Robert Alcock and Maria Alcock T/As Imaginative Concreting v John Hropic and Dolores Hropic [1996] ACTSC 31 (23 April 1996)

SUPREME COURT OF THE ACT

ROBERT ALCOCK and MARIA ALCOCK t/as IMAGINATIVE CONCRETING v. JOHN HROPIC and
DOLORES HROPIC
No. SCA4 of 1996
Number of pages - 3
Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Appeal - leave to appeal out of time - Small Claims Court appeal - application to extend time for leave to appeal - whether error of law - reliance on the skill and judgment of professional - whether applicant failed to properly advise the respondents as to consequences of a preferred option - whether respondents' instructions part of the contractual agreement - finding of fact - no error of law - application refused.

HEARING

CANBERRA, 23 February 1996
23:4:1996

The Applicants represented themselves

The Respondents represented themselves

ORDER

THE COURT ORDERS THAT:
The application be refused.

DECISION

HIGGINS J This is an application to extend time for appeal against a decision of Special Magistrate Symons delivered on 29 November 1995.

2. The decision in question was to enter judgment for the respondents in the sum of $3,960.00. The respondents had claimed $4,200.00 from the applicants for allegedly faulty concreting work.

3. As the claim was brought and determined in the Small Claims Court, leave to appeal is necessary in any event.

4. The matter was heard on 14 August 1995. At the hearing the respondents withdrew a claim for $240.00 for an engineer's report.

5. The cost of rectification work of $3,960.00 was not challenged as a reasonable price for the work so done.

6. The rectification work was allegedly made necessary by the appearance of cracks in the concrete about one month after it was laid.

7. The learned Special Magistrate found that the respondents had, before the work was performed, raised concern as to various matters which they feared might cause cracking. They were clearly anxious to avoid such an outcome.

8. Not surprisingly, her Worship was satisfied that, in leaving to the applicants the resolution to those matters of concern, the respondents had relied on the skill and judgment of the applicants as professional concreters.

9. The work done involved a pathway and a driveway.

10. Her Worship concluded that insufficient blue metal had been laid under the concrete pathway resulting in cracking due to drainage problems. There was, in relation to the driveway, a lack of sufficient jointex which she considered to have caused the cracking there complained of. Whilst she found that the respondents had agreed that jointex should be deleted on aesthetic grounds, her Worship also found that the applicants had failed properly to advise the respondents of the likely consequences of that choice.

11. Before me, the applicants submitted that the result referred to above was inconsistent with the only expert evidence tendered by them, which evidence was uncontested.

12. The expert referred to was Mr D McInnes.

13. Mr McInnes generally assessed the level of cracking as 'slight', which he conceded to be 'sort of a middle range'. In his view, the work was, generally, carried out in a good and workmanlike manner. That opinion seems to have been expressed from a structural, rather than aesthetic, view point.

14. It was Mr McInnes' opinion that the lack of expansion joints was the cause of the cracking of the driveway. The defects observed in the pathway, whilst not damaging it structurally, he conceded could have been the result of water under the concrete.

15. An expert opinion must necessarily be based on assumed facts. The opinion will be of no great assistance unless those facts or substantially relevantly similar facts are proved.

16. In this case, the question of 'good and proper workmanship' was to be judged not by reference to industry practice or Australian Standards unless no other contractual term as to the standard of work was part of the contractual arrangement.

17. Her Worship found as a fact that the respondents had stipulated that they desired to avoid cracking. She found that the applicants agreed so to do. The respondents had indicated various precautions they desired the applicants to take to avoid cracking. They also desired to avoid the appearance of jointex in the driveway. The applicants did not take those precautions and failed to warn the respondents that cracking was a likely consequence of failing to use the jointex.

18. Thus, the opinion of Mr McInnes, whilst no doubt valid, failed to address the real issue as her Worship identified it. That issue, as her Worship noted, was whether the version of events given by the respondents, namely, that they had stipulated that certain precautions be taken to avoid cracking of the concrete and had not been warned that cutting back on jointex would risk such cracking, was to be accepted on the balance of probabilities.

19. Her Worship does not expressly state her reasons for preferring the evidence of the respondents to that of the first applicant where that evidence differed, but demeanour may reasonably be assumed to have played a part. In any event, the difference was not relevant to the driveway cracking.

20. It is not open to me to grant leave to appeal unless the proceedings before her Worship were tainted by error of law or procedural unfairness.

21. It is not an error of law to prefer the evidence of one witness to another. In any event, even if that preference is not sufficiently explained, there are, in my view, no grounds to suppose that, on seeing or hearing the same witnesses, I would come to a different view, even if such lack of explanation could be regarded as an error of law, a proposition which I should not be taken as supporting.

22. As I have already noted, there was no finding contrary to the expert's report. That complaint on the part of the applicants is without substance. Even if there had been, it does not follow that would have been an error of law.

23. It follows that, if I was to extend time to apply for leave to appeal, the application would necessarily fail.

24. I, therefore, refuse the application. I will hear the parties as to costs.