Wilczynski v Banasiak, Matejko
[2015] SADC 70
•1 May 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
WILCZYNSKI AND ANOTHER v BANASIAK, MATEJKO AND OTHERS
[2015] SADC 70
Judgment of His Honour Judge Boylan
1 May 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
Application to review a minor civil decision.
Counter claim for damages for claimed poor workmanship installing windows - Magistrate's consideration of experts' reports reviewed - experts' reports not uncontested.
Held: Decision of the Magistrate affirmed.
WILCZYNSKI AND ANOTHER v BANASIAK, MATEJKO AND OTHERS
[2015] SADC 70
Mr and Mrs Wilczynski contracted with Varmhus, a business which supplied and installed windows and doors, for the supply and installation of European-style double glazed windows and doors at their house. After the installation, Mr and Mrs Wilczynski refused to pay Varmhus for the labour involved in the installation, claiming that the work was substandard. Mr Banasiak, a partner of Varmhus, sued them for his labour costs. Mrs Wilczynski defended the claim and counter claimed for the cost of replacement of all windows and doors. In the Magistrates Court, the learned Magistrate dismissed Mr Banasiak’s claim and allowed Mrs Wilczynski’s claim in part. Mrs Wilczynski has applied to this Court for a review of his Honour’s decision.
The parties
Various parties were added to these proceedings after the initial claim was lodged. I explain now who the parties are.
At relevant times up to September 2013, the partners of Varmhus were Mr Banasiak, Mr Dubec and Ms Matejko. Ms Matejko ceased to be a partner on 11 November 2013. By January 2014, she was operating her own business, Oknalux Pty Ltd, which supplied and installed identical windows and doors.
The parties to the original claim and counter claim were Mr Banasiak and Mrs Wilczynski. Before trial, the Magistrate ordered that Ms Matejko and Mr Dubec be joined as defendants to the counter claim. On review, and by consent, I ordered that Mr Wilczynski be joined as an applicant for review and that Varmhus and Oknalux Pty Ltd be joined as respondents to the application.
Outline of claim and counter claim
There is no doubt that Mr and Mrs Wilczynski contracted with the three partners of Varmhus for the supply of windows and doors.
Mr Dubec has been in Poland at all relevant times and has taken no part in these proceedings.
Before the doors and windows were ordered from Poland, Ms Matejko took some approximate measurements at the Wilczynskis’ house. Mr Banasiak, or someone acting for him, took the final measurements before the order was sent to Poland. The doors and windows arrived in Australia and were delivered to Mr and Mrs Wilczynski who paid the full amount in two instalments: $7,590. The only written evidence of the contract for supply is an invoice dated 9 September 2013 for $7,590.
Mr Banasiak began installing the windows and doors in January 2014. Oddly, there is no evidence that Ms Matejko was ever a party to any contract for their installation. I say “oddly” because one would expect that Mr and Mrs Wilczynski would have agreed a total price – for supply and installation – before their order was confirmed. The only evidence of a contract about the cost of installation is an invoice for $1,760 rendered by Varmhus on 9 January 2014. Ms Matejko was then no longer a partner of the business of Varmhus. Given the lack of any evidence about payment for installation while she was a partner, I am not satisfied that Ms Matejko was a party to any contract for the installation.
Early in January, Mr Banasiak began installing the windows and doors. It is not completely clear on the evidence how close he got to finishing the job. Before he had done so, a dispute arose between him and Mrs Wilczynski. She maintained in her evidence in the Magistrates Court that she ordered him to stop because the windows were too small for the openings left after the old windows had been removed. Mr Banasiak maintained that the dispute arose because he had supplied a door different from the one which she had ordered. In any event, Mr Banasiak sent an invoice for $1,760 for his labour. Mr and Mrs Wilczynski did not pay it. Hence, his original claim in that amount.
At some stage after Mr Banasiak left the job, Mrs Wilczynski contacted Ms Matejko, now running her own business. The two women were friends. Ms Matejko inspected the site and said of Mr Banasiak’s work:
I looked at the windows, I looked at the work that was left and I couldn’t believe it. The situation that they were left with was just unacceptable.
Ms Matejko undertook to finish the installation and used licensed builders to do so. According to her, the job was done properly.
I pause here to note that there is no evidence that Mrs Wilczynski ever understood or intended that she would not pay Mrs Matejko for the installation; that is, she did not act as though Ms Matejko’s work was part of her original contract with Varmhus or deal with Ms Matejko on the footing that Ms Matejko was responsible, as a partner of Varmhus, for completion of the installation.
Oknalux’s quotation for the installation work was $2,902.35. Mr and Mrs Wilczynski paid a deposit of $2,148.86, in instalments of $807.68 and $1,341.18.
On 14 January 2014, Oknalux issued an invoice for $3,113, apparently being for replacement doors. That amount has never been paid. I cannot tell if the doors were ever supplied. This seems to me to be a “red herring” in the case.
Mr and Mrs Wilczynski refused to pay Oknalux’s outstanding invoices and Oknalux, to date, has not issued proceedings to recover whatever amount may be owing to it.
Mr and Mrs Wilczynski insist that Oknalux’s work is substandard and that the windows and doors must be removed and new doors and windows of the correct dimensions be supplied and fitted in their place. They claimed the cost of that from the defendants on their counter claim.
The trial was originally listed for hearing on 28 July 2014 but, on that day, Mr Banasiak was unwell and could not attend. But a witness, Mr Paul Effingham, attended. Mr Effingham is a licensed builder who had prepared a report about the quality of the installation work. The Magistrate received Mr Effingham’s report which was in the name of SA Building Consultants. On 23 July 2014, although the trial could not proceed, Mr Effingham gave some evidence which was recorded. The matter was relisted for trial for 18 September 2014. I do not know exactly what happened on 23 July 2014, the day on which Mr Effingham gave his evidence.
The matter came on for trial on 18 September 2014. Mr Banasiak appeared, as did Ms Matejko and Mr and Mrs Wilczynski. Polish interpreters were used. During the trial, the tape of Mr Effingham’s evidence was played. That tape was not before me on review.
The Magistrate heard evidence from all the parties and received a number of exhibits, including reports described as expert reports.
The Magistrate made no findings about the reliability or credibility of the witnesses and was clearly in a better position to do so than I am. But I have read the transcript and had the opportunity to make some assessment of Mr and Mrs Wilczynski and Ms Matejko when they made submissions before me on review. Mr Wilczynski was not able to be of much assistance; he generally supported his wife. From my reading of the transcript, Mrs Wilczynski was at times evasive before the Magistrate and shifted her ground. She back-tracked in her evidence about whether or not she had paid a particular invoice and insisted that her “experts” had said that the windows and doors must be removed and replaced when their reports contain no such assertion. In my view, she has exaggerated her claims.
Ms Matejko, before me, made submissions in a calm and measured fashion. It seems to me that she tried to give clear and straightforward evidence before the Magistrate. She was at a significant disadvantage as, during the trial, she did not see either of the experts’ reports before the Magistrate. I am making no criticism of the Magistrate; he probably did not realise that Ms Matejko had not seen them. I turn to those reports.
I have already referred to Mr Effingham’s. He attended at the Wilczynski house on behalf of SA Building Consultants, a business which supplied a written report to the court. The report is signed by Peter Jankovic who, I suppose, is a principal of the firm. Mr Jankovic did not himself inspect the work. Mr Effingham was generally critical of the installation work. In particular, he was critical of the length of screws used in some places; of a door which could not be closed easily and was too close to the floor; of the size of gaps around the windows; of restrictions in design weep holes; and of damage to brick reveals. He asserted that the glazing did not comply with Australian Building Code requirements. In forming some of his opinions, it is clear that Mr Effingham was relying on assertions made to him by Mr and Mrs Wilczynski. He did not say that the doors and windows had to be replaced. He was not available for cross-examination at trial and there is no record showing that he was made available for cross-examination on the occasion on which his evidence was taped.
The other report was prepared by Mr Stuart Waring from Australian Window Solutions, Oknalux’s chief competitor. It does not appear that Mr Waring inspected the doors and windows. His report refers to “Dean’s visit”. His report is, generally, in very guarded terms. For example, he says that the damaged bricks “possibly” suggest inexperience, that (one aspect of the window installation) “may” lead to operational problems. Again, he does not give a firm opinion that the windows and doors must be replaced. Mr Waring was not in court and was not available for cross-examination. Ms Matejko did not see his report until the matter was before me on review.
The Magistrate reserved judgment. After he had done so, Mr and Mrs Wilczynski sought to put further material before him. His Honour refused to receive it. He was correct to do so. The matter was before him as a minor civil action and Mr and Mrs Wilczynski had had adequate opportunity to put before the court at trial any material they thought relevant.
In his judgment, the Magistrate did not refer to Mr Waring’s report. He considered Mr Effingham’s evidence and report but did not accept all of it. His Honour emphasised that Mr Effingham did not say that the finished job was unsatisfactory and went on to note that Mr Effingham did not appear to dissent from the Magistrate’s observation that, from photographs, the end result appeared satisfactory. I take that to mean that, when Mr Effingham was before the court on the occasion on which his evidence was taped, the Magistrate gave Mr Effingham the opportunity to comment on the finished job. His Honour accepted Mr Effingham’s evidence that cracking in the brick reveals was caused when the existing windows were removed.
The Magistrate found that Mr Banasiak was not in breach of contract but, because the work was completed by Oknalux for more than the amount of Mr Banasiak’s outstanding invoice, he dismissed Mr Banasiak’s claim. There has been no challenge to that finding and I say no more about it.
Dealing with the counter claim, the Magistrate found that the windows were adequate for their designed purpose and that the final installation was satisfactory to his eye. I have read that last comment in light of what I have already said about Mr Effingham’s having been given the chance to comment on his Honour’s opinion.
His Honour then noted that Mrs Wilczynski’s contractual entitlement was to have the windows and doors supplied and installed for the price agreed by Mr Banasiak. His Honour calculated that price as being the amount that Mr and Mrs Wilczynski had paid to date plus the sum of $1,760 (the amount of Mr Banasiak’s claim). His Honour held that that had to be deducted from the monies due to Oknalux. There was, therefore, a balance of $1,142.35 which sum his Honour allowed on the counter claim. His Honour also allowed a sum of $2,035, being the quoted price for the cost of repairing the brick reveals. Accordingly, his Honour gave judgment against the first and third defendants by counter claim – that is, Mr Banasiak and Mr Dubec - for $3,177.35.
The application for review
On the application for review, Mr and Mrs Wilczynski asked me to receive further material, including further reports from SA Building Consultants. I decline to receive them. As I said earlier, the Wilczynskis have had adequate opportunity to put material before the court. While I accept that English is not their first language and that Mrs Wilczynski required the services of an interpreter before the Magistrate and before me, I do not accept that she was disadvantaged in the court below and that she did not adequately understand the proceedings. She had had plenty of time to prepare her case.
Mr and Mrs Wilczynski’s chief submission on review was that the Magistrate was in error in failing to accept what they described as the “uncontested” expert reports. Those reports were not uncontested. Ms Matejko, in particular, has not accepted the opinions of Mr Effingham and Mr Waring. She had not even seen Mr Waring’s report before the matter was in this Court and, as I have mentioned, she does not appear to have been given an opportunity to cross-examine Mr Effingham. It was quite apparent from her submissions before me that she hotly disputes some of the opinions in those reports. I found her criticism of Mr Effingham’s views about the drainage holes convincing: holes designed to drain water from interior window ledges are not necessary when the windows are designed not to open at all. I also thought that her criticisms of Mr Effingham’s opinion about the glazing seemed valid.
All of the applicants’ submissions turn on the correctness of the Magistrate’s finding that the windows and doors were adequate. His Honour was not obliged to accept the expert opinions, opinions which were not “uncontested”. The only work which the Magistrate found was substandard was that which resulted in damage to the brick reveals. His Honour has awarded damages for that. In my view, the findings which the Magistrate made were open to his Honour.
I affirm the decision of the learned Magistrate.
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