Excel Concrete (NSW) Pty Ltd v John Matthews trading as Portville Developments & Matthews JV & Ors [2007] NSWSC 575

New South Wales Supreme Court

CITATION : Excel Concrete (NSW) Pty Ltd v John Matthews trading as Portville Developments & Matthews JV & Ors [2007] NSWSC 575

HEARING DATE(S) : 4 June 2007

JUDGMENT DATE : 7 June 2007

JURISDICTION : Common Law

JUDGMENT OF : Simpson J

DECISION : Appeal dismissed with costs.

CATCHWORDS : APPEAL – appeal from Local Court magistrate – appeal available on question of mixed fact and law – no issue of law identified – appeal incompetent

LEGISLATION CITED : Local Courts Act 1982 ss 73, 74

Excel Concrete (NSW) Pty Ltd (Plaintiff) PARTIES : John Matthews trading as Portville Developments & Matthews JV (First Defendant) Victor Micallef trading as Portville Developments (Second Defendant) Portville Developments (No 1) Pty Ltd (Third Defendant)

FILE NUMBER(S) : SC 15474 of 2006

COUNSEL : A Spencer (Plaintiff) G Carolan (Defendants)

SOLICITORS : Simons Ravden (Plaintiff) Cumberland Frank (Defendants)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : LC 9465 of 2005

LOWER COURT JUDICIAL OFFICER : Magistrate S Flood

LOWER COURT DATE OF DECISION : 11 September 2006

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROGRESSIVE LIST

Simpson J

7 June 2007

15474/06 Excel Concrete (NSW) Pty Ltd v John Matthews trading as Portville Developments & Matthews JV & Ors

JUDGMENT 1 HER HONOUR: By summons filed on 10 November 2006 (and amended on the day fixed for hearing, 4 June 2007) the plaintiff, Excel Concrete (NSW) Pty Ltd ("Excel"), seeks leave to appeal against a decision of Local Court Magistrate S Flood delivered on 11 September 2006. 2 The proceedings in the Local Court were commenced by statement of claim filed on 30 August 2005. Excel claimed damages for goods sold and delivered to the defendants (John Matthews and Victor Micallef trading as Portville Developments and Matthews JV) together with interest. The substance of the proceedings was the plaintiff's claim for the sum of $40,357.24 being the contract price for delivery of a quantity of ready mixed concrete. By defence and cross-claim the defendants admitted delivery of the concrete, but claimed that it failed to conform to the terms of the contract; that it was not fit for the purpose for which it was purchased; and that it was otherwise defective. They claimed the sum of $35,200 said to have been incurred by way of rectification. 3 The proceedings were heard in the Local Court in Sydney on 24 and 25 May 2006. Evidence was given by way of affidavit and a number of witnesses gave oral evidence. At least two of these witnesses were experts, each of whom had provided a report. 4 The Magistrate delivered judgment orally on 11 September 2006. On Excel's claim he ordered that Excel be awarded the sum $10,222.52 in damages. On the cross-claim he ordered that the defendants/cross-claimants be awarded the sum of $60,000. (This, in fact, was a reduction from a sum in excess of that figure to which he found they were entitled, but represents the limit of the Local Court jurisdiction.) 5 Put briefly, the focus in the Local Court was on the quality of the concrete delivered and what was reasonably available and necessary to rectify the defect and produce a finished result as nearly as possible in accordance with the terms (express or implied) of the contract. The defendants alleged that, on the concrete being poured, cracks appeared in the surface, denoting a defect in the concrete. The contest essentially concerned the cause of the cracking. The defendants' case was that the cracks arose from an inadequate mix of aggregate and concrete and/or excessive water content. The plaintiff's case appears to have been that water was or may have been added to the concrete by employees of the defendants after delivery. It was this to which much of the evidence, both expert and, to a certain extent, lay, was directed. However, it appears that the ground upon which the cases were built changed from time to time. The Magistrate noted, during the course of his judgment, that counsel for the plaintiff had conceded: "The excess water argument … seems to have trickled away to nothing",