Tibor George Toth v Lucjan Nowicki [1996] ACTSC 76 (16 July 1996)

SUPREME COURT OF THE ACT

TIBOR GEORGE TOTH v. LUCJAN NOWICKI
No. SCA 6 of 1996
Number of pages - 5
Jurisdiction

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Jurisdiction - appeal from Small Claims Court - error of law - procedural unfairness to applicant - application for extension of time for leave to appeal - discretion to refuse leave - delay in bringing application - decision not attended by sufficient doubt - matter of insufficient gravity or importance in comparison to resources called upon to have it resolved - contract - payment for work performed - repudiation of contract.

Small Claims Act 1974, s33(2)

HEARING

CANBERRA, 10 May 1996
16:7:1996

The Applicant represented himself

The Respondent represented himelf

ORDER

THE COURT ORDERS THAT:

The application be dismissed.

DECISION

HIGGINS J On 23 August 1995 the applicant was sued in the Small Claims Court by L J Nowicki Pty Ltd. That is a company of which the respondent is the principal controller.

2. The company sued for "professional services" in the sum of $3,200.00.

3. On 30 August 1995, the applicant provided grounds of defence. That was in the following terms,

1. Mr Nowicki did not provide the service he offered.

2. User Friendly Building and Maintenance Service was not the organisation

that required his services. It was T E Toth Constructions.

3. Mr Nowicki refused to allow any input by myself into the resultant Quality Assurance System, which is contrary to the agreement.

4. His services were unprofessional and most alarming in that he deviated in his explanation of his services ie he informed me that by consultation with myself he would provide T E Toth Constructions with a Quality Assurance System that would comply sufficiently to be 3rd Party Certified. This has not happened.

5. Mr Nowicki did not respond to correspondence requesting information he promised and did not provide the service he claimed to offer. The only contact I had from Mr Nowicki from the time we agreed to develop the System was to inform me that the job was completed and he demanded payment. I examined the documents and told him that as it was not developed in the way he had promised, ie, with my input involvement, I could not accept the Services he was attempting to offer me.

6. I feel that Mr Nowicki has acted most unprofessionally and doubt that he intended to provide me with what he promised. As yet we have not received even one single consultation, apart from the 2 initial meetings to discuss the type of Services he was proposing to offer.

4. On 14 December 1995, Mr G Dellar, Special Magistrate, entered judgment for the company in the sum of $3,200.00 plus costs and interest.

5. On 1 February 1996, the applicant sought extension of time for leave to appeal to this Court.

6. On 9 February 1996, the applicant applied to the Small Claims Court for a stay of execution. He had already received an oral examination summons.

7. Even if an extension of time was granted the substantive application can be granted only if the decision of the Special Magistrate was a result of an error of law or if the proceedings were conducted unfairly to the applicant, see s33(2) Small Claims Act 1974. In any event, there is a discretion to refuse leave. For example, delay in bringing the application would be a relevant factor tending against the grant of leave.

8. Other reasons why the Court might not grant leave, though legally able to do so would include,
. The decision below not being attended by sufficient doubt notwithstanding an arguable error of law or procedural unfairness to the applicant.
. That the matter is of insufficient gravity or importance compared with the resources called upon to resolve it.

9. It appears from the transcript of proceedings before the learned Special Magistrate that the company had been engaged to provide the applicant with a "Quality System Implementation Plan" (the Plan).

10. According to Mr Nowicki, the company prepared the Plan but Mr Toth declined to accept it or pay for it. He said he had intended to trade personally, not under a business name. The Plan was entitled so as to refer to the business name. He complained also of "lack of consultation" in preparation of the Plan. Those complaints are reflected in his grounds of defence.

11. There is only one matter which might support Mr Toth's claim that the procedure adopted was unfair. At one point in the hearing Mr Toth said,

Look I have got quite a few things that I do not
have with me I realise I should have. Are we
going to sort this out today or is it going to go
on?

His Worship: No, we are going to sort it out
today. We have got to go on. I mean, it is set
down for hearing and that is what is to happen.

12. Mr Toth then, apparently, acquiesced in the continuation of the hearing.

13. The questions asked by Mr Toth of Mr Nowicki in the course of the hearing, and Mr Toth's subsequent conduct of the case, did not seem to me to raise any matter of defence to which the "few things" mentioned would be relevant. Mr Toth did challenge Mr Nowicki's qualifications but that was not relevant to any legitimate defence. There was no real complaint as to the quality of the product itself. Mr Toth's only substantive complaint seemed to be that he expected that the Plan would be developed as a "team effort" rather than, as it was, by Mr Nowicki's unaided efforts. There was a written agreement which made no reference to such a requirement. It was signed on 26 June 1995. There are two letters, computer generated, which purported to be addressed to Mr Nowicki.

14. Mr Nowicki denied receipt of these letters from Mr Toth. They were dated 28 June and 13 July 1995 respectively. They were in the following terms,

... Further to our telephone conversation of 27/6/95 I
would like to make it perfectly clear to yourself that
I wish to reconsider your offer to provide me with a
quality assurance system until such time as you
provide me with the information you promised me at our
first meeting. After discussing this requirement with
you over the telephone, I don't feel confident that
you have fully informed me of what your services
include, and I also take offence at your comment
suggesting my foolishness at signing the proposal
without fully understanding what was involved. Please
be notified that I wish to place any work on my
Quality Assurance Project on hold and will require
from you the information outlining in full the
services you promised to provide ...

... Please be advised that we reject your proposal of
services on the following grounds:
1 You were notified by telephone and by written
correspondence that we wished discussion with yourself
before any works on our behalf proceed. You seem to
have chosen to ignore this request and have proceeded
without any consultation with us. This is contrary to
what was related by yourself at our first discussion.
At that time you claimed that you would develop the
system with extensive liaison with myself. This did
not occur, and consequently I find the result of your
services appears to be little more than an offering of
an off the shelf manual. This is not what was
promised, and we cannot accept this as the service
promised by you.
2 I find it difficult to understand how anyone could
provide professional services without any consultation
whatsoever with the client. You have no idea of what
our requirements are, you have never entered our
office, know little, possibly nothing of our
organisation and seem confused even as to who we are.
It was out understanding that you would work in
conjunction with us in developing and establishing a
suitable quality assurance system for T G Toth
Constructions. This has not occurred, and we are
disappointed that you have not fulfilled your
obligation to us ...

15. Those letters, even if they had been despatched and received, would have indicated not more, as a matter of law, than an intention to repudiate the written agreement of 26 June 1995. The complaint as to the identity of the applicant's business name was not raised. It was, in any event, clearly irrelevant.

16. In any event, his Worship preferred the evidence of Mr Nowicki that there was no conversation or letter qualifying the effect of the written agreement. Mr Nowicki thus prepared the Plan without knowledge of any qualification. That finding is one of fact. It discloses no error of law and therefore is not capable of challenge in this Court. The findings of fact his Worship made were, in any event, not clearly insupportable on the evidence nor did they fly in the face of established facts.

17. The agreement required the respondent to produce certain documents. Exhibit 3 before his Worship purported to be such documentation. Whether it was of good quality or not, or worth $3,200.00 or not, was either not in issue or, if it was, raised only a question of fact.

18. His Worship, in any event, held that there was no evidence of lack of compliance by the company with the terms of the contract. Again, that finding, being one of fact is not capable of challenge in this Court.

19. The applicant sought before me, leave to adduce further evidence in the form of a statement from a Ms Mikrut. It is as follows,

This is to verify that I did contact Mr Tibor Toth
about provision of Quality Assurance System under an
agency agreement with Mr L J Nowicki.

The agreement was signed by Mr Toth in my presence in
June 95. I am aware that Mr Toth has contacted Mr
Nowicki on the following day requesting to hold work
on the project until he is satisfied that product
provided is suitable for his construction company
purposes.

Mr Nowicki mentioned that fact to me in our telephone
conversation, adding that he has already produced the
customised version of the system for Mr Toth and since
the agreement is signed he does not wish to enter in
any further discussions with his client.

The product prepared by Mr Nowicki to his client was a
version of the standard template of the Quality
Assurance Manuals, with the clients particulars
inserted in the text.

20. That statement, even if it was to be accepted on the hearing of the appeal, does not seem to me to increase the applicant's prospects for success. It supports the position that Mr Toth wrongfully repudiated the agreement the day after it was made rather than later. That may have affected the assessment of damages but only if Ms Mikrut's evidence was accepted. That would need to be tested. There would also need to be an examination of the extent to which the loss would have been ameliorated by Mr Nowicki's cancellation of the contract on that day. Consideration would need to be given to whether Mr Nowicki's company was entitled to reject the repudiation and claim the price for the work done in any event. As a matter of discretion, I would refuse to allow Mr Toth to re-open the facts of the case even if leave to appeal could be granted.

21. In any event, it does not appear that the applicant raised before his Worship his wish to call Ms Mikrut to contradict Mr Nowicki. His Worship, accordingly, had no reason to suppose that there was some evidence Mr Toth had omitted to call which appeared relevant to the issue before him.

22. In my view, even if time was to be extended, the Court would lack jurisdiction to grant the application there being no apparent question of law raised nor any procedural unfairness.