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Waldock v Kel Evans Pools Pty Ltd[2013] QDC 156

Waldock v Kel Evans Pools Pty Ltd[2013] QDC 156

DISTRICT COURT OF QUEENSLAND

CITATION:

Waldock & Anor v Kel Evans Pools Pty Ltd & Anor [2013] QDC 156

PARTIES:

DAVID WALDOCK
(Appellant/Plaintiff)

and

NOELEEN WALDOCK
(Appellant/Plaintiff)

v

KEL EVANS POOLS PTY LTD ACN 076 467 635
(First Respondent/First Defendant)

and

DES NEWPORT CONSULTING ENGINEERS PTY LTD ACN 010 668 078
(Second Respondent/Second Defendant)

FILE NO/S:

4927/12

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

12 July 2013

DELIVERED AT:

Brisbane 

HEARING DATE:

4 and 10 July 2013

JUDGE:

Smith DCJ

ORDER:

  1. The Appeal is allowed and the decisions below are set aside.
  2. Pursuant to section 47(b) of the Magistrates Court Act 1921 (Q) the matter is remitted to the Magistrates Court Brisbane for retrial before a different Magistrate.
  3. Order that the Respondents pay the Appellants’ costs of and incidental to this appeal as agreed or to be assessed.
  4. Grant the Respondents indemnity certificates pursuant to section 15(2) of the Appeal Costs Fund Act 1973 (Q).

CATCHWORDS:

APPEAL AND NEW TRIAL – whether the reasons given by the court below were sufficient

Appeal Costs Fund Act 1973 (Q) ss 15, 16 and 17

Magistrates Court Act 1921 (Q) s 47

Abalos v Australian Postal Commission (1990) 171 CLR 167

Camden v McKenzie [2008] 1 Qd R 39

Drew v Makita (Australia) Pty Ltd [2009] QCA 66

Martin v Rowling and Anor [2005] QCA 174

NRMA Insurance Ltd v Tatt & Anor (1989) 94 FLR 339

Pettitt v Dunkley [1971] 1 NSWLR 376

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

COUNSEL:

A Vasta QC with P Trout for the Appellants

M Drysdale for the First Respondent

J Meredith for the Second Respondent

SOLICITORS:

Dare Lawyers for the Appellants

Walker Pender for the First Respondent

Crouch and Lyndon for the Second Respondent

Introduction

  1. [1]
    This is an appeal by the Appellants against a decision of the Brisbane Magistrates Court on 19 November 2012 to dismiss their claim against the Respondents.

Grounds of appeal

  1. [2]
    The grounds of appeal are:
  1. The Magistrate erred in law in not considering the Plaintiffs’/Appellants’ claims under the Trade Practices Act 1974 (Cth).
  1. The Magistrate failed to state any sufficient reasons for not accepting the Plaintiffs’/Appellants’ expert engineer in preference to that of the Defendants’/Respondents’ expert engineer.
  1. The Magistrate erred in law in failing to find on the balance of probabilities that the damage to the pool was caused by the inadequate design of the pool, having regard to the site which contained highly and extremely reactive clay.
  1. The findings resulting in the dismissal of the Plaintiffs’/Appellants’ claim were against the evidence and the weight of the evidence.
  1. [3]
    On 10 July 2013 I gave the Appellants leave to amend the Notice of Appeal by adding the following two grounds:
  1. The primary court erred in law in failing to give any or any sufficient reasons as to why the Appellants’ claim for damages for breach of contract/and or negligence failed against the Respondents.
  1. The Primary court erred in law in failing to give any or any sufficient reasons for not accepting the appellants’ evidence and/or their witnesses as against the relevant evidence of the first respondent and/or the second respondent and/or their witnesses.
  1. [4]
    With the agreement of the parties, it was decided that the court should deal with the appeal insofar as the sufficiency of reasons is concerned. This is because if the appeal was allowed on that ground, it ultimately was agreed that the matter should be remitted for retrial before a different Magistrate pursuant to s 47(b) of the Magistrates Court Act 1921 (Q).
  1. [5]
    It was also agreed that if the appeal was dismissed on that ground, then further argument could occur on the remaining grounds of appeal.
  1. [6]
    My conclusion is that the appeal should be allowed on the ground that the learned Magistrate failed to give sufficient reasons for rejecting the Appellants’ case; rejecting the Appellants’ evidence and rejecting the Appellants’ expert.

Pleadings

  1. [7]
    The Appellants by their Amended Claim sought as against the First Respondent $73,369.02 damages for breach of contract; damages for misleading and deceptive conduct pursuant to the Trade Practices Act; damages for negligence and, alternatively, $73,369.02 from the Second Respondent for damages for professional negligence.
  1. [8]
    In the Amended Statement of Claim, the following was alleged:
  1. (a)
    That on 6 September 2006 the Appellants and the First Respondent entered into a contract where by the First Respondent would construct an in-ground pool at the Appellants’ residence at 80 Coleyville Road, Mutdapilly, Queensland, for $28,000.
  1. (b)
    In order to induce the Appellants to enter into the contract, the First Respondent represented that he was a “local builder specialising in concrete, in-ground swimming pools”; had experience of the local area; would construct a suitable in-ground pool for the site; a soil test at the site was not necessary and the insertion of additional reinforcing bars would be sufficient to build a pool that would be suitable for the soil and site conditions.
  1. (c)
    Acting on such representations and warranties, it is alleged the Appellants completed the contract and paid the money.
  1. (d)
    It is alleged that there was an express or implied term of the contract, or alternatively the First Respondent warranted or it was the duty of the First Respondent to:
  1. (i)
    exercise all reasonable care, skill, diligence and competence as a builder;
  1. (ii)
    prepare or have prepared all necessary specifications;
  1. (iii)
    carry out any necessary surveys, examinations and inquiries;
  1. (iv)
    carry out the work in a good and workman-like manner with proper and sufficient materials.
  1. (e)
    It is alleged in the Amended Statement of Claim that since the construction of the pool the Appellants had discovered that representations made by the First Respondent were untrue and in contravention of s 52 of the Trade Practices Act and warranties were breached in that:
  1. (i)
    The First Respondent was not a specialist in-ground pool builder;
  1. (ii)
    The pool installed was not suitable for the Appellants’ site;
  1. (iii)
    A soil test for the site was necessary;
  1. (iv)
    The adding of additional reinforcing bar would not make the pool suitable for the Appellants’ site conditions;
  1. (v)
    The First Respondent did not have experience of the local area;
  1. (vi)
    The pool moved considerably and caused cracking and damage to the surrounds;
  1. (vii)
    The pool was not designed for highly reactive soil conditions;
  1. (viii)
    Appropriate drainage should have been installed when the pool was built to deal with on-site water and soil conditions.
  1. (f)
    It is alleged, alternatively, that the First Respondent breached the implied conditions of the contract with the Appellants and was guilty of negligence.
  1. (g)
    The case against the Second Respondent is that the Second Respondent prepared plans and specifications for the building of the pool. It is alleged that in those circumstances the Second Respondent owed to the Appellants a duty of care. It is alleged that the duty of care was breached because the Second Respondent failed to properly design the pool.
  1. (h)
    The amount of $73,369.02 was sought by way of rectification costs.
  1. [9]
    The First Respondent filed an Amended Defence to the Claim. In that Defence the First Respondent refers to what it alleges were the conversations constituting the contract. It is further alleged that it was an agreed term of there being movement in the finished pool due to the highly/extremely reactive soil. It is alleged this was discussed openly between the Appellants and the First Respondent, and was agreed upon as a condition. It is further denied that it made the representations alleged in particular that a soil test at the site was not necessary. It also denied the allegation that it said that an insertion of an additional reinforcing bar would be sufficient to build a pool that would be suitable for the soil on site conditions. It denies there is any breach of contact or negligence. In para 12 it alleges that it is not the pool which was faulty but the concrete surrounds were. This was not part of the work agreed to be carried out by the First Respondent. It denies the allegation that the design of the pool was not suitable for the conditions at the site and denies that it is liable.
  1. [10]
    The Second Respondent has filed an Amended Defence denying that there is structural detriment to the pool. It alleges the designs were carried out with due reasonable care, skill and diligence.
  1. [11]
    As may be seen from the pleadings, central factual issues in this case were (bearing in mind the onus was on the Appellants):
  1. (a)
    What was discussed between the parties and what representations were made by the First Respondent?
  1. (b)
    What were the conditions of the contract between the parties?
  1. (c)
    Were any of the representations by the First Respondent false or misleading?
  1. (d)
    What was wrong with the pool (if anything)?
  1. (e)
    Was the pool constructed negligently or in breach of contract?
  1. (f)
    Were the designs for the pool negligent or in breach of contract?
  1. (g)
    What was the cost of rectification?
  1. [12]
    To answer these questions the Magistrate needed to make a number of factual findings and give sufficient reasons for such findings.

Evidence at the trial

  1. [13]
    At the trial Mrs Waldock and Mr Waldock gave evidence as to the circumstances leading to the contract with the First Respondent.
  1. [14]
    Mr Evans gave evidence as to what he alleges was said in particular at meetings with the Appellants.
  1. [15]
    The Appellants also called an expert engineer, Mr Hughes, to give evidence supporting their claim.
  1. [16]
    The Respondents relied on the evidence of Mr Morrison, who gave expert evidence supporting their contentions.
  1. [17]
    Mr Newport was also called concerning his design.

Nolene Waldock

  1. [18]
    Noelene Waldock gave evidence that in 2006 she and her husband decided to build a swimming pool at their property at Mutdapilly because of their son’s back problem. They saw advertisements for the First Respondent’s company in the Queensland Times in June 2006. They were drawn to these advertisements because it was represented he was a specialist in building in-ground concrete pools. She gave evidence that she, her husband David Waldock and Warren Kruger met with Kel Evans in early July (T1-5.50).
  1. [19]
    She gave evidence they showed Mr Evans the area for the pool. He had some photographs with him and talked of his experience in building concrete pools. They wanted a pool as long as possible to fit in the space available. They wanted a spa seat and concrete surrounds. She gave evidence they asked him if he was going to do a soil test and they mentioned that they had clay soil (T1-6.20).
  1. [20]
    He said they did not need to do a soil test (T1-11.10).
  1. [21]
    Her brother Raymond was going to do the excavation work for the pool. She said that Mr Evans told them that concerning the concrete surrounds they were not allowed to drill into the pool or attach the concrete to the pool (T1-7.1). She said that Mr Evans said that he did not want to do the concrete surrounds (T1-7.5). She said that they wanted a rectangular pool (T1-7.15). They chose Kel Evans because of his experience (T1-7.30). She said they entered into a contract with the First Respondent in September 2006. The pool started in mid September 2006 and finished towards the end of November 2006 (T1-7.50).
  1. [22]
    She gave evidence that after construction the pool had moved and the southern end had risen and the concrete surrounds had broken down (T1-7.52). She gave evidence that the pool was not the one they had agreed to (T1-8.1).
  1. [23]
    She said she was induced by the advertisement to enter into the contract with the First Respondents (T1-8.50).
  1. [24]
    She denied they already knew it was highly reactive soil when Mr Evans came to the meeting (T1-9.51). She denied they had previously had a soil test and denied any movement of the pergola or a paved area (T1-9-T1-10).
  1. [25]
    With respect to whether they needed a soil test Mr Evans said they didn’t need one and he would just use extra “rio” in the pool (T1-11.15).
  1. [26]
    She agreed they used another company “Back to Front” landscapers – Paul McLucas to do the pool surrounds (T1-15.42).
  1. [27]
    She first noticed something going wrong with the pool in mid 2009 when the concrete started moving on the southern end (T1-16.22).

Warren Kruger

  1. [28]
    Warren Kruger gave evidence that he was present at this initial conversation with Mr Evans (T1-35.32).
  1. [29]
    He said that the Waldocks wanted concrete around the pool but Mr Evans said that he built pools and didn’t do surrounds. He also said he didn’t want the surrounds connected to the pool (T1-36.13-22).
  1. [30]
    He also said he didn’t want anyone to drill into the pool (T1-36.29).
  1. [31]
    There were discussions that the clay was wet and moist and he said there would be no worries (T1-36.35).
  1. [32]
    In cross-examination Mr Kruger said that the Appellants did not know there was reactive soil (T1-39.40). He said that Mr Evans said “I’m a pool builder not a landscaper” (T1-42.15).
  1. [33]
    It may be seen Mr Kruger’s evidence tended to support the Appellants’ case.

David Waldock

  1. [34]
    David Waldock gave evidence that they met with Mr Evans at about 5.00 to 5.30 pm. Noelene and Mr Kruger were also present during this discussion. They wanted a long pool (T1-45.52). Mr Evans said he had built a lot of pools in the area but he said he didn’t do surrounds. He was a pool builder not a concreter (T1‑46.48).
  1. [35]
    They informed Mr Evans the soil moved (T1-46.50). He said he did not need to do a soil test. He would put extra “Rio” on the pool (T1-47.11).
  1. [36]
    He said there would be a baffle wall with the pool on the surrounds (T1-47.41).
  1. [37]
    He also instructed Mr Waldock not to drill into his pool to attach the surrounds (T1‑49.25).
  1. [38]
    Mr Waldock gave evidence they later instructed a concreter Mr McLucas to do the surrounds (T1-57.1). Raymond Kruger did the excavation. They entered into a contract with the First Respondent on 20 August 2006 (T1-54). The pool commenced two to three weeks later. Later Mr McLucas built the pool surrounds (T1-55).
  1. [39]
    The baffle wall was constructed according to Mr Evans’ instructions (T1-55.50).
  1. [40]
    An impervious foam barrier was also installed. The pool was handed over in December 2006. After a couple of years the pool started lifting. The water level changed. The surrounds rose (T1-60). They became higher than the pool (T1-60.1-20). The pool was losing water (T1-63.1). There was a daily loss. Markings were made. In mid 2009 Mr Evans was phoned and he came out. He alleged it was a failure of the surrounds and suggested that they get a pool leak person.
  1. [41]
    The pool continued to lose water and the surrounds continued to move (T1-64.50). The concrete surrounds were not attached explicitly on Mr Evans’ instructions (T1‑65.10).
  1. [42]
    In early 2010 Mr Waldock noticed a crack from the relief valve (T1-65.31). The Building Services Authority sent Mr Hughes an engineer to inspect the pool and his report was that it was design failure (T1-65.55). Mr Lex Doust from Pool Leaks did a test and found a broken solar suction pipe.
  1. [43]
    In cross-examination Mr Waldock agreed that he never gave Mr McLucas a copy of the Newport plans because Mr Evans specifically told him not to drill into the pool (T1-71.50).
  1. [44]
    He repeated his evidence that Mr Evans said he did not do soil tests (T1-72.45) and refused to do the surrounds.
  1. [45]
    It was put to him that Mr Evans did explain that the rat/baffle wall had to be tied into the surrounds (T1-74.3). This was denied.
  1. [46]
    I should mention that it was then put to him that “if your wife said that he did that’s a mistake by her, is it or could it be a mistake by you that you don’t recall that.” (T1-74.8). He said he did not recall that and agreed it may have been said.
  1. [47]
    I cannot see anywhere in Mrs Waldock’s evidence where she said this (see her evidence at T1-13.10-20 and T1-24.35). Objection should have been taken to this form of question. The answer is of no value in my respectful opinion.

Kel Evans

  1. [48]
    Now Mr Evans gave contrary evidence to that which was given by the three witnesses called by the Appellant. He gave evidence that he had regularly constructed pools in expansive soils before (T2-5.50).
  1. [49]
    He said that with expansive soil pool design it was necessary for either steel being bent over and there is one pour and the second way is there is a baffle wall which is tied to the steel reinforcing (T2-6.20).
  1. [50]
    In either plan the surrounds are tied to the pool shell (T2-6.22).
  1. [51]
    He agreed that he met with Mr Waldock and Mrs Waldock and Warren Kruger late one afternoon just before dark (T2-7.22).
  1. [52]
    He confirmed that Mr Waldock said they wanted a pool as long as possible (T2‑8.1). He alleged that Mr Waldock asked whether he did soil tests and Evans asked whether there was a reason for this. Waldock said “because we’ve got a lot of clay here and we get a lot of movement around our property.” 
  1. [53]
    Evans said that he advised Waldock to go to the highly reactive design because if they thought they had highly reactive soil they should go straight to the reactive design rather than getting a test because it would save money (T2-8.22).
  1. [54]
    Evans alleged that he explained the highly reactive design involved putting extra steel into the pool and strengthening the bonding involving the baffle wall (T2‑8.42). He disputed the Waldocks’ evidence that he told them he did not build concrete pathways (T2-9.5). He alleged that there was a discussion about stencilling and he said he didn’t do stencilling (T2-9.15). He also alleges that he told them about doing the baffle wall and tying it back into the pool (T2-9.20). He alleged there was a specific discussion as to the coping including the baffle wall (T2-9.25).
  1. [55]
    He agreed that his quote did not include the surrounds (T2-9.42).
  1. [56]
    He agreed that ultimately a contract was signed. He said that he had Mr Newport inspect the work (T2-12.42).
  1. [57]
    He said that he complied strictly with the plans (T2-12.53).
  1. [58]
    In mid-2009 he went and inspected the pool. He alleged it was 15 to 18 mm out of level and there were severe cracks in the concrete surrounds (T2-14.1). He alleged he told the Waldocks not to be worried about the pool moving it was the surrounds (T2-14.20).
  1. [59]
    In cross-examination by the Second Respondent’s counsel Mr Evans denied having told the Appellants’ that they could not drill into the pool (T2-25.22).
  1. [60]
    The Appellants’ counsel made the point that the First Respondent had produced photographs of pools but not in reactive soil (T2-26.52).
  1. [61]
    He agreed that he would have given 150-160 quotes in 2006 (T2-29.1).
  1. [62]
    Despite this he alleges he recalled the details of the 2006 conversation (T2-29.25).
  1. [63]
    He admitted that at no time did he ask whether the Waldocks had the concrete of the surrounds secured to the pool (T2-33.42). He repeated his evidence he told them not to drill into the pool (T2-33.50).
  1. [64]
    He agreed he did not mark where the holes were to be drilled (T2-34.40).
  1. [65]
    He admitted that at no time when he sat down with the Waldocks did he explain the significance of the concrete surrounds in that type of soil (T2-37.30).
  1. [66]
    He admitted that his work was covered by the Australian Standard for PVC piping (T2-44.42). He accepted the standard required a flexible joint although he did not agree with this (T2-45.20).
  1. [67]
    It may be seen that there was clearly a conflict between the evidence given by Mr Evans and the evidence given by the three witnesses called by the Appellant.
  1. [68]
    This conflict needed to be resolved by the Magistrate in his findings.

Robert Hughes

  1. [69]
    Turning then to the expert evidence Mr Robert Hughes gave evidence for the Appellant. He was a structural and geo-technical engineer with 47 years of experience and had extensive experience with moisture reactive clay (T1-84-85).
  1. [70]
    He was a man who prepared reports and carried out investigations for the BSA.
  1. [71]
    In his first report dated 9 June 2010 (part of Exhibit 6) he said that he inspected the pool on 4 June 2010. He noted:
  1. (a)
    The pool was out of level. The measurements from the top of the coping to the water line showed it was 30 mm higher at the deep end than the shallow end. Australian standard 2873-1992 provides that the dimension tolerance is plus or minus 15 mm. It was thought that the 30 mm out of level was as a result of pool movement not construction inaccuracy (p 1.9).
  1. (b)
    There was a hairline crack in the pool floor running North and South from the hydro-static valve (p 2.1).
  1. (c)
    There had been extensive movement of the concrete surrounds (p 2.3).
  1. (d)
    No pre-construction site investigation had been carried out for the pool. Mr Evans said that he did not consider this necessary as the drawings by Des Newport Consulting Engineers contained detail for construction on reactive clay soil. Action Consulting Engineers Pty Ltd of Tennyson in their report noted that the site was Class E (extremely reactive) in accordance with Australian Standard AS 2870 (p 2.4).
  1. (e)
    With respect to the Second Respondent’s drawings, the pool concrete thickness dimensions and reinforcement were generic and typical of inground sprayed concrete pool designs but were typical of pool designs for stable sites. There was no specific requirement for increased reinforcement or concrete thickness on moisture reactive clay sites. Nor was there any requirement for specific backfill to reduce backfilled moisture reactive clay pressures or for collection of water circulation pipework by means of a flexible pipe which reduced the likelihood of reactive clay causing pipe fracture (p 2.7).
  1. (f)
    It was Mr Hughes’ opinion that the standard design of the Second Respondent was inadequate for highly and extremely reactive clay sites (p 2.8).
  1. (g)
    The out of level of the pool was not an uncommon occurrence with pools built in extremely reactive soils. Covering an area with a pool tends to increase moisture content beneath them because they cut off upwards moisture transpiration and evaporation at the surface. If the soil is moisture reactive it will swell lifting the structure. It is impossible virtually to design against such an effect with a normal swimming pool that has a shallow and deep end. The only reasonable way it can be asked to build a symmetrical pool with the deepest part being the middle and the ends being of equal depth (p 3.1-5).
  1. (h)
    The hairline crack in the floor has two components as a cause namely concrete shrinkage and the upward pressure of swelling moisture reactive clay. The fact the cracks are in the bottom of the pool only and do not propagate up the sides tends to indicate that the major component of the cracking is upwards pressure from the extremely moisture reactive sub-soil (p 3.6).
  1. [72]
    It was Mr Hughes’ conclusion that the primary cause of damage was an inadequate design for an extremely moisture reactive site (p 3.9).
  1. [73]
    In a second report dated 7 June 2011 Mr Hughes stated:
  1. (a)
    That when remeasured on 3 June 2011 the out of level from the north‑west corner to the south-east corner was 42 mm which was well outside construction tolerance (p 2.5).
  1. (b)
    This out of level seemed to be as a result of pool movement and not construction inaccuracy. The movement appeared to be increasing.
  1. (c)
    It was repeated that the design of the pool was not suitable for the conditions of the site and the very reactive clay thereon (p 2.9).
  1. (d)
    It was said that carrying out a soil survey with appropriate laboratory testing of samples is always a preferred option for a significant structure such as a swimming pool however it is rare that a soil survey is carried out for a swimming pool (p 3.2).
  1. (e)
    It was said “we agree that the design is inadequate for highly and extremely reactive clay sites.” (p 3.3)
  1. (f)
    It was said that as far as it can be determined there was no steel reinforcement connecting the surround and the pool edge. It was believed the movement of the stencilled concrete surround was extensive (p 3.8).
  1. (g)
    It was said there was no specific requirement in the design for increased reinforcement or concrete thickness on moisture reactive clay sites (p 4.3).
  1. (h)
    Nowhere on the design drawings could they see an extra concentration of steel related to expected pressures from moisture reactive soils (p 4.3).
  1. (i)
    The impervious moisture area turned down 600 mm at the edge of the surround was ineffectual and a puny attempt to resist the scale of forces and movement possible with highly and extremely reactive clays (p 4.6).
  1. (j)
    It was said that published literature showed that lateral pressures from restrained and wetted very moisture reactive natural clays could be as high as five to ten times greater than active pressure from the same soil acting as moisture stable backfill. (p 5.6)
  1. (k)
    “There is no doubt that the structural capacity of this swimming pool is nowhere near adequate to sustain such lateral loads.” (p 5.7)
  1. (l)
    There is a risk that lateral pressures from the moisture reactive soils will in future cause structural damage such as cracking of the sidewalls of the pool. (p 6.2)
  1. (m)
    It was said:

“Had the owner tied the concrete surround to the pool wall as required by the details shown on the design drawings it would have made little difference to the final damage result and may have allowed damage to occur to the pool coping as a result of moisture reactive clay movements being transmitted from the surround itself.” (p 6.3)

  1. [74]
    In a further report dated 13 June 2011 the view of Mr Hughes that the design of the pool was quite inadequate for the reactive soil was repeated. It was said:

“Given all these deficiencies and the possibility of ongoing movement causing further problems, demolition and reconstruction might be the preferred option … the simple answer may be that the pool (and its surrounds) is not behaving with the same expectations as a pools constructed elsewhere, either in a structural sense or cosmetic sense, and falls well short of what we would consider reasonable construction. On that basis demolition and reconstruction would be appropriate.”

  1. [75]
    There is a further report from Mr Hughes dated 3 August 2011. This was in response to a report obtained from Mr Morrison on the part of the Respondents. It was noted at p 2.5:

“We disagree with the view that the most likely cause of damage to the concrete surrounds, and the pool heave, is the result of ingress of surface water through inadequate seals between the pool coping and the surround, and through joint controls in the surround slab. Whilst it might be a very minor contributor, the amount of moisture that would penetrate is small when compared with internal soil and moisture changes resulting from covering an area of reactive clay with the pool and concrete slab surround … all thoughts of moisture penetration through inadequate seals and control joints of the concrete surround pale into insignificance when compared to the amount of water resulting from the leaking solar heating suction pipe. The considerable rate of water leakage and the time span over which it must have been occurring mean that moisture will have penetrated everywhere under and around the pool shell and surrounds, adding to and causing the substantial and differential swell effects.”

  1. [76]
    In a report dated 23 September 2011 Mr Hughes stated (p 3):

“We have carried out structural calculations that show the equivalent of about twelve of s 12 horizontal bars would be required and the composite coping to withstand the forces that could be applied. The Second Respondent’s design has only four of the low strength s 12 bars.”

  1. [77]
    In a further report dated 26 July 2012 Mr Hughes responded to matters raised in Mr Morrison’s report.
  1. [78]
    Mr Hughes also of course gave oral evidence at the trial.
  1. [79]
    In his evidence he said:
  1. (a)
    That while Mr Newport had used this design on many occasions he had been the subject of BSA proceedings (T1-91.30-41).
  1. (b)
    The slab here was puny (T1-94.10).
  1. (c)
    The slab was not designed in accordance with the Australian standard (T1-94.25) for a stable site (T1-100.11).
  1. (d)
    He expected the pipework to have been flexible (T1-95.15).
  1. (e)
    The barrier of 900mm by 600mm was not sufficient. Common practice has them at 3m by 2m (T-96.42).
  1. (f)
    He said the problem with the pool lifting was not related directly to the surround – even if there was no paving the pool would still have gone out of level (T1-98.55).
  1. (g)
    He has inspected another one of Mr Newport’s pools with similar damage in similar soils (T1-99.30).

Neville Morrison

  1. [80]
    Mr Morrison provided a report (Exhibit 18) for the Respondents dated 10 May 2012.
  1. [81]
    He also was an experienced civil engineer and geo-technical engineer.
  1. [82]
    He pointed out that the hand auger bore hole by ACE was nowhere near the pool and he thought that laboratory tests were not clear (p 2-3).
  1. [83]
    He provided criticisms of the report from Mr Hughes. He said at p 3.8:

“On this site, the aim of the design by DN was to surround the pool by a protective barrier to minimise any soil moisture content change and thus minimise any movement by swelling or shrinking soil. … the concrete slab surrounds have moved significantly away from the pool coping leaving a large gap which allows water entry. If the DN plan was followed, the distance between the pool edge and the first surround joint should have been 1050 mm and a 600 mm deep turn down is added. There would not be a gap at the coping edge. The plan also says to ramp the ground away from the extended coping. Again this was not done. HBW know or ought to know that the likely moisture movement at the edge of a covered area extends about 1.2-1.5 m. With the DN design and the concrete surround there would have been adequate edge protection with an effective protection width of at least 1.5 m. Clearly the pool edge was not built in accordance with the plan. The extended coping was not built, the 600 mm turndown was not built and there is no seal between the concrete surround and the pool. HBW say that the primary cause of damage is inadequate design. This statement should be modified to consider that the pool was not built in accordance with the plans provided.”

  1. [84]
    Mr Morrison concluded that the pool was not constructed according to the plans provided by DN (p 6.8).
  1. [85]
    Any damage does not relate to the pool and the surrounds as designed.
  1. [86]
    It was said there was not satisfactory identification of the soil types.
  1. [87]
    In evidence he said he considered the cutoff wall was adequate (T2-108.10).
  1. [88]
    He did not have an issue concerning the PVC pipe (T2-108.40).
  1. [89]
    He said that if the surround and baffle wall was done properly this would maintain the soil within tolerable limits (T2-109.40).
  1. [90]
    He said that swelling is a progressive thing taking a long time to occur. When he looked at the photographs this soil was one of the worst he had seen (T2-110.10).
  1. [91]
    He said that if the water came from underneath one would get heave at the shallow end as there is less restraint there (T2-110.45).
  1. [92]
    In cross-examination the witness said he was not “entirely” semi‑retired (T2‑111.11).
  1. [93]
    He admitted not carrying out any soil tests for his report (T2-112.1). He admitted he had not gone to the site (T2-112.5).
  1. [94]
    He said that if the surround was tied to the pool the whole structure could still lift (T2-113.25).
  1. [95]
    He agreed it would be prudent to visit a site before providing designs for it (T2‑113.50).
  1. [96]
    He agreed the plan required the ground to ramp away. This was not done (T2‑115.20).
  1. [97]
    He agreed that reactive clay soils can exert higher swell or upward pressures (T2‑115.40).
  1. [98]
    He said he had not seen water coming up through sandstone before (T2-117.11). He agreed that if there was a deeper and wider cutoff wall it would be better (T2‑117.41).
  1. [99]
    He thought the pool movement had caused the break in the pipe and this then caused a lot of damage (T2-118.10).

Joint expert meeting

  1. [100]
    There was a meeting of the two experts on 27 April 2012 (part of Exhibit 6). The following is noted from this meeting:
  1. (a)
    The experts agreed that the ACE conclusion of an “E” site was questionable because of the test location.
  1. (b)
    The experts agreed the pool is out of level and movement to the pool and surrounds is substantial.
  1. (c)
    The experts agreed that there was no pre-design site investigation which is good practice but not normally done for a domestic swimming pool.
  1. (d)
    On the basis of their experience the experts agreed that the movement of the pool probably showed a moisture reactive clay on the site.
  1. (e)
    The experts agreed that the effectiveness of the standard swimming pool design of Newport to resist moisture reactive clay effects could have been improved with a deeper cut off wall.
  1. (f)
    It was agreed that if correctly constructed in an integral manner with a pool, a more extensive concrete surround than shown on the standard design of Newport could improve resistance to moisture reactive clay movement.
  1. (g)
    It was agreed that where there was moisture reactive clay flexible water pipe connections to a rigid structure such as a house or swimming pool is good practice.
  1. (h)
    It was agreed the swimming pool surround was not built in accordance with the Newport design because continuity of concrete and steel reinforcement from the pool coping to the surround was not provided.
  1. (i)
    Mr Morrison disagreed with Mr Hughes that the primary cause of damage was inadequate design. Mr Morrison thought the primary cause of damage was that the pool surround had not been connected to the pool coping.
  1. (j)
    It was agreed that the crack in the pool floor was not currently a structural problem.
  1. (k)
    It was agreed that there was no current sign of structural distress from the pool resulting from natural soil pressures and the current pool tilt has not made the pool unserviceable.
  1. (l)
    It was agreed that the broken solar heating circulation pipeline could have contributed to continuing significant movement of the pool and pool movement has probably caused the pipe to break not the other way around.
  1. (m)
    The experts agreed the process of movement of the pool and its surrounds has not been decisively determined nonetheless it is sufficient to say that both movements related to moisture content changes and reactive clay.
  1. (n)
    It was agreed that a design could be produced to minimise further movement of the pool.
  1. (o)
    It was agreed the pool surround is not behaving as could reasonably be expected.
  1. (p)
    It was agreed there was a requirement on Newport Engineers’ drawings for reinforcement within the required baffle wall in the ground.

Desmond Newport

  1. [101]
    Mr Newport gave evidence. His CV was tendered as Exhibit 15.
  1. [102]
    He said he had been an engineer since 1969. (T2-69)
  1. [103]
    He alleged he had not received complaints over his structural designs (T2-70.11).
  1. [104]
    He confirmed that Exhibit 11 were the plans he produced (T2-70).
  1. [105]
    He admitted he knew that Mutdapilly was an area with highly reactive clay. There were no discussions with Mr Evans concerning the soil conditions (T2-73.2).
  1. [106]
    He said his plans were appropriate for the site (T2-73.32).
  1. [107]
    The job was certified by Mr Kenyan (T2-77) although he admitted they did not check to see if the surrounds had been done (T2-78.5).
  1. [108]
    Contrary to Mr Hughes evidence he believed he had complied with the Australian Standard (T2-80.10).
  1. [109]
    He also disputed Mr Hughes’ opinion as to the water lifting the pool (T2-80.52).
  1. [110]
    As to the cracks in the pool he said that he thought there was shrinkage and the gap has admitted water which ultimately lead to the water getting under the pool and lifting it (T2-81.11-40).
  1. [111]
    In cross-examination by the First Respondent’s counsel the witness said he did not think there was a problem using the PVC pipes the way Mr Evans did (T2-89.42).
  1. [112]
    The witness agreed the walls had bowed (T2-99.51) and the pool had come out of the ground at the deep end (T2-100.5).
  1. [113]
    He thought it had lifted because the moisture had run through the gravel blanket under the pool (T2-100.11). He suggested this was by water splash over the edge for a couple of years (T2-100.35).
  1. [114]
    He agreed that he never inspected the surrounds. He agreed that the pool was not complete at the time he signed the certification (T2-103.50).
  1. [115]
    As can be seen there was still a dispute between the experts as to the ultimate conclusions here.

Other witnesses

  1. [116]
    Lex Doust in Exhibit 8 provided a report which showed that the solar suction line had a major break causing a water loss of about 1,000 litres per day.
  1. [117]
    Mr Irwin, Mr Cameron and Mr Barrelo gave evidence as to rectification costs.
  1. [118]
    Mr Kenyan gave evidence he certified the pool (Exhibit 16). He however never inspected the surrounds (T2-87.40).
  1. [119]
    There were other witnesses called but they are not relevant for present purposes.

Submissions made to the Magistrate

  1. [120]
    The Appellants, in their submissions, submitted that the evidence of the Appellants was clear (para 16). It was submitted that the evidence of the Appellants and their witnesses should be accepted.
  1. [121]
    The Appellants submitted that Mr Hughes’ evidence should be accepted and given more weight than that of Mr Morrison.
  1. [122]
    It was submitted that the importance of the concrete surrounds was never fully made known to them by the pool builder (para 5).
  1. [123]
    The First Respondent, in its submissions, submitted that the court would accept the evidence of Mr Evans’ evidence over that of the Appellants’ (para 25). It was submitted the court would accept the evidence of Mr Evans as to what he told the Appellants (para 26).
  1. [124]
    It was submitted in effect that the court would not accept Mr Hughes’ evidence (para 39).
  1. [125]
    The Second Respondent, in its submissions, submitted that Mr Morrison’s evidence should be accepted over that of Mr Hughes (para 19-32).
  1. [126]
    It was further submitted that the evidence of Mr Kruger and the Appellants should be rejected as to what was said at the meeting with Mr Evans (para 33). Indeed, it was suggested there was collusion between them.

Submissions on appeal

  1. [127]
    I have considered all the written and oral submissions made by counsel.
  1. [128]
    I summarise them below.
  1. [129]
    The Appellants submit on this ground:
  1. (a)
    Whilst the Magistrate accepted the Respondents’ expert over the Appellants’ expert reasons for this should have been given.
  1. (b)
    It is submitted that the Appellants’ expert was very experienced with the properties of clay soil and had visited the site. He gave evidence the movement of the pool was unconnected to the surrounds (T1‑85.19-30).
  1. (c)
    Mr Morrison had not visited the site and had little experience with the correlation between pool construction failures and reactive clay soil sites (T2-112.13).
  1. (d)
    It is submitted that the Magistrate made no reference to the reports from Mr Hughes when he made his findings (para 15).
  1. (e)
    It was submitted that the Magistrate did not take into account crucial issues referred to in the agreed statement of experts.
  1. (f)
    As I have noted earlier in oral argument the Appellants also relied on a lack of reasons as to rejecting the Appellants’ evidence. This was also implicit in the Appellants’ argument concerning the lack of reasons as to the Trade Practices Act claim (see written submissions pp 2-3).
  1. (g)
    Mr Kruger’s evidence was not properly considered by the Magistrate.
  1. (h)
    In oral argument Mr Vasta asserted the Magistrate failed to consider the elements of the Trade Practices Act action, the action in contract or the action in negligence.
  1. [130]
    The First Respondent submitted:
  1. (a)
    That a rational and reasoned analysis of the Magistrates reasons reveal they are adequate.
  1. (b)
    That one should read the entirety of the judgment which reveals the reasoning process.
  1. (c)
    The Magistrate was clearly aware of the issues. He had referred to them early in the judgment.
  1. (d)
    It is a matter of degree and he passed the necessary standard.
  1. (e)
    On the Trade Practices Act issue there was no mention of this action in the final submissions and the factual findings sufficiently dispose of this.
  1. (f)
    [55] to [59] of the judgment sufficiently deal with the factual issues.
  1. [131]
    The Second Respondent submitted that:
  1. (a)
    The Magistrate did express sufficient reasons for preferring Mr Morrison.
  1. (b)
    His finding should be considered in light of the evidence. 
  1. (c)
    In oral argument Mr Meredith adopted Mr Drysdale’s submissions.
  1. (d)
    He repeated that the judgment should be considered as a whole in light of the submissions made at the trial. He relied on [42]-[59] of the judgment.
  1. [132]
    After the court adjourned to consider the matter the Second Respondent delivered further written submissions. The Appellants objected to these.
  1. [133]
    The hearing resumed on 10July 2013 to consider these matters.
  1. [134]
    I gave leave to the Second Respondent to tender these further submissions and heard further submissions from the parties.
  1. [135]
    The second Respondent submitted:
  1. (a)
    That the appeal insofar as the failure to give reasons concerning Mr Kruger’s evidence and the Appellants’ evidence as to conversations about whether the surrounds had to be tied into the pool should be dismissed as this matter was not pleaded in the statement of claim, the amended statement of claim or the two replies.
  1. (b)
    It was submitted the Respondents were taken by surprise at the trial of the allegation. I note however that the evidence was not the subject of any objection on this ground at the time the evidence was given.
  1. (c)
    It was submitted the issue of Mr Kruger’s evidence is not referred to in the Notice of Appeal or in the outline of submissions. I note though that this point falls away when one considers the grounds have been amended.
  1. (d)
    It was submitted that the finding at [55] implicitly means he did not accept Mr Kruger’s evidence.
  1. (e)
    It is submitted the Appellants do not refer to [55] in the Notice of Appeal or in the written submissions.
  1. (f)
    It is submitted the finding by the Magistrate in [55] is justified when one considers all of the judgment (see [13], [21], [25], [32], [33], [35] and [49] to [53] of the judgment below).
  1. (g)
    I note however that [55] has been the subject of detailed submissions before this court.
  1. [136]
    The First Respondent submitted that:
  1. (a)
    Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 directly applied (also see Drew v Makita (Australia) Pty Ltd [2009] QCA 66 at [57]-[66]).
  1. (b)
    That one should consider [34]-[35] of the judgment below in construing the findings.
  1. (c)
    The Magistrate clearly was aware of the differences to the pleaded case.
  1. (d)
    On the issue of Mr Hughes’ evidence concerning another alleged defect in Mr Newport’s design it was submitted the evidence was not sufficiently certain to draw the inference that they were the same problems as the present case and the matter was never put to Mr Newport.
  1. (e)
    The reasons meet the minimum standard.
  1. [137]
    The Appellants submitted:
  1. (a)
    The decision was made without reference to the transcript. (All parties agreed on this.)
  1. (b)
    In a complex matter such as this the learned Magistrate should have had regard to the transcript.
  1. (c)
    The evidence-in-chief of Mr Hughes was in the eight reports tendered. The Magistrate made no reference to any of these.
  1. (d)
    It was submitted the Magistrate should have had regard to the interest Mr Newport had in “upholding” his design (see evidence at T2-80.)

Legal principles

  1. [138]
    As noted above, the Appellants allege that the reasons of the learned Magistrate are insufficient.
  1. [139]
    The failure to give reasons amounts to an error of law (see Pettitt v Dunkley [1971] 1 NSWLR 376).
  1. [140]
    In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Kirby P at 259.C said:

“This decision does not require of trial Judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the Judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a Judge to state generally and briefly the grounds which had led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged.  Justice has not been done and has not been seen to be done. Where it is necessary, for default of reasons, to resort to inferences which point to a reason for the decision of highly dubious relevance to the statute being applied, the result is that an error of law has occurred which this court can and should correct.” (my underlining)

  1. [141]
    Samuels AJ in NRMA Insurance Ltd v Tatt (1989) 94 FLR 339 said at 353.2-5:

“By recording only one side of the judicial equation he has deprived this court of the opportunity of assessing the weight to be given on credit, which might thus be accorded for greater cogency that in the whole of the context it properly deserves. It is, to my mind, impossible for a Judge to make a finding on credit in a vacuum, as it were, without relating the witnesses’ evidence, demeanour and particular circumstances to the other material evidence in the case. ... the comparison which an appellate court may make is between findings made by the Judge below; that is to say, his or her finding on credibility viewed against findings on other evidence. It is only by these means that the appellate court can judge whether deference or disagreement is the appropriate response …” (my underling)

  1. [142]
    In Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] it was said:

“When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality.

…

[50]  …

‘There is, I think, no formula the application of which to the instant case will indicate what, in that case, the judge must do. Where, in the decision of any ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if ... by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.’”

  1. [143]
    I have regard to Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 where McHugh J stated:

“As I pointed out in Jones v. Hyde [1989] HCA 20; (1989) 63 ALJR 349, at p 351; [1989] HCA 20; 85 ALR 23, at p 27, when a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. It does not follow that, because her Honour made no express reference to the demeanour or credibility of either Professor Ferguson or Mrs Archer, demeanour or credibility played no part in her findings on the supervision issue. But in any event, no matter how impressive Professor Ferguson's evidence may appear, it cannot claim the consideration of an appellate court to the extent necessary to overcome the advantage which her Honour enjoyed in seeing and hearing Mrs Archer give evidence. There is simply no basis for concluding that, in so far as her Honour preferred the evidence and demonstrations of Mrs Archer to the evidence of Professor Ferguson, she failed to use or palpably misused the advantage which she had of seeing and hearing the witnesses. In any event, her Honour may well have taken the view, not without justification, that Professor Ferguson's evidence on the issue of supervision was too limited and tenuous to outweigh the effect on her of the video cassette and in-court demonstrations given by Mrs Archer.”

  1. [144]
    Finally in Camden v McKenzie [2008] 1 Qd R 39 at [34] Keane JA noted:

“[u]sually the rational resolution of an issue involving the credibility of witnesses will require reference to and analysis of any evidence independent of the parties which is apt to cast light on the probabilities of the situation.”

Analysis of the judgement

  1. [145]
    The Appellants in this case submitted that the bare finding at [55] of the judgment that he did not accept the evidence of the Appellants was insufficient. The Appellants further submitted that the failure of the Magistrate to even deal with the evidence of Mr Kruger was an error.
  1. [146]
    The Appellants further submitted that the mere expression of preference of the expert Mr Morrison’s evidence ([56]) was not a sufficient exposure of the reasoning process here.
  1. [147]
    On the other hand the Respondents submitted that the judgment should be read as a whole. It is submitted that it can be implied by reference to the oral submissions that the learned Magistrate had given reasons as to why he accepted particular witnesses.
  1. [148]
    I have considered the entirety of the judgment.
  1. [149]
    Whilst the learned Magistrate referred in summary to the evidence at the hearing at [10]-[11], there was no discussion about the detail of the evidence. There was certainly no discussion of the contents of Mr Hughes’ reports.
  1. [150]
    The judgment then repeated the submissions of the parties from [18] until [47]
  1. [151]
    His Honour then came to a section entitled “Discussion and decision”.
  1. [152]
    At [55] the Magistrate said:

“I do not accept the evidence of the Appellants that they were not aware of the need for the baffle wall and the surrounds. It was clear from the earliest time they were aware that the pool was to be built in reactive soil and were anxious to ensure that the pool would be constructed appropriately. I am satisfied that they were made aware that there was a system for building pools in those conditions and that the essential ingredient was an area around the pool that remained dry and therefore provide an area of soil which would not react.”

  1. [153]
    At no stage however did the learned Magistrate consider the evidence of both Appellants and Mr Kruger on the one hand and the evidence of Mr Evans on the other as to the discussions which occurred which led to the contract.
  1. [154]
    This factual matter was very important to be considered in the context of the pleadings.
  1. [155]
    The learned Magistrate gave no reasons as to why he rejected each of the three witnesses called by the Appellants (whom were largely consistent) as compared to the evidence of Mr Evans.
  1. [156]
    If demeanour was a relevant consideration, for example, this should have been referred to. It was not.
  1. [157]
    The learned Magistrate did not even say he preferred the evidence of Mr Evans although this may be implicit within [55].
  1. [158]
    Why did he prefer the evidence of Mr Evans? The Magistrate did not say why.
  1. [159]
    In those circumstances I consider that there were insufficient reasons given for the finding.
  1. [160]
    On the issue of whether the allegation that the Appellants were specifically told not to tie the surrounds to the coping, it is true this was not pleaded in para 4 of the statement of claim.
  1. [161]
    However as I have earlier noted there was no objection to this evidence. Indeed evidence was lead in response.
  1. [162]
    Further paras 7 and 15 of the amended statement of claim are wide enough to include this evidence in terms of the action for negligence.
  1. [163]
    This evidence was specifically relied on by the Plaintiffs in their written submissions below (para 16 h).
  1. [164]
    I now turn to the issue of the preference of Mr Morrison’s evidence.
  1. [165]
    It was clear on the evidence that Mr Hughes, called by the Appellants, and Mr Morrison, called by the Second Respondent, gave different opinions. These opinions were crucial.
  1. [166]
    Now I have considered the submissions of the Respondents and agree that it was open to the magistrate to prefer Mr Morrison’s evidence. But adequate reasons for this conclusion needed to be given.
  1. [167]
    The Magistrate at [56] said:

“I prefer the evidence of the expert Mr Morrison that it is the pool water penetrating between the surrounds and the coping of the pool which has caused the damage and not water penetrating from below. It seems more likely that his evidence about the underlying sandstone is probable. …

[58] The person who built the surrounds has not been joined as a party to the proceedings. It is clear that the Appellants had the plans designed by the Second Respondent. It is also clear that they were aware of the need for the surrounds and the baffle wall to be built in accordance with the plans, yet they were not. Water penetrated through what should have been an impenetrable barrier …

[59] I am satisfied that the builder and the designer were not responsible. The builder did all that he was asked to do. The designer designed the pool which would, when built in accordance with that design, have been sufficient to meet the vagaries of the reactive soil. I accept the evidence of Mr Morrison about this and also I accept the evidence of Mr Newport that he has never had any problems with his design when the pool has been built in accordance with this design in the past.”

  1. [168]
    Although the learned Magistrate found that Mr Morrison’s conclusion was more probable, he expressed no reasons for this. The conclusion of “probable” was the end state but without telling the parties how did he get to the end state.
  1. [169]
    It was clear that Mr Hughes who had visited the site (Mr Morrison had not) considered the water to have been trapped under the pool as distinct from the gap between the coping and the surrounds. Why was Mr Morrison’s conclusion more probable?
  1. [170]
    He did not examine the evidence given by Mr Hughes as compared to Mr Morrison and exposed his reasoning as to why he rejected Mr Hughes’ evidence but accepted Mr Morrison’s evidence.
  1. [171]
    It is true that the learned Magistrate referred to Mr Newport’s evidence and accepted this (see [59]). But this is after he had already accepted Mr Morrison’s evidence without sufficient explanation. Also this was at odds with Mr Hughes’ evidence at T1-99.20 that he had inspected a pool with which Mr Morrison had been involved with similar damage in similar soils. The learned Magistrate did not deal with this issue.
  1. [172]
    The reasoning process should have been undertaken. It did not need to be a tedious process for both tasks, but it needed to be a process.
  1. [173]
    The process, in my respectful opinion, was not adopted here.
  1. [174]
    It has deprived the parties in particular the Appellants from knowing why the Magistrate which the decision he did.
  1. [175]
    As was said in Drew v Makita (Australia) Pty Ltd [2009] QCA 66 at [66]:

“The reasons in relation to liability disclose very little of the primary Judge’s reasoning processes.” 

  1. [176]
    In those circumstances, I consider that the Appellants have made out Grounds 2 and 6 of the Notice of Appeal.
  1. [177]
    As noted above they have also shown that an error has occurred concerning the Magistrate’s assessment of the credit of the Appellants’ witnesses concerning the crucial pre-contract conversation and as to the assessment of the expert evidence.
  1. [178]
    In those circumstances, I propose to allow the appeal and order a new trial to be held in the Brisbane Magistrates Court before a different Magistrate.
  1. [179]
    I now turn to the issue of costs. In my view the result here has occurred through no fault of the parties.
  1. [180]
    I have taken into account the conduct of the parties to the appeal including the opposition by the Respondents to the appeal but on balance consider they were entitled to make the arguments they did albeit unsuccessfully.
  1. [181]
    I consider s 17 of the Appeal Costs Fund Act 1973 (Q) is inapplicable as the Respondents appeared at the trial and at the appeal.
  1. [182]
    I have considered exactly what order I should make and have considered the parties’ submissions on the costs questions.
  1. [183]
    In Martin v Rowling and Anor [2005] QCA 174 it was held at [10] that the usual rule is that the costs of the first trial will be made at the conclusion of the new trial. It may be there can be for example an agreement at the new trial as to what evidence from the first trial may be used.
  1. [184]
    Section 16 provides as to what occurs as to the costs of the new trial.
  1. [185]
    I consider in the circumstances that the issue of costs of the first trial should be left to the new Magistrate to decide. Obviously enough offers and the like may need to be considered.
  1. [186]
    Contrary to the Appellants’ submission I do not consider section 15 enables me to grant an indemnity certificate to the Appellants.
  1. [187]
    In all of the circumstances I make the following orders:
  1. Appeal allowed.
  1. Decisions below set aside.
  1. The matter is remitted to the Magistrates Court Brisbane for a new trial before a different Magistrate.
  1. Order that the Respondents pay the Appellants’ costs of and incidental to this appeal as agreed or to be assessed. 
  1. Grant the Respondents indemnity certificates pursuant to s 15(2) of the Appeal Costs Fund Act 1973 (Q).
Close

Editorial Notes

  • Published Case Name:

    Waldock & Anor v Kel Evans Pools Pty Ltd & Anor

  • Shortened Case Name:

    Waldock v Kel Evans Pools Pty Ltd

  • MNC:

    [2013] QDC 156

  • Court:

    QDC

  • Judge(s):

    Smith DCJ

  • Date:

    12 Jul 2013

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Abalos v Australian Postal Commission (1990) 171 CLR 167
3 citations
Jump To
Cite 1 - (1990) 171 CLR 167
Cite 2 - (1990) 171 CLR 167
Cite 3 - (1990) 171 CLR 167
Camden v McKenzie[2008] 1 Qd R 39; [2007] QCA 136
2 citations
Jump To
Cite 1 - [2008] 1 Qd R 39
Cite 2 - [2008] 1 Qd R 39
Drew v Makita (Australia) Pty Ltd[2009] 2 Qd R 219; [2009] QCA 66
3 citations
Jump To
Cite 1 - [2009] QCA 66
Cite 2 - [2009] QCA 66
Cite 3 - [2009] QCA 66
Jones v Hyde (1989) 63 ALJR 349
1 citation
Jump To
Cite 1 - (1989) 63 ALJR 349
Jones v Hyde [1989] HCA 20
2 citations
Jump To
Cite 1 - [1989] HCA 20
Cite 2 - [1989] HCA 20
Jones v Hyde (1989) 85 ALR 23
1 citation
Jump To
Cite 1 - (1989) 85 ALR 23
Martin v Rowling [2005] QCA 174
2 citations
Jump To
Cite 1 - [2005] QCA 174
Cite 2 - [2005] QCA 174
NRMA Insurance Ltd v Tatt (1989) 94 FLR 339
2 citations
Jump To
Cite 1 - (1989) 94 FLR 339
Cite 2 - (1989) 94 FLR 339
Pettitt v Dunkley (1971) 1 N.S.W. L.R. 376
2 citations
Jump To
Cite 1 - (1971) 1 N.S.W. L.R. 376
Cite 2 - (1971) 1 N.S.W. L.R. 376
Resources Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
2 citations
Jump To
Cite 1 - [2013] NSWCA 33
Cite 2 - [2013] NSWCA 33
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
2 citations
Jump To
Cite 1 - (1987) 10 NSWLR 247
Cite 2 - (1987) 10 NSWLR 247

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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