purchase the windows and then negotiate in relation to the installation. It is not known whether they had a particular builder in mind to do the installation work.

   [12] The company name is also spelt "Drutex" in various places in the evidence.

6. There were two payment invoices for the supply of the doors and windows. The first concerned 50% on a down payment and the second for 50% on delivery. Therefore, the contract was for supply of the windows only as measured by Mr Banasiak. The quoted installation price of 4B Constructions was not accepted. As far as Mrs Matejko understood the position, no decision had been made by the applicants regarding installation.

7. The windows arrived in Australia from Poland in December 2013. By that time, Mrs Matejko had formed Oknalux Pty Ltd which was importing and supplying the same windows. However, Oknalux Pty Ltd did not order the windows; they had been ordered by Varmhus.

8. Mrs Matejko knew nothing about any difficulties with the windows until sometime in the first week or so of 2014.  She received a call from Mrs Wilczynski who was very distressed. There was a heat wave and she was unhappy with the work being done by Mr Banasiak who was installing the windows.  Mrs Matejko knew that Mr Banasiak did not have a builder’s license and she did not know who was doing the installation even though it is implicit that she knew Mr Babic was not doing that work. Mrs Matejko carried out an inspection at some time after that phone call. She cannot say when. She inspected the work being done, which she thought was unsatisfactory.

9. Mrs Wilczynski asked her to assist. Mrs Matejko contacted Mr Banasiak who was of no assistance. He refused to do any further work because of a lack of payment. She attempted to contact the manufacturer in an attempt to coerce Mr Banasiak to finish the job. By that time, most of the physical installation work had been done by Mr Banasiak. There is no evidence about whether he was working alone or with others. There is evidence before the Court to suggest that he had quoted a fixed price for installation of about $1,600. This was for the installation of nine windows and a sliding door. It is unclear how this price has been calculated. Oknalux Pty Ltd was not involved in that work. Mrs Matejko could have used a licensed builder to do the work and she was aware that Mr and Mrs Wilczynski were very dissatisfied with the work done by Mr Banasiak.

10. Mrs Matejko said that windows are normally made slightly smaller than the aperture to ensure that they are aligned properly. An assessor doing measurements would always allow at least 1 cm or more on all sides of the window to allow for installation and weatherproofing and for there to be coverings on the outside of those windows.

11. Mrs Matejko agreed with the applicants that Oknalux Pty Ltd would do the finishing work on the windows. A price was quoted for that finishing work. Oknalux Pty Ltd did that work and it took a number of days. They were required to insert additional insulation and then fitted a finishing cover over the outside of the windows. An invoice was then delivered for the work done. There was some payment but the balance was not paid. The work took at least five working days involving the labour of three people working on a full-time basis. The applicants were happy with the finished work of Oknalux Pty Ltd.

12. Mrs Matejko informed me that neither she nor Oknalux Pty Ltd had any part in the installation.[13] All that she arranged for Oknalux Pty Ltd to do was to insulate and to finish the job. Mrs Wilczynski was very concerned that the windows were going to fall out and as a result, she sourced additional, longer screws which were used as a replacement of existing screws. These longer screws were sourced and fitted by the husband of Mrs Matejko. They were inserted following the expression of concern by Mrs Wilczynski and their purpose was to better affix the double glazed windows to the timber and brick reveals of the surrounds of the windows and door. On finishing this work, a sealant was applied.

    [13] T30.19.

13. Mrs Matejko also informed me that all of the work complied with AS2047. The glass inserted complied with AS1288-2006 for strength of windows. She said that the windows which were ordered at the time when she was a partner of Varmhus complied in all respects with the Australian Standard. They are a 6 mm laminated safety glass and that in all respects Varmhus has complied with AS1288-2006 and AS2047 windows in buildings. In evidence tendered by Mrs Matejko, there is identification of a numbering system upon the glass which was the subject of criticisms made in the report of SA Building Consultants of 13 October 2014. It was part of the five page report referred to by Judge Boylan in his judgment which led to an adjournment of the hearing before his Honour. There are also competency certificates available. Mrs Matejko informed me that if Mr Jankovic or Mr Waring wanted to check the strength of the glass all they needed to do was take out a reading and check the glass. The issue about the Australian Standards and the strength of the glass have occupied a long period of court time. This was not an issue before the learned Magistrate and does not form part of his judgment. The applicants continuously contended that the windows supplied were illegal because they did not comply with the Australian Standards. There was some evidence from Mr Waring on this but it was not the expression of an expert view. He expressed doubts about compliance. Although the matter was not strictly before me, I allowed Mrs Matejko to give evidence on the topic and to be cross-examined by the applicants. This evidence satisfies me that the windows are compliant with Standards and no complaint may be made about them. They have now been in place for almost seven years without any difficulty.

14. Mrs Matejko then addressed the sliding doors. It is alleged that the dining room sliding door has not been installed level. Mrs Matejko said that it was recognised there was cracking in the doors. Contact was made with the manufacturer and a new frame was provided. The applicants have refused to allow her to come and insert the new frame. This was to be done by a licenced builder and arrangements have been made for that to occur. This frame is still available. Contact has been made with the applicants on a number of occasions but they have refused to allow the frame to be installed. The applicants said that repairs have been done by another builder.

15. Mrs Matejko said that there were difficulties in relation to the door because the brick work around the door was not plumb. A crack in the door was identified. She arranged for a replacement door to be provided; it is still in the Oknalux Pty Ltd factory.

16. Mrs Matejko was then cross-examined by both of the applicants. It was put to her that the doors and windows were illegal. Mrs Matejko denied the propositions. She said that all Australian Standards had been complied with. There are certifications available. All of the windows were tested in Sydney. That is where there was confirmation that Australian Standard AS2047 had been complied with.

17. In response to a further question from Mr Wilczynski, a proposition was put that the Australian Windows Association had suggested that there had not been compliance with a Standard. Mrs Matejko rejected this proposition. She said that anything that is fitted is within the allowances specified by the Australian Standard[14] and therefore, the applicants’ windows are all within the legal requirements.

    [14] Evidence of 20 July 2020, T40.17.

18. There were then questions put to Mrs Matejko in relation to registration for GST. She said that Oknalux Pty Ltd trades as the trustee of a trust and that through the trust arrangement it accounts for GST received through the normal way by a Business Activity Statement. All GST is accounted for as received, paid and remitted.

19. Mrs Matejko was then questioned by Mrs Wilczynski. She was asked whether in the hearing she represented the interests of Varmhus and Oknalux Pty Ltd. She said that she was representing herself and Onknalux Pty Ltd. She was then asked further questions about GST issues which I have decided are irrelevant. The proposition was put to Mrs Matejko that she was lying by saying that the contract entered into for supply did not occur when she was a partner. Mrs Matejko said that at the time that the door and windows were installed, she was no longer a member of the Varmhus partnership. She said that she ended that partnership on 11 November 2013. In an earlier hearing, Mr Banasiak had tried to explain away the size of the windows by saying that Mrs Matejko must have changed the ordered measurements. Mrs Matejko denied that proposition which was put to her again by Mrs Wilczynski. She denied changing any measurements. It was asserted by Mr Banasiak in his evidence before the learned Magistrate that she had changed those measurements.

20. Mr Wilczynski then gave evidence. He said that Mr Banasiak made the final measurement on 1 September 2013. He provided the quote with the proper sizes of the windows. He agreed that Mrs Matejko had only made an initial measurement for one or two windows just to give them an estimate of price. It was only later that they decided to replace all of the windows. Then Mr Banasiak gave them the quotation.[15] They were assured by Mr Banasiak that they had a (builder’s) licence. The quote was for supply only of the windows and doors.

    [15] T54.21

21. Mr Wilczynski then alleged that the contract was for supply and installation of the windows. However, the evidence of Mrs Matejko satisfies me that it was the Wilczynski’s who did not want the installation contract created at the relevant time and rejected the price of around $2,600.00 quoted by Mr Babic. Mr Wilczynski did not address or deny this proposition.

22. He then agreed that the contract was made with Mr Banasiak for the installation of the windows and doors. He was working away from home at the time. He said that through his wife he became aware of the gaps in the windows and also fell into conflict with Mr Banasiak who wanted more money for the installation work. This was over and above his initial quote for installation. This is consistent with the chronology given by Mrs Matejko.

23. When Mr Banasiak left the site, contact was made with Mrs Matejko. Contact was also made with the husband of Mrs Matejko who is known to both of the applicants. They asked the husband of Mrs Matejko to make contact with Drutec to resolve the issues. He said that Mrs Matejko did not want to fix the problem with the windows and doors but that Mrs Matejko had agreed to replace the doors for the quote of labour only. After the installation of a replacement door, he said that he could not fully open the door. My understanding of the position is that this was the door with the cracked frame. This is the door that Mrs Matejko has offered to replace. This has been supplied by the manufacturer Drutec. He said that the doors have now been replaced using the services of another builder. He denied that any replacement door had been offered by Mrs Matejko. I am not able to accept that evidence. I found Mrs Matejko to be a very credible and honest witness. She willingly agreed to supply the replacement door and continued to be willing to provide it free of charge, including for installation.

24. Mr Wilczynski provided the Court with photographs of the work done, which purportedly justified his criticisms of the standard of the work. However, Mrs Matejko said that these photographs had been taken after a portion of the work done by Oknalux Pty Ltd had been ripped away. A viewing of those photographs makes clear that the work done by Oknalux Pty Ltd in sealing the areas around the window have been removed and ripped off. (It is clear that a portion of the glued area has been removed when one looks at the photographs). I am satisfied that these photos do not show any fault in the work performed by Oknalux Pty Ltd. To the contrary; the photos show work that was competently performed by Oknalux Pty Ltd pursuant to its retainer to finish off the work done by Mr Banasiak. It follows that if there is any fault in the installation of the windows, it lies at the feet of Mr Banasiak and any partner of his in Varmhus.

25. Mrs Wilczynski also gave evidence. She complained that the windows are without warranty, about the failure of the Varmhus business and the absence of proper documentation. She said she could not answer the evidence of Mrs Matejko. She accused Mrs Matejko of lying and misleading the Court however, she was not able to provide any particularity of what she meant by that. She complained that the report of the 13 October 2014 had not been received. I have now received that report. In reply, Mrs Matejko said that the photographs of the windows now before the Court were not the photographs of the window when Oknalux Pty Ltd finished its work. She said that it is quite apparent that the windows have been damaged for the purposes of the photographs. The Wilczynski’s denied that assertion. Considerable time was taken in arguing about the provenance of those photographs. I prefer the evidence of Mrs Matejko on the topic because it is consistent with the other objectively identifiable facts before the Court.

26. In his final submissions, Mr Wilczynski informed me that Mrs Matejko and her lawyers misled the Court. He also informed me that his barrister before the Full Court misrepresented their position, acted without authority and acted fraudulently. She said that in the end, they have illegal and unsafe windows. The same was said by Mrs Wilczynski.

27. In her submissions, Mrs Matejko confirmed that she did not measure the windows. She maintains that when buildings are “out of plumb”, it is necessary to leave no less than 1 mm space (if not more) to enable the window to be fitted so that they are properly plumb to the building.

28. She said that larger screws had been placed into the frames. This was done after the applicants asked her husband to replace the existing screws with bigger screws. She said that it was always necessary to ensure that the windows were plumb. If they were not plumb, the windows could shut automatically or not shut at all. They could open by themselves on their hinges. That is why it is necessary to leave space around the windows to ensure that the window sits plumb within the framework of the building. Oknalux Pty Ltd clearly has great experience with these matters and knows that windows must be aligned properly. The newest methods of ensuring the frames sits plumb within the aperture is to use what are called “plastic packers”. These are packers which need to be secured to the timber reveals. The windows are then connected to the plastic packer and this ensures that the windows are fitted correctly.

29. There had been some evidence that flyscreens did not fit the windows. I could find no evidence that part of the purchase price was for the supply of flyscreens. I asked Mrs Matejko about flyscreens. She said that flyscreens were not part of the order for the windows. They were ordered separately from Oknalux Pty Ltd. She took the measurements for the flyscreens from the report that had been given to her. She did not realise that the profile of the window sections as fitted were different to the specifications. Some of those flyscreens were too small. She has arranged for replacement flyscreens that fit the windows. She said that the Wilczynskis have not been asked to pay for any of the flyscreens. Those replacement flyscreens are still within the Oknalux Pty Ltd factory and are waiting for further instructions. They are to be provided free of charge and they are ready and waiting to be installed.

1. In relation to the use of silicone, Mrs Matejko said that an enormous amount of silicone had been used in this work for water sealing, but that is typical. She said that silicone is always used to create a waterproof seal around the edging of the surrounds of windows. It is used internally as a water proofing agent as well.

2. In relation to the drain holes and the criticisms of the building experts, she said that drain holes are normally used in windows that are in a tilt position. There is a drainage arrangement and mechanism inside the windows and there are holes so that if the windows are in a tilt position and it is raining, the water hits the glass and runs off. However, this is only useful for those windows that are actually open. If a window does not open, there is no need for drain holes. The only window in which the drain holes have been covered are the fixed windows. The coverage of the drainage holes is therefore an issue of no moment is not a breach of any contract or obligation.

   Decision

3. I have read the evidence before the learned Magistrate, the evidence before the learned District Court Judge and the decisions of Justice Doyle and the Full Court.

4. The first question for my consideration is whether or not I am satisfied that there is any liability upon Mrs Matejko as a partner of the Varmhus business. This is obviously a matter of importance to Mr Dubec and to Mr Banasiak. However, it is only of interest to them if the applicants could succeed in satisfying the Court on the balance of probabilities that there was any liability upon Mrs Matejko as a partner of Varmhus. I am satisfied that there is no such liability. I make the following findings.

5. I am satisfied that the contract between the applicants and Varmhus was formed over three separate stages. First, Mrs Matejko was approached to give an indicative cost of the supply of windows. She did some measurements and she provided an indicative cost for two windows. Having received that indicative cost, I find that the applicants then decided to proceed to replace nine windows and at least two doors in their premises and retained Varmhus to do that work. The final measurement of the windows was undertaken by Mr Banasiak. A contract was formed in September 2013 for the supply of the windows using the measurements made by Mr Banasiak. There was no change made to those measurements.

6. The cost of installation was treated separately. In September 2013, Varmhus (through Mrs Matejko) informed the applicants that it would be necessary for a licenced builder to do the installation work. A price was obtained from a licenced builder. This quotation was then provided.

7. The Wilczynskis accepted the contract for the supply of the windows but rejected the suggestion of the involvement of the licenced builder in the installation work. The question of the installation contract was left until the windows arrived in Australia from Poland.

8. On 11 November 2013, the Varmhus partnership was dissolved. Implicitly, it was reformed as a second partnership with Mr Dubec and Mr Banasiak as partners. Mrs Matejko formed the company Oknalux Pty Ltd on or about 26 November 2013. That company did the same work as Varmhus and obtained product from the same supplier in Poland.

9. After the windows and doors arrived in Australia, a separate contract was entered into between the applicants and the second Varmhus partnership for the installation of the windows and door in their home. Negotiations took place with Mr Banasiak. He was not a licenced builder. He did not appear to have sought the assistance of a licenced builder in the work.

10. Mr Banasiak made a fixed price contract for the installation of the windows and door.

11. In the work carried out by Mr Banasiak on the windows, there was a gap between the windows and the aperture of the building of some 10 mm or thereabouts. This was a necessary gap for a number of purposes including a recognition that buildings move in several different planes or directions and that the apertures of existing windows will never be perfectly square. It is necessary to fix the windows using any one of a number of methods. The preferable methods are those suggested by SA Building Consultants in their report of 13 October 2014 which I have admitted into evidence. The description of the method at paragraph 2.2 is appropriate. A second method is by using the plastic packers referred to by Mrs Matejko in her evidence. My understanding of that evidence is that the process is largely the same.

12. Mr Banasiak did not use either of those methods in his work. He installed the windows and doors but did so without having used these methods to attach the windows to the building in such a way that the windows would flex with the building and could resist force. I consider that conduct by Mr Banasiak to be a breach of the contract for installation of the windows. In performing the work in that way, Mr Banasiak failed to do the work in the manner of an ordinarily competent builder because he did not properly fix the window to the timber and brick reveals of the house in a manner that properly secured the windows.

13. Mr Banasiak was put off site sometime around the 7, 8 or 9 January 2014. At that time, the Wilczynskis approached Mrs Matejko. They were friends. They asked Mrs Matejko to employ her company Oknalux Pty Ltd and its employees to finish the work done by Mr Banasiak and Varmhus. Mrs Matejko agreed to do so. The price for that work has never been paid in full by the applicants. There has only been a part payment. The contract was not for the installation of the doors and windows but for the finishing of work done by Varmhus through Mr Banasiak. The work was competently performed by Oknalux Pty Ltd and the applicants had no complaints about this work. 

14. In relation to claims against Oknalux Pty Ltd, I am unable to identify any basis for any such claims in relation to any work that it has performed. I find that Oknalux Pty Ltd performed all of its work competently, adequately and in accordance with the standard of an ordinary competent builder. I have formed that view after viewing all of the photographic evidence, the exhibits, the transcripts of other hearings and after hearing the evidence of Mrs Matejko for Oknalux Pty Ltd and from the applicants. I have therefore formed the view that there is no basis upon which it could be said that a claim could be made against Oknalux Pty Ltd in relation to its work. Furthermore, Oknalux Pty Ltd was not liable in relation to the fitting of the door and windows. The further work to be performed by Oknalux Pty Ltd related to the replacement of a sliding door and its fitment using a licenced builder. Arrangements had been made by Oknalux Pty Ltd to provide a replacement door. Oknalux Pty Ltd is prepared to retain a licenced builder to come into the home of the applicants to do that work. The applicants have refused to do so. No claim can be made against Oknalux Pty Ltd on that basis.

15. In relation to flyscreens, Oknalux Pty Ltd has procured the flyscreens for fitment to the windows on the home of the applicants. The applicants have refused permission to Oknalux Pty Ltd to come and fit those screens. Any screens that currently exist would be replaced by the screens that are held by Oknalux Pty Ltd.

16. In relation to the drainage holes, I am satisfied that the windows referred to by the expert are windows that do not open and in respect of which the drainage holes will not have any significance.

17. In the circumstances, I agree with only a portion of the judgment of the learned Magistrate. In light of my earlier comments, it is appropriate that I set out any assessment of the position of the applicants against all parties.

18. In the ordinary course, if it were possible, I would make the following findings:

    1.In the application of rule 33 of the Magistrates Court Rules, there is no basis for any claim for contribution to be made between Mrs Matejko, Mr Banasiak and Mr Dubec as partners in respect of the conduct of the partnership prior to 11 November 2013;

    2.The windows and doors supplied by Varmhus to the applicants under the contract for supply were appropriately measured such that, if a proper method of fitment and attachment was used, the windows supplied by Drutec in December 2013 could be appropriately fitted to the apertures of the house of the applicants and then be finished in a manner prescribed by the manufacturers;

    3.In December 2013 or January 2014, a contract was made between the applicants and Mr Banasiak for the fitout of windows and doors to the house of the applicants for a fixed price. Mr Banasiak did not hold the requisite builders license to do this work. Mr Banasiak had performed the final measurements for the doors and windows which became the basis of the order provided to the manufacturers, Drutec, in Poland;

    4.Because of the exigencies of the movement of buildings over time, and the inconsistencies in the shape of apertures, both inside and outside of buildings, it is necessary to measure replacement windows to allow sufficient space to fix the window. In so doing, it is necessary to properly fix the window that is plumb to the aperture and which is fixed to the brick and timber reveals of the aperture;

    5.The method used by Mr Banasiak to fix the windows was to sit the window on the timber reveal and to screw the window frame into the building which did not allow properly for the movement of the building and of the window, including its flexing;

    6.The Varmhus partnership (not including Mrs Matejko) is responsible for this repair work at its cost; and

    7.All of the finishing work done by Oknalux Pty Ltd in January and February 2014 was done competently to the standard required.

19. In light of my earlier comments and in the absence of the appropriate parties before the Court, I am unable to make any final orders to this effect.

20. I address the seven issues I have formulated earlier in these reasons:

    1.The applicants have no justiciable claim against Mrs Matejko, Mr Banasiak and Mr Dubec as partners of the first Varmhus partnership;

    2.The counterclaim against Oknalux Pty Ltd is not made out and is dismissed;

    3.Mrs Matejko is entitled to contribution as a partner of the first Varmhus partnership under the Rules of Court and under the Partnership Act;

    4.Fresh evidence should be admitted, namely the report of SA Building Consultants of 13 October 2014; and

    5.Further evidence of the applicants and Oknalux Pty Ltd should be admitted on the review to deal with the claim against that company.

21. I am able to make the following order:

    1.I dismiss the applicants’ counterclaim against Mrs Matejko personally and against the company Oknalux Pty Ltd.

22. I so order.

    Epilogue

23. I have earlier set out the content of s 38(7)(d). In determining the matter, I may affirm the judgment or rescind the judgment of the learned Magistrate or substitute the judgment that I consider to be appropriate. If I was in a position to do so, I would have exercised my discretion under s 38(7)(d)(ii) to rescind the judgment of the learned Magistrate.

24. In coming to that conclusion, I am aware that the applicants have not paid the account of Oknalux Pty Ltd for the work that it did following Varmhus being put off the work site because of the dissatisfaction of the applicants regarding that work.

25. I have earlier set out in these reasons the content of the orders that I made on 24 January 2020 which the applicants contumaciously refused to comply with. The result is that there has been no service upon Mr Dubec or upon Mr Banasiak. This was despite the fact that I am satisfied from the evidence of Mrs Matejko that Mr Dubec was at one or other of the addresses mentioned in those orders. He was certainly available at the telephone numbers given to the Court by Mrs Matejko.

26. I have earlier recounted that prior to the hearing of the application on 17 July 2020, it was necessary to have four directions hearings to prepare for this hearing. This was in order to address the matters raised in the decision of the Full Court, particularly about service. The matter then proceeded on that basis, as it is a minor civil claim, I considered that the matter should proceed without further costs being incurred.

27. After the hearing on 17 July 2020, the Court has consistently received emails from the applicants attaching a large amount of material. The first email was of 24 August 2020. These and the other emails received by the Court contain repetitive discourses, usually from Mrs Wilczynski. In an email of 24 August 2020, she alleges that all of the hearings before all of the courts were contrary to the law and the Constitution of Australia, were an abuse of the law and an abuse of her rights. She complains that she is being completely deprived of her rights, that all of the submissions received by the Court against them are untrue, that all court documents must be corrected according to the law and the truth and that all of these errors have deprived her of her legal and Constitutional rights. These include her rights under the International Covenant on Civil and Political Rights, Articles 2 and 26.

28. The court records also disclose that at one time, the applicants were represented by a firm of solicitors.[16] The notation on the court record indicates the period during which that firm represented the interests of the applicants. In her emails, Mrs Wilczynski alleges that the identification of the solicitors as acting deprived her of her legal rights and that the court record is in error. She also complained about all of the documents lost by the Supreme Court, that the judgment of the Full Court of the Supreme Court was inconsistent with the orders made by the court that there had been errors of law and errors of fact which had deprived her of her legal rights. She alleged that offences had been committed within the Supreme Court and within all courts which have deprived her of her legal rights. She announced that she would take legal action in respect of these offences and in respect of false and unauthorised submissions made on her behalf by her counsel in the Supreme Court.

    [16] A review of the court records disclose that several firms of solicitors have acted for the applicants.

29. It appears that copies of this material were then sent to the firm of solicitors who communicated with the court and identified that the Court SA record was in error because it suggested that this firm remained as solicitors on the record for the applicants. This was not the case and that firm of solicitors was not instructed to act on behalf of the applicants. On 4 September 2020, an application and an affidavit was filed by the firm of solicitors seeking removal from the court record. Appropriate orders have been made.

30. On 6 October 2020, the applicants again sought correction of the court record. They complained that their case was incorrectly classified as a minor claim and that they have been deprived of the opportunity to pursue their rights in the court and through lawyers. Details are given of an alleged loss of $163,822.11 arising between 2014 and 6 October 2020.

31. Further correspondence was received from the applicants on 7 October 2020. This was accompanied by copies of a substantial amount of material including a further copy of the judgment of the Full Court. The applicants allege that the Supreme Court has been negligent in the dealings with its documents, that the lawyers representing the applicants have been negligent and that they did not act in accordance with the facts and the law and on their instructions. They allege that their case was incorrectly classified as a minor claim and consequently incorrect rules and regulations were applied. They complain that they were deprived of the possibility of claiming their rights under their contract with Varmhus. They allege that the Supreme Court has initiated a civil code, the process used by the Supreme Court is incompatible with the law and judicial procedure and that the Full Court judgment should be declared null and void. They also complain that they cannot suffer loss, they cannot be deprived of their rights according to law and because of the fault of the Supreme Court. Again, they suggest that because of these wrongs committed against them, there have been sufficient violations of their human rights under the International Covenant on Civil and Political Rights, Articles 2 and 26.

32. In that email, the Court is asked to inform the applicants when their rights as applicants have been restored; they ask when the court documentation has been restored to remove untruths and inconsistencies; they ask for information about the legal status of the solicitors who had formerly been on file; they ask for provision of copies of documents; and they ask to be informed if, due to their significant violations of the law due to the court system changes and human errors the court hearing before me on 17 July 2020 has been annulled.

33. A further email was sent to the Court by Mr Wilczynski on 8 October 2020. He asked the following questions:

    1.Could you please let me know if my rights as an applicant have been restored;

    2.Who has initiated this court hearing (the hearing before me pursuant to the orders made by the Full Court of the Supreme Court in their judgment [2017] SASCFC 102 of 15 August 2017];

    3.Could you please inform me if changes have been made to the court documentation in accordance with the principle of facts and law;

    4.Could you please let me know about the legal status of (the solicitor). (Mr Wilczynski goes on to allege that the solicitor has made false statements);

    5.I have requested to provide me with all the documentation submitted to the Court. To date I only received one document. Please provide me with these documents in accordance with the court procedures and my rights; and

    6.Could you please inform me if due to significant violations of the law due to the court system changes (Court SA) and human errors the court hearing of 17 July 2020 has been annulled.

34. By interlocutory application dated 20 October 2020, the applicant Mr Joseph Wilczynski sought the following orders:

    1.That the judgment of the court in this case scheduled for 29 October 2020 be postponed until correction of court documentation (the Court SA system) in accordance with the facts and the law;

    2.That his Honour Judge Slattery excuse himself from this case;

    3.That the documents FDN 22-26 and 28 be removed from this case as untrue statements;

    4.That Mrs Ewa Wilczynski and Mr Joseph Wilczynski’s rights in this trial as applicants be restored. Mr Joseph Wilczynski was never the respondent in this case, only the applicant;

    5.That Mr Joseph Wilczynski receive documents filed in the case by Mrs Matejko, Oknalux Pty Ltd and Varmhus;

    6.That the hearing on 17 July 2020 be annulled;

    7.That the reliability of Varmhus and Oknalux Pty Ltd documentation be disputed (including GST registration);

    8.That it be confirmed the windows and doors sold to Mr Joseph Wilczynski by Varmhus in September 2013 did not have the required AS2047 certificates in Australia;

    9.That it be confirmed by Mrs Matejko (as Varmhus) personally placed the order with incorrect sizing for windows and door to Mr Wilczynski’s house;

    10.That it be confirmed Mrs Matejko provided statements during the hearing on 17 July 2020 which are inconsistent with her written statement on 22 January 2015 and the court’s judgment [2015] SADC 70;

    11.That it be confirmed Mr Joseph Wilczynski was only added as an applicant in the District Court on 20 January 2015. Not as incorrectly statement in the court documentation and later by the District and Supreme Courts that Mr Joseph Wilczynski joined the trial in the Magistrates Court on 28 February 2014; and

    12.That it be confirmed that Mrs Ewa Wilczynski and Mr Joseph Wilczynski were deprived of rights due to negligence in the courts from the loss of court documentation and the incorrect determination applied as a minor civil claim.

1. The application is supported by an affidavit sworn by Joseph Wilczynski filed 20 October 2020 (FDN 30). In that affidavit, Mr Wilczynski proceeded to put his case again as has been put before the learned Magistrate, before the learned District Court Judge at first instance, before Justice Doyle, before the Full Court of the Supreme Court of South Australia and then, following orders made by the Full Court, before me on 17 July 2020 (after four earlier directions hearings).

2. Mr Wilczynski seeks orders that the hearing before me on 17 July 2020 be annulled because it was initiated by an unauthorised entity and that it was contrary to the binding provisions of Australian law.

3. Mr Wilczynski then argues that he was misinformed about the scope of the hearing before me. He did not ask for Mrs Matejko and Oknalux Pty Ltd to be examined or to be heard. He alleges perjury against Mrs Matejko and alleges that all of her evidence is untrue and false.

4. Nowhere within the affidavit is there any basis which may be said to be a ground for me to recuse myself as a judge in this matter. It is my common law duty, once I have embarked upon a hearing, to complete it and to render judgment according to law. This is what I have done. On that basis, I would dismiss the application. Further, in my judgment set out above, I have made findings in relation to the evidence before me, recalling, as is the case, that this is a minor civil review under s 38 of the Magistrates Court Act.

   A further application

5. On Monday 26 October 2020 at 7.52 pm, the first applicant, Mrs Ewa Wilczynski, filed an interlocutory application supported by an affidavit sworn by her.

6. In that interlocutory application, Mrs Wilczynski seeks the following orders:

   1.   That the judgment of the court in this case scheduled for 29 October 2020, be postponed until correction of court documentation (the CourtSA system) in accordance with the facts and the Law.

   2.   That his Honour Judge Slattery excuse himself from this case.

   3.   That the documents FDN 22-26 be removed from this case as untrue statements.

   4.   That Ms Ewa Wilczynski and Mr Joseph Wilczynski rights in the trial as applicants be restored. Mr Joseph Wilczynski was never the respondent in this case, only the applicant.

   5.   That Ms Ewa Wilczynski receive documents filed in this case by Ms Matejko, Oknalux and Varmhus.

   6.   That the hearing on 17 July 2020 be annulled.

   7.   That the new additional hearing, with revised parties, in this case be scheduled before the judgment.

   8.   That it be confirmed Ms Matejko (as Varmhus) personally placed the order with incorrect sizing for windows and door to Mr Wilczynski’s house.

   9. That it be confirmed Ms Matejko provided statements during the hearing on 17 July 2020 which are inconsistent with her written statement of 22 January 2015, statement of 15 August 2014 and the Court’s Judgment [2015] SADC 70.

   10. That it be confirmed Ms Ewa Wilczynski and Mr Joseph Wilczynski were deprived of rights due to negligence in the courts from the loss of court documentation and the incorrect determination applied as a minor civil claim.

   11. That it be confirmed that our actual direct costs and losses in this case are currently $163,822.11.

   12. I am demanding a reimbursement of $163,822.11 with interest from Mrs Matejko and Oknalux.

7. I have already addressed the topics and issues raised in paragraphs 1 to 6 inclusive of this application and I will not repeat the reasoning that I have set out above. Paragraphs 7 to 12 inclusive of the application appears to be different to the matters than those raised by Mr Wilczynski in his application. Paragraph 7 of the application appears to suggest that there needs to be another hearing; there needs to be further parties joined to the action and that all of this should occur before the judgment is handed down. Paragraph 8 appears to seek a confirmation of a matter of evidence. The issue referred to is a matter that I have dealt with in my reasons above. Paragraph 9 seeks confirmation of matters of evidence. Paragraph 10 seeks confirmation that the applicants have been deprived of their rights due to the negligence of the courts. Paragraph 11 seeks confirmation that the applicants’ direct losses are an amount of $163,822.11 and paragraph 12 demands a reimbursement of $163,822.11 with interest from Mrs Matejko and Oknalux Pty Ltd.

8. Dealing with the matters in reverse order, there is no application before me, or any evidence before the Court, or any basis to make any orders as contemplated under paragraphs 12, 11, 10, 9 and 7. I have dealt with the issue of the evidence of Mrs Matejko earlier in these reasons.

9. The affidavit filed in support of the application comprises 50 paragraphs of material and a very large number of exhibits. Mrs Wilczynski accepts that Mrs Matejko ceased to be a partner of Vamhus in November 2013. She alleges that Mrs Matejko assured the applicants that the windows had AS2047 certificates and that Varmhus was licenced to undertake building work. There is no evidence before the Court in support of that contention and these propositions were not put to Mrs Matejko. It is then alleged that Mrs Matejko agreed to remedy and rectify the work done by Mr Banasiak from 2 January 2014. There is no evidence to that effect before the Court. It is then alleged that the works as completed by Varmhus, Mrs Matejko and Oknalux Pty Ltd were unsatisfactory. However, this associates all of the work of Varmhus with Mrs Matejko and Oknalux Pty Ltd. There is no evidence to justify that association.

10. The following paragraphs then deal with the trial of the issue before the learned Magistrate. Mrs Wilczynski suggests that the learned Magistrate forced his opinion upon the parties. As a result of that judgment, Mrs Wilczynski sought a review of the minor civil decision. She complains about the failure of the learned Judge in the review to enquire about inconsistencies in the evidence given by Mrs Matejko. There are no inconsistencies disclosed.

11. At paragraph 27 of her affidavit, Mrs Wilczynski alleges that in the Supreme Court hearing before Doyle J, there were significant procedural errors; the court was biased, there was no fair trial as guaranteed by the Australian Constitution; and the significant errors of lower court judges were not recognised. She alleges that the Judges of the Full Court were biased in determining legal facts and their determinations were inconsistent with the evidence.

12. Mrs Wilczynski then alleges that “due to negligence and omissions in the Full Court, various offences against the law, the court and us, the inequity of lawyers representing us, our case was wrongly classified as a minor civil claim”. She then asserts a wrong committed by her barrister in relation to the conduct of a mediation.

13. Mrs Wilczynski complains that she was not allowed an interpreter at a court hearing on 5 April 2017. That matter is not before me. She alleges that the findings made by the Justices of the Supreme Court are significantly biased and based on unreliable documentation provided by Mrs Matejko and Oknalux Pty Ltd. She complains of the loss of their documents in the Supreme Court.

14. Mrs Wilczynski then complains about the illegality of the windows, the inconsistencies of all courts judgments and that during trials, offences were committed against the Court and against the Wilczynskis. This was in respect of legal and factual obstruction of the case by lawyers and a concealment of relevant evidence. They were thereby deprived of a fair trial.

15. Mrs Wilczynski goes on to complain about the conduct of all barristers before the court, including her own counsel and then complains that her husband has, as a result of the Full Court judgment, been deprived of the opportunity to claim his rights under the contract with Varmhus.

16. Mrs Wilczynski complains about the hearings before me preparatory to the matter coming on for further hearing of the minor civil review on 17 July 2020. She claims that hearing should be annulled due to its initiation by an unauthorised entity (the Full Court of the Supreme Court of South Australia) and hence due to it being contrary to binding provisions of Australian law. She alleges that she and her husband were misinformed by me as to the scope of the planned hearing. She contends that she and her husband did not ask for Mrs Matejko and/or Oknalux Pty Ltd to be examined in the course of the proceeding. I have dealt with those matters earlier in these reasons. She complains that nobody asked for Mrs Matejko and/or Oknalux Pty Ltd to be heard and they were informed that the Supreme Court of South Australia had initiated the hearing.

17. In the following paragraphs of her affidavit, Mrs Wilczynski alleges that Mrs Matejko has given false statements and inconsistent evidence to the court, and none of her evidence should be accepted. I have earlier dealt with the evidence of Mrs Matejko in these reasons.

18. At [49] of her affidavit, Mrs Wilczynski suggests that it is contrary to the binding provisions of law to initiate a hearing regarding a civil matter from 24 January 2020 having been ordered to do so by the Supreme Court. She then complains that it was initiated more than two years after the decision of the Full Court and the decision of the High Court. She complains that the decision of the Full Court and the decision of the High Court deprived her and her husband of any possibility for a full hearing about the scope of their rights on the grounds of the contract concluded with Varmhus.

19. Mrs Wilczynski again alleges that the hearing concerning Mrs Matejko was unlawful and was contrary to the decision of the Full Court. It violated her fundamental rights. She suggests that I am biased and they could not have a fair trial. They could not be deprived of their rights by anybody and she covers again an amount of material already covered in the affidavits.

20. It is first necessary to address the question of the allegation of bias. Nowhere within the affidavit is there any factual or other basis to suggest that I am biased against one or other of the party to the proceedings. This is merely an assertion that is not supported by the evidence. In the absence of any evidence, I would not exceed to that application.

21. I turn then to the content of paragraphs 7 through 12 of the application.

22. There is no basis for there to be any additional hearings with revised parties. There is no basis put forward for the recommencement of any hearing concerning any aspect of this matter.

23. There is no factual basis anywhere in any affidavit to suggest that Mrs Matejko personally placed an order with incorrect sizing for the windows and door to the house of the applicants. Consequently, there is no basis for the application under paragraph 8.

24. There is no basis for any orders under paragraph 9. I have earlier dealt with the evidence of Mrs Matejko.

25. As I earlier recounted in these reasons, the hearing on 17 July 2020 only commenced once the parties informed me that they had sufficient materials upon which they could proceed to conduct the minor civil review. There is therefore no basis for any orders under paragraph 10 of the application.

26. Paragraphs 11 and 12 of the application concern an amount of what is alleged to be direct costs and losses. There is no basis upon which it might be said that this amount could be calculated and in any event, such an issue is not before the Court.

27. I dismiss the application.