Chapple v CIS Contracting Pty Ltd - [2001] WADC 10

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CHAPPLE & ANOR -v- CIS CONTRACTING PTY LTD & ANOR [2001] WADC 10

CORAM: DEANE DCJ

HEARD: 10, 14 MAY, 8-11 NOVEMBER 1999

DELIVERED : 29 JANUARY 2001

FILE NO/S: CIV 1451 of 1997

BETWEEN: RAYMOND WILLIAM CHAPPLE
JOAN NATASHA CHAPPLE
Plaintiffs
AND
CIS CONTRACTING PTY LTD (ACN 070 228 563)
First Defendant
ABB POWER GENERATION LTD (ACN 000 038 237)
Second Defendant

Catchwords:

Building contract dispute - Fuller (F L Smith) contract with second defendant to construct electrostatic precipitator on building project - Second defendant contracts with first defendant to install thermal insulation and cladding to electrostatic precipitator - First defendant contracts with plaintiffs to supply, erect and dismantle scaffolding to permit insulation and cladding to be installed - Original scope of contract - When did contract begin and end - Whether plaintiffs entitled to charge weekly hire rates for material hired from commencement of hire until removal of final material from site - If so calculation of entitlement - Significant overrun in project schedule - Plaintiffs' claim against first defendant for recovery of money under contract or alternatively in quantum meruit - Plaintiffs' claim against second defendant in quantum meruit - First defendant counterclaims against plaintiffs for breach of implied terms of contract - Scott Schedule - Various items on Scott Schedule admitted by first defendant subject to counterclaim - Remaining items on Scott Schedule in dispute - Whether either or both defendants requested extra work of plaintiffs and if so the extent of such work - Whether plaintiffs entitled to a reasonable price for such work if it was carried out - The total value of the work done by the plaintiffs if such work was requested by either or both defendants

Legislation:

Nil

Result:

First defendant's counterclaim against plaintiffs dismissed in its entirety - Plaintiffs entitled to recover the further sum of $48,690.22 from the first defendant (having previously been paid the sum of $70,940 by the first defendant) - Plaintiffs entitled to recover the sum of $52,072 from the second defendant - Counsel to be heard in relation to question of interest

Representation:

Counsel:

Plaintiffs:     Mr M J McPhee
First Defendant             :     Mr J R Ludlow
Second Defendant         :     Mr G I Brook

Solicitors:

Plaintiffs:     Michell Sillar McPhee
First Defendant             :     McAuliffe Schwikkard
Second Defendant         :     Minter Ellison

Case(s) referred to in judgment(s):

Balfour Beatty Power Construction v Kidston Goldmines Ltd [1989] 2 Qd R 105
Brenner & Anor v First Artists Management Pty Ltd [1993] 2 VR 221
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 346
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Update Constructions Pty Ltd v Rozelle Childcare Centre Ltd (1990) 2 NSWLR 251

Case(s) also cited:

Anglopoulos & Anor v Sabatino & Anor, unreported; FCt SCt of SA; Library No BC9502270; September 1995
Parkinson (Sir Lindsay) v Transvaal Provincial Administration [1974] 4 SALR 506
Sharpe v San Paulo Railway Co (1873) 8 Ch App 597
Thames Iron Works Co v RM Steam Packet Co (1861) CB (NS) 377
Thorn v London Corporation (1976) 1 AC 120
Vass v Commonwealth of Australia [2000] FCA 2 February 2000
Wilmot v Smith (1828) 3 C & P 453

DEANE DCJ:

Introduction

This action arises out of a project at the premises of Cockburn Cement which required the building of an electrostatic precipitator on their behalf. They employed Toussaint & Richardson Pty Ltd as engineers to design the precipitator and Fuller (F L Smith) ("Fuller's") were employed to oversee the whole project for Cockburn Cement. It appears that Transfield Construction were also involved in the project at this level. In turn Fuller's contracted with ABB Power Generation Ltd (ABB - the second defendant) to supply the precipitator. It was necessary that the precipitator be insulated and to this end the second defendant subcontracted with CIS Contracting Pty Ltd (CIS - the first defendant) to insulate it. Fuller's employed Mr Rolfe as the project manager/site superintendent to oversee the construction project. He followed Mr Juredsska and then Mr Cata in this position. Mr Campbell was the site manager for the second defendant with respect to the construction of this precipitator for Cockburn Cement Lime Calcination Kiln No 6. The representative of the first defendant on site was Mr Thomson, who had considerable experience in the construction industry. Mr Thomson originally worked for a firm called KBE Contracting Pty Ltd ("KBE") which was mainly involved in the business of removing asbestos but their interests extended to carrying out of insulation and sheet metal work. As a result KBE set up the first defendant CIS as an associated company engaged in the installation of insulation and sheet metal.
In early September 1995 KBE were invited by the second defendant to prepare a quote for the installation of thermal insulation and cladding on the precipitator. To this end Mr Thomson made a number of enquiries and prepared a number of documents relevant to supplying a quote. In order to insulate and clad the precipitator it was necessary that the structure be surrounded by scaffolding in order to allow employees of the first defendant to gain access to the precipitator to do that work. The first defendant did not supply its own scaffolding and so Mr Thomson was required to take that aspect of the matter into account when preparing his quote for the second defendant.
Mr Thomson received quotes from a number of scaffold firms including a firm called Fremantle Scaffolding, the proprietor of which was Mr Chapple and his wife who are the plaintiffs in this action. Although Mrs Chapple is named as a plaintiff she did not give evidence and did not play an active role in events the subject of this action and therefore in that sense does not play a role in these proceedings. Mr Chapple was also associated with a company called AISCOR which was also involved in the business of scaffolding. A number of quotes for the scaffolding component of the project were received by Mr Thomson and the evidence suggests that the most competitive of these quotes came from AISCOR and a company called All Scaffolds. In this instance AISCOR and WACO Kwikform (a firm with whom AISCOR dealt) were to supply the scaffolding material and Fremantle Scaffolding were to supply the labour.
Mr Thomson prepared his quote for the second defendant taking into account the cost of materials to which was added a 15 per cent mark up and a further cost for the total price of labour for the installation of insulation and cladding. To this were added sundries and an amount for scaffolding of $64,620. The scaffolding allowance was an estimate at that time. Mr Thomson then submitted a written quote, dated 14 September 1995 to the second defendant in the sum of $269,280 including scaffolding, Exhibit P1 pp 6-9. Subsequently by letter dated 27 September 1995 Mr Thomson, on behalf of KBE, advised the second defendant of their hourly labour rates including rates relevant to any variations to the contract, Exhibit P1 p 11. On that same date the second defendant issued a purchased order to KBE "for the supply of all necessary materials, labour, supervision, consumables, scaffolding, cranage and equipment and to carry out site installation of the Thermal Insulation and Cladding Works on the Electrostatic Precipitator at Cockburn Cement Ltd …" in the sum of $250,000, delivery by 30 May 1996.
The second defendant's counter offer contained in the purchase order was accepted by KBE. It should be noted that the second defendant then agreed to permit the first defendant CIS to assume the rights and obligations of KBE under the contract between the second defendant and KBE.
It is a matter of commonsense and sound business practice that the first defendant wished to control and contain the cost of the scaffold component of the contract it had with the second defendant. The desire to control and contain the cost of their particular component in a large construction project such as this was most likely common to each individual contractor and subcontractor engaged in the project. This is merely a reflection of the fact that the construction industry is competitive and cost control is an important consideration in both tendering for and accepting quotations.
Mr Rolfe's evidence which I accept was that the contract was between Fuller's and Transfield Construction in relation to the whole project which consisted of a number of constructions, including the precipitator. Fuller's engaged Transfield Construction to do the mechanical works on the kiln which Fuller's were to build. His evidence, which again I accept, was that the construction schedule was generated by Toussaint & Richardson but in fact it was a "retrofit" schedule. It was, as he described it, a "fast track" job with all the contractors being asked to accelerate the project and make a start despite the fact that the engineering was slightly lagging behind. In fact according to Mr Rolfe everyone did start work and the actual construction schedule was not developed to any real degree for about six to eight weeks after the start of the main contract. He estimated that in the final analysis the project ran about eight months over schedule.
From a reference to copies of minutes of meetings prepared by Mr Rolfe on behalf of Fuller's regarding discussions between Fuller's, the first and second defendants and their sub‑suppliers, when such persons attended, Mr Rolfe said he believed the project relevant to the precipitator began around January or February 1996. He explained that a retrofit schedule occurs when the main structure is built and items are subsequently placed into it. In this context Mr Rolfe gave evidence as to the style of scaffolding on the southern side of the precipitator so as to allow for a crane entry which in turn would give access to a crane in order to permit work to be done within the structure.
The engineering to which Mr Rolfe referred in his evidence related to the fact that in his opinion, on a project of this nature one would expect to see fundamental design drawings or "awarded for construction" drawings (AFC drawings) prior to going on site and prior to the commencement of any site works. This would ensure that persons involved in this aspect of the project had a good indication of the details of the task which confronted them. His recollection was that in February 1996 very few AFC drawings for the precipitator were available. He said there were drawings giving the general plot plans for the precipitator and a layout of the precipitator but no AFC drawings to show items that might be associated with the precipitator such as pipe racks and cable trays and attached ancillary buildings. A lever arch file EXP1 containing approximately 400 pages of documents was tendered at trial on the basis that the items were true copies, although the contents were not agreed.
As a pipe rack has to stand on its own, if it was in place before scaffolding was erected Mr Rolfe said one would then know what type of scaffolding was required. If it was not in place or shown on the relevant drawings he considered one would assume access was unencumbered and so modular scaffolding would be utilised.
According to Mr Rolfe, the initial lack and the subsequent lateness of the AFC drawings meant that there was no "interface" between all contractors on site and therefore an acceleration of the project with a view to finishing it as near as possible to the original projected finishing date, could not be properly planned.
I will refer to specific evidence from various witnesses later in the course of this judgment but a brief overview of the plaintiff's' claim at this point will put in context the detail of what follows.
Essentially the plaintiffs say that they prepared a quote to erect scaffolding around the precipitator on the basis of what might usefully be described as "straight lines" outside the framework of the precipitator and the scaffolding, using almost entirely modular scaffolding, was designed accordingly. It seems that a small amount of tube and fitting scaffolding would have had to be used in any event to "tie in" some areas of modular scaffolding. Modular scaffolding is pieced together in a simple fashion similar to a tongue and groove arrangement and it is often fixed in place by merely hammering or knocking the components together. Due to its being of set lengths and sizes it is less flexible in use than tube and fitting scaffolding. Tube and fitting scaffolding, however, requires a more complex arrangement as the pieces of that type of scaffolding are screwed or bolted together using various types of fittings.
Mr Chapple in his evidence estimated that assembling modular scaffolding takes between one quarter and one fifth of the time it takes to assemble tube and fitting scaffolding. A scaffolder, Mr Phillips, estimated it took twice as long to erect tube and fitting scaffolding as modular scaffolding. Another scaffolder, Mr Henry, agreed with Mr Phillips' estimate. The plaintiffs contend that as a result of a number of requests and actions on the part of each of the defendants through their representatives, a situation arose whereby it was not possible to use modular scaffolding at various points around the precipitator. This was because the standard size fittings of modular scaffolding were unsuitable to deal with the alteration that was then required in relation to the scaffolding.
As a result, according to the plaintiffs, they had to erect scaffolding not only around the precipitator as shown on the plans upon which they prepared their quote and the scaffold design was prepared, but they then had to take into account other structures which were built around the precipitator, particularly on the perimeter of the structure such as the cable trays which were relevant to the electrician's work on site. The end result of this was that it was not possible to use modular scaffolding built at a 90 degree angle around the entire precipitator but rather the plaintiffs then had to use tube and fitting scaffolding to accommodate these changes. This resulted in a more complicated, time consuming and therefore expensive exercise.
Specific to the second defendant the plaintiffs say that they were subsequently requested on behalf of the second defendant to design and build a crane entry into the precipitator to allow a crane to enter into the body of the area to carry out certain work. The crane entry was designed and built after which time it became apparent, according to the plaintiffs, that they would have to use tube and fitting scaffolding above the entry where they had originally planned to use modular scaffolding. Once again this resulted in additional time and labour costs being incurred on the plaintiffs' part.
The plaintiffs assert that the problems they encountered did not end there as they confronted further difficulties in the construction of the scaffolding. As a result of being unable to erect modular scaffolding at 90 degrees around the entire perimeter of the precipitator due to the intrusion of both the cable trays and the crane entry, the scaffolding which was erected did not meet squarely at the corners of the top of the scaffolding or in an area just above the crane entry itself. The need to alter the scaffolding also affected the scaffolding bays. The effect of this, according to the plaintiffs, was that they then had to construct a series of crossover bridges on each of the four corners at the top of the scaffolding in order to complete their contract to enclose the precipitator with scaffolding and to ensure safe working conditions for the scaffolders working on the project. Mr Chapple claimed that the insulation on the precipitator could not be installed without the construction of the crossover bridges. These crossover bridges also had to be constructed utilising tube and fitting as distinct from modular scaffolding and again the plaintiffs' claim is that this incurred extra costs by way of time and labour.

The plaintiffs' case against the first defendant

In this instance the plaintiffs claim from the first defendant recovery of sums of money under a contract or alternatively quantum meruit arising out of the construction of scaffolding for the precipitator.
I will come to the basis and particulars of the first defendant's counterclaim against the plaintiffs in due course. It is convenient to deal with the plaintiffs' claim against the second defendant as a separate issue and that too will occur in due course.

The pleadings

The plaintiffs' claim against the first defendant raises a number of issues for consideration. These were canvassed at trial and have also been clearly outlined in the written submissions filed on behalf of the plaintiffs at the conclusion of the trial. The questions raised which require determination are;
(a)If the original scope of the work in the contract between the plaintiffs and the first defendant was based on a set of drawings supplied by the first defendant which drawings showed no ground or above ground (except for a single catwalk) obstructions to the erection of the scaffolding;
(b)If there was an implied term between the plaintiffs and the first defendant that requests for alterations in the scope of the work by the first defendant would entitle the plaintiffs to a reasonable price for any additional work, materials or time required to complete the contract work including the additional work;
(c)If there was an implied term between the plaintiffs and the first defendant that if the second defendant required the plaintiffs to do additional or changed work or provide additional or changed materials, or increased time on site, the first defendant would pay a reasonable price for the increased work and materials or time required for the plaintiffs to complete contract work and the extra work;
(d)The extent of extras "additional work, additional materials and increased time for materials on site" requested by the first and second defendants, it being admitted by the first defendant that there were requests by both the first and second defendants for such "extras";
(e)If the time for completion of the work (viz the original scope of work) together with all extras exceeded the first 12 weeks of the contract period and if additional hire charges at the agreed rate of $2,950 per week were incurred by the plaintiffs;
(f)If (it being admitted in the first defendant's defence, para 18, there were requests by the first and second defendants on various dates during the course of the work for additional work, additional materials and additional time for materials on site) the extent of such requests by the first and second defendants were, "so numerous and of such extent so as to change the scope of the original contract work completely to the extent that the plaintiffs' entitlement became one to obtain a reasonable price from the first and second defendants for the work requested to be done for the entire project";
(g)The total value of the work done by the plaintiffs at the request of the first and second defendants;
(h)The full extent of the reasonable price for the work requested by the first defendant (including work requested by the second defendant, approved by the first defendant) taking into account the agreed sum paid by the first defendant of $70,940;
(i)Whether there was a trade custom or usage, or an implied term necessary to give the business efficacy that the "first 12 weeks material hire" referred to in the quotation from the plaintiffs, accepted by the first defendant commenced on the date on which the scaffolding materials were delivered to the Spearwood site (as contended by the plaintiffs), or on the date on which the plaintiffs "handed over" the completed scaffolding to the first defendant so that the first defendant could begin its work.

Putting aside, for the time being, the first defendant's counterclaim against the plaintiffs, it makes certain admissions in the pleadings and the Scott Schedule being;
(a)The first defendant gave the plaintiffs drawings as part of the "process";
(b)The terms of the plaintiffs' quote to the first defendant formed the basis of the original agreement between them;
(c)On various dates during the course of the work under the scaffolding contract the first and second defendants (through Mr Campbell for the second defendant and Mr Thomson for the first defendant) requested the plaintiffs to do additional work and provide additional material;
(d)The second defendant knew or ought to have known that the requests by it to the plaintiffs would disrupt the plaintiffs' programme for completion of the work with the first defendant and cause the plaintiffs and the first defendant additional expenses, materials and time to complete its work for the first defendant and the second defendant;
(e)Requests by the second defendant of the plaintiffs were made with the knowledge of the first defendant who authorised the change in each case;
(f)It was an implied condition of requests for work by the second defendant that the second defendant would pay the plaintiffs (or at least pay the first defendant so it could pay the plaintiffs) a reasonable price for the work done by the plaintiffs pursuant to those requests and materials supplied or hired by the plaintiffs to comply with such requests;
(g)There were further implied conditions in the agreement between the plaintiffs and the first and second defendants (or at least, in this regard, the first defendant);
(i)additional costs for labour imposed upon the plaintiffs by reason of the agreement of the defendants to the operation for this contract of the order known as the Cockburn Cement Kiln No 6 construction project order 1996 as applicable to the plaintiffs and paid out by the plaintiffs would be reimbursed by the first and second defendants dollar for dollar;
(ii)for the hire of materials by the first and/or second defendants from the plaintiffs for use on the project beyond the 12 week period covered in the scope of the original contract price would be hired by the first and/or second defendants at the plaintiffs' usual hire rates and all normal terms and conditions would apply including the obligation to pay for lost or damaged materials;
(h)All requirements for extra work made by the first and second defendants have been complied with by the plaintiffs and in so doing the plaintiffs have incurred additional expense, time and hire charges and materials supplied to do so.
Some specific admissions have been made by the first defendant relevant to detailed claims for extra work which appear in the Scott Schedule between the plaintiffs and first defendant. The first defendant claims a set‑off in relation to the unliquidated damages claimed in the counterclaim. The admissions in the Scott Schedule relate to;
Item 1Labour associated with a crane entry modification on the south evase in the sum of $2,340. This sum was paid by the second defendant to the first defendant who in turn paid it to the plaintiffs. As a result this item has effectively been removed from the Scott Schedule.
Item 2The supply of overhead safety cover for electricians on the east and north sides of the precipitator. Quantum in relation to this item has been agreed on the basis that the first defendant has been paid $12,773 under this item by the second defendant. That sum has not been paid to the plaintiffs by the first defendant. Notwithstanding that the plaintiffs originally claimed the sum of $14,520 in relation to this item, they now agree to limit their claim to the sum paid by the second defendant to the first defendant subject to the counterclaim by the first defendant against the plaintiffs. In addition the first defendant does not admit the period of hire of the relevant materials or the quantum in relation to that hire;
Item 4The supply of labour to modify scaffold to enable electricians to fit cable trays being $840. The first defendant admits this item was payable and that it has been paid by it to the plaintiffs although the first defendant does not admit the quantum of the items;
Item 5Erect scaffolding to allow workmen to complete lagging on ID fan. The first defendant admits this item was payable by it to the plaintiffs subject to its counterclaim and it does not dispute quantum of this item being $2,571;
Item 6Erect scaffolding to allow workmen to complete lagging on silencer cover. Once again the first defendant admits this item. The now agreed sum of $1,296 is payable by it to the plaintiffs subject to its counterclaim;
Item 7Plaintiffs unable to work due to Cockburn Cement pipe leakage creating dust hazard. The first defendant again admits the sum of $700 is payable by it to the plaintiffs for this item subject to its counterclaim;
Item 15Labour supplied to lower scaffold on west side to allow 50mm movement for cable tray. The first defendant admits this item is payable by it to the plaintiffs subject to its counterclaim and there is no real issue that the amount payable is $840;
Item 16Replacement costs of materials damaged beyond repair on site. Subject to proof of damage, and subject to the first defendant's counterclaim the sum of $633.22 is agreed to be paid, although the first defendant agrees quantum only in the sum of $443.26;
Item 17Amounts claimed for special allowances and conditions awarded to workers on the site by reference to Cockburn Cement Kiln No 6 construction project order made in the Industrial Commission in 1996. The first defendant agrees this item is payable by it to the plaintiffs subject to its counterclaim and quantum in the sum of $15,422.40 is accepted by the plaintiffs.
Relevant to these matters the parties to the proceedings filed a document being "Heads of Agreement" between the parties, Exhibit P3. In relation to its claim against the first defendant the plaintiffs agree that the work claimed as coming within the scope of work contained in the plaintiffs' quote of 18 January 1996 which was accepted by the first defendant was done. It is further agreed that the work claimed to be extra to the contract detailed in invoice No 2 (with the exception of item 4, being a claim to erect full working platform on south evase for electricians), was done. It is agreed that the work the subject of invoice No 3 being $840 for labour extra to contract to alter scaffold to enable electricians to fit cable trays was done. There is no dispute that the work the subject of invoice No 5 in the sum of $37,826.40 for rehiring of certain scaffold materials was done. Invoice No 6 relates to items 5, 6 and 7 on the Scott Schedule as previously described. The work claimed extra to contract in invoice No 8 for a total sum of $11,525.03 is accepted as being done as is the work referred to in invoice No 9. In relation to invoice No 10 which relates to item 17 on the Scott Schedule, it is agreed that some but not all of that work was done. Items in dispute are a claim for additional scaffolding needed to complete top area of southern end of precipitator evase due to design alteration at base area for crane entry being a total price of $26,378.50. Items 6, 7, 9 and 10 in invoice No 10, being a claim for extra to contract to erect a series of crossover bridges at the top of the scaffolding on the south east corner, south west corner, north east corner and north west corner of the scaffold structure respectively are in issue as is item 8 in invoice No 10, being a claim for extra to contract to erect seven lifts high of bay scaffolding on the north east corner of the precipitator.
Where there has been agreement regarding work claimed and accepted as having been done, the rates of labour hire and material hire charged are agreed by the plaintiffs and first defendant as being reasonable. The issue on the disputed items within invoices 2 and 10 is as to whether the items were properly charged as extra to contract or whether those items were in the original scope of the work.
In relation to invoice No 5 it is agreed that the scaffold material said to be rehired was on site in use for the periods stated in the invoice. The rate of rehire is the contract rate for the original contractual scope work contained in the plaintiffs' quote of 18 January 1996 to the first defendant, the issue being whether any item claimed in invoice No 5 is payable to the plaintiffs. The "Heads of Agreement" confirms the details of item 17 on the Scott Schedule.
On 15 December 1997 the plaintiffs filed further and better answers to the second defendant's request for further and better particulars of the plaintiffs' statement of claim. In that document the plaintiffs provided rates of material hire and labour rates which the first defendant agrees were reasonable and further, in the case of those extras that the materials were supplied and the labour was supplied for the hours nominated subject to those matters mentioned earlier in relation to the "Heads of Agreement". The rates of material hire and labour rates in the plaintiffs' further and better answers related to the crane entry modification on the south evase, the overhead safety cover for electricians on the east and north sides of the precipitator, the cost of erecting a full working platform for electricians on the ring beam area on the south evase for temporary cable, labour to modify scaffold to enable electricians to fit cable trays, work and material in relation to the ID fan and silencer cover, the construction of the four sets of crossover bridges and the seven lift high bay of scaffolding at the north east corner of the precipitator, the material hire and labour in relation to work done on the top area of the southern end of the precipitator due to design alterations at the base area for the crane entry, the lowering of the scaffolding on the west side of the precipitator to permit 50mm movement for cable tray placement and the replacement costs of materials allegedly damaged beyond repair on the site this being item 16 on the Scott Schedule. It is agreed that the first defendant has paid the plaintiffs' a total of $70,940, although there has been, with one exception, no breakdown supplied of the application of these funds. It is agreed that the sum of $2,340 relevant to the crane entry modification on the south evase forms part of that sum paid by the first defendant to the plaintiffs (the first defendant having initially been paid the sum of $2,340 by the second defendant).
The items the subject of admission in the Scott Schedule being items 2, 5, 6, 7, 15, 16 and 17 total $34,409.89. It is convenient to deal with the outstanding issues in respect of the Scott Schedule in numerical sequence. In relation to item 3, being the building of a full working platform for electricians on the ring beam area on the south evase, so temporary cable could be laid, the first defendant claims the request to do this work emanated from the engineering firm Toussaint & Richardson who were working on site. Item 8 concerns the final hire for outstanding materials on the precipitator from 12 July 1996 to 24 July 1996, a period of nearly two weeks at a claimed cost of $736. Although the first defendant makes no comment regarding this in the Scott Schedule, in their submissions they say, subject to the implied terms pleaded in paras 16(b) and 25 of their defence, that the hire period finished on 27 June 1996 when Mr Thomson informed Mr Chapple that the first defendant had "totally finished" with the scaffold. In the alternative, the first defendant argues that consistent with those pleadings if the hire period extended beyond that date in order to permit the plaintiffs' reasonable time to dismantle the scaffold then the hire period should be held to be no more than an additional two weeks.
As to items 9, 10, 12 and 13 being the four sets of crossover bridges, the first defendant claims that the work done in this regard formed part of the original scope of work. A similar observation is made in relation to item 11, being the seven lifts of scaffolding on the north east corner, but no comment is made as to quantum. With respect to item 14 relevant to the additional scaffolding to complete the top area of the southern end of the precipitator evase, the first defendant says that if the item is payable at all, then it is payable by the second defendant and further that it is merely a second account for part of the work described in relation to item 1 being the crane entry modification on the south evase.
Putting aside for the moment the first defendant's counterclaim, in the light of the admissions on the pleadings the plaintiffs' claim against the first defendant involves a consideration and determination of the following issues;
(a)Whether the plaintiffs are entitled to charge weekly hire rates on the material hired for the original scope of the work at a rate of $2,950 per week from a date commencing from 14 February 1996 when the plaintiffs say the hire of the scaffolding material commenced, to the date when it was finally removed which according to the plaintiffs was about 24 July 1996;
(b)Whether such entitlement to charge weekly hire arises at all or whether as contended by the first defendant in para 24 of its defence that in effect the first 12 weeks material hire referred to in the plaintiffs' quote would commence on the date on which the plaintiffs handed over the completed scaffolding to the first defendant so that the first defendant could begin its work, being 2 April 1996 as distinct from 14 February 1996 when the first of the scaffolding material was delivered to site;
(c)In either case a proper calculation of the entitlement found to exist.
Again, temporarily putting aside the first defendant's counterclaim, the plaintiffs claim the sum of $87,484.33 being the contract price for the original scope of work plus weekly hire rates after the first 12 weeks as quoted. The disputed Scott Schedule items and amounts claimed are as follows;
Item 3Platform for electricians on ring beam       $ 2,540.00
Item 8Final hire for materials on precipitator      $     736.00
Item 9Crossover bridges on south east corner     $ 6,625.00
Item 10Crossover bridges on south west corner     $ 5,631.00
Item 11Lifts on north east corner  $ 4,621.40
Item 12Crossover bridges on north east corner     $ 9,086.10
Item 13Crossover bridges on north west corner     $ 5,145.70
Item 14Additional scaffolding to complete top area of southern evase                 $26,378.50
$60,763.70
This is an outstanding total of $148,248.03 to which the plaintiffs say the amount the subject of admissions on the Scott Schedule (being $34,409.89) should be added giving a total of $182,657.92. As against any amount allowed for the contested and outstanding items there should be deducted from that amount the sum of $70,940 being the amount actually paid by the first defendant to the plaintiffs. This results in a claim for a sum of $111,717.92.
As previously mentioned the plaintiffs' claim against the first defendant is in the alternative in that it is said to be a quantum meruit claim. The plaintiffs allege in the alternative that the request by the first defendant (and for that matter second defendant) were of such a magnitude so as to change the scope of the original contract work completely, to the extent that the plaintiffs' entitlement became one to obtain a reasonable price from the first and second defendants for the work requested to be done for the entire project.

The first defendant's counterclaim against the plaintiffs

The first defendant alleges that it was implied within the terms of the scaffolding contract arising by way of the quotation given to them by the plaintiffs, that the plaintiffs would employ competent scaffolders whom they would supervise properly and to whom they would provide proper facilities and equipment. It is said that a further implied term of that scaffolding contract was that the plaintiffs would carry out their obligations under it as quickly as reasonably possible. As a matter of commonsense and logic I have no difficulty in finding that such implied terms did exist.
The first defendant claims that those implied terms were breached because the plaintiffs did not employ competent scaffolders and supervise them properly nor did they provide the scaffolders with proper facilities and equipment. It is alleged that the plaintiffs failure to carry out their obligations pursuant to the scaffolding contract has caused the first defendant to suffer loss and damage.
The particulars of the alleged breaches of the implied terms of the scaffolding contract and the evidence in relation to those matters will be canvassed later in the course of this judgment. Ultimately, by way of its counterclaim, the first defendant alleges damages totalling $57,446 which amount exceeds the sum of $34,409.89 admitted to by the first defendant as being owed to the plaintiffs for work done extra to the contract. The plaintiffs in their defence to counterclaim puts in issue both liability and damage.

Relevant law and legal principles

Clearly the contract for the original scope of the work the plaintiffs were to do for the first defendant was intended to have effect and be interpreted according to its terms. When doubts or ambiguities about the meaning and application of those terms arise I do not consider it to be the case, as contended on behalf of the first defendant, that any ambiguity should necessarily be resolved in favour of the first defendant. Rather the matter should be resolved by evidence relevant to the circumstances underlying the making of the contract and what the parties to the contract subsequently did. A similar method of proof can be adopted where matters of trade custom and usage are alleged, as in this case on the part of the plaintiffs. In this regard the Court is concerned with a consideration of dealings or conduct generally adopted by persons engaged in a particular trade where such dealings or conduct have become so entrenched or well known within that particular trade that persons engaged in it are assumed at law to have intended to be bound by those dealings or conduct unless it is expressly or impliedly excluded from the terms of the contract. To be considered a valid trade usage in the above sense a number of criteria must be satisfied, as set out in Hudson's Building & Engineering Contracts (10th ed) pp 52-56;
(1)It must be so well known as to be capable of being described as notorious within the relevant industry, this being a matter of evidence;
(2)The usage must have the same certainty as any other contractual term, this being a matter of law;
(3)The usage must be reasonable in the sense that it is of such a nature that an honest and right minded individual would adopt the practice for example for matters of convenience to the parties. Once again what constitutes a reasonable usage is a question of law;
(4)The usage must be legal.
In determining an issue involving an allegation of trade custom and usage the Court looks beyond the evidence of the party making such an assertion, in order to see if other evidence exists which might be described as independent evidence to support the existence of the alleged practice.
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 346-347 sets out the requirements that must be met in order for an implied term to exist within a contract;
"(1)It must be reasonable and equitable;
(2)It must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it;
(3)It must be so obvious that 'it goes without saying';
(4)It must be capable of clear expression; and
(5)It must not contradict any express term of the contract."

The consideration of whether to imply a term is to be done at the time the parties concluded the agreement as the implication of a term is caused, or the need for such implication comes about, by reason of the failure of the parties to the contract to turn their minds to particular issues at the time of concluding the agreement.
The first defendant admits a liability to pay the plaintiffs a reasonable price for the extra work requested but says in par 14 of its defence that where such alterations and/or modifications related to the scaffold structure outside the principal scaffold as between KBE (or CIS as it later became) and AISCOR came about, or were required through no fault of those entities, then the cost of that work was to be charged to the contracting company, or governing body, responsible and further, were only to be signed on extra to contract dockets to permit recovery costs by the first defendant. This information was contained in a facsimile of 18 January 1996 from AISCOR as agent for the plaintiffs to KBE as agent for the first defendant.
In considering the question of liability to pay rectification costs for losses which result from a breach or breaches of terms of a contract, those damages or costs will usually equate to the cost of any repairs which need to be made and further, where necessary consequential damages flow from such breaches in the form of, for example, compensation, those damages will be assessed according to the ordinary rules applying to remoteness of damage (Hudson's Building & Engineering Contracts 10 ed, p 339-400).
The plaintiffs' claim against the first defendant is in the alternative for an overall quantum meruit, whereas the plaintiffs opened their case against the second defendant on the basis of a quantum meruit only. It is therefore convenient to deal with the law and principles in relation to quantum meruit relevant to both defendants at this point. A quantum meruit is an obligation as a liability in debt arising by operation of law upon the circumstances; the "obligation" is imposed by law and does not depend on any inference of an implied promise. The obligation can be enforced independently of, and not derived from any agreement which might be unenforceable; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221. Essentially a quantum meruit has been described as an obligation arising from a defendant having taken or obtained a benefit of work done, goods supplied or services rendered which can be enforced as if it had a contractual origin. In that sense the obligation is quasi contractual and is one to pay fair and just compensation for a benefit which has been accepted, where contractual remedies are not available and the right to claim payment is not based on contract.
Pavey & Matthews Pty Ltd v Paul (supra) identified two broad categories of claim which are commonly described as quantum meruit;
(1)Where goods or services are provided under an existing and enforceable contract which has an express or implied term to pay a fair and reasonable sum for such goods or services; and
(2)Where the law imposes an obligation independent of contract to pay a fair and reasonable price for the goods or services, such obligation arising from the law of restitution or unjust enrichment.
Clearly if goods or services are provided pursuant to a valid subsisting and enforceable agreement between the parties, quantum meruit or a remedy in restitution does not arise; Brenner & Anor v First Artists Management Pty Ltd [1993] 2 VR 221 at 260; Update Constructions Pty Ltd v Rozelle Childcare Centre Ltd (1990) 2 NSWLR 251 at 275. It is not sufficient for a plaintiff to claim that it provided goods or services to a defendant who accepted the benefit of such in circumstances giving rise to an obligation to make restitution. The claim the plaintiff must establish is that the defendant (or person from whom restitution is claimed) is the person or entity who accepted this benefit of the services and it did so in circumstances where the defendant should reasonably have appreciated the plaintiff would expect payment from the defendant for such services.
In order to succeed on a claim of quantum meruit a number of criteria must be met;
(1)There must be no subsisting valid and enforceable contract between the parties;
(2)The claimant has performed work conferring a benefit without being paid remuneration;
(3)The benefit conferred was not intended as a gift nor was it done gratuitously; and
(4)The benefit has been actually or constructively accepted by the defendant at the expense of the claimant.
The law does not require that a benefit for the purposes of restitution in a claim for payment for services must be economic in nature, nor does it require the provider of such services to demonstrate that a benefit has arisen as a direct consequence of the provision of a particular service. When considering a claim based on restitution for benefit of services provided, the focus is on whether the services constituted a benefit from the perspective of the recipient of such services rather than the actual end result of such services being rendered or provided.
Where services are requested and subsequently accepted by the party from whom restitution is claimed, the law is concerned with determining whether the circumstances of the request are of such a nature that they give rise to a right of payment. That is why it is incumbent on the party claiming payment to demonstrate that the provision of services was not gratuitous.
The law also requires that the matter be examined objectively, in the sense that it is not concerned with the actual states of mind of either of the parties, but rather with whether the recipient of the services, as a reasonable person, should have realised that someone in the position of the person providing the services would expect to be paid for them and further in the light of this the recipient did not avail themselves of a reasonable opportunity to reject the services. As a result, the position of the party to be charged for the services is of importance because the law is concerned with ensuring that there is no unjust enrichment of that party.
The quantum of a restitution claim is not assessed in the manner in which damages for breach of contract are assessed, but rather the Court is concerned with deciding what is fair and reasonable compensation for the benefit flowing from the services performed and either actually or constructively accepted by the recipient. The cost of the work or services provided by the party claiming restitution is not irrelevant but equally the task of the Court is not primarily focused on that aspect of the matter because the exercise is not one of compensating the party providing the services for any loss suffered. The Court may receive evidence of the price agreed between the parties for such services as evidence of the value the parties themselves placed on them but the Court is not confined to a consideration of such evidence in determining the matter. In some instances assessing the value of the benefit of the work performed or provided can be resolved by a simple mathematical calculation in applying an hourly rate to the time involved in performing the services such rate being that commonly accepted and applied within the relevant industry. In situations where the benefit cannot be so readily or easily assessed, or does not lend itself to such assessment, the Court may make a global assessment or, where relevant, it may even reduce or increase a remuneration proved with a degree of certainty so that a fair and reasonable value is assigned to the services performed and benefit derived therefrom.

Evidence relevant to the plaintiffs' claim against the first defendant and the counterclaim

Mr Chapple, who has had many years experience in running a scaffolding business, provided the first defendant, through Mr Thomson, with a quote for $59,040, Exhibit P1 p 21, which included labour to erect and dismantle scaffolding, the first 12 weeks material hire and delivery and return cartage. Materials were to be charged at $2,950 per week thereafter. This was confirmed in an order signed by Mr Thomson dated 5 February 1996, Exhibit P1 p 25. It is correct that the quote provided by the plaintiffs was for the first defendant's scaffold requirements, however, I do not consider that one can interpret that to mean the quote was open‑ended in the sense that it covered scaffold requirements that might well become very complex.
The evidence suggests that Mr Chapple and Mr Thomson had engaged in discussions prior to the quote being prepared and it is a matter of commonsense I find that the quote would have been prepared on the basis that certain specific requirements had been conveyed to Mr Chapple through Mr Thomson, regarding the scaffold needs of the first defendant. It is most unlikely in my view that a man experienced in the scaffold business as Mr Chapple was, would provide an open‑ended quote in relation to what was a very large scaffolding project. The quote and initial design of the scaffold was based on a series of drawings supplied to the plaintiffs and on that basis, although Mr Thomson as the representative of the first defendant had no qualifications in the design or the construction of scaffolding, there would be little reason for the plaintiffs to enquire more deeply as to the specific requirements of the first defendant. In such circumstances it cannot be the case that the plaintiffs bore an onus to make such enquiries of the first defendant.
No doubt as a matter of commonsense the parties contemplated that the end result would be that the scaffolding would cover all external perimeters of the precipitator with working levels at every 2m, but in my view that does not mean that the contract hire period would begin when the scaffolding was completely erected around the precipitator. In that sense I consider that one cannot read into the contract a provision that in effect the finished product would be supplied before the hire period began. This is simply, as correctly contended on behalf of the plaintiffs, contrary to all sound business sense and contractual experience.
Furthermore, there was no need for the scaffold contract to contain a reference to the second defendant's drawings or any comment as to their accuracy. It is correct, in my opinion, as the first defendant's counsel pointed out, that the scaffold contract did not contain a provision indicating that scaffold and associated materials would be supplied, erected and dismantled "all in one go and clear away all within normal hours". The scaffold contract clearly contemplated that scaffolding would be erected around the completed precipitator without intrusion by obstacles and obstructions. In my view on the evidence it was obviously considered that in the absence of such obstructions the plaintiffs would be able to erect the scaffolding and dismantle it over a 12 week period. The quote provided by the plaintiffs contemplated that if this could not be done there would be additional weekly hire charges, as one would expect as a matter of sound commercial practice.
As I have previously noted, the plaintiffs were in the end required to provide a completed scaffold for use by the first defendant, but this task as a matter of logic would require pieces of scaffolding to be assembled over a period of time and put in place. Mr Chapple's evidence was that as far as he was concerned the hiring charge was to be levied from the first defendant for 12 weeks from the start of the contract and thereafter if relevant the weekly additional levy would apply. He estimated that the 12 week period could be broken down into approximately four weeks to erect the scaffolding, which would then remain in place for six weeks prior to dismantling it over another two week period. His evidence was that hiring of scaffolding begins from the date the pieces of scaffolding leave the premises of the supplier, in this case WACO Kwikform, but that its delivery is progressive and that when the scaffolding is returned after dismantling, the hire reduces as each load of scaffolding is returned and therefore the hire charge is progressively reduced.
With reference to documents shown to him during the course of his evidence‑in‑chief, Mr Chapple in effect said that the hire period began with the first delivery of scaffolding to the Cockburn Cement site on 14 February 1996 and ended after the final return of scaffolding on 27 July 1996. This is confirmed by Exhibit P1 p 325, a scaffold stock balance sheet showing various delivery and return dates of scaffolding and the nature of items that were in each instance delivered and returned. The quote which Mr Chapple provided to the first defendant was based on a 12 week hire period commencing on 24 February 1996 (10 days after the delivery of the first scaffold material on site) at which time the scaffolders arrived and expiring 12 weeks after on 24 May 1996.
As previously stated, for a variety of reasons, the scaffold material the subject of the original scope of work contemplated in the contract between the plaintiffs and first defendant, was not finally returned to WACO Kwikform until about eight weeks after 24 May 1996, (being 27 July 1996) having been progressively dismantled over time.
I do not consider as a matter of commonsense, logic or sound business practice that the scaffold contract starting date must be interpreted as being the date on which the completed scaffold "or the first portion of it capable of being used by the first defendant" , was delivered to the first defendant. The first defendant claims that this date was on or about 2 April 1996 when, according to minutes of meetings which Mr Rolfe kept, was the time when stud welding, being the first part of work to be done by way of insulating the precipitator, began on the south side of the precipitator after a wall of scaffolding was erected and available for use. If one goes back to the contract, however, it is clear that it was a quote for, at least in part, labour to erect scaffolding which obviously would have to occur before any portion of scaffolding could be handed over for use by the first defendant.
Mr Chapple's evidence was that in his experience the hire rate for scaffolding commences from an agreed time whether the scaffold is completed or not. However, on a project of this magnitude he was of the opinion that no scaffolding company would guarantee to give a client a completed scaffold. I accept this as it reflects once again a commonsense business viewpoint. An examination of the evidence on this aspect of the claim clearly suggests that in this instance there was an implied term, as contemplated by the test laid down in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (supra) necessary to give business efficacy that the first 12 weeks material hire referred to in the plaintiffs' quotation, accepted by the first defendant, commenced on 14 February 1996 when the first of the scaffolding was delivered on site.
On 10 June 1996 Mr Chapple sent the first defendant, through Mr Thomson, an itemised account for the additional cost of scaffolding including labour, material hire per week and delivery and return cartage relevant to a number of requests to carry out work on and around the precipitator which the plaintiffs claimed were extra to the contract, Exhibit P1 p 79. Although Mr Chapple did not give precise evidence as to whether or not he and Mr Thomson discussed when the initial 12 week hire period was to start, the portion of his evidence which is referred to above is a clear indication of when, as far as he understood the situation, the scaffolding contract was to both begin and end.
The bar charts as to timeliness relevant to various aspects of the project which were prepared on behalf of the first defendant do not assist in this regard because they did not form part of the scaffold contract and there is no evidence that the plaintiffs received copies of the documents or accepted their contents in any way. At best it would appear that the documents were prepared by Mr Thomson for his own convenience and to assist him to carry out his role in the project.
It is not in issue as between the plaintiffs and first defendant that the scaffold contract contained an implied term which required the plaintiffs to carry out their obligations pursuant to the contract as quickly and reasonably as possible. In view of that I do not believe one could argue with the existence of an additional implied term, namely that the plaintiffs would not be able to charge usual hire rates for any period during which one or both of the defendants required the materials to remain on site solely as a consequence of unreasonable delays by the plaintiffs meeting their obligations under the contract. Indeed the plaintiffs do not take issue with this further implied term. The essential issue to be determined, however, is whether on the evidence any or all of the delays encountered by the plaintiffs in erecting this scaffold were as a result of things done by the plaintiffs or whether they were delays created by situations not of the plaintiffs' making and beyond their control.
If that latter situation were to arise the contract contained a procedure for authorising and charging for alterations and/or modifications to the scaffold structure which resulted. This necessitated the signing of an "extra to contract docket" charging costs to the contracting company or governing body responsible, thereby allowing both the first defendant and the plaintiffs to recover any costs associated with such changes.
In considering all of the evidence I accept the submission on behalf of the plaintiffs that delays which occurred did not have a connection with them. Delays arose for a variety of reasons, often as a result of a decision on the part of either or both of the defendants that work unconnected with the plaintiffs' scaffolding contract should be given priority. Even if there was an appreciation on the part of both the plaintiffs and the first defendant that failure to follow the signing of an "extra to contract docket" might make it difficult or impossible for the first defendant to recover from another party, (such as the second defendant) costs charged to it by the plaintiffs, in the end result when Mr Chapple raised his concerns about the extra costs that were accruing with respect to the scaffolding contract in the presence of both Mr Thomson and Mr Campbell, he was informed that he should simply get on with the job and that he would be paid. It seems it was made clear to Mr Chapple that the raising of his concerns in the particular context was inappropriate and the details could be resolved at a later time. It was not suggested that his concerns were ill-founded or without merit.
Initially the first defendant supported the additional claims relevant to the scaffolding put in by Mr Chapple and passed them on to the second defendant. It was only when the second defendant applied a time bar relevant to the agreement between itself and the first defendant that the first defendant then refused to pay the plaintiffs. This would suggest that as far as the first defendant was concerned failure to follow the "extra to contract docket" procedure was not fatal to the additional charges raised by Mr Chapple.
I have reached the view that the hire period pursuant to the scaffolding contract commenced as from 14 February 1996 when the first of the scaffold material was delivered on site. It is now necessary to decide when the hire period finished. This is of course subject to any findings that are made in relation to the first defendant's contention that it was an implied term of the scaffolding contract that the plaintiffs would carry out their obligations as quickly as reasonably possible. The first defendant contends that the hire period finished on 27 June 1996 on which date Mr Thomson, on behalf of CIS, advised Mr Chapple in writing of their concerns that the scaffold dismantling did not commence on 27 May 1996 as per a previous request and confirming that as of 27 June the first defendant had totally finished using all scaffolding on the precipitator and in consequence wished it to be dismantled and removed from site, Exhibit P1 p 93.

Mr Chapple gave some evidence as to the background concerning this item. According to him scaffolding was erected upwards from the top of the crane entry to a point where it reached the evase on the southern side of the precipitator which in effect was a protrusion. Having encountered this obstacle it was apparent that the vertical standards of the scaffolding that were in use were too close to the evase giving insufficient clearance for the lagging to be applied to the precipitator. Mr Chapple advised his scaffolders to contact either the first defendant or second defendant's representative on site, although he himself did not speak to either of those persons regarding this problem. The solution, according to Mr Chapple, was to use tube and fitting scaffolding in order to obtain the necessary clearance and to also do the lifts or levels of scaffolding under and around and over the top of the evase area in tube and fitting scaffolding until the top of the precipitator was reached.
In a letter dated 10 June 1996 the plaintiffs referred to the need to construct the seven lifts high bay of scaffolding on the north east corner of the precipitator and Mr Chapple's recollection was that this was an extra bay that had to be put in because of a cable tray.
The first defendant in its comment relevant to this item on the Scott Schedule refers to counsel for the plaintiff advising the Court that item 11 was "part and parcel" of the claims for the crossover bridges relevant to items 9, 10, 12 and 13 on the Scott Schedule. The first defendant was unable to comment on the quantum claimed relevant to item 11.
The second defendant denied that it requested or instructed the plaintiffs to carry out any work relevant to item 11 and further argues that the work, if done, formed part of the plaintiffs' obligations pursuant to the scaffolding contract between the plaintiffs and the first defendant requiring the plaintiffs to build a scaffold to cover all external perimeters of the precipitator including the corners of the structure. Like the first defendant the second defendant says it is unable to comment on the quantum claimed relevant to this item being $4,621.40 and does not admit such quantum. That sum is made up of $4,200 for labour to erect and dismantle the relevant scaffolding, $281.40 relevant to extra material hire per week and finally $240 for delivery and return cartage of the relevant scaffolding. As the second defendant correctly points out Mr Chapple did not discuss the necessity of constructing the seven lifts high bay of scaffolding with a representative of either the first or second defendant and received no specific instruction or requests from either of them to carry out the work. Once again, however, in view of what was required of the plaintiffs, the work needed to be done and there was no readily apparent solution other than for the plaintiffs to proceed in the manner that they did. In a practical sense item 11 is closely connected with the construction of the crossovers on the four corners at the top of the precipitator previously referred to in these reasons. For that reason I find that the erection of the scaffolding the subject of item 11 was a direct result of the requests made on behalf of the second defendant to Mr Rogan, and hence the plaintiffs, that the scaffolding would have to be altered in such a way to allow obstructions to be voided to permit the second defendant to proceed with their work on site. In view of the extent and nature of the scaffolding which needed to be done it would not have been practical when the numerous difficulties and problems confronted by the plaintiffs in attempting to carry out their job were the subject of discussion with either a representative of the first defendant or second defendant. In view of the findings in relation to items 9, 10, 12 and 13 the second defendant is viable to pay the plaintiffs the sum of $4,621.40 relevant to item 11 on the Scott Schedule.

Scaffold hire contract period and associated costs

As previously stated the evidence establishes that the hire period pursuant to the scaffolding contract between the plaintiffs and first defendant began on 14 February 1996 and due to delays did not cease until the last material was moved from site on 27 July 1996. There is no question that the original quote from the plaintiffs was in the sum of $59,040 which included labour to erect and dismantle and the first 12 weeks of the hire of materials, their delivery and return cartage. It was also a term of that contract that after the first 12 weeks materials would be charged at a rate of $2,950 per week thereafter. When one considers the contents of the invoices Exhibit P1(141) - (152), the contents of which are effectively reproduced in Schedule A to the statement of claim, it can be seen that a total price for the original scope of the contract on the above basis is $87,484.33. This reflects the fact that based on the project schedule overrun there was approximately a 10 week additional hire period to be accounted for at the agreed weekly rate. There is no doubt on the evidence that the time for completion of the work comprising the original scope of work under the contract together with requested additional work exceeded the first 12 weeks of the contract period. The materials and invoices provided by the plaintiffs indicate that additional hire charges at the agreed weekly rate were incurred by the plaintiffs and there is nothing to suggest in the circumstances that the charges were unreasonable.

Conclusions

Pursuant to the contract between the plaintiffs and the first defendant and taking into account the findings in the preceding paragraph I find that the plaintiffs are entitled to recover from the first defendant the sum of $87,484.33. In the light of the findings in relation to extras to contract admitted on behalf of the first defendant and given that their counterclaim against the plaintiffs has been dismissed in its entirety, I further find that the plaintiffs are entitled to recover the sum of $34,409.89 from the first defendant. In my view there was an implied term in the contract which existed between the plaintiffs and the first defendant that request for alterations or modifications in the scope of the work contemplated by that contract if made by the first defendant and the plaintiffs would entitle the plaintiffs to be paid a reasonable price for carrying out additional work and for additional costs associated with doing so. In addition, the plaintiffs are entitled to recover from the first defendant the sum of $736 relevant to item 8 on the Scott Schedule being final hire for materials on the precipitator. From this total amount of $119,630.22 must be deducted the sum of $70,940 being the sum which has actually been paid by the first defendant to the plaintiffs to date. This leaves an outstanding amount of $48.690.22 which the plaintiffs are entitled to recover from the first defendant. It is evident from these findings that on all of the evidence and material before the Court in relation to the first defendant, I am satisfied that the plaintiffs have established their case on the contractual basis pleaded as against the first defendant.
For the reasons previously stated in this judgment I am satisfied that the plaintiffs have established their case as pleaded against the second defendant relevant to the disputed items, items 9, 10, 11, 12, 13 and 14 on the Scott Schedule. As a result I find that the plaintiffs are entitled to recover the outstanding amounts relevant to these items which have not only been established by the evidence but also are reasonable. The total amount that the plaintiffs are therefore entitled to recover against the second defendant is $52,072.
I will hear counsel on the question of interest on the outstanding sums payable to the plaintiffs, both as to the appropriate amount and relevant period of time to which it should apply.