Bell v Greenland Design P/L
[1994] QSC 9
•13 February 1994
THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 141 of 1993
Brisbane
Before Macrossan C.J.
McPherson J.A.
Pincus J.A.
[Bell v. Greenland Design P/L.]
BETWEEN
COLIN BELL and JANINE BELL
(Defendants) Appellants
AND
GREENLAND DESIGN PTY. LTD.
(Plaintiff) Respondent
Judgment delivered 13/02/1994
Joint reasons for judgment of the Chief Justice and McPherson JA, separate reasons of Pincus J.A. dissenting in part.
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APPEAL DISMISSED WITH COSTS
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CATCHWORDS: CONTRACT - agreement to supply materials and do paving work partly oral and partly in writing - parol evidence rule - implied term - onus on appellant to prove decrease in value due to defective work unless work "valueless" - wastage - appeal on credibility - doctrine of substantial performance - whether cost of rectification recoverable.
State Rail Authority of N.S.W. v. Heath Outdoor P/L (1986) 7 N.S.W.L.R. 170.
Norwest Beef Industries Ltd v. Peninsular & Oriental Steam Navigation Co. (1987) 8 N.S.W.L.R. 568.
Bellgrove v. Eldridge (1954) 90 C.L.R. 613.
Riverside Motors P/L v. Abrahams [1945] V.L.R. 45.
Counsel:Mr T Matthews for the appellants.
Mr R N Alldridge for the respondent.
Solicitors:Thomas solicitors for the appellants.
McCarthy Durie Ryan & Neil for the respondent.
Date of hearing: 15 February 1994.
JOINT REASONS FOR JUDGMENT - MACROSSAN C.J. & McPHERSON J.A.
Judgment delivered the 13th day of February 1995
This is an appeal from a judgment given for the plaintiff in an action in the District Court arising out of an agreement by the plaintiff to do paving work at the residence of the defendants at 23 Oakwood Street, Capalaba. In the course of the proceedings the plaintiff Greenland Design Pty. Ltd, was substituted as plaintiff for Creative Paving and Landscaping Co., which is the business name in which the plaintiff gave the original written quotation (ex. 1), dated 21 September 1991, and carried out the work. Its principal is a Mr A.D. Johnston, and its foreman at the relevant time was a Mr Peter Walker, who did or supervised the doing of the paving work carried out between 7 October and about 3 December 1991. Paving is a branch of the bricklaying trade and Mr Walker is a bricklayer.
The defendants are Mr Colin Bell and his wife Mrs Bell. Mr Bell is a sheet metal worker. He fabricated some of the structures installed at the site, in particular the steel framework for the front entry steps which had to be concreted before being paved, and also the aluminium grille for the drain near the garage which is shown on photographs 33 and 34 on ex. 2 (P33,34).
At the trial, which occupied three days, Mr Alldridge of counsel appeared for the plaintiff and Mr Lane for the defendants. In addition to Johnston and Walker, the witnesses who gave evidence on behalf of the plaintiff were a Mr K.J. Lawson, who is a swimming pool builder and landscaper with experience in paving, who inspected the plaintiff's work on 5 November 1991, at a time when he said 95% of the work had been done; a Mr M.A. Keighley, a paving contractor of some 20 years experience, who inspected the work in December 1991; and a Mr D.R. Woods, who was asked by the defendants to quote on rectifying the plaintiff's work and who inspected the site for that purpose at some unspecified time probably also in about December 1991. Like Keighley, he is also an experienced paving contractor, who described himself as being at that time Mr Johnston's "opposition".
For the defendants, both Mr and Mrs Bell gave evidence, and two other witnesses were called. They were a Mr H.P. Heirzer, with some 20 years experience as a pool builder and landscaper carrying on business as Coral Pools, who in April 1992 performed the work of replacing much of the paving; and a Mr W.J. Moore, who is a qualified civil engineer, and the manager of Clay Brick & Paver Design Advisory Service. Mr Moore inspected the site in February 1992, in April 1992, and again in July 1992. His written reports nos. 1, 2 and 3 following those inspections were admitted in evidence as exs. 23, 24 and 25.
In the plaintiff's amended plaint the amount claimed for the work done was $31,127.01 after allowing credit for payments received from the defendants. From the defendants' side, there was a counterclaim for $29,765.00 representing the cost of rectifying the work, which was dismissed in its entirety. On the claim itself the learned trial judge gave judgment for the plaintiff for $36,493.87, of which $5,566.86 represented interest at the rate of 12% from the date of the plaint to judgment. The principal component in the judgment sum was $30,927.01, which represented the whole of the plaintiff's claim less a deduction of $200 "to allow for appropriate rectification work" in respect of an area of paving near the house where the paving had risen in a hump ("the unsightly hump") and "popped" some bricks at the top of a retaining wall.
The contract. The plaintiff's claim was based on an agreement to supply materials and do paving work in return for payment of an agreed rate or price; or alternatively on a quantum meruit basis. The starting point is ex. 1, which is a written quotation dated 21 September 1991 from the plaintiff to the defendants. It is in the following terms:"All workmanship guaranteed for 12 months. To supply & lay approx. 650m2 of Old Roman 230x150x50 pavers on an average thickness of 75mm of cemment (sic) sand and pea gravel bed. To supply all labour machinery & materials except steel and concrete for step and $150 for erecting step. Labour and materials $27 per m2. Pavers $21.76 per m2. Delivered. Final price to reconciled on Final Measure of Job.
Total Cost $31694 + concrete step
Deposit $14144
Balance $17550 + step
Terms of contract Balance on completion."
On the morning of September 21, 1991, which was a Saturday, Johnston and Bell met at and inspected the site in the course of discussions lasting some hours with respect to the paving work to be done. Mrs Bell was just leaving to go out when Johnston arrived that day, but she was present at another conversation between the two men that took place on the following day. According to the pleadings, the quotation was accepted on 24 September, which would have been the following Tuesday. The areas to be paved are shown on a paving plan ex. 6 drawn by Wheeley & Twooley, which was produced by Bell in the course of the discussion on Saturday. The quotation, or the contract to which it gave rise, was later varied by the parties by including some extra work. The prices of the extras, which formed part of the plaintiff's claim at the trial, were contested by the defendants at the trial, but are not the subject of this appeal.
It is in our opinion not possible to regard the rather scanty contents of ex.1 as subject to the parole evidence rule. It was not suggested by the defendants on appeal that the rule was applicable to ex.1, and at the trial both parties contended that there were other terms not recorded in it; for example, in the case of the plaintiff that the defendants agreed to pay an additional percentage for "wastage" of pavers supplied, and that the base for some of the paving was to be 50mm not 75mm; and, in the case of the defendants, that it was agreed that there would be no "water problems"; that the grouting would be done using kiln dried sand; that levels around the house were to be one brick below all sliding doors (see further amended Defence, para.8); and, in the evidence of Bell at the trial, that the plaintiff would advise him on drainage.
The current status and effect of the parole evidence rule was reviewed by McHugh J.A. in State Rail Authority of New South Wales v. Heath Outdoor Pty. Ltd (1986) 7 N.S.W.L.R. 170, 191-192, in terms which were referred to with approval in Norwest Beef Industries Ltd v. Peninsular & Oriental Steam Navigation Co. (1987) 8 N.S.W.L.R. 568, 570. Hope J.A., with whom Samuels J.A. agreed in that case, said:"It was once the received doctrine that a document which appeared on its face to be a complete record of the parties' contract was conclusively presumed to be the contract. This proposition was discussed by McHugh J.A. in State Rail Authority of New South Wales v. Heath Outdoor Pty Ltd (1986) 7 N.S.W.L.R. 170. He concluded that the correct rule is that the existence of writing which appears to represent a written contract between the parties is no more than an evidentiary foundation for a conclusion that their agreement is wholly in writing. The tendering of evidence, whether oral or in writing, to provide a contractual term cannot be excluded until it is determined that any term in writing recorded the whole of the parties' agreement. I respectfully agree with his Honour's conclusions in this regard."
See also Nemeth v. Bayswater Road Pty. Ltd [1988] 2 Qd.R. 406, 414, where relevant authorities are referred to. Here the quotation ex. 1 does not appear on its face to be a complete record of the parties' contract; but even if it appeared to be, it would provide no more than an "evidentiary foundation" for a conclusion that the agreement was wholly in writing. There is no finding to that effect in this case and it is evident from the way in which the trial was conducted below that no such finding was sought by either party.
Credibility. In his written reasons for judgment the trial judge did not make any general findings as to credibility with respect to any of the witnesses. On all matters in issue, his findings were, however, uniformly in favour of the plaintiff. In making them he based a number of his findings specifically on acceptance of evidence of Johnston or of other witnesses for the plaintiff. In doing so he must necessarily have rejected evidence to the contrary of Mr and Mrs Bell, and their two witnesses Heirzer and Moore. It was one of the main complaints of the defendants, for whom Mr Matthews of counsel appeared on appeal, that in arriving at his conclusions, the trial judge did not give any weight, or any sufficient weight, to the evidence and reports of Mr Moore (ground 9 of the notice of appeal). However, as will appear in the course of these reasons, on many of the issues at the trial, Mr Moore's reports were by no means unfavourable to the plaintiff.
A litigant who appeals against a decision based wholly or partly on findings of credibility assumes a difficult task. See Uranerz Aust. Pty. Ltd. v. Hale (1980) 54 A.L.J.R. 378; Abalos v. Australian Postal Commission (1990) 171 C.L.R. 167; Devries v. Australian National Railways Commission (1993) 67 A.L.J.R. 528. That is especially so where the burden of proof at trial rested on the party whose evidence has been rejected : Uranerz v. Hale (1980) 54 A.L.J.R. 378, 381 col.2F-G. It remains so even "where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence" : Abalos v. Australian Postal Commission (1990) 171 C.L.R. 167, 178; and that is so even if the evidence in question is that of an expert. Speaking of the expert witness in Abalos v. Australian Postal Commission (1990) 171 C.L.R. 167, 178-179, McHugh J. (with whose reasons the other members of the High Court agreed) said:
"Her Honour was not bound to accept the whole of Professor Ferguson's evidence ... she made no express findings about the rest of Professor Ferguson's evidence or his general reliability as a witness. If there is an inconsistency between Professor Ferguson's evidence and her Honour's findings concerning supervision, then she must be taken to have rejected that evidence."
In Abalos the trial judge (whose decision was restored by the High Court) was also said to have had "the great advantage" (171 C.L.R. 167, 178) of seeing a video cassette and in-court demonstrations of the physical action that was in issue. In the present case the learned trial judge had the benefit of an inspection of the site. Without having seen the area in question, this Court is necessarily at some disadvantage in interpreting the various plans and photographs admitted at the trial, and in assessing the topography and layout as factors contributing to the problems that developed, or were alleged to have developed, after the work had been done by the plaintiff.
The site. It is as well to begin with a description of the site as it appeared after the paving work was done. The lot which constitutes no. 23 Oakwood Street covers a large area, which was described by one of the witnesses as "acreage". Judging from photographs and other evidence, the land falls continuously from the rear of the lot to the frontage on Oakwood Street, from which access to the residence is gained. Most of the land is shown on the paving plan ex.6. Looking from Oakwood Street up to the residence, which straddles the middle of the block, there is a paved driveway 80m in length up the left hand side of the lot, which passes the left hand end of the house and reaches the garage (see photographs ex.2/P26 & 17). Behind the house there is an oval swimming pool and barbecue area, the surrounds of which are paved (ex.2, P3,4 & 18‑21). Along the back of the house is a patio, which is also paved. It merges with a paved path which leads from the side of the garage round to the barbecue area behind the swimming pool. From the pool a paved path, about 80m in length, runs up to the rear of the land, where there is a clothes hoist and a shed or sheds (ex.10 28-32/2). The area immediately in front of the house is paved. Access to it is gained from the driveway by 10 wide, curving paved entry steps which are best viewed in photographs (ex.2/P2 & 26). Those steps, and in particular the top step, were the subject of a substantial part ($5,250) of the defendants' total counterclaim.
The top step. It is convenient to dispose of this claim first, as it stands to some extent apart from the other matters of complaint. It was included by the defendants in their pleadings (par. 14(i)) by amendment made on the eve of the trial. It has been mentioned that the defendant Mr Bell fabricated the framework or formwork for the front steps. He also installed it in readiness to receive the concrete. The quotation (ex.1), while providing that the plaintiff supply all labour, machinery and materials for the whole job, specifically excepts steel and concrete for the steps, but allowed an amount of $150 for the work of "erecting" it. An impression of the size of the front steps can be gathered from the photograph ex.2/P2 & 26 and from the fact that, according to Johnston, something like 5 cu. metres of concrete went into the steps, "which was a solid block". When Walker came to pave the steps after they had been concreted, he found they were not level. They had been pushed down slightly to one side. In order to level them up Walker "topped" them up with concrete before laying the pavers on them. Had he not done this, he would have been confronted with a drainage problem at the junction of the top step and front of the house. The level of the paving from the front of the house was in turn dictated by the presence of weep holes, which had to be left free, in the wall of the front entrance to the house. The paving there had to be laid at a level below the weep holes if they were to perform their function; otherwise water from the paved area would have drained back into the weep holes and so under the house.
Topping up the steps increased the height of each step, with the result that the top riser leading to the paved area in front of the house is only about half the height of the other nine steps. The defendants' complaint is that it is "unsightly", which is an impression shared by Moore, but predictably not by Johnston, or by the witness Lawson. The trial judge himself, who saw the steps in the course of the inspection, considered that:"... the steps, as they are, represent a most attractive feature of the overall appearance of the subject premises. The top step is wide and presents no danger. The feature is not noticeable and it is significant that no attempt has been made by the defendants to alter the formation of these steps despite their having effected extensive alterations elsewhere."
What is or is not unsightly is no doubt largely a matter of personal taste. If the present condition of the steps was brought about by some breach of contract on the plaintiff's part, it would be necessary to consider whether rectifying it would be a reasonable course to adopt. In Bellgrove v. Eldridge (1954) 90 C.L.R. 613, 618-619, Dixon C.J., Webb and Taylor JJ. said:
"... the building owner's right to undertake remedial work at the expense of the builder is not subject to any limit other than is to be found in the expressions 'necessary' and 'reasonable', for the expression 'economic waste' appears to us to go too far and would deny to a building owner the right to demolish a structure which, though satisfactory as a structure of a particular type, is quite different from that called for by the contract. Many examples may, of course, be given of remedial work, which though necessary to produce conformity, would not constitute a reasonable method of dealing with the situation and in such cases the true measure of the building owner's loss will be a diminution in value, if any, produced by the departure from the plans and specifications or by the defective workmanship or materials".
See also Director of War Service Homes v. Harris [1968] Qd.R. 275, 280; and Murphy v. Brown (1985) 1 N.S.W.L.R. 130, 131.
Mr Moore's estimate of what it would cost to rectify the top step was some $3,000 or so; Mr Heirzer's quotation to do the work was more than $5,000. When it was put to him in cross-examination that this was excessive, his response was "Swap you jobs". He said that the work required the laying of 40 metres of pavers, most of them expensive bullnose pavers, after three days of jackhammering the existing concrete out, as well as mortaring in the new pavers, and re-grouting them. The whole job, he said, would occupy two men for a week. In the light of his Honour's finding that the steps were "a most attractive feature", it would be unreasonable to carry out such an expensive process of reconstruction. Even Mr Moore's final report of 14 July went only so far as to say that rectification of the top entry step was "not essential but desirable".
In any event, it was never established that the plaintiff was responsible for the aberrant top half-step. Heirzer thought the fault lay with the framing of the steps. As has been mentioned, Walker topped them up when he came to lay pavers on them after they had been concreted, and found then that they were not level. Bell saw the steps in the process of being topped, and asked Walker why it was being done. The work was stopped until Johnston came to the site. The problem was explained to Bell who, according to Johnston, agreed to what was being done. In the course of cross-examination, Bell said that the framework had "possibly" been damaged by the plaintiff's workers; but no attempt was made to prove it, and the suggestion was never put to Walker or Johnston in cross-examination. His Honour found that the "slight irregularity", as he described it, in the matter of the top step was not caused by any act or omission on the part of the plaintiff, and that the plaintiff "had no option but to finish the top step in that manner given the levels with which it had to work". There is no reason to disturb the findings on this issue. Ground 8 of the notice of appeal therefore fails.
Underground drainage. The defendants' major complaint, and the principal focus of the appeal, concerned the state of drainage of the site after the paving work had been done, and the plaintiff's responsibility in law for its condition. At some time after the plaintiff had been put off site, there was a period or periods of heavy rain, resulting in flooding around the pool and the rear patio. Bell was uncertain when the flooding first happened, but thought it might have been in January 1992. "Dirt" and silt was deposited in and around the pool, and through the garage. Exhibits 13 to 16 are photographs of the flooding or its effects. It was caused by run-off from the rear of the land, which travelled down the paved back path carrying dirt or soil with it. Heirzer said the area alongside the path had not been grassed when he saw it, and the level of the adjacent soil was above that of the paved path (cf. ex.2/P32). There is evidence that some soil was placed there by Bell after the paving was done; silt and dirt would also have come from the heap spoil left after excavating the pool, which is visible in ex.2/P10 & 28. Some of it was still there at the time of the flooding (ex.14). Taking care of loose soil or spoil was not the responsibility of the plaintiff, which was not engaged to do landscaping work at the site.
However, if proper drainage had been designed and installed, the run-off and flooding from the rear of the land would not have accumulated in the quantities or gone where it did, or flooded the areas shown on exs. 13 to 16. In considering the responsibility (if any) of the plaintiff, two distinct questions are involved, one of fact and the other at least partly one of law. The factual question is the extent to which the flooding resulted from surface drainage that was inadequate, or from underground drainage that was inadequate. The question of mixed fact and law is the extent to which the plaintiff was responsible for the underground drainage, or at least for advising the defendant about it in the course of carrying out the paving work.
The responsibility of the plaintiff for underground drainage depends on the terms of the agreement, express or implied, to do the paving work. It was accepted on both sides that the agreement was one for the supply of work and materials, and that, in the case of such a contract, warranties of fitness of the materials and of skill on the part of the contractor are ordinarily implied, except to the extent that they are inconsistent with express terms. See, generally, Helicopter Sales (Australia) Pty. Limited v. Rotorwork Pty. Ltd (1974) 132 C.L.R. 1, 6; Young and Martin Ltd v. McManus Childs Ltd [1969] 1 A.C. 454, 471; Gloucestershire C.C. v. Richardson [1969] 1 A.C. 480, 495. The quotation ex.1 itself says little about the scope or content of the work, being concerned mainly with matters of dimension and price. So far as relevant here, what it says is that the plaintiff is "to supply and lay approximately 650m2 of ... pavers on ... cement, sand and pea gravel bed"; and that workmanship is guaranteed for 12 months, which adds nothing that is helpful for present purposes.
It is, however, possible to arrive at some conclusions about the plaintiff's contractual obligations in the circumstances. In laying pavers in the areas designated in the paving plan ex.6, the plaintiff was no doubt expected to do so with such skill and care as to diminish, so far as it was possible, the impact of run-off of surface water from the rear of the land to or into places where it was obviously not wanted. To that extent, the plaintiff was responsible for surface drainage. Underground drainage is another matter. By that is meant drainage from low points where excess surface water accumulated and ought to have been channelled away through underground drains to the stormwater drainage system leading to the street. The rear of the house was one such area, and the barbecue and swimming pool was another. As can be seen from photographic exs. 13 to 16, paving levels and contours would not have been adequate to dispose of surface water in the quantities that accumulated from run-off coming from the rear of the allotment to the back of the house. For that purpose underground drainage was installed by Heirzer in the swimming pool area and at the rear of the house in the course of the rectification work carried out in April 1992. It consisted of 95mm pipes leading into the domestic stormwater drainage system, which in turn discharged into the Council stormwater pipe in Oakwood Street. Heirzer included this underground drainage work in his overall quotation for the work he did. In the case of the drainage at the back of the house, it involved installing an additional sump or drain; replacing an existing underground drainage pipe which he found had been squashed out of shape and rendered unserviceable; and linking it up to the stormwater system. In the process here and elsewhere, he laid some 22m of underground piping. Exhibit 10/P1 shows two separate sumps or drainage points in the backyard leading to the underground drain after his work was done. The original sump and the drain which was replaced, had been installed there by Bell when the plaintiff's work was being done. The other was put in by Heirzer. Exhibit 10/P2 shows the same area evidently before the surface drainage pipes were cut down to surface level or below in order to make them workable.
On appeal, the defendants contended that, as part of its paving contract, the plaintiff was bound either (1) to instal a proper system of underground drains; or alternatively (2) to advise the defendants of the need to do so. As to (1), there is no reason for concluding that there was an obligation, whether express or implied, on the plaintiff to instal underground drains. The plaintiff did not hold itself out as a drainer and was not employed as such. No obligation to instal drains was ever alleged by the defendants in their pleadings. There is nothing in the written quotation ex.1 to suggest that the plaintiff would be doing underground drainage work, and no item or component of price is allocated to it. The closest approach to it in the evidence was a statement made by Bell to Johnston in the course of the Saturday or Sunday discussions to the effect that he did not want "a water problem". That might be taken to go without saying; but it is not enough to impose responsibility on the plaintiff for installing underground drainage as part of the paving work.
In fact Bell seems from the first to have undertaken responsibility for underground drainage himself. In the course of the initial discussions, he showed Johnston a grille over an underground drain which Bell had installed between the garage and the garden retaining wall near to the house. The grille is visible on ex.32/P.33-35, and it will be referred to here as the "garage drain". Bell also told Johnston that, to deal with surface water from the land at the back, he planned to build a retaining wall right across the rear of the block. Originally it was to follow a line which is marked in blue on the paving plan ex.6. No such retaining wall has ever been constructed.
Like the alleged obligation to instal underground drains, the alternative obligation to advise that such drains be installed has never been pleaded as such. It is said to arise from a general obligation to be implied in the paving contract to advise the defendants on matters of drainage. An obstacle, possibly fatal, to the implication of such a term is that, in the course of cross-examination, Bell, in answer to a question by the trial judge, said it had been expressly agreed that Johnston would advise him as to drainage. He repeated this assertion to Mr Alldridge, saying that the agreement was that "if he [Johnston] couldn't do it, to let me know and there would be drains or something put into position".
Nothing resembling an express agreement of the kind Bell asserted in these answers was alleged in the pleadings; or put to Johnston in cross-examination; or suggested by Bell in his evidence in chief. In fact, at an earlier stage in the cross-examination, Bell had been emphatic that there had been no discussion "whatsoever" about drainage in the course of the initial discussions with Johnston. His Honour's unwillingness to accept the evidence of Bell is therefore not surprising. His specific finding on this point was that the contract was not one:
"which involved the plaintiff in providing drainage or advice in relation to the same. The plaintiff was required merely to provide and to lay pavers and perform incidental works within the constraints imposed by the defendants' prescribed levels."
It is a curiosity of the case that, although the notice of appeal contains some 12 or 13 specific challenges to findings of fact, none of them claims that the trial judge ought to have found there was an obligation on the plaintiff to advise on the installation of underground drainage. It is not until para.2(b) of the defendants' written outlines on appeal is reached that the claim is made that the judge was wrong in finding that the plaintiff did not have to advise the defendants and was not responsible for the defects in relation to drainage. Some support for implying such an obligation was said to be discoverable in Johnston's evidence at the trial that in the pre‑contractual discussions he had suggested to Bell that, if the edge pavers were "kicked up" going down the front driveway, they would act as a kind of gutter or kerbing; but a suggestion like that is very far removed from being an acknowledgment that the plaintiff was bound to advise on the underground drainage needed to remove surface water coming down in quantity from the rear of the land.
Apart from that suggestion, the only other stage at which underground drainage was mentioned was, according to Johnston, when they came to do the paving in the back yard. Johnston then suggested that they needed drainage there, to which Bell responded by saying "Look, no problems. I will take care of that", and proceeded himself to instal a drain or drains in that area. That was some time before the plaintiff was put off the site in early December 1991. The drain installed by Bell on that occasion was the one at the rear of the house later found by Heirzer to be squashed and inoperative at the time when the rectification work was carried out in April 1992.
The fact that Johnston suggested that a drain be installed does not show that by entering into the contract to pave the areas shown on ex.6 he undertook the obligation of advising the defendants on the installation of underground drainage. In the circumstances his Honour was justified in reaching the conclusion that there was no obligation on the plaintiff either to instal underground drains or to advise the defendants where such drains should be installed. In so far as such an obligation is sought to be extracted from the circumstance that the defendants were entitled to rely on the plaintiff's implied duty of skill and care as a paver to advise them on such matters, it is not made out. Grounds 1 and 4 of the notice of appeal accordingly fail.
Levels and contours. It was nevertheless submitted that the learned judge ought to have found that the plaintiff had assumed responsibility for setting paving levels, and that his Honour was wrong in finding that the defendants had assumed that responsibility (ground 3). This ground of appeal, which is concerned essentially with surface drainage from paved areas is specifically related to the garage drain (ground 5), and more generally to the further finding by his Honour that all the plaintiff had undertaken to do was to pave over the nominated ground as best it could, having regard to levels already present, which is itself the subject of a distinct challenge in ground 2.
Septic tank, sliding door levels. There were, as the judge found, various factors that dictated the levels at which the pavers were to be laid in different places. At the rear of the house, there was a septic tank which the defendants required the plaintiff to cover over with pavers (ex. 2, P.5, 13, 18). It governed the level of the paving at the back of the house. Apart from the fact that it is an instance of the defendants' fixing a paving level, nothing else appears to turn on this item. The same may be said of the level dictated by the top of the retaining wall at the eastern end of the house. The weep holes in the walls of the front of the house were another factor that determined levels at which pavers could be laid. For some reason, much time and effort at the trial were devoted to the defendants' contention that it was agreed that paver levels were to be at the depth of one brick below all sliding doors in the house. There was a dispute about whether this had been specified by Bell in the pre-contractual discussions, and in this particular Mrs Bell's evidence tended to confirm her husband's claim that it was. On her instructions a point was marked on the wall by Walker (ex.2/P.9). In fact, the tops of the pavers were set at a level not of 1 brick below but at about 1½ bricks below the sliding doors in front of the house and at about ½ brick below at the rear (ex.2/P16). Under cross‑examination Bell agreed that the paving level could not safely be adjusted at the rear of the house; and in his final report of July 1992 (ex.25) Moore, while remarking that the patio paving level around the house was not at the level of one brick below all sliding doors, went on to say:
"However, the paving is at a level which I would recommend, being the minimum level below the level of the weepholes in the external walling. I consider the existing levels to be technically satisfactory."
In the face of this evidence from the defendants' own expert, ground 7 in the notice of appeal cannot be sustained.
Garage drain. The garage drain, or the paving levels around it, was another matter that was the subject of extensive evidence. As has been mentioned more than once, it was Bell who fabricated the aluminium grille, grid, or grate (as it was variously described) visible in ex.2/P.33 & 34. He also installed it in place above the underground drain which it was intended to serve. It had two principal faults. First, it was not wide enough; as can be seen from the photographs referred to (ex.1/P33 & 34), it did not go the full length of the space between the garage wall and the brick retaining wall. Johnston, Lawson, Keighley, and Woods all agreed it should have extended all the way across that space so as to intercept all the water passing through there. Secondly, according to both Lawson and Heirzer, the drain, or the grille above it, was set too high; when Heirzer carried out his rectification work in April 1992, Bell removed the grille and cut underneath it to lower the level before resetting the grille.
The effect of initially setting the grille of the drain too high was that surface water did not run to it either sufficiently or at all. Once it was set at a lower level, the pavers could be contoured down towards it, so that the water ran into it instead of by-passing it and going into the garage where it deposited silt and left water staining, of which evidence was noticed by Moore in his inspection in February 1992. Moore's view was that, although "it could be argued" that the pavers placed there by the plaintiff were contoured to the drain, the level of the drain was wrong and "required adjustment" (exs. 23 and 25). The work done by Bell and Heirzer of lowering the drain and repaving so that the paving contours directed the water into it, was carried out in accordance with Moore's recommendation.
By installing the drain and the grille which led into it, Bell fixed the level of the surrounding paving. The plaintiff was obliged to contour the paving to meet the level of the top edge of the grille of the drain which had been set. To have brought the paving to a lower level would have left the grille and drain projecting above the paving, which would have made its draining function even more futile than it proved to be before it was cut down. His Honour was therefore correct in finding as he did that the height of the drain and the height of the accompanying garage slab prevented any better contouring of the paving than was provided by the plaintiff. He was justified in rejecting the allegation by the defendants on this point. Ground 5 in the notice of appeal therefore also fails.
Paving and drainage at rear. Another issue at the trial was the reason for the flooding which is visible in exs. 13 to 16. There is no dispute that the water was rainfall run-off from the back of the land, which flowed down the back path (ex. 14) and went into the pool. When the pool filled up and overflowed, the water went into the area of the patio at the rear of the house (exs. 13, 16). It carried with it soil and other material (ex.15) from the land at the rear of the lot. The problem resulted in part from the sequence in which the pool was constructed and the paving and, later, the turfing was done. When Johnston quoted for the job on 11 September 1991, the pool had not been installed. It is shown on the paving plan ex. 6, and Johnston said that at the time of his inspection at that date the outline of the pool structure was marked on the ground. By the time the paving of the driveway and the other areas in front of the house had been completed, the shell of the pool had been installed. The spoil from the excavation was heaped in the area at the rear of the house where the back path was to go. Before the paving could be done there the plaintiff had to bring in a backhoe to cut a passage through the spoil for the path to go through.
The result (which is apparently visible in the photographic exhibits, for example ex.2/P10) was that the path as paved ended up at a level lower than the surrounding soil or spoil. Heirzer agreed that the paved path would have acted as a channel down which rainwater and surface run-off travelled carrying soil and other material into the swimming pool, as can be seen in ex.15. The introduction by Bell of further soil for landscaping purposes increased the problem, which was not dealt with until Heirzer repaved the back path. He raised its level, added a mower strip, and turfed alongside it.
It is not suggested that the plaintiff is responsible for this state of affairs, which could have been avoided by not raising the surrounding soil above the level of the paved path and by laying turf over the soil. What is suggested, however, is that the flooding of the pool from run-off coming down the back path was caused by the plaintiff's failure to ensure that paving levels were correct. According to Moore the paving where the back path entered the pool area through the space between the retaining wall and the fence, and also the paving around the pool itself, was too level or "flat". It should have been sloped or contoured so as to ensure that the flow of water was directed away from the pool.
There is an element of ambiguity about the word "flat" in this context. It could mean that the paving was not at some point tilted laterally across the width of the path. One of the paving witnesses seems to have been saying this in the evidence he gave; but Heirzer did not suggest that this was what should have been done, and in repaving the back path he does not appear to have aimed to achieve such a result. It was Moore who said the paved path was too flat in the space at the entry to the pool area and around the pool itself. Although he did not use a dumpy level or other instrument to test it, he said he splashed water on the pool surround and saw it did not run away from the edge of the pool. In his third report (ex. 25) Moore recommended that the paving around the pool coping and the adjacent path to the rear patio of the house be removed and replaced so as to slope it away from the pool. In his evidence and in cross-examination, he said that the paved path needed a "sag curve", to provide a low spot, or "nice little dip", where a drain could be installed across the path to take the water away and prevent it entering the pool.
The plaintiff's contention was that the problem of run-off into the pool from the back path was not brought about by the paving or its levels, but by the absence of adequate underground drainage at appropriate points. The trial judge found that to be so. In his reasons he said that this head of complaint by the defendants was not made out, and that he accepted the submission of plaintiff's counsel that it was not the levels of the paving which caused drainage problems in the area referred to but the inadequacy of the drainage system constructed by Bell.
In the defendants' notice of appeal there is no specific challenge to the finding on this point, although ground 6 is that the judge was wrong in finding that the defendants were wholly responsible for the build up of water. There is ample evidence to support the finding. Heirzer's evidence (on which his Honour said he relied for this purpose) was that he installed the sump and underground drainage at the rear of the house, as well as another drain across the back path at the point recommended by Moore between the retaining wall and the fence where that path enters the pool area. As has been mentioned, he also lowered the garage drain. It may be that he also installed another drain with grille higher up in the back path, although from the record it is difficult to be sure about this. In addition he erected a small brick wall "on the right-hand side as you walk up the [pathway]" to stop the mud and dirt coming down the path. Referring to the drain across the back path, it was put to Heirzer in cross‑examination:
"If that drain was there, plus the others you put in, plus the reduction of the height of the one that was already there?
His response was "You'd have no problems". He agreed that the drain he installed at the bottom of the hill at the entry to the pool, and the brick retaining wall he built, "pretty much stopped the water flow". Likewise, when Moore was asked in cross‑examination to confirm that if all of that drainage had been there and working at the time when the original paving was done, and the existing grille near the garage had been lowered slightly, there would not have been any sort of drainage problem, he replied: "Probably right". He later qualified this in re-examination to the extent of saying that it was "conceivable" that water falling in the area surrounding the pool "could have gone into the pool".
In the light of this evidence, it is not possible to sustain ground 6 of the appeal. It should be added that two of the paving contractors (Lawson and Woods) called by the plaintiff gave evidence that a drain should have been installed in the "low spots" at the rear of the house in order to take the water away. Lawson said that pipes should have been placed at the rear of the house and at the entrance to the swimming pool area to take the water, and that the paving could then have been contoured towards those pipes. Woods marked with a red cross on ex.2/P18 two "low spots" where he said "a fairly decent soak hole, or something like that" should have been installed at the rear of the house to take the water away into the stormwater drainage system. This was in the area where Bell installed the pipe that was later found by Heirzer to be crushed and unserviceable.
Thickness of paving base. It is not clear from the evidence to what extent it would have been necessary to remove the paving laid by the plaintiff in order to instal the drains and underground pipes at the points described, which was part of the work done by Heirzer in April 1992. So far as can be gathered from the evidence of Bell, the whole of the paving laid by the plaintiff, and the concrete base it was laid on, was ripped up and relaid around the pool, in the back path or the path going down to the garage, and in the area between the house and the driveway. The quotation dated 2 April 1992 (ex. 17) from Coral Pools speaks of 160 sq.m of paving being removed and relaid. The price quoted is $20,990, but it includes provision of 22m of stormwater drains and three square grids or grilles, as well as the erection of the small brick retaining wall at the back path. There is an additional quotation dated 5 May 1992 (ex. 18) from Coral Pools in an amount of $3,550 to remove, re-concrete and re‑lay 45 sq.m of paving in the area between the house and the driveway. Bell said that all of this paving was ripped up and replaced because the concrete base was not 75mm thick. Two issues are involved - whether there was an agreement that the concrete base to be laid should be 75mm thick; and what the thickness was of the base in fact laid by the plaintiff in those areas.
The plaintiff's quotation dated 11 September 1991 (ex. 1) says the plaintiff is to "... supply & lay approx. 650m2 of ... pavers on an average thickness of 75 mm of cement, sand and pea gravel bed ...". Johnston gave evidence that in the initial Saturday discussion he told Bell that the plaintiff normally laid a 50mm base. Bell said he wanted to go a little bit thicker in the drive, and there was a discussion of going to 75mm. Johnston said that in his opinion that was "over-designing" but he would price it that way if he wanted it. Bell said he would sometimes want to bring heavily loaded trucks up the drive, and that he would supply steel mesh for strengthening the driveway.
Johnston also said he told Bell the plaintiff would be putting in a concrete base averaging 50mm thick in the pedestrian areas, which were the pathways, patios, and around the swimming pool. He claimed that Bell agreed to this in the Saturday discussion. Asked why, if that were so, Johnston wrote "average thickness of 75mm" in ex. 1, he said that he was "very lax in paperwork" and in most cases did not write contracts, so that what he had written there "wasn't a bad effort for me". That sounds pretty lame, but there was something in subsequent events that might be thought to support it. Shortly after the work began at the bottom of the front driveway, Bell complained to Johnston that the base of the first three metres laid from the street was not 75mm thick, and Walker was instructed to go back and increase the thickness to 75mm, which he did. No further complaint was made then or at the trial about the driveway. However, Bell carried out a check on the work as it proceeded. He said he removed some of the pavers at the right hand side of the front entrance and, using a drill with a 10mm masonry bit, he drilled into the concrete base until he struck the earth underneath. His finding at that point (which is marked with a red square on ex.2/P16) was that the base was no more than 50mm. He also examined the area round the pool, and found one corner where the base was only 25mm thick; other areas, he said "were probably 35mm". He did not drill into the back path, but looked at the edge of it, and chipped a piece away and measured it.
Bell said he telephoned Johnston and complained about the thickness not being 75mm, adding that "the concrete issue" was raised "on many occasions". Johnston said that he did not remember any conversation like that taking place except in relation to the bottom of the driveway.
With respect to the issue of thickness, the trial judge found that 75mm "was agreed at first and installed in the driveway"; but:
"... insofar as the pathways at the side and the rear of the house were concerned the parties agreed on an average thickness of 50mm. I accept Mr Johnston's evidence in that regard ...".
Although Johnston's credibility does not emerge well from this encounter, there is no basis on which, consistently with the decisions referred to earlier in these reasons, the critical finding can be disturbed on this appeal. It is, perhaps, as well to add that with respect to this issue the Judge seems to have proceeded on the basis of evidence admitted at the trial in concluding, in effect, that the terms of the initial agreement were not accurately recorded in the written quote. Rather, he concluded that the agreement was for an average thickness of 75mm only in the driveway and elsewhere 50mm. In the evidence admitted there would have existed some basis for a claim for rectification of the relevant written term or alternatively a variation of it, express or implied, subsequently arrived at. However, the need to consider this did not arise because exact formal compliance between the pleadings and the cases presented by the parties at trial seems not to have been achieved or even particularly striven for. The appellants raised their complaint in the proceedings about the thickness of the paving base only at a late stage through amendment of their pleadings and they placed no reliance on any formal evidentiary rule to exclude testimony arguably inconsistent with the terms of the verbal agreement concerning paving thickness.
The issue concerning the thickness of the concrete base laid down by the plaintiff was also the subject of conflicting evidence, which on this occasion was complicated rather than assisted by photographic evidence. Walker, who did the work or supervised it, said that his instructions from Johnston were that the base of the driveway was to be laid 75mm thick and elsewhere it was to be 50mm; and that he laid a base of those thicknesses. He said that in some sections it could have gone down to 40mm but the average was 50mm, except perhaps at the "very perimeter edge", where the base might have been as thin as 20 or 25mm.
When Heirzer removed the plaintiff's paving in the areas of contention, Johnston was not invited to look at the result, which was a matter of complaint by him at the trial. However, sections of the concrete base were photographed and can be seen in some of the photographs forming ex.20. According to Heirzer, they showed thicknesses in the back path of from 24 to 30 to 35mm; at the back of the house of 30 to 60mm; at the back of the pool of 40 to 50mm; and under the pathway beside the garage of 40mm. The photographs are not as conclusive as might be expected, partly because it is possible to compare them with other photographs (ex.5) tendered by the plaintiff which show thicknesses of 150mm; partly because the parties accused each other of selecting only those sections which favoured their contentions; and partly because the search for an average of 50mm would have involved extensive sampling over the whole area, which does not seem to have been undertaken.
Moore, who observed the depth of concrete in the back path, said in evidence that it varied, but that the average depth was about 45mm. In his report no. 2 of April 1992 (ex.24), he said that on inspection the concrete base beneath the rear path paving varied form 35mm to 55mm which is presumably how he arrived at an average of 45mm. On that footing the thickness of the rear path was on average 5mm (or about 1/5 of an inch) short of the agreed thickness. In his evidence at the trial, Moore said that about 25mm would be "okay" if it was not going to have wheeled traffic on it.
It will be recalled that, according to Johnston, and as his Honour found, the agreed thickness was to be 75mm in the driveway and 50mm elsewhere in "pedestrian" areas. At the trial the contest about thickness concentrated on the back path and the use that the defendants would be making of it. Bell claimed he had told Johnston that he might be bringing "any type" of equipment into the back of the property, and so might wish to traverse the back path with it. In cross‑examination he said that there was access at the back of the lot from Mt. Cotton Road through a gate which was sufficient to admit heavy vehicles 8ft in width. After the inspection, he agreed that the gate, which is set in a chain wire fence 6ft high, was only 6ft wide, and that it could be reached only by negotiating a deep embankment or gutter at the rear of the property. A young tree was growing or had been planted on the property in front of the gate. In argument before this Court, Mr Alldridge submitted that the impression obtained in the course of the inspection was strongly against the defendants on this issue.
On the question of the depth or thickness of the concrete base, the trial judge said he accepted Johnston's evidence and saw "no reason to find fault with the plaintiff's work". He went on:
"I have not been satisfied that the average thickness of the base material in that area fell appreciably short of the average thickness agreed.
Certainly, the defendants put on evidence which suggested that a lesser thickness had been installed but having regard to the whole of the evidence, I am not satisfied that was so. In any event, no one could deny on the evidence, that the plaintiff had achieved substantial performance in that regard and no proper basis was placed before me in evidence from which a calculation might be made of the cost of the rectification which might have been expected since it was not suggested the contract was entire."
The form in which his Honour expressed his reasons suggests that, perhaps not without some justification, he was less confident about his findings on this aspect of the dispute than on some of the others. However, even assuming that the back path had to be removed, reformed and repaved, there was, it must be said, no way of assessing the defendants' damages on the material available at the trial. The quotation (ex.18) pursuant to which Coral Pools did the work and was paid for it nominated a single sum of $20,990 for rectification work which included other paving with the back path, as well as the construction of underground drains, the supply of grilles, and the erection of the brick retaining wall at the rear. These items did not from part of the work which the plaintiff contracted to do; and it is not possible to dissect them out of the lump sum price in ex.18 because separate amounts are not quoted for them. In evidence Heirzer did nominate a figure per square metre for laying the pavers; but the area of the back path, which does not appear from the evidence, is only part of the total area of 120 sq.m. that was replaced by Coral Pools. In adopting the extreme position that the paving was grossly deficient, the defendants failed to cater in their evidence for the intermediate possibility that the deficiency might be capable of being allowed by a lesser reduction from the amount of the plaintiff's claim.
The difference between the average thickness agreed (50mm) and the average of the base laid (45mm) under the back path is so slight that it can reasonably be said to amount to "substantial performance" within the principle in Dakin v. Lee [1916] 1 K.B. 516; Hoenig v. Isaacs [1952] 2 All E.R. 176; and Lemura v. Coppola [1960] Qd.R. 308, 314-315. See also Zamperoni Decorators Pty. Ltd v. Lo Presti [1983] V.R. 338, 340-342. Under a contract like this, it is only where the defective work is apparently "valueless" that the onus of proving it has some value rests on the plaintiff : see Riverside Motors Pty. Ltd v. Abrahams [1945] V.L.R. 45, 52-53; otherwise it is for the defendant to show how much less it is worth; ibid, citing Mondel v. Steele (1841) 8 M. & W. 858, 871, per Parke B. See also Peters v. C.W. McFarling Floor Surfacing Limited [1959] S.A.S.R. 261, 266. The defendants here failed to prove the diminution (if any) in value arising from the fact that the thickness of the concrete base is less than 50mm or, for that matter, 75mm. The question is to some extent tied in with the "reasonableness" of the defendants' action in tearing up the path and replacing it for the sake of a shortfall of only 1/5 of an inch in the average thickness of the underlying concrete base (Bellgrove v. Eldridge (1954) 90 C.L.R. 613, 618). According to the evidence of Mr Moore, 25mm would have been enough for pedestrian traffic, so that 45mm would have been more than ample. The position might well have been different if loaded trucks were to be driven over it; for that to be done, Mr Moore said a thickness of 75mm would be required. According to his Honour's finding concerning the contract, the agreed thickness of the concrete paving base apart from the driveway was to be 50mm. Unless that finding is displaced it is difficult to see that there was any justification on the defendants' part for incurring the substantial expense of removing and relaying paving that was in all respects functionally and aesthetically serviceable.
The defendants have, in our opinion, not succeeded in displacing the trial judge's conclusion on these issues. Grounds 10, 11 and 12 must therefore also fail.
Payment for "wastage". In giving judgment for the plaintiff, his Honour allowed an amount which was incorporated in the plaintiff's claim for "wastage" of pavers. The amount was calculated at 2% of the pavers supplied by the plaintiff. In the plaintiff's final invoice no. 1015 dated 2.12.91, which is part of ex.4, the quantity of pavers supplied is described as 905.5m2 supplied, less 650m2 pre-paid = 255.5m2 at $21.76 per m2. The amount against that item is $5,559.68. The invoice then goes on to add "allowing 2% wastage on 905.5m2".
By "wastage" is meant an allowance for pavers which are chipped and broken, or which are cut in order to fit them into curves or alongside permanent structures, etc. A heap of such pavers is shown in ex.2/P7. Johnston said that in the pre‑contract discussions Bell agreed to pay for wastage. Heirzer agreed that wastage was a factor that had to be paid for by the owner, although he said the allowance was 5% not 2%. After referring to the evidence of both witnesses, the trial judge said he was "quite satisfied" that the agreement was that the defendant would pay for all pavers purchased allowing for a wastage factor. His finding that pursuant to the agreement the defendants would pay for "wastage" of pavers is challenged in ground 13 of the notice of appeal.
There was evidence from Johnston capable of supporting the finding that Bell agreed to pay for wastage. The problem here is to determine how or why the amount is to be allowed. The quotation specified a rate of $21.76 per square metre for pavers supplied, and an additional rate of $27 per square metre for labour and materials in laying them. Initially an estimate was made that at least 650m2 of pavers would be needed. Bell paid for them in advance giving Johnston a cheque for $14,144; which is why that quantity of pavers is credited in invoice 1015 ("less 650m2 pre‑paid"), leaving a balance still to be paid for of 255.5m2 at $21.76 = $5,559.68.
Although invoice 1015 speaks of allowing 2% wastage "on" 905.5m2, a check on the calculation shows that the amount claimed of $5,559.68 has been calculated at $21.76 per sq.m only on the balance quantity not yet paid for of 255.5m. The wastage rate of 2% has thus been taken into account in arriving at the total quantity of 905.5 sq.m supplied. It would therefore have been more correct for invoice 1015 to have said "allowing 2% in (rather than on) 905.5 sq.m". If the 2% factor is removed from 905.5 sq.m, the quantity of pavers supplied would be reduced to 887.7 sq.m.
On first impressions, the appropriate method of calculation would have been first to deduct the 650 sq.m. of pavers pre-paid by Bell from the total supplied of 887.7 before applying the 2% wastage factor to the resulting difference of 237.7 sq.m. There does not appear to be any good reason why the defendants should be liable for a wastage factor for the supply of pavers which they themselves have paid for. Presumably, however, the rationale is that since wastage is something distributed over all the pavers supplied and delivered to the site, the 650 sq.m. paid for by the defendants are also vulnerable to that factor. If 2% were not allowed for in those 650 sq.m. of pavers, the result would be to throw the wastage entirely on to the additional quantity of pavers supplied and paid for by the plaintiff, the price of which had not yet been recovered from the defendants.
This appears to be the underlying justification for incorporating the wastage factor of 2% in claiming $5,559.68 for the whole of the 905.5 sq.m. of pavers supplied at the rate of $21.76 per sq.m. Before adding in the wastage factor of 2%, the original quantity of pavers supplied must have been 887.7 sq.m., which means that a total of about 17.7 sq.m. has been allowed for as wastage over all the pavers. At the agreed rate of $21.76 per sq.m., the result in money terms is $385.15, which forms part of the plaintiff's total claim for which the judgment was given. The learned judge found that the defendants expressly agreed to pay for wastage, and, although the percentage rate of 2% was not, according to the evidence, expressly mentioned to Bell, it appears to be a reasonable allowance in comparison with the rate of 5% which Heirzer said he charged for wastage. The judge's finding that such an agreement was in fact made was based on his impression of the credibility of Johnston as a witness. No basis has been shown for disturbing that finding, and it follows that ground 3 in the notice of appeal also fails.
In the result, none of the grounds of appeal has succeeded. The appeal must therefore be dismissed with costs.
REASONS FOR JUDGMENT - PINCUS J.A.
This is an appeal against a judgment of the District Court for $36,493.87 given in favour of the respondent plaintiff in a dispute about the paving part of a house property including a driveway. The learned primary judge accepted, with one minor reservation, the case put forward for the respondent plaintiff. The notice of appeal challenges much of what the judge held, but it seems right to assume that it is unnecessary to deal with any of the grounds other than those put forward in the appellants' written outline. Apart from a question raised as to an implied term, dealt with below, the matters advanced in the written outline were not, in general, argued orally at length.
The paving work done by the respondent was on a substantial domestic property. It was a large, expensive job and the results were unsatisfactory, in that rain water did not drain away property; the photographs show, and it was not in the end disputed at the trial, that the job was left in such a condition that substantial rain caused a great deal of water to lie about. A sum which appears to have been in excess of $20,000 was spent by the appellants on rectifying this condition. The primary judge took the view that the drainage difficulty was not the fault of the respondent. That conclusion is challenged, principally by contending that there should have been held to be a term implied in favour of the appellants. Although the drainage issue was, in a practical sense, the main source of the dispute, it is convenient to deal first with another.
Depth of Bed
The primary judge held that the contract was partly oral and partly in writing, and that is undoubtedly so. However, insofar as the parties have deliberately agreed to record any part of their contract, the parol evidence rule applies: Bank of Australasia v. Palmer [1897] A.C. 540 at 545, Hoyts Proprietary Ltd v. Spencer (1919) 27 C.L.R. 133 at 143, 144. One finds no reference to, or indeed consciousness of, this important rule in the learned judge's reasons.
The judge held that a 75 mm average thickness of bed was "agreed at first", and as I understand his Honour's reasons, that the agreement was varied as to a certain part of the paving. But there was no evidence on which that finding could properly be made.
The relevant part of the written contract, dated 24 December 1991, referred to:
"Old Roman 230 x 115 x 50 pavers on an average thickness of 75mm of cement sand and pea gravel bed."
There might have been an issue as to what was meant by the reference to "average thickness"; as a matter of commonsense, the word "average" was probably intended merely to leave the paving contractor some reasonable margin of error. But even if one reads the expression quite literally, as allowing a great deal of variation from place to place so long as the average was 75 mm, that was not complied with; the details are discussed below. It is clear that much of the paved area had a bed well below 75 mm; indeed, there was evidence that in places it was less than a third that figure.
Faced with that fact and the terms of the writing, there was a number of answers which Mr A D Johnston, the principal of the respondent, might have made: that the paving was 75 mm everywhere; that it was not, but the written agreement was incomplete; that the written agreement was correct, but the parties varied it. Johnston gave the first two answers, which are inconsistent with one another and with the judge's conclusion. Johnston did not advance the third possibility, but nevertheless the judge decided in his favour, holding that "Seventy-five mm. was agreed at first (emphasis added) and installed in the driveway. But insofar as the pathways at the side and rear of the house were concerned the parties agreed on an average thickness of 50 mm".
This seems to explain away the terms of the written agreement - by the reference to "at first" - on the basis that as the job developed, the parties made a different agreement. But that was not Johnston's explanation for the terms of the written agreement. He said:
"...part of my quote was that the pedestrian areas were going to be 50 mill"
and that he told the first appellant Mr Bell that there were to be "50 mill in all pedestrian areas". In saying this, he plainly meant that this was always the agreement. The "pedestrian areas" constituted much of the job. When asked why it was not to be found in the writing, he explained that away by his laxity, said he thought that the term he had used had "covered it" and remarked that no doubt he could have "gone into pages and pages in putting it into great detail".
This explanation for the reference in the writing to 75 mm is unconvincing; his Honour does not mention it in the reasons for judgment, nor indeed does his Honour appear to attach any importance to the circumstance which constituted the strength of the appellant's case on this point, namely that there was an express written term.
I have mentioned that another answer given by Johnston was to the effect that the written term had been complied with. He distinctly disputed at two places that the average thickness was not 75 mm explaining that "We wouldn't change it specifically for a particular area".
In fact, the suggestion that the written term was complied with was plainly untrue. Mr P H Walker, who appears to have been the respondent's workman in charge of the work on site, explained that in the "foot traffic areas" he was "working at 50 mm", his instructions being "at the beginning of the job" to work on 50 mm around the house and around the pool.
The judge accepted that 50 mm average thickness was laid in that rather vaguely defined area, but it seems doubtful whether that finding was justified. Walker conceded that it was possible that it was, in parts, "as thin as 20 to 25 mm", and the man who did the rectification work, Heirzer, put the depth around the pool area and in the back part at "25, to 50 mil".
It does not appear to be of any consequence whether the average depth of bedding over much of the paving was 50 mm, as the judge held, or rather less. It is plain that no attempt was made to meet the specification in the written contract. Johnston's explanation for this, to the effect that it was too much trouble to write 50 mm as applicable to part of the job, seems fanciful and is not that which the judge has acted upon. The judge's conclusion that 75 mm was agreed "at first", but - as I read the passage - was later varied, is not in accordance with any of the evidence.
The respondent did not, with respect to the bed thickness, comply or substantially comply with the contract.
The judge held, in effect, that if the respondent had had any success with respect to the thickness of the bed, there was no evidence of the cost of rectification and "it was not suggested the contract was entire". The consequences of success for the appellants on this point were not analysed, either in the written outline or in oral argument. It is necessary to say something more about this and convenient to defer doing so until other issues are dealt with.
Drainage and levels
The evidence on this subject is rather complex and in some places difficult to follow. The primary judge's understanding of it was assisted by a view, but presumably that assistance was rather limited since rectification work had been done, considerable in cost and extent, before the view. The judge's conclusions were, in essence, that it was not the contractor (the respondent) which had the responsibility for drainage, but, by agreement between the parties, the appellants had to look after the problem and they failed to do so.
The principal point, ventilated in oral argument, was that the judge should have held that a term should be implied with respect to the drainage, in favour of the appellants - a term whose general effect was that the respondent should not have gone ahead with the job if the drainage was inadequate. Counsel for the appellants suggested that if that submission was not acceptable, there was nothing much left of the appeal; as will appear from what has been written above, that is not so. Fortunately for the appellants, their counsel did not formally abandon any of the other matters raised.
The flooding which appears to have been the main reason rectification was necessary is shown in photographs, exhibits 13 and 16. Also, it was not seriously disputed that there was difficulty with the drainage in the area immediately surrounding the pool: exhibit 15. One should not overlook that in some parts of his evidence Johnston denied any deficiencies in the drainage, but he did so tentatively, and the general burden of his evidence was that the drainage was inadequate. The judge held that the appellants "had in fact assumed the responsibility of setting important levels and providing drainage". As to the former point, setting levels, what his Honour seems to have meant is explained in another passage in the reasons; it was that the levels were "dictated by pre-existing features such as" the location of a drain and of weep holes in the walls, and other matters the judge mentioned.
It does not appear to be a good reason for leaving the paving work in such a condition as is depicted in the photographs that to some extent the paving levels were dictated by the presence of existing structures; that will commonly be so, except when the performance of the paving work occurs before the structures it surrounds are erected. If the judge's conclusion is to be upheld, that must be on the basis that the appellants made themselves responsible for providing adequate drainage, but failed to do so, and that this was the substantial cause of the difficulty.
The defence - para. 10(f) - complains of the paving levels having caused water to flow into the pool, back patio and garage. That was dealt with in an amended reply and answer delivered on 7 July 1992, which made a number of allegations, but did not say that it was agreed that the appellants would take sole responsibility for the drainage. Johnston swore that he suggested to Bell that an edge paver should be "kicked up" to act as a gutter or kerbing along the driveway. That was done; Johnston's having made the suggestion does not accord well with the idea that the appellants were solely responsible for the drainage problem. Johnston also said that "we need drainage in the backyard" and that Bell said he would take care of that by a certain date and "proceeded on the weekends to instal drains in the backyard area". This is consistent with the appellants having been responsible for doing the physical work necessary to provide drainage, but does not strongly support the proposition that it was the appellants' responsibility to ensure that the drainage provided was adequate. It should be added, incidentally, that it seemed clear that the reference to "drains" was incorrect; there was only one relevant drain.
There was nothing in the contract about putting in drainage works and the appellant Colin Bell said that he left it up to Johnston's expertise "to use his experience to shape the paving and if it felt necessary to have a drain, I would have thought that Mr Johnston would have let me know". There might be thought to be a degree of implausibility about the suggestion that Bell, who had no knowledge of paving or draining, was relied on for determining what was necessary to ensure that the paving was adequately drained. There seems to have been no dispute that extensive drainage was necessary; for example, it was put in cross-examination by counsel for the respondent that:
"...the contour of that site is such as to make it obviously, really, to anybody looking at the site that there was bound to be some drainage problems unless there was extensive drainage work done".
If it was obvious to anyone, then it should have been obvious to a competent paviour.
There is no evidence directly supporting the judge's view that the appellants assumed responsibility for providing drainage, but he did say that Bell agreed "to put the drains in - he said he'd take care of all that". The appellants' difficulty is that the question of responsibility for the drainage is, in essence, a factual one on which the judge's conclusion is against them. Although by no means all of Johnston's evidence was consistent with the finding, some of it was, and one is forced to the conclusion that this is not a case where the finding falls within one of the narrow range of findings which, although dependent in part upon impressions gained by the trial judge, can nevertheless be seen to be erroneous.
Once it is accepted, as it appears it must be, that the appellants assumed entire responsibility for drainage, then the argument that there was an implied term to the effect mentioned can hardly succeed. Odd though it may seem, one must take it that it was the job of the customer and not the contractor to work out what drainage of the paving was needed and to provide any necessary drains.
But that does not necessarily involve a conclusion that the paving was laid to proper levels. The judge held in effect that it was, but as Mr Matthews argued, his Honour made no reference to what seems to have been important evidence on this point, that of the engineer Mr Moore. He was brought in by the appellants to advise on rectification, but apart from that it was not shown that he had any connection with either side; it is not easy to understand why the primary judge did not deal with his evidence, as he was the only person who might be described as an independent expert in the case.
It may be, although the view is somewhat speculative, that his Honour thought that Moore's evidence was irrelevant because any difficulties created by bad contouring of the paving could have been met by more drains. But, accepting that, there was clear evidence of bad contouring, which was not firmly contradicted. The question is whether the judge's factual conclusion can properly be upset.
Moore's first report of 5 February 1992 praised the "geometry of the work", but (para. 8) said that the slope of the land, the slope of a path whose location was described, and the height of the swimming pool surround paving was such that run-off was concentrated onto the path. Moore recommended that the relevant levels be adjusted in a way he indicated. In a subsequent report, that of 14 July 1992, Moore said that the relevant paving had "been removed and replaced to a satisfactory slope and standard"; that was done by Heirzer. In his oral evidence, he explained that the paving was almost flat around the swimming pool and should have been sloped away from the pool. Johnston, when asked whether the levels were such that water flowed into the pool, said that 'that may well be the case", but denied that this was caused by anything the respondent did. He also said that 'I felt that our falls and everything were correct". He insisted from time to time that any problems with water were not his fault and said that the trouble was that a drain installed by the appellants was not wide enough. It seems that this could not have been relevant to the levels around the pool.
That the principal witness, on the question of the paving levels, was not referred to gives rise to a suspicion that his evidence was simply overlooked, but, not without hesitation, it has to be concluded that one must assume that the learned primary judge found Moore's evidence unconvincing for some reason and rejected it. The case is marginal, but the better view is that the judge's conclusion that there was no deficiency in the respondent's levels must stand as being dependent in part on the impressions created by witnesses whom we have not seen.
The appellants' contentions with respect to drainage and levels therefore fail.
Steps
It was not in dispute that a fairly elaborate set of steps was built and paved and that the top step rise was substantially lower than the rise in the other steps. Various explanations were given for this. Walker, mentioned above, said that the reason the top rise was made lower than the rest was that, had it not been, water would have been running towards the door. Johnston claimed that the framing of the steps (in steel), which was done by the appellants, was the trouble.
The appellants' case about the step, which was apparently rejected, was that each of the lower steps had too much "topping" placed on it, so that when the paviour got to the top step, he was forced to make the rise less. The judge seems to have rejected that view of the matter, holding that the respondent "had no option but to finish the top step in that manner, given the levels with which it had to work".
Obviously, having one step of substantially less height than another would look odd. The evidence was that the steel framing onto which the concrete forming the steps was poured was made by Bell. It would seem excessively unlikely that the framing would have been made with the top step lower than the others, and Walker, who did the stair work did not assert that this had happened; he seems to have been of the view that the framing had been "pushed down slightly". If this is the case, the evidence did not show who was responsible. More generally, a reading of the whole of the evidence concerning the step leaves one in a state of uncertainty as to the cause of this strange deficiency in the work. The judge took the view that it could not have mattered much to the appellants because they did not correct it; but on the evidence the cost of doing so would have been quite considerable. No sufficient ground appears to justify upsetting the judge's factual conclusion on the point, which was against the appellants.
One brick below
The allegation was that the paver levels next to the house were to be one brick below all sliding doors. Johnston said this was not possible and he received some general support on the point from Moore's evidence. There was no such term in the written contract and the primary judge was entitled to reject the appellants case concerning it, as he did.
Wastage
The written contract specified the price for the pavers as "$21.76 per m2. Delivered". This perhaps implies that the appellants had to pay for all bricks delivered. Johnston said in effect that there was to be a wastage factor of "off-cuts, chipped pavers, reject pavers, and that we would do a final calculation at the end of the job.
It is not quite clear what the appellants' case was about wastage. Johnston implied that his idea was that the appellants would pay for the pavers delivered and laid, but to the figure so arrived at there would be added a wastage factor. The appellants set up below, apparently, that the true agreement was that they should pay only for the area of pavers laid, but that is inconsistent with the word "delivered" in the writing. The respondent's case was accepted by the judge and it is not shown, or indeed argued, that if one simply required the appellants to pay for all the pavers delivered at the rate indicated in the contract, they would be better off.
This ground of appeal must also fail.
Conclusion
One can hardly resist saying that it is understandable that the appellants might feel aggrieved at the result, in view of the considerable amount they have spent on rectification work; but they fail on all aspects of the appeal except with respect to the thickness of the bedding. The primary judge should have found, but did not find, that the contract was breached by the respondent in that it laid the bricks on a bed, not of average thickness 75 mm, but in respect of much of the paving, on one whose average thickness was at most 50 mm. Mr Matthews argued that paving on a bed of less than average 50 mm "has to be taken up and bedded properly". Apart from that, there was no argument addressed to us with respect to the consequences of finding that there was a breach of contract with respect to the depth of the paving. It may be arguable that (contrary to the view expressed by the primary judge) the contract was entire and that the contract price was not payable unless there was full and complete performance: Sumpter v. Hedges [1898] 1 Q.B. 673. Another possibility is that the conduct of the parties gives rise to an implication of a new obligation to pay the value of the work done: Steele v.Tardiani (1946) 72 C.L.R. 386 at 394, 405.
The parties should be given an opportunity to make submissions in writing, but only regarding the result of the finding that the respondent was in breach of contract in that the bricks were laid on a bed of thickness at most 50 mm over much of the area of the paving, instead of the 75 mm average agreed. It is appreciated that this finding does not precisely define the area affected; the evidence varies on that point, but the primary judge appears to have thought that only the driveway was laid at a thickness of 75 mm. The precise area laid on inadequate thickness of bed probably does not matter, because it was certainly a substantial part of the job.
The submissions we have mentioned should be filed within 21 days, but if either party desires to have the point argued orally, the Registrar should be informed so that the mode of proceeding may be further considered.
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