Re the Small Claims Act 1974 and Re An Application of Leave To Appeal Frank De Marco v Dysgin Pty Limited T/As Adams Bathroom Renovations [1996] ACTSC 77 (18 July 1996)

SUPREME COURT OF THE ACT

IN THE MATTER OF THE SMALL CLAIMS ACT 1974
AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL
FRANK de MARCO v. DYSGIN PTY LIMITED t/as ADAMS BATHROOM RENOVATIONS
No. SCA 82 of 1995
Number of pages - 2
Jurisdiction

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Jurisdiction - appeal from Small Claims Court - grounds for leave to appeal - error of law - procedural unfairness to applicant - contract - payment for work performed - credit for unused materials.

HEARING

CANBERRA, 18 June 1996
18:7:1996

Counsel for the Appellant: Mr P Coleman

Instructing solicitors: Clayton Utz

The Respondent represented himself.

ORDER

THE COURT ORDERS THAT:
1. The appeal be dismissed.

2. The sum of $490.00 credit be allowed against the judgment sum.

DECISION

HIGGINS J On 2 February 1996, I granted leave to the appellant to appeal from a decision of Special Magistrate Dainer in the Small Claims Court on 28 September 1995.

2. That leave was confined to the following grounds,
1. The Magistrate erred in law in failing to give any or any

adequate weight to evidence by the appellant that an allowance
should have been made for tiles not used in the renovations. This
evidence was admitted by the respondent.
2. The Magistrate erred in law in finding that the appellant
was not entitled to an allowance for the vanity as there was no
evidence to the contrary before the court.
3. The conduct of the proceedings were unfair to the applicant
as the applicant was not given adequate opportunity to fully
present his case.

3. The first ground is irrelevant now. The respondent made it clear that credit would be given for unused tiles if they were returned in good condition. That has now happened. A sum of $490.00 is, therefore, to be allowed as a credit towards the judgment.

The Vanity Unit
4. The respondent was engaged by the appellant to renovate two bathrooms. One was an ensuite. Mr Bullock is the proprietor of the respondent. He prepared, or caused to be prepared, a quotation for work to be done on those rooms. There was, it seems, some confusion about the original quotation.

5. The appellant had, in relation to the main bathroom, noted "Bath stay". Mr Bullock took that to mean that it should remain where it had been. That, I have to say, is not an unreasonable conclusion. Mr De Marco meant to convey, however, that the bath should be re-used but positioned differently.

6. As a result of this confusion, an "updated quote" was prepared. It added $1,830.00 to the original quotation. The total amount to be paid on completion of the work was $9,837.82.

7. There was an allowance for $600.00 for "vanity unit" included in each quotation.

8. The appellant paid $5,000.00. The respondent claimed the difference of $4,837.82.

9. The dispute about the vanity unit was based on the appellant's assertion that the unit installed by the respondent was too wide. It collided with the shower cubicle door when the latter was opened.

10. Instead of the 900mm wide unit, the appellant purchased a 750mm unit and had it installed. He claims a credit for the additional cost. It is not clear to me what happened to the original unit but neither party raised any issue about that.

11. On the hearing of the substantive appeal, Mr Bullock produced a diagram which demonstrated that, provided the shower door was hung from the right rather than the left, it would not foul the shower cubicle door. He had, he said, altered the shower door accordingly. Mr De Marco did not satisfactorily rebut this evidence.

12. Prima facie the respondent, having done the work, was entitled to the agreed price. The fact that the appellant felt coerced to agree to it, of course, is unfortunate but does not provide any legal defence. Nor did his assertion that the price was excessive provide, in law, any answer. The price was agreed to, whether or not it was excessive by reference to the market generally. There was no relevant deception or coercion.

13. The evidentiary onus was on the appellant to show that the $695.00 spent for the replacement vanity unit was necessary.

14. I am not satisfied that it was.

15. There was no other relevant complaint.

16. The appeal is dismissed, but $490.00 credit is allowed against the judgment sum as agreed in respect of unused tiles returned to the respondent.