Azar & Anor v Gordon & Anor [2002] NSWSC 904

New South Wales Supreme Court

CITATION : Azar & Anor v Gordon & Anor [2002] NSWSC 904 FILE NUMBER(S) : SC 11845/01 HEARING DATE(S) : 05/02/2002 JUDGMENT DATE : 2 October 2002

PARTIES : Elias Azar and Nada Azar t/as Classic works v Lee Gordon and Stella Gordon JUDGMENT OF : Hidden J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT 249/2000 FILE NUMBER(S) : LOWER COURT J McIntosh JUDICIAL OFFICER :

COUNSEL : Appellants in person Mr V Stefano - Respondents SOLICITORS : Appellants in person Henshaws - Respondents CATCHWORDS : LOCAL COURT: Appeal from decision of a magistrate in a civil claim - no question of law. LEGISLATION CITED : Fair Trading Act 1987 Local Courts (Civil Claims) Act 1970 DECISION : Appeal dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

Wednesday, 2 October, 2002

11845/2001 – Elias AZAR and Nada AZAR t/as CLASSIC WORKS v Lee GORDON and Stella GORDON

JUDGMENT 1 HIDDEN J: This is an appeal from the decision of a magistrate in a civil claim. The appellants, Elias and Nada Azar, conducted a home improvement and renovation business called "Classic Works". In April 1999 the respondents, Lee and Stella Gordon, engaged them to carry out some renovations at their home at Chipping Norton. Between August and November of that year some work was done and a number of payments were made. However, the respondents complained that the work was unsatisfactory and was proceeding too slowly. The matter went to mediation in October 1999, but in the following month the relationship between the parties came to an end. The respondents later had the renovations completed by other contractors. 2 The respondents commenced proceedings against the appellants in the Local Court, claiming damages for breach of contract and also alleging misleading and deceptive conduct within the meaning of s 42 of the Fair Trading Act 1987. The appellants filed a defence, and instituted separate proceedings against the respondents for recovery of the balance of the contract price. The proceedings were heard together. The learned magistrate found for the respondents in their action against the appellants, awarding them damages of $40,000, and also found for the respondents in the appellants' action against them. 3 All parties were legally represented in the Local Court and the respondents were represented before me. The appeal was instituted, and grounds were filed, by solicitors representing the appellants, but at the hearing they were unrepresented and Mrs Azar argued their case. She relied upon the six grounds filed by their former solicitors and added some arguments of her own. 4 It is unnecessary to summarise the evidence in the Local Court. I shall refer to aspects of it when dealing with the matters raised on appeal. By s 69(2) of the Local Courts (Civil Claims) Act 1970, the appeal is confined to error of law. While the grounds of appeal assert that the learned magistrate erred in law in various respects, it will be seen that each of them raises no more than a question of fact. 5 The first ground asserts that the magistrate erred in the construction of the contract between the parties. In the light of the pleadings and the manner in which the case was conducted, it is not entirely clear what this ground means. Certainly, there was a dispute about the extent of the work which the appellants had undertaken to perform. For example, an important part of the work was renovation of the kitchen. The appellants' evidence was that they had not undertaken to remove the old kitchen, whereas the respondents said that they had. The magistrate preferred the evidence of the respondents about this aspect of the matter. That was a finding open to him on the whole of the evidence and, in any event, it was a decision of fact from which an appeal to this Court does not lie. 6 The second ground of appeal is that the magistrate erred in failing to consider mitigation of damage. I should point out that, apart from the pleadings, the parties furnished to the magistrate a statement of agreed facts and issues. Neither in the pleadings nor in that statement is mitigation of damage said to be an issue. As I have said, the respondents had the renovations completed later by other contractors, and Mr Gordon was cross-examined briefly about the extent of one aspect of that work (the bathroom). There the matter rested. In the result, there was no evidence to support an argument that the respondents had failed to mitigate their loss. 7 The third ground is that the magistrate erred in failing to consider whether there had been a wrongful termination of the contract by the respondents. This was stated to be an issue, both in the appellants' grounds of defence and the statement of agreed facts and issues. As a result of the mediation to which I have referred the appellants agreed to complete the work by 22 November 1999. There was in evidence a letter from Mr Gordon to Mr Azar of 12 November, complaining about the progress of the work and purporting to hold the appellants to the agreement to complete it by 22 November. Mr Gordon was also cross-examined briefly about that letter but, again, the matter appears to have been taken no further. On its face, the letter does not terminate the contract. In any event, as counsel for the respondents in this Court pointed out, the question of the consequences of a termination was not raised or pursued. There was no evidence that, but for the wrongful termination alleged, the appellants were willing and able to perform the contract, that is, to complete the work free of defects. 8 The fourth ground is that the magistrate erred in failing to consider the legal effect of an agreement made between the parties on 22 October 1999. This is the agreement arrived at in mediation to which I have referred. It was not raised in the pleadings or in the statement of agreed facts and issues, and its only relevance at the hearing appears to have been the revised completion date of 22 November. Its legal effect was not otherwise in issue and was not something which his Worship was called upon to determine. 9 The fifth ground is that the magistrate erred in the weight to be attached to an expert report. Presumably, this is a reference to the reports and oral evidence of Mr Douglas Cornish, a building consultant whom the respondents called on the question of damages. Mr Cornish was cross-examined very briefly. His expertise was not called into question and there was no significant challenge to his evidence. The appellants called no expert evidence in their case. In these circumstances, it is not surprising that his Worship did not analyse Mr Cornish's evidence in his judgment but, clearly, he was entitled to rely upon it. 10 The sixth ground is that the magistrate erred in that the evidence was not capable of supporting the findings made. This is an attempt to elevate criticism of his Worship's findings of fact into a proposition of law, and it cannot be sustained. Such matters as Mrs Azar raised in argument fail to demonstrate that any of those findings was perverse. Indeed, there was ample evidence to support all of them. 11 I should record a particular complaint of Mrs Azar about the magistrate's observation that Mr Azar was not licensed to do the work. Before me, Mrs Azar queried whether he needed to be. It is sufficient to say that, while his Worship made that observation, it is clear that it had no bearing upon his decision. 12 The appeal must be dismissed. If necessary, I shall hear the parties on costs. *********