Tagget v McLean Austquip Pty Limited [2014] NSWSC 1310

Supreme Court New South Wales

Medium Neutral Citation: Tagget v McLean Austquip Pty Limited [2014] NSWSC 1310 Hearing dates: 13 September 2013 Decision date: 17 September 2014 Jurisdiction: Common Law Before: Hidden J Decision: Appeal dismissed Catchwords: LOCAL COURT CIVIL CLAIM - appeal on questions of law - action for work done and materials provided - whether claim contractual or restitutionary - reasonableness of amount claimed Legislation Cited: Builders' Licencing Act 1971 Local Court Act 2007 Cases Cited: Castano v Ashglow Pty Ltd [2009] NSWSC 919 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Horton v Jones [No 1] (1934) 34 SR (NSW) 359 Lumbers v W Cook Builders Pty Ltd [2008] HCA 27 Pavey & Matthews Pty Ltd v Paul (1986) 162 CLR 22 Category: Principal judgment Parties: Peter Francis Tagget (appellant) McLean Austquip Pty Limited (respondent) Representation: Counsel: W Calokerinos (appellant) J-J Loofs (respondent) Solicitors: Grant Patrick Butterfield - Marsdens Law Group (appellant) Paul Brown - McDonald & Partners (respondent) File Number(s): 2013/99061

Judgment 1HIS HONOUR: This is an appeal, pursuant to s 39 of the Local Court Act 2007, arising from proceedings in the Local Court brought by McLean Austquip Pty Limited ("McLean") against Peter Tagget. McLean was successful, and Mr Tagget has appealed to this court on questions of law. If the appeal is upheld he seeks an order pursuant to s 41(1)(c) of the Local Court Act remitting the matter to the Local Court for redetermination. 2McLean brought the proceedings in the Local Court for the recovery of money said to be owing by Mr Tagget for work done and materials supplied. Mr Tagget was the sole director of a company, Mongrel Developments Pty Ltd ("Mongrel Developments"), which McLean joined as a second defendant in the proceedings, being unsure whether the correct defendant was that company or Mr Tagget personally. As I understand it, Mr Tagget's business was the supply of bulldozing and excavator services. In the light of evidence of the dealings between McLean and Mr Tagget, the magistrate who heard the matter determined that Mr Tagget was "the relevant defendant". The claim against Mongrel Developments was dismissed. 3McLean's claim was for repairs it had undertaken for Mr Tagget to an excavator and a bulldozer. The only evidence before the magistrate was led in McLean's case, principally an affidavit of its sole director, Mr John McLean, to which was annexed relevant documentation, including invoices. The amount outstanding was said to be roughly $42,000. Mr Tagget led no evidence. Both parties were represented in the Local Court, but not by counsel who appeared in this court. 4The magistrate awarded McLean the amount sought, plus interest and costs. His Honour found that the work specified in the invoices had been requested by Mr Tagget and performed by McLean, and that the amounts claimed were reasonable. He noted that there was no evidence of any complaint by Mr Tagget about those amounts, or about the quality of the work undertaken and the materials provided. 5The statement of claim pleaded against Mr Tagget or Mongrel Developments, or both, indebtedness to McLean in the relevant amount in respect of work done and materials supplied to either or both of the defendants at the request of Mr Tagget, and the failure or refusal of the defendants to pay. The defence was a denial of that claim. 6In giving judgment the magistrate did not specify whether the claim was being decided as a contract claim or a quantum meruit/restitutionary claim. At the outset of the hearing the solicitor for Mr Tagget, in the course of objecting to some of the evidence, argued that the claim pleaded was restitutionary, effectively alleging an unjust enrichment to Mr Tagget for a sum which must be proved to be reasonable. He contended that a claim in contract had not been pleaded. The solicitor for Mr McLean did not concede that it was not a contract claim, saying that the pleadings were "typical for a Local Court matter." The magistrate ruled that he was dealing with an oral contract for repair, which included an implied term that McLean would charge a reasonable price. It was this issue which is the subject of the appeal.