COSHOTT v B & W WINDOWS PTY LTD [2006] NSWSC 1051

New South Wales Supreme Court

CITATION : COSHOTT v B & W WINDOWS PTY LTD [2006] NSWSC 1051

HEARING DATE(S) : 05/10/2006

JUDGMENT DATE : 11 October 2006

JUDGMENT OF : Associate Justice Malpass

DECISION : The appeal fails. The summons is dismissed. The plaintiff is to pay the costs of proceedings.

CATCHWORDS : Contract - breach - claim for restitution - evidentiary deficiencies - whether affidavits were received in evidence - failure to deal with alternative claim

CASES CITED : Wasada Pty Limited v State Rail Authority of New South Wales (No.2) [2003] NSWSC 987

PARTIES : Robert Gilbert COSHOTT B & W WINDOWS PTY LTD

FILE NUMBER(S) : SC 15072/05

COUNSEL : Mr R Coshott (Pl) (In person) Mr R J D'arcy (Def)

SOLICITORS : Heckenberg Associates Solicitors (Def)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 1784/05

LOWER COURT JUDICIAL OFFICER : O'Shane LCM

LOWER COURT DATE OF DECISION : 27/10/05

LOWER COURT MEDIUM NEUTRAL CITATION : Robert Gilbert COSHOTT v B & W WINDOWS PTY LIMITED

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

11 October 2006

15072/05 Robert Gilbert COSHOTT v B & W WINDOWS PTY LTD

JUDGMENT 1 HIS HONOUR : It is common ground that the plaintiff and the defendant entered into a contract for the supply of windows and doors for installation at the home of the plaintiff (1 Bunyula Road, Bellevue Hill). Thereafter, there was delivery of material by the defendant and payment by the plaintiff. This was followed by a dispute between the parties concerning further delivery and payment. 2 The dispute saw the plaintiff bringing an ordinary Statement of Claim in the Local Court. The process contained the following:- "1. On or about 13.10.04 the plaintiff and the defendant entered into a contract for the supply of windows and doors for installation at 1 Bunyula Road, Bellevue Hill. 2. The defendant has failed to perform and has breached the said contract. PARTICULARS a) failed to perform the contract within the agreed time, namely four (4) weeks; […] d) a substantial proportion of the goods delivered were defective and/or damaged. The goods do not comply with the relevant industry standards. The metal surfaces were not prepared and the powder coating was not applied by an approved applicator in conformance with the industry standards and not in conformance with the Dulux powder coating standards. As a result the goods do not attract the Dulux warranties; […] 5. The plaintiff claims damages, interest thereon and costs. Further or in the alternative, the plaintiff seeks restitution." 3 The defendant filed Grounds of Defence. It, inter alia, put in issue the terms of the contract (reliance was placed on a document called a "Supply Only Quotation" (the Quotation), which was accepted by the plaintiff). The Quotation was expressed to be "for Special Powdercoat finish as per revised plans, locks, obscure glass and delivery." 4 The defendant also filed a Notice of Cross-Claim. It sought damages in respect of part of the material which remained undelivered and for which payment had not been made. 5 The plaintiff did not file a defence to the cross-claim. 6 The proceedings came on for hearing before O'Shane LCM. The plaintiff (who had been a solicitor) appeared in person. Mr D'arcy appeared for the defendant. On 27 October 2005, Her Honour delivered a reserved judgment. She came to the view that the plaintiff had failed to prove his case and found for the defendant on his claim. She was satisfied, on the balance of probabilities, that the cross-claim had been established and found for the defendant on the cross-claim. An order was made for indemnity costs. 7 The plaintiff has bought an appeal in this Court. It is an appeal founded on alleged error in point of law. He relies on an amended summons. It contains two grounds of appeal. The grounds are as follows:- " […] 10. The Ordinary Statement of Claim pleaded breach of contract and restitution. Her Honour erred in law by failing to deal with or rule upon the restitution claim. 11. Her Honour erred in law by relying upon material that was not properly before the Court." 8 The appeal was heard on 5 October 2006. The representation was the same as was before the Magistrate. The approach taken by the plaintiff was that it was unnecessary to deal with the first of the two grounds, if he was successful on the second ground. 9 In order to succeed in this appeal, the plaintiff bears the onus of satisfying the court that there was error in point of law that justifies the disturbing of what was done by the Magistrate. 10 This Court has conflicting submissions as to what was done by the Magistrate in the conduct of the hearing. It may be that during the hearing the parties were labouring under some confusion. A reading of the transcript throws up ambiguity. In dealing with the second of the two grounds, it is necessary to trace the events of the hearing and to refer to some aspects of the transcript. 11 The plaintiff had sworn an affidavit. Affidavits had been sworn on behalf of the defendant (including Ms Marilyn Scott, Mr Adrian Voits, Mr Noel Montgomery). The respective affidavits of the plaintiff and Marilyn Scott contained material dealing with the discussions had between them which brought about the contract. 12 The Quotation and a document called the "Window and Door Schedule" (the Schedule) were also regarded by the parties as being relevant to the contract. The schedule contained a note concerning the use of "Total Glass and Capral Systems". 13 At an early stage in the hearing, the parties were given a short adjournment to sort out certain matters. One of them concerned an agreed statement of facts, which was subsequently placed before Her Honour. 14 A discussion took place concerning affidavits that had been filed by the parties. It appears that the parties had proceeded to a presentation of the evidence by way of affidavit, despite earlier standard directions being given for the exchange of witness statements. 15 Her Honour then made the decision to take a further brief adjournment so that she could read what was erroneously described by her as "witness statements". It is common ground that the words "witness statements" referred to the affidavits that had been filed. 16 Following a short adjournment, the hearing then continued. 17 The transcript records the following [at page 10]:- "SHORT ADJOURNMENT HER HONOUR: I've read through these witness statements and unless there's anything the parties wish to raise at this point, we'll proceed to hear it. Nothing further at this point? PLAINTIFF: Nothing further at this point. HER HONOUR: Mr D'arcy?" 18 Mr D'arcy made objections to some of the material appearing in the affidavit sworn by the plaintiff. The plaintiff did not make objection to any of the material appearing in the affidavits that were sworn on behalf of the defendant. 19 Up to some stage in the proceedings, all deponents were present in court should they be required for cross-examination. 20 Following the dealing with objections, the plaintiff gave oral evidence. Her Honour elicited evidence concerning, inter alia, formal matters. The plaintiff was then cross-examined by Mr D'arcy. 21 During the cross-examination, Her Honour asked certain questions and made certain observations. Her questions, inter alia, sought to identify the documents relied on by the plaintiff (the Quotation and the Schedule). After this had been done, the transcript records as follows [at page 28]:- "Q. I can indicate to you now, since you're about to take the luncheon adjournment, that already you have failed to satisfy the Court on the balance of probabilities that your claim is made out to the extent of the particulars set out in paragraph (a). A. Well, your Honour, that's-- Q. No, Don't enter into any argument with me, is that clear. I'm just indicating something to you. A. Yes, your Honour. Q. And in respect of (d), the Court notes that you have no evidence to present to the Court in relation to those matters. So that the Court has gone through all of your documents, Mr Coshott, be absolutely clear about that, and the Court is now indicating to you that it has some very serious doubts that you are capable of establishing that part of your claim on the balance of probabilities. Do you understand what I am saying to you? A. Yes. Q. So that, as we are about to take the luncheon adjournment, I strong (sic) suggest to you that you enter into discussions with the defence with a view to settling this matter. Do you understand what I am saying to you? A. Yes, your Honour." 22 At this point, I should digress to observe that (d) contained a reference to "industry standards" and that this was intended by the plaintiff to contemplate a complaint as to non-use of "Total Glass and Capral Systems". The non-use of them was not in dispute. 23 After the luncheon adjournment the plaintiff's oral evidence continued and was completed. There was no formal closure of his case. 24 Mr Voits was then called by Mr D'arcy. Mr D'arcy dealt with some formal matters (including the identification of the two affidavits sworn by Mr Voits), before he was cross-examined. 25 Upon the retirement of that witness, Mr D'arcy announced "That concludes the evidence for the defence" [at page 43]. Prior to that time, the plaintiff had not sought to cross-examine Marilyn Scott. However, thereafter he then sought leave to adduce evidence from her. 26 The transcript records the following [at page 44]:- PLAINTIFF: As such, I seek leave to call Marilyn Scott as she is, from the evidence of Mr Voits, is (sic) the only person that can tell us from their side the contract terms. She was the one that did the quotation, she was the one that spoke with me. If she's not called then the Court is left in a situation where I suppose the only evidence as to what the terms of the contract were is mine. HER HONOUR: That's correct and it's your case. PLAINTIFF: Yes, and my case is that the contract was as per the window schedule and the quote which refers to it. And on the window schedule which was in evidence it sets out what the windows and doors were to be. And they were to be Capral system and Total Glass. It's admitted they are not. HER HONOUR: So you're relying on that document? PLAINTIFF: I'm relying on the window schedule which contains the terms and conditions of the contract and which is referred to in the quotation. And it says "All windows and glazed doors should be selected powder coated commercial grade aluminium using Total Glass and Capral Systems". HER HONOUR: Yes? PLAINTIFF: What was supplied is not Total Glass and Capral Systems. HER HONOUR: Mr D'arcy do you wish to put anything to me in respect of this application? D'ARCY: It's a matter for each party to call the evidence upon which they wish to rely. Mr Coshott has served affidavits which he hasn't read in his case, and the way that the evidence has unfolded, I don't wish to read any further evidence. So it's a matter, I would have thought, for his submissions as to the mileage, if any, that he can make out of any particular document. PLAINTIFF: I don't press the application." 27 No further evidence was taken and the hearing concluded with addresses made on behalf of the parties. 28 The reserved judgment contains no express reference to a claim for restitution. Although the defendant takes the stance that no such case was pleaded, the addresses contain submissions from the plaintiff to the Magistrate concerning it. 29 There can be no dispute that the Magistrate did make references to the evidence of Marilyn Scott in her judgment. There are passages which are recorded on pages 3-4 thereof. In these passages, there is a recitation of her version of contractual discussions. 30 The second ground of appeal can only be maintained if the Marilyn Scott evidence had not been received into evidence. This is a question on which doubt may be entertained. What is recorded in the transcript might be thought to throw up ambiguity. 31 It is incumbent upon the plaintiff to demonstrate that it was not received into evidence. In my view, the plaintiff has failed to perform that task. Indeed, it seems to me to be the better view that it did form part of the evidence before her. 32 Be that as it may, it seems to me that there are other reasons why this ground should fail. 33 Prior to the conclusion of the hearing, the Magistrate had warned the plaintiff as to the evidentiary deficiencies concerning part of his claim (in respect of the allegations made in (a) and (d) of paragraph 2 of the Ordinary Statement of Claim). In my view, a reading of her judgment reveals that she maintained that view and came to a finding that his claim should fail because of the evidentiary deficiencies in his own case (he had failed to discharge the onus on the balance of probabilities). She was able to reach that decision on his claim without reference to the evidence of Marilyn Scott. 34 There seems to be no dispute that the Magistrate regarded that evidence as having been placed before her. I consider that her reference to it (apart from being by way of completeness) was by way of reinforcement of a view already formed as to the fate of the claim. 35 Like the claim founded on contract, the claim said to be founded on restitution had pleading problems. The contractual claim had failed to plead relevant terms of the alleged contract (in respect of those terms there were only vague allegations of breach). As a consequence, the Magistrate was confronted with a difficult task of identifying issues. The restitution claim rested on a bare reference to "the plaintiff seeks restitution". The claim for restitution could have been struck out by reason of failure to disclose a reasonable cause of action. 36 The submissions made by the plaintiff in respect of it may be found in a paragraph on page 49 of the transcript. What is recorded in that paragraph does little to either identify or advance the nature of the claim that the plaintiff had in mind. The subsequent emailing of authorities would have been of little assistance to the Magistrate (the material was not accompanied by submissions that would explain the relevance of the authorities). 37 In this Court, little was said to take the matter any further. At best, it could be generally described as no more than a broad-brush reference to authority. 38 The court was handed a copy of the decision in Wasada Pty Limited v State Rail Authority of New South Wales (No.2) [2003] NSWSC 987. It was not taken to any part of the judgment of Campbell J. However, a reading of the judgment does highlight the hopelessness of the plaintiff's alleged claim (the failure to identify and plead facts which gave rise to a recognised category of injustice which led to a restitutionary claim). 39 As would appear from what has earlier been said, this ground of appeal excited little comment from the parties. One additional relevant consideration would be whether or not the findings that were made by the Magistrate led inevitably to a failure of the claim for restitution. This area was left untouched in submissions. However it is difficult to see how any such claim could survive in the context of the findings made. In my view, the plaintiff has failed to satisfy this Court that there is any utility in referring such a claim back to the Local Court for further hearing. 40 For completeness, I should add that in dealing with the matter of the emailed authorities, Her Honour did observe [at page 5] that:- "Suffice to say the Court perused the cases and the legislative provisions referred to it, and formed the view that given the state of the plaintiff's evidence those references did not assist his case, nor did the material assist the Court in its consideration of the evidence and its determination of the issues raised in the proceedings."