Julie Pye T/As Body and Soul Gymnasium v Gunyah Investments Pty Ltd T/As Poster Masters and Any Sign [1996] ACTSC 35 (26 April 1996)

SUPREME COURT OF THE ACT

JULIE PYE t/as BODY and SOUL GYMNASIUM v. GUNYAH INVESTMENTS PTY LTD t/as
POSTER MASTERS and ANY SIGN
No. SCA112 of 1995
Number of pages - 5
Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Appeal - Small Claims Court - leave to appeal - question of law - reliance on respondent's skill and judgment - reliance on respondent's advice - whether 'term' was imported into contract - construction of contract - leave granted.

Small Claims Act 1974, s33(2)

HEARING

CANBERRA, 1 March 1996
26:4:1996

The Appellant appeared in person

The Respondent appeared in person

ORDER

THE COURT ORDERS THAT:
Leave to appeal be granted.

DECISION

HIGGINS J This is an application for leave to appeal against a decision of Special Magistrate Hardiman given in the Small Claims Court on 4 December 1995.

2. Such an application must be refused unless it appears that, as per s33(2) Small Claims Act 1974 (SCA),
... the decision of the Court on a question of law was wrong; or

the conduct of the proceedings ... was unfair to the applicant.

3. Even if one or other of those conditions is satisfied, the application might, nevertheless, be refused on discretionary grounds.

4. The claim in question was made by the respondent. It sought payment for certain signwriting performed for and at the request of the applicant.

5. The applicant told the learned Special Magistrate that there was no dispute as to the agreement but that she was dissatisfied with the resultant product. The price had been agreed and was not disputed.

6. The first sign produced was, apparently, rejected. The remainder were also rejected.

7. It was the signwriter's evidence that the signs were manufactured as agreed but that the applicant and her husband "changed their mind". That appears to have been a conclusion drawn by the witness rather than a report of any statement by or on behalf of the applicant.

8. The applicant gave evidence that she chose the relative colours of background and foreground of the signage on the respondent's advice and after production of a small sample. She asserted she had asked for a purple background, not pink, and, further, that the contrast between the illustration and lettering in the foreground was insufficient.

9. His Worship agreed with the applicant that the sign as manufactured was ineffective. There was insufficient contrast between background and foreground. Thus, the applicant's complaint was objectively justified.

10. However, his Worship found that the order was, nevertheless, executed by the respondent as directed by the applicant. The cause of the genuine dissatisfaction of the applicant he put down to the difficulty she and her husband had in extrapolating from the small area of the coloured sample shown to them to the larger sign which was the final product.

11. His Worship commented thereon in the following terms,

One can often have something painted, even a room, and you look at
a sample and it does not turn out as you expect. However, that is
unfortunate if that is what you have ordered because that is the
expense that has been put into purchasing the paint, the expense
that has been put into the labour in painting the room.

12. I am not sure what his Worship meant to convey by the second sentence. Probably no more than that if the work was in accordance with the contract then dissatisfaction with the result, though unfortunate, could not justify a refusal to pay the agreed price for the work.

13. Judgment was given for the respondent.

14. The matter was explained further by his Worship in his report. He said,

It was clear from her (the applicant's) evidence that the colour on
the completed signs was not what she envisaged when choosing from
the small sample displayed on the colour chart.

15. There was no other relevant defect in the work done by the respondent.

16. His Worship did advert to the question whether, notwithstanding that the applicant had chosen the colours in question, she had nevertheless relied upon the respondent's skill and judgment as to the suitability of the finished product. He said in his report,

I concluded, on the balance of probabilities, the applicant did not
rely on the advice of the respondent and she, together with her
husband chose the colours.

17. However, that is not a fair reflection of even the respondent's account of the circumstances surrounding the order, assuming his Worship preferred to accept that version rather than that of the applicant.

18. Mr C C Hall, the signwriter employed by the respondent, said he showed the applicant and her husband, a sample 80cm x 30cm, violet background and green lettering. He said, at T7, that the conversation concerning it was as follows, commencing with a statement by Mr Hall,

I don't think this stands out enough. What do you think? And they
said, "Yes, we agree", and I said, "I'll put a black shadow around
the green letters to make it stand out", and they said, "That's
fine, go ahead". And so I did that and then next time they came in
they had totally changed their mind.

19. Thus, while it is true that the signwriter was told by the applicant to use the colours which were used, it was only after Mr Hall had, in effect, advised that the black shadow would make the applicant's choice effective.

20. In fact, as his Worship found, although the applicant may have appeared to Mr Hall to have changed her mind, her complaint was that the sign failed, on site, to stand out sufficiently, notwithstanding Mr Hall's advice that the 'black shadow' would overcome the inadequacy of the applicant's preferred design.

21. Given that the conversation happened as Mr Hall said it did, and it was consistent with the applicant's account of it, the inference seems to me to be inescapable that Mr Hall was representing that, with the black outlining, the signs would, on site and in full size, give a sufficient contrast between foreground and background.

22. That was a question upon which a professional signwriter would be accepted as expert and a gymnasium operator would not. Mr Hall offered advice. The applicant accepted it. In those circumstances his Worship's conclusion that the applicant did not rely on the respondent's advice is plainly wrong.

23. As a matter of law, the conversation imported a term into the contract that the finished product would not only conform to the colours objectively demonstrated on the sample but would give a sufficient contrast in full-size and on site.

24. In concluding to the contrary, his Worship made an error of law. Had he correctly applied the law so as to import such a contractual term, he would have found that the signs as manufactured did not conform to the contract and that the applicant was entitled to reject the work.

25. The notice of application for leave to appeal does not very clearly focus on the real complaint of the applicant. Ground 1 seems, however, to cover the ground to which I have referred above.

26. The matter is not one which requires factual evidence to determine it. It involves merely the construction of a conversation not in dispute.

27. The other grounds put forward by the applicant as supporting this application, however, have no merit. There is no dispute as to whether the respondent did the work as requested. In any event, that issue is not now relevant. Simply to carry out the order as given does not fulfil the terms of the agreement between the parties. Similarly, the use or not of a written agreement is irrelevant. The lack of acceptance of signage as a consequence is relevant only if it was suggested that some kind of cross-claim was open. None was made.

28. I grant the leave to appeal sought limited to the issue as to whether the signage in question, in terms of its suitability for the purpose made known by the applicant to the respondent, was as agreed and whether, as a consequence, the applicant was entitled to reject it.

29. I will hear the parties as to the further disposition of the appeal.