New South Wales Supreme Court CITATION : WM Van Heeswyk Pty Limited v Fair Trading Administration Corporation [2001] NSWSC 190 FILE NUMBER(S) : SC 10977/00 HEARING DATE(S) : 22/2/2001 JUDGMENT DATE : 22 February 2001 PARTIES : WM Van Heeswyk Pty Limited Fair Trading Administration Corporation JUDGMENT OF : Dowd J at 1 LOWER COURT Local Court JURISDICTION : LOWER COURT 6222/98 FILE NUMBER(S) : LOWER COURT Price M JUDICIAL OFFICER : COUNSEL : Ms E Kennedy - Plaintiff Mr M Cohen - Defendent SOLICITORS : Snelgrove & O'Brien Solicitors - Plaintiff Abbott Tout Solicitors - Defendant CATCHWORDS : Stated case - Residential building work - Rectification work - Admissibility of documents Building Services Corporation Act 1989 LEGISLATION CITED : Evidence Act 1995 Local Court (Civil Claims) Act 1970 CASES CITED : Calderbank v Calderbank [1975] 3 All ER 333. DECISION : 1. Appeal dismissed with costs; 2. Costs on an indemnity basis refused. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DOWD J 22 FEBRUARY 2001 10977/00 W M VAN HEESWYK PTY LIMITED v FAIR TRADING ADMINISTRATION CORPORATION JUDGMENT 1 DOWD J: This appeal proceeded by way of an Amended Summons by the appellant, the defendant in proceedings brought by the Fair Trading Administration Corporation ('FTAC') under the Local Court (Civil Claims) Act 1970, such Amended Summons being filed on 19 June 2000. The Summons firstly sought that leave be granted to the applicant to bring this appeal. There was no contest to the application before me that this was an appeal as of right. 2 The appeal is against the entirety of the Learned Magistrate's decision. The appellant contended that His Worship was erroneous both in finding that the appellant did building work in accordance with s3 of the Building Services Corporation Act 1989 ('the Act'), and in finding that the appellant was a person who contracted to do, or did, residential building work in accordance with s3 of the Act. The appellant further claimed that it was not indebted to the FTAC in the amount of $26,220, the subject of the original claim and that the Summons did not comply with the provisions of the Rules. 3 A Notice of Issues was filed, by leave granted by me. The FTAC filed, with leave granted by me, an application for leave to file a Notice of Contention. I ordered that that document, for the purposes of this hearing, shall constitute the Notice of Contention. 4 The dispute related to allegations that certain building work was carried out in relation to a property situated at 11 Kedron Place, St Johns Park. That property was part of a cluster of dwellings erected, and showed certain defects. Those defects were rectified to the extent of the amount found to be owing under the judgment of the court below. 5 The original proceedings were brought under s98(1) of the Act against the appellant for recovery of the moneys paid out by the FTAC for rectification work carried out as a debt due. The FTAC contended that the original work was done by the appellant. 6 "Residential building work" is defined in s3 of the Act as: "Any work involved in, or involved in co-ordinating or supervising any work involved in: a) the construction of a dwelling, or b) the making of alternations or additions to a dwelling, or c) the repairing, renovation, decoration or protective treatment of a dwelling. · It includes specialist work done in connection with a dwelling and work concerned in installing a prescribed fixture or approvals in a dwelling (or in adding to, altering or repairing any such installation). · It does not include work that is declared by the regulations to be excluded from this definition." 7 The section then enumerates a series of aspects of building work. It is contended by the FTAC that the appellant came within that definition. 8 There was no issue in these proceedings that the rectification work was properly carried out, and no issue as to the amount charged. 9 The two issues before this Court were, first, that in the course of the hearing, the Learned Magistrate admitted into evidence, as business records, the Building Services Commissioner's Inspection Report or Running Notes from 4 November 1992 to 6 July 1993. The second issue was that whether those notes were admitted or not, there was no evidence upon which His Worship could have inferred that work was done by the appellant. 10 This is an appeal in which the appellant must show an error of law. The error of law claimed was that there was no evidence to support the judgment of His Worship. 11 The schedule to the Evidence Act 1995 defines the word 'document' in the widest of terms. In fairness to Miss Kennedy for the appellant, it was conceded to this Court that the evidence could constitute a document in the terms of that definition, and unless excluded by s135 of the Evidence Act 1995, the document came within s69 of that Act and was therefore admissible as business records. It was put that the issue was admissibility in terms of s135 of the Evidence Act. 12 The basis for not admitting the documents was the fact that the documents were, in effect, admitted as the evidence of Mr Fox, who had not been called, thus preventing the proper testing of that evidence. Consequently, the admission of those documents was unfairly prejudicial in terms of s135 and there was a danger that the admission of the documents would be unfairly prejudicial. No application for an adjournment was sought in the proceedings below in order to call oral evidence. 13 The documents were clearly admissible, unless excluded under the s135 discretion. The documents are clearly of probative value. The documents were not of the themselves prejudicial, nor were they unfairly admitted. Therefore, there is nothing remarkable about tendering business records of the building inspection, as might be expected in those proceedings. I can see no basis in these civil proceedings for the use of s135 of the Evidence Act 1995 to exclude the evidence. 14 I turn to the contention that there was no evidence to support His Worship's findings. His Worship had admitted before him the Inspection Report, which contained the following note: "Mr Van Heeswyk, the principal of the plaintiff company, says that he was not the licenced builder but that he worked as a sub-contractor/foreman and his builder's licence was not used". 15 The note showed that Mr Van Heeswyk then said, quite extraordinarily, that he did not know who the builder was, and that he was paid as a subcontractor or foreman by a company, "State Properties", of Hoxton Park Road, Hoxton Park. 16 At page 7 of the Inspector's Report, which is annexed to the Affidavit of Peter John Snelgrove, dated 21 August 2000, Mr Fox, the building inspector, noted that the Council thought the builder was Markovina Properties Pty Limited, a company which does not appear to have a building licence. 17 Mr Van Heeswyk said that he was only the subcontractor/foreman, and did not employ a subcontractor. 18 At page 16 of the Inspector's Report, Mr Fox stated that he sent a certified letter to Mr Van Heeswyk as well as Mr Markovina, inquiring as to who was the builder. Furthermore, Mr Van Heeswyk is noted to have said on 3 March 1993, that if Mr Fox sent him a list of defects, that he would then look at them. 19 Mr Fox, at page 16, noted asking Mr Van Heeswyk if he was now saying that he was the builder. Mr Van Heeswyk said "No", and that he discussed it with the developer. Certain rectification work was generally carried out in the event that this was not sufficient to satisfy the complaint. 20 In the transcript of evidence before His Worship at page 5, lines 4 and 5, Mr Van Heeswyk stated that Mr Sergi was: "… the owner or he was the one who ask me if I could look after the job for him up in St John's Park." 21 In lines 38 to 45, the following question was asked and the following answer given: "Q. As a result of receiving that letter did you do anything with the Department of Fair Trading, or the BSC as it was then known? A. Then I have rung up Mr Fox and I have told him that, you know, no, I am not the builder on the job, I was only a foreman on the job, I was more or less the eyes and ears of Mr Roy Sergi and, you know, that I didn't have anything to do with it." 22 Further at page 6, line 12 onwards, of the transcript, Mr Van Heeswyk's evidence was as follows: "Q. In your statement you say that you were a subcontractor being paid out -- A. On an hourly basis, yes. Q. Was your PPS deducted? A. Yes. Q. From an hourly rate you were paid? A. Yes, from...(not transcribable)..--" 23 Further on page 7, lines 4 to 9, the solicitor, Mr Snelgrove, questioned Mr Van Heeswyk as follows: "Q. Were the payments deducted against you personally or against the company? A. Against the company because the company - it would be a company invoice so it would be deducted against the company." The prescribed payment deduction forms for subcontractors were then tendered and admitted without objection. Questioning continued as follows: "Q. How many various subcontractors were there working on this site? A. Well, all trades, so that will be concreters, backhoe drivers, steel fixers, bricklayers, carpenters, roof tilers, glaziers, wall or floor tilers, gyprockers, painters. I don't know if I have got them right." 24 Mr Van Heeswyk asserted that he did not pay any of those persons. 25 For the appellant to succeed, it must be shown that there was no evidence upon which His Worship could have found that there was building work being carried on by the appellant. 26 In terms of the definition of 'residential building work' under the Act, the work was clearly 'building work'. Even in the absence of evidence from Mr Fox, on a civil onus there was a clear inference available to His Worship that, by Mr Van Heeswyk standing in the way of Mr Roy Sergi, being his eyes and ears, and whether he was paid on an occasional contracting basis, the fact that Mr Van Heeswyk said that he was not the builder is not the end of the matter. 27 Mr Van Heeswyk's name was listed as the builder, but even if that were the case, the work he carried out on behalf of Roy Sergi was clearly that of supervisor. There was an inference also open that if in terms of the moneys paid to his company, that is the appellant, that the PPS deductions to cover the subcontractor were deducted from the appellant as the builder. 28 There was open to His Worship on that evidence, a clear inference that the work that he did was within the definition of 'building work', and that he was the person who, in terms of the definition and in terms of s98 of the Act, did that building work. 29 If one looks at the Inspector's Report, which was properly admitted into evidence, there are further clear inferences that Mr Van Heeswyk was asked to rectify certain matters, and subsequent to that conversation certain rectification works requested were carried out. The fact that he did not say who the builder was, is irrelevant. The fact that he said his building company or building licence number was not used is irrelevant, in terms of the definition. There was evidence of the use of the building licence number from which His Worship could draw an inference that he was the builder, in any event. 30 The remaining issue which Mr Cohen raised on behalf of the FTAC was that there was no evidence on which His Worship could draw the inference that the work, being whatever building work there was to be done, was done by the appellant. Clearly, however, in terms of the evidence which I have enumerated, there was evidence on which His Worship could find that, in the terms of the definition in the Act, that work was done by the appellant, whether as supervisor or foreman, as 'ears and eyes' of Mr Roy Sergi, the admitted developer. That would still bring this work within the definition of 'building work' in the Act and, therefore, I find that His Worship did not err on any of the matters contended and the Amended Summons, therefore, should be dismissed. (Mr Cohen applied for costs.) 31 Using the terminology appropriate for the parties before this Court, I order that the plaintiff/appellant, pay the defendant/respondent's costs of these proceedings. (Mr Cohen made a special application for costs.) EXHIBIT #A LETTER TENDERED ADMITTED WITHOUT OBJECTION ON THE QUESTION OF COSTS. (Indemnity costs opposed.) 32 DOWD J: I have already ordered that the plaintiff pay the defendant's costs. An application has been made that those costs be on an indemnity basis from 28 August 2000 onward. I suspect the difference between costs and indemnity costs, in this particular case, is actually not all that great. 33 I note that the offer by the defendant to pay its own costs on 28 August 2000 was not an unreasonable offer, and in substance complies with Calderbank v Calderbank [1975] 3 All ER 333. My only concern is that this was an appeal from the Local Court (Civil Claims) Act 1970, and although there is a legal principle involved, which is to discourage litigation that is not likely to proceed, I nonetheless feel that the endeavour of that Act is the ability to speedily and cheaply resolve matters, and that I ought therefore not make an order for what is, as I have indicated, probably not a very great sum. In accordance with the Calderbank principles, I decline to make a cost order on an indemnity basis. oOo Last Modified: 04/30/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.