John Jacob Morrison trading as Bellingen Plumbing Services ABN 31 678 436 659 v Sproule

C. ISSUES AND LEGAL PRINCIPLES

1. The issue in this case is whether the plaintiff and the defendant entered into a contract during the course of their conversation on 8 June 2021 requiring the defendant to pay the plaintiff the sum of $2,035 in exchange for the commissioning and preparation of the wastewater report by Mr Duerinckx which would ultimately enable an application to be made to the local council for approval of a new septic system on the subject property.
2. Consistent with the practice in the Local Court Small Claims Division, none of the witnesses were cross examined. The court must therefore resolve the differences between the parties' competing accounts without the evidence being tested in this way.
3. The plaintiff's claim is one involving an alleged breach of contract. He bears the onus of proof, and must prove the each of the elements of that cause of action on the balance of probabilities. I note the decision of Hammerschlag J in John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94]. In that decision, the court observed that where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. I also note the decision of then Ward CJ in Eq in Anthony v Morton [2018] NSWSC 1884 at [398] endorsing the summary of the principles in the John Holland decision.
4. There is no dispute in this case that the defendant has not paid the sum of $2,035 to the plaintiff, being the cost invoiced to and paid by the plaintiff for Mr Duerinckx's wastewater report. The central question is whether there was any contractual obligation for the defendant to pay this sum to the plaintiff by way of reimbursement.

D. FINDINGS

1. In this case, I have the plaintiff's evidence asserting the existing of an oral contract, and the defendant's evidence denying the existence of any such contract. Both parties provided different accounts of the content of the critical conversation which occurred on 8 June 2021. Neither party has adduced any evidence from a witness, particularly an independent witness, relating to the content of that discussion. I note that, insofar as concerns the plaintiff, Ms Higgins was not present during that conversation. The defendant's partner Daryl was apparently present during the conversation, but he has not given evidence, for the reasons set out in the defendant's statement in Exhibit C at par [26] concerning the acrimonious end of their relationship.
2. Further, on my review of all the evidence, including the exchange of correspondence between the parties after the conversation on 8 June 2021, which is annexed to the tendered statements, there was no form of confirmation or follow up of the 8 June 2021 conversation, either expressly or inferentially, that the conversation was to the effect of that set out in paragraph [18] of Exhibit 1, being Mr Morrison's statement. Nothing in the material constitutes either an admission by the defendant about the existence of a contract in the terms described in paragraph [18] of Exhibit 1, or an acknowledgment of some kind as to those terms.
3. Further, there is nothing inherently or objectively implausible about the defendant's denial of the existence of a contract with the plaintiff to pay for Mr Duerinckx's wastewater report, when regard is had to the full context in which the defendant initially approached the plaintiff to obtain assistance in securing approval from the local council for a new septic system. The defendant's evidence that she simply assumed that the reference to Mr Duerinckx in the 8 June 2021 conversation was a reference to one of the plaintiff's employees is plausible. It is also plausible that she thought Mr Duerinckx's interest in contacting her was to initiate discussions and a site inspection prior to carrying out any further substantive work relating to the new septic system, including the preparation of any reports. Although the defendant's existing wastewater report from Rosewood did not seem fit to justify a trench septic system of the kind the defendant had envisaged, that does not on balance lead to the conclusion that the conversation in paragraph [18] of Exhibit 1 was likely to have occurred in those terms.
4. As I observed earlier, the plaintiff bears the onus of proving a breach of contract on the balance of probabilities. This case highlights the difficulties when parties do not formalise an agreement in writing, or follow up any oral discussions that may take place which may involve expenditure of not insignificant sums of money. The conversation on 8 June 2021 may have occurred in the terms set out in the plaintiff's evidence, but in the absence of any corroborative evidence of some kind, or something which might suggest the defendant's version denying that conversation was in some way inherently implausible, I cannot find on the balance of probabilities that an oral contract in those terms had been entered into.
5. Expressed another way, the two people who have given evidence in these proceedings and who were present during the 8 June 2021 conversation cannot agree on the terms of the conversation, and therefore absent something persuasive in the plaintiff's case, it is understandable why the court cannot be satisfied on the balance of probabilities that the plaintiff's version must be preferred.
6. For these reasons, it is also unnecessary to determine the defendant's further defence that she had no authority from the property owner, her mother, to obtain other than a quotation for the installation of an onsite septic system.
7. Accordingly, the plaintiff's claim fails, and the Statement of Claim will be dismissed. I note the defendant is also entitled to her costs in the sum of $944.40 plus GST in accordance with regs 2.9(2)(d) and 2.9(3)(b) of the Local Court Rules 2009 (NSW) and Sch 1, Pt 3 Nos 3 and 4 of the Legal Profession Uniform Law Application Regulation 2015 (NSW).

E. ORDERS

1. The court orders: 1. Statement of Claim dated 8 March 2022 is dismissed. 2. Plaintiff to pay the defendant's costs in the sum of $944.40 plus GST. Magistrate Scott Nash Kempsey Local Court 3 August 2022

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