Bauwens v Belot
[1987] TASSC 95
•22 May 1987
Serial No B25/1987
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Bauwens v Belot [1987] TASSC 95; B25/1987
PARTIES: BAUWENS
v
BELOT
FILE NO/S: 2936/1985
DELIVERED ON: 22 May 1987
JUDGMENT OF: Wright J
Judgment Number: B25/1987
Number of paragraphs: 13
Serial No B25/1987
List "B"
File No 2936/1985
BAUWENS & ANOR v BELOT
REASONS FOR JUDGMENT WRIGHT J
22 May 1987
The plaintiffs claim that by contract in writing made the 27th day of June 1984 between themselves as purchasers and the defendant as vendor, they agreed to purchase from the defendant, a piece of land situate at Blackmans Bay in Tasmania known as 16 Tarana Road, together with a brick veneer residence and carport in the process of erection thereon.
At the time of signing the contract the residence was only partially completed but the contract contained provisions for its completion prior to settlement. In addition, the contract contained the following terms and conditions:
"15The Vendor herein will cause a 5 ft paling fence to be erected at the rear boundary as shown on the attached plan. The Vendor further indemnifies the Purchasers herein against any costs relating to the supply and erection of the said fence.
The fence will be erected in a good and workmanlike manner.
"16The Vendor hereby agrees to remedy any defects in the property that may become evident during the period of three (3) months from the date of completion herein.
"17The Vendor hereby agrees that the concrete drive leading from carport to front footpath and concrete path to Rotary Clothes Line shall be completed and covered by the purchase monies paid herein.
"18The Vendor will in a workmanlike manner and as near as possible to the plans and specifications submitted to the Municipality for approval complete the dwelling now under construction on the said land and at no extra cost to the Purchasers include one long wall mirror in each bathroom, exhaust fan in the kitchen, walk–in robes with shelves and racks in main bedroom, remedy dampness to one exterior wall."
The contract was completed on or about 8 August 1984 when, I presume, title was transferred into the name of the plaintiffs. It was not pleaded, nor could it be, that the defendant's contractual obligations merged in the transfer. The plaintiffs plead that in breach of the above clauses in the contract, the defendant has failed to construct a rear boundary fence and has failed to remedy defects in the property which became evident during the period of three months from the date of completion.
Claims in respect of a number of the defects alleged were abandoned at the trial, but allegations in respect of the following defects were maintained:
1Cracking of the internal wall over arches in the living room.
2Cracking of the concrete floor slab in the living room.
3Cracking of external brickwork under the central window in the south–east wall of the living room.
4Inadequate repairs to cracked external brickwork under the windows of bedroom one.
5Inadequate repairs to cracked external brickwork at the northern corner of the building.
6Cracking of the concrete carport slab.
7Cracking of the concrete driveway slab.
8Distortion of the roof ridge line.
9Distortion of the carport ceiling.
It was also alleged that the above defects came about as a result of the vendor's failure to complete the dwelling in a workmanlike manner as provided for in clause 18 of the agreement. The plaintiffs' allegations were supported by evidence from the first named plaintiff, Mr Brian Douglas McKenzie, (his next door neighbour who fortuitously took a number of photographs of the building site as work progressed), and Mr Reginald S. Gee, a consulting chartered engineer.
The defendant, who appeared in person and conducted his own case, gave evidence which was only peripherally relevant to these issues. He also cross–examined the plaintiff's witnesses on some matters of substance, but no material was elicited to cause me to doubt the evidence given in chief by the plaintiffs' witnesses. In particular, I should say that I accept Mr Gee's interpretation of the photographs and the conclusions which he drew therefrom, coupled with the evidence of damage to the structure of the house and carport which he found when he carried out his inspection.
The allegations of unworkmanlike construction were particularised in the following way:
1The concrete slab in the main building has been placed on fill material and not on compacted hard core.
2Reinforcement in the concrete slab of the main building was not placed in the top of the slab.
3No edge beam or footing was provided under the concrete carport slab and under the shed and pier in the carport area.
4The concrete carport slab has been placed directly on top soil.
5No steel reinforcement was placed within the concrete carport slab or alternatively steel reinforcement was placed at the bottom of the concrete driveway slab, rather than at the top of the slab.
I am satisfied that these particulars were established by the evidence and that the damage to the building and carport complained of by the plaintiffs, resulted from the unworkmanlike practices of the builder. It is also clear from the evidence that Mr Belot himself was not the builder and that he engaged a building contractor to perform all necessary work on his behalf. Mr Belot told me in evidence that the building contractor has since gone bankrupt and this, perhaps, explains why third party proceedings have not been instituted against him. No doubt Mr Belot is entitled to some sympathy in this respect, but it does not relieve him from liability to the plaintiffs for breach of contract as claimed.
Mr Belot attempted to call evidence from Mr Peter Brownrigg, a registered valuer in respect of a valuation of the plaintiffs' property which he made in March 1987. Apart from objections based on the non–supply of an expert proof in respect of this evidence, counsel for the plaintiffs also objected on the basis that such evidence was not relevant to the issues in the case. He referred to the judgment of the High Court in Bellgrove v Eldridge (1953–54) 90 CLR 613 at pp617 – 618 and on the basis of that decision, I ruled that the proposed evidence was not admissible.
Mr Belot also attempted to give evidence of negotiations between the parties and their solicitors prior to the trial, but it was plain that such negotiations were conducted on a "without prejudice" basis and were not admissible It seemed to me that Mr Belot sought to give this evidence for the purpose of persuading me that he had adopted a reasonable and conciliatory attitude in attempting to settle the case. It may well be that he did so, but as such a settlement did not occur and it is not alleged that there was any binding agreement to compromise the action, I cannot see that such conversations would have any relevance in the circumstances of this case, even disregarding the without prejudice rule.
From what I have said it follows that the plaintiffs succeed on all issues relating to liability.
I turn now to the question of damages which were calculated and listed by Mr Gee as follows:
"1 External underpinning $5350
2 Internal underpinning 4500
3 Jack–up roof and repoint ridge tiles 700
4 Move furniture and make–good interior
plaster and decoration 1200
5 Bauwens' accommodation during
internal work 1750
6 Jack–up carport roof, demolish shed
and remove carport slab 800
7 Replace carport slab and foundations 3200
8 Rebuild shed 2200
9 Place agricultural drain 300
10 Replace driveway slab 300
11 Repair minor cracking in brickwork 200
$20,500"
These claims were based on estimates only and are not alleged to represent the costs of completed work or actual out of pocket expenditure. Nonetheless there was no evidence to the contrary and in most respects I am prepared to accept Mr Gee's assessment. However there are three items which I think have not been established. Item 3 "Jack–up roof and repoint ridge tiles – $700", is based upon the claim that the distortion in the roof ridge is associated with the cracking of the main concrete slab. I am left in some doubt as to this. It may be due to some other cause not necessarily referable to defective workmanship and as the plaintiffs therefore have not established an entitlement to this sum, I do not propose to allow it. Item 5, "Bauwens' accommodation during internal work – $1750", was also challenged by the defendant and I think with clear justification. Mr Gee has no expertise which would enable him to make this assessment, and I do not think that it can fairly be said that the plaintiffs should necessarily be accommodated in high standard hotel accommodation at the defendant's expense whilst repairs to the interior of the house are carried out. It may be possible for them to co–ordinate holidays or seek accommodation with relatives or friends during the repair period. In principle, they are entitled to be housed elsewhere at the defendant's expense, but they are also under a duty to mitigate damages. In the absence of the establishment of a more substantial basis for this claim, I propose to allow $150 only in respect of this item. I am also in some doubt as to the plaintiffs' entitlement to the cost of $300 in respect of the agricultural drain (Item 9). Whilst it may be prudent to install such a drain, it was not provided for in the plans. I am not persuaded that failure to install it originally could reasonably be characterised as "unworkmanlike" and I am not satisfied that it is directly causative of the present problems. I accept that the other items in Mr Gee's list have been established and I allow them as claimed. In addition, on the basis of the quotes obtained by the plaintiff's and the concessions in respect thereof by the defendant, I am of opinion that additional amounts should be allowed in the sum of $728 in respect of the cost of erecting a paling fence and the sum of $1,061.50 in respect of the removal, storage and redelivery of the plaintiffs' furniture while the process of underpinning the internal walls in the house is carried out.
I therefore assess the plaintiff's damages in total at the sum of $19, 689.50 and judgment will be entered in the plaintiff's favour for this sum.
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