[2024] SADC 56

Applicant: SHEIDA AZADEGAN In Person via Telephone First Respondent: BART KUBEREK In Person Second Respondent: KUBEREK PTY LTD In Person Hearing Date/s: 16/02/2024 File No/s: CIV-23-009919 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil: Minor Civil Review) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. AZADEGAN v KUBEREK AND KUBEREK PTY. LTD. [2024] SADC 56 Decision of his Honour Auxiliary Judge Chivell 20 May 2024 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA Minor Civil Review - Applicant engaged the Respondent architect to advise her about renovating her house and claims that the Respondent misled her into thinking that plans required council approval. Judicial Registrar dismissed action on the basis that the Applicant had not proved her case. Decision affirmed. Application for review dismissed. Magistrates Court Act 1991 (SA) s. 38(6), referred to. -- 1 of 6 -- -- 2 of 6 -- AZADEGAN v KUBEREK AND KUBEREK PTY. LTD. [2024] SADC 56 1 Mr Kuberek is an architect. In early 2022 Ms Azadegan was referred to him by a builder. They met on 9 March 2022. Ms Azadegan wished to discuss certain building issues with him. This was the beginning of a quite lengthy relationship which has brought great unhappiness to both of them. 2 There is now a great divergence of views between them as to the extent of their discussions about building work to be carried out to Ms Azadegan’s property in Clarence Gardens, South Australia. 3 Ms Azadegan issued proceedings in the Magistrates Court to recover the $800.00 she paid to Mr Kuberek for his services. The basis on which she sued his company, Kuberek Pty Ltd is unclear. I will treat the two respondents as one entity for the purposes of the review. 4 On 7 August 2023, the Judicial Registrar of the Magistrates Court dismissed Ms Azadegan’s claim. Her application for a review of his decision, pursuant to s. 38(6) of the Magistrates Court Act 1991 (SA), is now before me. 5 Mr Kuberek maintains that Ms Azadegan told him that she wished to convert a rear verandah of the house into a room, extend the building at the rear of the house to the boundary, remodel the front of the house by adding “parapets” which would incorporate a double carport, and several other similar proposals. 6 Ms Azadegan was adamant before the Judicial Registrar, and before me, that she was only interested in the enclosure of the rear varandah at that time. She said that Mr Kuberek has complicated all these issues into a much larger project, and misleadingly represented that a fully prepared development proposed was necessary to obtain planning approval. She said she has since discovered that a much simpler and quicker process was available if the proposal was confined to the verandah enclosure. 7 Ms Azadegan said that the purpose of the meeting with Mr Kuberek was “to discuss whether his services were required”.1 She said she did not ask Mr Kuberek what was required for council approval.2 She said she did not propose to enclose the verandah to create an “internal living space”, rather she wanted an indoor/outdoor living space, which is “completely different” in development terminology.3 8 Ms Azadegan said that Mr Kuberek was talking about other things than an indoor/outdoor space, such as adding another parapet and creating a double carport. She conceded that they did discuss these extra things, but only because Mr 1 T 5 2 T 6 3 T 7 -- 3 of 6 -- [2024] SADC 56 2 Kuberek told her that the development approval cost was the same no matter how many aspects of the work were included so - “If there’s anything else that you could consider doing to the property at some stage, doing it now versus later would mean it's the same cost. So, it was from our conversation that I said 'Okay, well let's add a carport for this process if it's not going to be an additional cost just to get it approved'. I even now don't intend to build a carport”.4 9 Ms Azadegan sought to convey the impression that many of the “extra” ideas that were discussed that day came from Mr Kuberek, not from her. She admitted that she was open to the suggestions he made.5 10 Ms Azadegan said that she had in mind a single carport and that “no approvals were needed in such a project”.6 When asked whether Mr Kuberek had told her what was involved in obtaining the relevant approvals, she said “No, I didn't need any advice on what was involved”.7 11 It was very difficult to ascertain the precise way in which Ms Azadegan says that Mr Kuberek’s statements to her were misleading (see the transcript at pages 12 to 17). The best I could do is to conclude that her claim is based on the premise that: • Her original plan was to create an indoor/outdoor living space from the back varandah; • That was the only reason she contacted Mr Kuberek; • He told her that a full development application with architects’ drawings and engineer’s report was required for that;8 • This was incorrect and misled her into engaging him and paying the $800; • Having said that to her he then raised with her the other projects that she had in mind for the longer term; • After they discussed these other projects, he said that they would take the same time to obtain planning permission and would cost the same. 12 She said: “If the process and cost and time involved was different, there is no chance that I would even want to entertain or consider that”.9 4 T 9 5 T 13 6 T 12 7 T 12 8 T 15 9 T 15 -- 4 of 6 -- [2024] SADC 56 3 13 Ms Azadegan said that she was anxious to have the verandah work finished before the end of the financial year because she had leased the back part of the house and wanted to claim at least part of the work on her tax return as repairs and maintenance.10 She said she lost about $5,000.00 in that regard. The Judicial Registrar noted in his judgment that Ms Azadegan did not produce any supporting evidence to quantify this alleged loss ([15]). 14 Ms Azadegan’s evidence about this initial conversation was denied by Mr Kuberek at 3.30pm, who said that after discussing the back verandah work, Ms Azadegan took him to the front of the property and showed him where she wanted the parapet work, the carport, the walkway etc, and their discussion included all these things. 15 Ms Azadegan’s evidence is also contradicted in a very clear was by her own text message to Mr Kuberek on 9 March 2022, the day they first met. Far from wanting only the verandah work done, she said: “Bart, seriously my budget was originally 50k for making the front pretty, frame only carport no roof for now, and replace all the roofing out the back. [B]ut now I’m thinking to raising it to 100-120k lol (just the living area next to the kitchen middle of deck if I don’t have to re do footings… And all the roofing),. Spending less out front if you think there’s a way to still make it look cute. I really want to get something in to council by the end of the month. What’s your email address? I’ll send you the floor plan. Thx!! For confusing the heck out of me lol. No, I appreciate the feedback” 16 Later on 28 March 2022, Mr Kuberek wrote: “Hey Shayda, sorry for not getting back to you. Happy to proceed to council with the idea of a verandah (you filling it in as a room will be your own private undertaking without documentation) that way you avoid a soil test and engineering as per your request. The scope remains the same – front verandah/carport and rear varandah additions. I can have this done for you within about a week? Bart”. 17 Ms Azadegan replied: “Hey Bart. Okay no worries, if you think it’s better off doing stage 2 from now & you think it’s worthwhile, I better just do it. I need to get a soil test anyway for the verandah and roofing right? 10 T 19 -- 5 of 6 -- [2024] SADC 56 4 Can you give me a call before getting started as I do want to do a slight adjustment and make sure that the indoor outdoor ratio is going to be ok for the area before you get stuck in to the work Thank you!” 18 Ms Azadegan’s version of these events was also contradicted by the statement of a builder whom she had approached prior to meeting Mr Kuberek on 9 March 2022. Mr Timothy Anderson, the Projects Manager for a firm called Levalex Builders, confirmed that he had “discussed many different building ideas Shayda had, including a front porch, a paved walkway to connect the new carport, new carport/garage along the side, and some modifications at the rear, Shayda also discussed an extension along the other side of the house ... for the following year or 2, however she wanted to get the other projects happening as soon as possible.” 19 The implications of this evidence are clear. Ms Azadegan’s assertions that Mr Kuberek misled her are untrue. He clearly offered to take the simple step of submitting the rear verandah work separately from the other aspects of the scope of works, and she declined to do so. 20 Ms Azadegan has provided the court with voluminous documents seeking to prove her case, but they do not do so. What they do is demonstrate that Mr Kuberek spent many hours trying to comply with her frequent changes of mind, and fluctuations in attitude. Far from misleading her, he did his level best to keep her project moving ahead in a straight line, the achievement of which eventually proved impossible. 21 In doing so, Mr Kuberek’s charges could have been many multiples of the $800.00 he did receive for his services. 22 The Judicial Registrar was clearly justified in finding that Ms Azadegan had failed to prove her case on the balance of probabilities. I affirm his decision. 23 Accordingly, I dismiss the application to review his judgment in favour of the respondents. -- 6 of 6 --