Donna Watson T/as CJS Concrete Design Works v Aerolink Property Corporation Pty Ltd T/as Midway Concrete, Garden & Building Supplies (Civil)

[2016] VMC 6

IN THE MAGISTRATES’ COURT

OF VICTORIA AT MELBOURNE

GENERAL CIVIL DIVISION  D12715354

BETWEEN:

DONNA WATSON

T/as CJS Concrete Design Works   Plaintiff

-and-

AEROLINK PROPERTY CORPORATION PTY LTD

T/as Midway Concrete, Garden & Building Supplies  Defendant

MAGISTRATE:   Ginnane

DATES HEARD:  29, 30, 31 July, 3 & 5 August 2015

DATE OF DECISION:  31 March 2016

WHERE HEARD:   Melbourne
MEDIUM NEUTRAL CITATION:          [2016] VMC006

APPEARANCES   COUNSEL  SOLICITORS

For the Plaintiff  Mr Cole  Stephen Peter Byrne

For the Defendant  Mr Korman  Lake Street Lawyers

REASONS FOR DECISION

HIS HONOUR

1. This proceeding occupied 5 hearing days and much evidence. The plaintiff’s counsel in opening the case said that the claim was ‘fairly simple’. The defendant characterised it as far from simple. I agree with the defendant.
2. The plaintiff was represented by Mr Cole of counsel and the defendant was represented by Mr Korman of counsel.
3. The plaintiff’s proceeding is contained in a Further Amended Complaint (which I will refer to in these reasons as the ‘Complaint’). It was at the commencement of the hearing that the plaintiff sought to file the final iteration of the ‘Complaint’ and despite this, it remained unsatisfactory, for reasons that I will address later in my decision.

The narrowed dispute

4. Initially the plaintiff pursued the following claims:

I.         The existence of two agreements;

II.         Total failure of consideration[1];

III.        Negligence;

IV.       Common law misrepresentation;

V.        Statutory misleading or deceptive conduct Australian Consumer Law (ACL); and

VI.       Breach of consumer guarantees under the ACL

[1] The plaintiff’s allegation of breach of contract on the basis that the agreement failed for want of consideration cannot be sustained as the contract was performed albeit on the plaintiff’s claim negligently for which had the plaintiff been successful the remedy would have been otherwise than in damages.

5. In the course of the hearing the plaintiff abandoned the claims for common law misrepresentation, statutory misleading or deceptive conduct and breach of consumer guarantees under the ACL. As well the plaintiff abandoned a loss of profit claim. As a result, the plaintiff was left to pursue the defendant on a more restricted basis for damages for breach of contract and for the tort of negligent supply of concrete. In my judgment this made the plaintiff’s task in discharging its legal onus and meeting its burden of proof more difficult.
6. I have concluded for the reasons that follow that the plaintiff has failed to prove on the balance of probabilities, breach of contract or that the defendant’s conduct in the manufacture and supply of concrete was negligent.
7. There is also a counterclaim brought by the defendant. For reasons that appear later in this judgment and save for one amount I am satisfied that the defendant is entitled to an order on its counterclaim.

The parties

8. The plaintiff Donna Watson (‘Watson’) and her husband Domenic Cuzilla (‘Cuzilla’) operate a registered business ‘CJS Concrete Designs’ that undertakes concreting. In opening the plaintiff’s case Mr Cole put it in these simple terms: ‘Ms Watson kept the books and her husband did the concreting’.

Two agreements

9. The complaint alleges the existence of two agreements for the supply of concrete in the month of April 2013. The plaintiff relies on a ‘first agreement’ for a ‘first supply’ of concrete that occurred on 10 April 2013 and a ‘further agreement’ for a ‘further supply’ of concrete that occurred on 30 April 2013. The concrete was to be used for concrete construction works that the plaintiff had been engaged to perform by Mr Renato Bernardo (‘Bernardo’) at a unit owned by his wife Carmela Bernardo in Prince Street, Essendon. Cuzilla testified that Bernardo is the patriarch of the established business known as ‘Renmark Homes’.

The ‘first agreement’

10. The terms of the ‘first agreement’ pleaded by the plaintiff at paragraph 4 of the Complaint are expressed as follows:

(a)The concrete would be delivered to 23 Prince Street, Essendon;

(b)The concrete would pump suitably for the construction of a rear courtyard, blindside & driveway (‘the construction’);

(c)The concrete would be suitable for the purpose of leaving an ‘exposed aggregate’ finish (identified by the ‘7’ in ‘P725’); and

(d)The concrete would be to a 25 MPA (identified by the ‘25’in ‘P7250’); and

(e)The defendant would exercise the due care and skill of an experienced concrete manufacturer

11. The first agreement is pleaded as written, oral and implied. The express term consists of an invoice dated 10 April 2013[2] in the sum of $1,183.00 issued by the defendant to the plaintiff for the first supply of concrete. To the extent it is dependent on discussions they are said to comprise conversations between Cuzilla and the defendant’s managing director, David Boxshall (‘Boxshall’)[3] and to the extent the terms are implied the implication is said to arise as a matter of law.

[2] Court Book Tab 3

[3] No evidence was led of any conversations between Cuzilla and Boxshall in giving rise to the first agreement and first supply of concrete but rather such conversations relied on by the plaintiff went to support the alleged ‘further agreement’.

12. By paragraph 5 of the Complaint the plaintiff alleged that contrary to the terms of the ‘first agreement’ the ‘first supply’ of concrete delivered on 10 April 2013 to 23 Prince Street, Essendon:

(a)Would not pump and needed to be manually poured and then was poured only onto the driveway of the unit;

(b)Contained foreign matter described as pink or red ‘plastic’;

(c)Was not suitable for the purpose of an exposing aggregate;

(d)Was not produced with the due care and skill of an experienced concrete manufacturer.

13. The particulars of the breach of contract alleged comprise that the ‘concrete washed away when the plaintiff ‘exposed the aggregate’ and the plaintiff was unable to remove the plastic from the concrete’.
14. One example of the unsatisfactory state of the Complaint, was that the term of the first agreement pleaded at paragraph 4 (d) that, ‘the concrete would be to a 25 MPA (identified by the ‘25’ in ‘P725’)’ was not pleaded as a breach of the first agreement. When this was pointed out, Mr Cole observed that it might be necessary to apply to further amend the complaint to plead as much. No formal application to amend was made but given the way the case was argued I have treated the case and the evidence adduced on the basis that the plaintiff had alleged that such a term of the agreement was breached.

The ‘further agreement’

15. There is no formality in regard to the coming into existence of the alleged ‘further agreement’. Rather the position advanced by the plaintiff is that Boxshall came on site at Essendon shortly after the delivery of the first supply of concrete on 10 April 2013 and acknowledged problems with the surface appearance with the result that a further agreement was struck under which the defendant verbally agreed to do the various things identified at Paragraph 6 of the Complaint, that is:

(a)Sandblast the driveway at 23 Prince Street Essendon, to remove the plastic;

(b)Pay for the resurfacing of the driveway; and

If the owner of 23 Prince Street, Essendon, was not satisfied with the outcome,

(c)Pay to have the existing concrete ripped up and then supply at no charge concrete required to complete the construction.

16. The plaintiff alleged that acting pursuant to the terms of the further agreement the defendant provided a sandblasting machine to sandblast the driveway but that Bernardo was not satisfied with the result and thereafter Boxshall told the plaintiff to proceed to rip up the existing concrete and confirmed that the defendant would pay the plaintiff the costs of doing so and would resupply the concrete required to complete the construction at no charge.
17. In addition to the plaintiff relying on the above allegations to support a breach of the first agreement and further agreement, the plaintiff also alleged negligence at paragraph 18 of the Complaint by claiming that the defendant owed it a ‘duty to exercise the due care and skill of a concrete manufacturer in manufacturing and supplying the 5 metre P725 St Albans pump mix’. The plaintiff alleged at paragraph 19 of the Complaint that ‘Negligently and in breach of the duty of care…the defendant failed to exercise reasonable care and skill’ and relied upon the particulars provided in support of the breach of the first agreement, to which I have already referred as the grounding the particulars of breach of duty.
18. Cuzilla said that as a result of the further agreement the plaintiff paid a concrete cutter to rip up the concrete laid from the first supply and as well he was required to redo at cost to the business a good deal of essential preparatory work for the driveway in readiness for a second pour of concrete.
19. The plaintiff alleged that in performance of the further agreement the defendant resupplied concrete at no charge that being 5 metres of “P725 St Albans pump” mix on 30 April 2013 (‘the further supply’).
20. The further supply of concrete delivered on 3o April 2013 was laid without incident. However, the plaintiff alleged that on the following day, the concrete washed away whilst Cuzilla exposed the aggregate and that as a result the plaintiff suffered further damage and expense and was required to take steps in anticipation of a third pour. The third pour did not eventuate. The plaintiff said it did not have the financial wherewithal to do undertake a third pour.
21. The plaintiff relied upon the testimony of Cuzilla, his wife, Donna Watson (Watson), Bernardo, the pump truck operator Mr Triantafillou (Triantafillou) and evidence of one of sub-contract labourers who worked on the site Stuart Griffiths (Griffiths). In addition it relied on a statement of expert evidence from Tony Gladman of CRL, (Gladman) a specialist concrete testing company, who exhibited test results of compressive strength of concrete samples the plaintiff said were taken from the further supply together with his oral evidence.
22. The defendant adduced evidence from Boxshall, the Midway truck driver Mr Taseski (Taseski) who delivered the first supply of concrete and from an expert Ian Mudge (Mudge).

Onus of proof

23. The plaintiff bears the onus of establishing each element of the causes of action brought in contract and negligence and the burden of proof required to discharge the onus of proof is the balance of probabilities. If the causes of action are proved the plaintiff must as well prove its loss and damage.
24. In the course of the proceeding the plaintiff argued that the burden of proof on certain matters had shifted to the defendant. I do not accept that submission. The legal burden of proof does not ordinarily shift. In order to satisfy the legal burden of proof evidence sufficient to satisfy the legal onus must be adduced. It is true that on occasions some evidence adduced by a plaintiff is more than sufficient, or at least sufficient to satisfy the legal burden of proof, at which point it may be a sensible decision on the part of the opposing party to adduce evidence in respect of that matter, at the risk of having the issue decided in favour of the party bearing the legal onus. Questions of causation and whether or not a plaintiff has suffered loss or damage must be established on the balance of probabilities. Causation obviously on occasions poses acute difficulties. Provided the facts elicited by a plaintiff do not preclude the occurrence of a result a plaintiff may fall back on circumstantial evidence in support of a general allegations of negligence. A defendant need not call evidence to successfully defend a claim although a defendant may be disadvantaged in not doing so.

The scope of works agreed between the plaintiff and Bernardo

25. The dimensions of the construction of the driveway and path was 8 metres in length and 5 metres wide and contained in written quote.[4]  Cuzilla said he had been undertaking concreting jobs of this type over the course of approximately the last 7 years and at the rate of 3 or 4 jobs per month. The final price quoted by Cuzilla of $9,802.00 for the plaintiff and accepted by Bernardo was a commercial sum and one that matched an alternative quotation Bernardo had previously obtained.

[4] Exhibit P1

26. Cuzilla said he was paid a deposit by Renmark homes and that the job would not have been commenced without receipt of a deposit.
27. The concrete mix was ordered by the plaintiff after having been selected by Bernardo from a range on display at the defendant’s premises. The mix ordered was ‘P725’. It was an exposed aggregate concrete sold as suitable for use in such an application. Each supply was designated as a pumping mix.

The contract claims - consideration of the terms of the First Agreement in detail

28. The plaintiff alleged that it entered an Agreement with the defendant to supply it with 5 metres P725 St Albans pump mix.  It is not disputed that the defendant supplied such a quantity of that mix. The specific terms relied on by the plaintiff in regard to the supply and are:

(a)  That the concrete would be delivered to 23 Prince Street, Essendon

29. The agreement for the first supply required delivery to the Essendon address and the concrete was delivered to this address. So much is plain enough from the invoice dated 10 April 2013. The first supply was not paid for on the invoice provided on delivery. Prima facie the plaintiff is indebted to the defendant for the cost of the first supply. The invoice was in the sum of $1,183.00. However, Cuzilla said that he paid a cash amount of $1,000 in satisfaction of the first supply to the Midway driver when a second supply was delivered on 30 April 2013. He said he spoke with Boxshall who agreed with this. Boxshall denied telling Cuzilla that he would be prepared to accept $1,000 as payment for the first supply. I am satisfied a Midway driver accepted that sum and that such amount was received by the defendant and I am not satisfied that the defendant can succeed on that part of the counterclaim.

(b)  That the concrete would pump suitably for the construction of a rear courtyard, blindside and driveway (‘the construction’)

30. Prior to the first supply of concrete delivered to the plaintiff on 10 April 2013, Cuzilla was engaged in preparatory works for the concrete pour. He purchased concrete from a different supplier, Pronto Concrete, to undertake concreting of the crossover between the road and the driveway. Also in preparation for delivery of the first supply of concrete the plaintiff contracted for a truck with a pump to be on site on 10 April 2013 in order to pump the concrete to the site and, in particular, to the rear and to the side of the site. Pumping was arranged as a more efficient and cost effective procedure for the plaintiff than barrowing out the mix.
31. Boxshall testified that the defendant was not aware in advance of the first supply that the concrete was intended to be pumped. I accept his evidence but in my view nothing turns on it. The concrete mix was, all things being equal, concrete that was sold by the defendant on the basis of it capable of being pumped. The letter ‘P’ in the designated mix served to identify it as a mix suitable to be pumped. Boxshall accepted as much.
32. I am also satisfied that the works undertaken by the plaintiff were proper and necessary preparatory works for the laying of the concrete for the type of job the plaintiff was contracted to perform and the expenditures were necessary amounts for which provision had been made in the plaintiff’s quotation to Bernardo for the works to be undertaken.

The events of the first supply on 10 April 2013

33. Cuzilla said that on the morning 10 April 2013 he was on site at the rear of the property and at the end of the pump line when he was alerted by Triantafillou to the presence of a problem. There was a conflict in the evidence from the relevant witnesses about how the problem came to Cuzilla’s attention, and whether he was alerted by the sound of a horn from the pump truck or whether by Triantafillou calling out to him, but in any event, the problem appeared to be that the concrete was not passing through the pump line to where it was required at the rear of the property.
34. Cuzilla said that Triantafillou said to him that mix was ‘too boney and there was too much pebble in it’. Triantafillou testified that they ‘mucked around with it’ meaning, he said, that the hopper was opened to see if there was any apparent blockage to the pump but none was observed. Cuzilla and Triantafillou both testified that a further effort failed to get the mix to pump. Cuzilla said that in order that the day was not wasted he decided to barrow out the concrete manually to the driveway. Cuzilla said that he probably did not use all of the concrete delivered on 10 April 2013. He said the truck ‘didn’t empty out’.
35. Triantafillou testified that he arrived on site in the morning, set up the hose line from his truck to the back of the property. He was accompanied by an assistant. The assistant did not testify. Next he said the Midway concrete delivery truck arrived. It was backed up to his truck. He said he observed it unload into the hopper. He said he thought the consistency of the mix looked as if it needed the addition of water. 
36. Triantafillou remained adamant under cross-examination that no concrete had pumped through the hose to the driveway and he also denied that the side path and rear courtyard were able to be pumped on 10 April 2013.
37. Taseski is a truck driver employed by Midway. He testified. He delivered the concrete supplied to the site on 10 April 2013. He said that he was directed to start pumping by Triantafillou. He agreed that there was a problem with the concrete passing through the line but he said that the problem was intermittent. He said Triantafillou told him to add ‘more water’ from his truck to the concrete. He said he emptied the entire contents of water in his truck into the concrete with the result that all the concrete was delivered through the line. He said ‘nothing came out by hand’ which was contrary to Cuzilla’s and Triantafillou’s evidence. He could not recall where the concrete was pumped other than ‘somewhere around the back’. He said he is allocated 30 minutes to disperse a delivery of concrete. Taseski denied the assertion that the only water added on site was to the hopper. He said it was not possible to add water to the hopper. Cuzzilla was recalled and denied that he had instructed Taseski to add water.  
38. Taseski testified that he made ‘4 or 5 deliveries a day’ and was asked how he could remember the 10 April 2013 delivery. He was unable to identify Cuzilla but he said he could remember the delivery because he was asked to add water so frequently that he emptied the contents of the truck and did not have any left over at the end of the day to wash out his truck, a matter about which he was unhappy.  He said water is invariably added to the truck at the plant and he adds water as he thinks necessary in order to maintain the slump. He said he added an amount that was appropriate. He said that water cannot be added to the hopper. He denied that he poured the remainder of the concrete that would not pump into wheel barrows.
39. Bernardo’s testimony was more consistent with the pump having experienced difficulties of an intermittent nature and occurring later in the process as opposed to having failed to such an extent that none of the concrete was pumped. Bernardo testified that he was on site on 10 April 2013. He said, ‘they just did the driveway when the pump failed to pump’. He said ‘they just did the front driveway’. He said they started to pour and ‘at one stage the pump was unable to pump at all’. Bernardo said that ‘somebody said there is no point because it will not pump to the back’. He said that they just finished the pour ‘whatever they could’. In cross-examination Bernardo was told that Boxshall would testify that when he first came onto the site he observed that the concrete had been laid down the side path. Bernardo disagreed. When Boxshall testified, he acknowledged that he could have been mistaken and that it may have been on the second visit when he saw the concrete laid down the ‘blind side’ (as it was sometimes referred to by witnesses) and the rear courtyard.

Cuzilla notifies defendant of problems

40. Cuzilla said that he telephoned Midway on the morning of 10 April 2013 and spoke to Boxshall and told him the mix had been delivered but would not pump and that Boxshall said that there should not be anything wrong with the concrete and that it should pump. Cuzilla repeated that it would not and said to him that ‘we have been trying for so long that I am just going to go ahead and not pour the rear courtyard or blind side but just pour the driveway’. Cuzilla also told Boxshall to cancel a second delivery of concrete scheduled that day.
41. Triantafillou testified that he stayed and assisted Cuzilla use the mix that had been unloaded into the hopper and the task of laying the driveway was done manually by hand.

Did the concrete pump?

42. Triantafillou and Cuzilla testified that none of the concrete pumped. Bernardo testified that concrete did pump but was uncertain as to the amount or precisely the stage at which it failed to pump. Taseski testified it all pumped.
43. The defendant argued that the plaintiff had failed to establish that the concrete would not pump. It referred to the discordant evidence by Cuzilla and Triantafillou and Bernardo as opposed to the definite evidence of the delivery truck operator.
44. There are a number of difficulties I have with the account relied on by the defendant:

(i)First, the Midway delivery invoice makes allowance to identify if water has been delivered and the amount of the same but the invoice is blank. Boxshall was asked why the invoice contained no record of water use. He could only suggest that truck drivers are not adept at record maintenance. I did not find that a persuasive explanation especially when Taseski agreed he had received instructions from his employer about the need for vigilance in completing paperwork. Taseski said it was a mistake by him to not have recorded the water used. That is a possible explanation.

(ii)Second, the plaintiff was scheduled to have two deliveries of concrete brought on site on 10 April - the first of 5 metres and another lesser load but Cuzilla said he told Boxshall to cancel the second delivery because of the problems encountered with the first load of 5 metres. The cancellation of the second load is not consistent with Taseski’s evidence that the entire contents of the first delivery was able to be pumped.

(iii)Third, the defendant’s contention that the concrete pumped is not consistent with Cuzilla telephoning Boxshall that morning to complain that the concrete was not pumping. It makes no sense.

45. Although the evidence is varied, I am satisfied on balance having regard to the whole of it, that some proportion of the concrete mix did pass through the line, however, I am also  satisfied that there were difficulties encountered and the mix was not able to be pumped to the blind side and rear. However, the question is whether the evidence led by the plaintiff established the defendant as liable for this failure?  
46. The defendant’s contention is that it was insufficient of the plaintiff in the absence of expert evidence to attribute the failure of the concrete to pump to the quality of the defendant’s supply of concrete. The defendant relied on the plaintiff not having identified the size and suitability of the pumping equipment used. The defendant relied on the evidence of Mudge[5]  as providing alternative explanations why the concrete would not pump, such as the size and suitability of the pumping equipment to deliver the concrete over the required distance from the front of the property to the rear and based on the evidence of Gladman, the relevance of water added to the mix.

[5] The expert evidence of Mudge is dealt with in detail elsewhere in reasons

47. I have mentioned already that Triantafillou was adamant that the slump appeared too dry and appeared more like a 65 or 70 and not an 80 slump. However, the invoices recorded the slump that had been ordered was 70. I am satisfied by the evidence of the invoice and the testimony given by Boxshall that such a slump was within allowable tolerances for a pumpable mixture and met the description of the mix ordered and that a mix of such a slump was delivered on 10 April 2013.
48. Triantafillou said he told Cuzilla when confronted by the ‘too dry’ mix that ‘we will try and wet it up by hand mixing it to get a better consistency’. He was not cross-examined to elicit details of the amount of water that was added or from whence it came. I have already concluded that some water was added but I am satisfied that it was added to the truck and not the hopper.
49. Triantafillou was not cross examined by the defendant to the effect that the problems he said were encountered lay with his pump or the hose line. Cuzilla testified that the pump had been examined and not found wanting.
50. Was the plaintiff obliged to adduce direct evidence of the capacity of and good working order of the pump? Mr Korman said it was necessary. I am not persuaded that the plaintiff was required to lead direct evidence of the size of the pump. Furthermore, there was no evidence relied on by the defendant that the mix was dependent on a particular specification of pump or, if it was, what any such specifications need be.
51. Of course I have kept in mind that the approach by way of cross-examination adopted by the defendant on this element of the case was an alternative position because its primary contention was that the full load supplied on 10 April 2013 was pumped.
52. In the course of the cross-examination of Boxshall when he was told that Cuzilla and Triantafillou had testified that water had been added to the hopper but not to truck, said: ‘I know it was added’ [to the truck]  and that ‘water was added as well on the second delivery according to my driver’. He agreed nonetheless that the copy invoices made no allowance for water.
53. Triantafillou testified about the second supply delivered on 30 April 2013 and he said that in his opinion the mix was very different and ‘we had no problem whatsoever’.
54. Triantafillou said he had been paid for the provision of his truck and pump for second pour on 30 April 2013 in the amount of $1,380.50 by a combination of credit card and cash[6] but not for the first pour on 10 April 2013 which he invoiced in the amount of $544.50[7]  and had he told the plaintiff he would wait the outcome of these proceedings before pursuing payment.

[6] Court Book Tab 17

[7] Court Book Tab 11

55. The defendant contended that because the further supply of 30 April 2013 pumped without incident yet allegedly failed the following day, as did the first supply, that the failure of the mix to pump on 10 April 2013 can be excluded as caused by a defect in the mix. In short, so the argument went, if the first mix did not pump as alleged but washed away the next day and the second mix did pump but also washed away the next day, then the failure to pump can in all probability be excluded as a causal factor to the concrete’s subsequent presentation. I agree with that submission. In my view nothing can be concluded as to the quality of the mix or its suitability for use as an aggregate mix by reason of first supply not pumping.
56. The further supply was delivered. There was no complaint in the plaintiff’s evidence about the sufficiency of the slump. There was no need for water to be added to the further supply and no evidence to suggest that water was added other than Boxshall’s confidence that the driver delivering the further supply told him so. I am not satisfied on the balance of the evidence that water was added on site at the time of the further supply.
57. All of this begs question why the mix did not pump on the first supply but did pump on the further supply? In my view the only probable explanation is that such amount of water as was added on site (indeterminate though the volume is) was the cause of the blockage and intermittent delivery through the line. By comparison the further supply on 30 April 2013 to which I am satisfied as matter of fact no water was added on site did pump. It may be that the constituent ratio ordered by the plaintiff made it difficult for the pump used by Triantafillou because the further supply had a slightly adjusted ratio of mix. And pumped without incident. Of course the ratio was selected by the plaintiff. I am not satisfied the defendant supplied concrete pursuant to the first agreement that was not capable of being pumped.
58. If I am wrong in reaching this conclusion and the mix did not pump due to a breach of agreement by the defendant then question then is the extent of damage the plaintiff suffered as a result of the breach. What is required to put the plaintiff in the position it would have been had the breach of agreement not occurred?  The answer is that it would be limited to the cost of the truck and pump incurred for the first pour on 10 July 2013. The concrete itself was in fact used and manually laid.  
59. Furthermore the defendant submitted that even if the concrete had not pumped due to breach of agreement the plaintiff had not established that such a failure arose from the quality of the concrete delivered. Whilst I have not found that the concrete did not pump due to a failure by the defendant, had my finding been otherwise, nonetheless I would not have been satisfied on the balance of probabilities that the failure of the mix to pump seamlessly on 10 April 2013 was caused by the quality of the concrete supplied by the defendant.

(c)  That the concrete would be suitable for the purpose of leaving an “exposed aggregate” finish (identified by the “7” in “P725”)

60. Cuzilla said that the concrete taken from the Midway truck on 10 April 2013 was laid in the driveway and screeded and trowelled. Next he sprayed a fine mist of retardant on the surface in order to delay the top layer of concrete from curing so that when it came time to wash it away just a sufficient amount of ‘cream’ would be washed off to thereby expose the pebble. The plaintiff did not specify the retardant he used. Boxshall testified that the concrete mix already contained various additives designed to retard the curing time. What those additives comprised and their efficacy was not pursued in the evidence. The type of spray used by Cuzilla and the indications for its use also was not adduced in evidence otherwise than it being described as a ‘MTA’ retardant and that it was ‘pinkish’ in colour. Cuzilla did not specify how much retardant he sprayed or for how long he sprayed. Bernardo had no recollection the amount of retardant Cuzilla sprayed either on the first or second pours.
61. Cuzilla said he went home ‘probably about 5pm’  on 10 April 2013 and returned the following morning on 11 April 2013 to undertake the next step in the process which was to jet wash the surface of the concrete thereby exposing the pebble or aggregate layer. He only had a general recollection that he commenced to jet spray the surface mid-morning. He said he used a 2000 PSI jet spray. He said he commenced the exercise and when he was about 8 square metres into the job he observed ‘bits of pink plastic’ and he thought that ‘the pebbles had not set correctly and as well there were holes the size of 20 cent pieces’. He said the surface was very rough.
62. Cuzilla said he phoned Boxshall. This was the second phone call to Boxshall made by Cuzilla. He said he explained the situation. Boxshall said he would come on site, and he attended the following day and although Cuzilla said he observed the plastic he could not identify its origin.

The presence of plastic pieces

63. Cuzilla and Bernardo testified that the plastic was present after the concrete had cured on 11 April 2013. Boxshall testified that he did not recall seeing plastic when he attended on site which is in conflict with Cuzilla’s testimony.  
64. Mr Korman suggested in final address that if the plastic was in the mix on 10 April 2013 it should have been observed when being laid by trowel and not merely observed the day after its application. Mr Korman submitted that it in any event it was unnecessary to resolve the contest in evidence about the presence of pink plastic because even if I was satisfied that the plastic was set in the concrete on 11 April 2013, the plaintiff had failed to establish on the balance of probabilities that it had originated in the mix delivered by the defendant on 10 April 2013.
65. There were no photographs taken by Cuzilla of the foreign matter. In this day and age and with the availability of the ubiquitous mobile phone and camera it is peculiar that Cuzilla took no photographs to record the unsatisfactory nature of the surface or the presence of foreign matter. Nonetheless, I am satisfied that the preponderance of evidence favours a conclusion that plastic like ‘pieces’ were present and visible the day after the concrete had been poured and, accordingly,  I prefer the recollection and account and of Cuzilla which was substantially corroborated by Bernardo on this matter to that of Boxshall.
66. However, regardless of my preference for the evidence of Cuzilla and Bernardo, my finding that the plastic was present on 11 April 2013 still leaves unresolved the important question whether I am satisfied on the balance of probabilities that the plastic was present in the mix on delivery on 10 April 2013 and, if so, the extent if any of the liability of the defendant.
67. Mr Korman argued that it fell to the plaintiff to prove on the balance of probabilities that the foreign matter was in the mix supplied to the plaintiff. I agree with counsel and I am not satisfied that the plaintiff has discharged its burden of proof in this regard. In arriving at this conclusion, I recognise that there is a limit to the capacity of the plaintiff to prove by evidence the chain of production processes utilised by the defendant in the procurement of the constituent mix that goes to constitute its product range and whilst a court is entitled to bring common sense to bear in relation to questions of liability where evidence is inconclusive, in this case, I do not regard the evidence relied on by the defendant as inconclusive.
68. The defendant adduced a good deal of evidence from Boxshall about the processes in place at its production facility. Boxshall said it would not be possible for plastic to be present in the plastic. He said that there is no additive, no colour and, therefore, no plastic to contaminate the product. The defendant submitted that the preponderance of the evidence adduced by it led to the conclusion that the plastic was not in the mix on delivery. The fact that the plastic appeared present in concrete supplied by the defendant but poured by the plaintiff the day after it was poured whilst amounting to a temporal connection does not result in an attribution of liability to the defendant. The evidence led from the defendant was sufficient to exculpate it when it is also remembered that the plaintiff was not in control of the site after Cuzilla departed in the late afternoon on 10 April 2013 and did not return until the following day[8]. I note the evidence that the retardant used by Cuzilla was described as ‘pink’ and hence of the same hue as the foreign matter observed by Cuzilla and Bernardo the following day.

[8] Cuzilla said he placed a protective barrier tape on site.

69. Having reached the conclusion that I am not satisfied on the balance of probabilities that plastic was in the mix as a result of the defendant’s production processes and was not observed during the barrowing out and trowelling by anyone on site but was present in the concrete the morning following the laying of it, I am unable to be satisfied that the plaintiff has proved that its presence should be laid at the feet of the defendant and that the defendant is liable for breach of contract or for the negligent manufacture and supply of the concrete mix.

(d) That the concrete would be to a 25 MPA (identified by the ‘7’ in ‘P725’)

70. The plaintiff argued that the concrete’s ‘suitability’ for an ‘exposed aggregate finish’ is co-extensive with it being a ‘P725 mix’ and that the concrete ‘would be to a 25 MPA’. MPA is the shorthand for megapascal, which is metric unit for pressure or stress and is a term used as the common unit for compressive strength in concrete. Herein lies the conflict at the heart of the case and one that requires resolution in regard to the first supply and the further supply.
71. Concrete takes time to reach its expressed compressive strength. The time will vary depending on a range of external factors.
72. As to the first supply of concrete the plaintiff was unable to prove that the concrete supplied by the defendant on 10 April 2013 was not capable of reaching 25 MPA. No tests were performed on samples taken from the first supply of 10 April 2013.
73. However in furtherance of this aspect of the alleged breach of agreement the plaintiff argued that because the concrete was supplied as a pumping mix and because it did not pump on 10 April 2013 this constituted evidence of a lack of compressive strength of 25 MPA. I have already determined that such a contention does not follow because, as a matter of fact, I am not satisfied that the failure to pump is attributable to the mix supplied by the defendant. In any event, and assuming for the sake of argument that I am wrong in that finding, then no evidence was adduced by the plaintiff that because the mix delivered on 10 April 2013 did not pump that it followed that it was not capable of achieving a compressive strength of 25 MPA in due course and be suitable for an exposed aggregate finish. As I have mentioned the further supply delivered on 30 April 2013 did pump and yet is also alleged to have been under strength.
74. The plaintiff’s case therefore is reduced to the contention that because the concrete washed away when the plaintiff exposed the aggregate on 11 April 2013 that the concrete mix supplied by the defendant was not capable of achieving a compressive strength of 25 MPA and/or was not suitable for leaving an exposed aggregate finish contrary to the first agreement or negligently.
75. Is the fact that the top layer came off during the jet spraying Cuzilla undertook on 11 April 2013 sufficient evidence on the balance of probabilities that the concrete supplied by the defendant under the first agreement was not capable of achieving a compressive strength of 25 MPA and/or was not suitable for the purpose of leaving an ‘exposed aggregate finish’?

The effect of the addition of water

76. I have found that water was added at the defendant factory and on site on 10 April 2013. The Midway truck driver said so. I have no reason to conclude on the evidence that anything other than the correct ratios were added at the defendant’s premises. Taseski said that he followed usual practice and an inspection and evaluation was made at the premises before the first supply departed and he may had made an adjustment by adding water. Boxshall said there is a 15% tolerance in terms of the desired slump. I accept that evidence. The evidence adduced by the plaintiff does not support a finding that such water as was added at the defendant’s factory was the cause of, or a cause of or the excessive wash off on 11 April 2013.
77. What then of the water added on site? Triantafillou said that water was added to the hopper into which had been emptied the supply of concrete. Taseski said that water could not be added to the hopper. The correctness of his assertion was not challenged by the plaintiff. Taseski said the entire contents water of his truck was emptied. I have already mentioned that he estimated that the volume of water he would have had in his truck as about 200 litres and that he was upset because there was no water left for him to wash down his truck at the end of the day.
78. I have already concluded that on balance I am satisfied that some amount water was added at the defendant’s premises in a controlled environment before it was delivered on site at which time more water was added from the Midway truck driver at the direction of the pump truck operator. The amount added on site cannot be known but I am satisfied that the amount was ‘minimal’[9] because of the absence of a record of water used on the delivery invoice. The expert testimony is that water can impact the structural integrity of a concrete mix.  I am not satisfied that such amount of water as was added on site despite the amount being less than sufficient to be recorded by the driver but on direction for the plaintiff by either Cuzilla or Triantafllou can be excluded as a factor that caused or contributed to the concrete’s appearance the next day.

Alternatively, what may have accounted for the appearance?

[9] Other than satisfied that the water used was less than 200 litres I am unable to make any better finding of fact

79. If I am wrong in concluding that the addition of water was a factor that may have caused the wash off and appearance, then nonetheless I would not be satisfied that the plaintiff had excluded operator error on the part of Cuzilla. Mr Cole submitted that no one other than Boxshall had suggested that Cuzilla did not do the job of washing the concrete properly.  That is true, but given the limited number of people privy to the exercise undertaken by Cuzilla, the value of that observation is of limited probative value. Certainly Mudge offered other explanations. Also Boxshall testified that Cuzilla should have halted the washing off once he observed it was unsatisfactory and allowed further time for curing before returning to the wash. I am satisfied that the occurrence of the wash off was as readily an indication that the concrete required further time to cure than it is indicative of deficiencies with the mix. Cuzilla said that he continued to wash the surface after observing the top laying coming loose. In my judgment his action was inexplicable. That the concrete mix may have required greater time to cure to allow for the application of a jet spray is feasible and consistent with the evidence about the curing effects of concrete. There is no pre-determined time for concrete to ‘go off’ as this will be dependent on a multitude of factors such as the time of day it was laid and the weather conditions.
80. The specific allegation made by the plaintiff at paragraph 4(c) of the Complaint is that ‘the concrete would be suitable for the purpose of leaving an ‘exposed aggregate’ finish (identified by the ‘7’in ‘P725’)’, which is really an allegation that the concrete would be suitable for leaving an exposed aggregate finish because of its designated compressive strength or composition. The fact that too much of the top layer of cream washed off or there were holes is not sufficient evidence that the first supply was not capable of obtaining the designated compressive strength. I am unwilling to assume that consequence because apart from the effect of water about which I have made a finding, there was no testing conducted on the first supply.
81. Furthermore, the expert evidence adduced is to the effect that it will not be until some 28 days have elapsed after concrete is poured that it will have attained approximately 90% of its designated compressive strength. Hence, if a top layer may be capable of being washed off a day after it is poured, as occurred in this case on both occasions, it follows that the concrete will not have reached anywhere approaching its compressive strength within such a short time and the complaint made by the plaintiff about the excessive washing off of the top layer of cream cannot logically be attributed to a failure of the mix to be capable of reaching a compressive strength of 25MPA.
82. The fact of the matter is that at the time of the delivery by the defendant and the use made of the first supply of concrete by Cuzilla, he had no opinion that it lacked the compressive strength represented by the formula P725 so as to account for its presentation.
83. Can then the fact of excessive wash out amount to sufficient evidence of a causative finding that the concrete supplied was not suitable for the purpose of leaving an ‘exposed aggregate finish’? Put another way, the plaintiff argued that if the concrete mix was capable of achieving a compressed strength of 25MPA it would not have resulted in the wash off and development of holes. For the reasons I have expressed, I am not satisfied that such a conclusion follows.
84. Furthermore I accept the defendant’s submission that the plaintiff has not established that the strength or the measured weakness of concrete supplied on 10 April 2013 was a cause or the cause of the washing off of the top surface layer the next day. In my view, it is equally as explicable that the wash-off was caused by Cuzilla not having exercised caution in the curing process and not having delayed the pressure jet spraying for a longer time after first observing excessive wash off.

The further agreement

85. The ‘further agreement’ relied on by the plaintiff is one alleging that the defendant agreed that it would:

·Sandblast the driveway to remove the plastic;

·Pay for resurfacing the driveway;

·Pay to have the existing concrete ripped up and then to supply at no charge concrete required to complete the construction.

86. The further agreement although a subsequent agreement is predicated on having sprung from the breaches of the first agreement in the supply of concrete. The plaintiff claims as well that in breach of the further agreement the concrete delivered on 30 April 2013 washed away when Cuzilla ‘exposed the aggregate’.
87. The further agreement is an oral agreement. Cuzilla said that Boxshall told him on site at Prince Street in Essendon after he attended and saw the state and condition of the driveway surface that Midway would provide a sandblaster ‘to try and fix it up’ and if Bernardo was not happy then he would resupply the concrete for a repour. Cuzilla said that he told Boxshall that ‘we would go ahead but would need to come to an arrangement about ripping it up’. In answer to a question from his counsel, Cuzilla said ‘he understood’ that he and Boxshall were going to ‘work something out about the cost of ripping it up’.
88. Cuzilla said he was contacted by phone by Bernardo one morning subsequent to his meeting with Boxshall to be told that a sandblaster had arrived on site. Cuzilla could not say when the sandblaster arrived on site. He said the driver of the sandblaster told him that he had been sent by Midway but Cuzilla was not required to sign anything. Cuzilla said the finish ‘looked worse after sandblasting’ Bernardo testified that as best he could recall, the sandblaster arrived about 2 days after Boxshall had come on site. Bernardo said he was present when Boxshall and Cuzilla met. Bernardo testified that he heard Boxshall say he would pay for the sandblaster. Boxshall denied this. He testified that although he probably had a hand in sourcing the sandblaster in an effort to help Cuzilla he did not offer to pay for the sandblaster. Boxshall said he was not present when the sandblasting occurred. He also said that it would have been necessary to wait up to a month for the strength of the concrete to get up before sandblasting and if the sandblasting occurred within a day or two of the concrete being poured, it would not have been appropriate. Bernardo testified that he was present when it was performed and he was not happy ‘because a mess was being made of it’.
89. Cuzilla told Bernardo that he would speak once more with Boxshall. Cuzilla said he spoke to Boxshall by phone for what was the third occasion and he came out to the site for the second occasion and, according to Cuzilla, said ‘he would resupply the concrete and we would work something out in relation to the costs of pulling it up’ however he required that the cost of the first supply delivered on 10 April 2013 would need to be paid for by the plaintiff.
90. Cuzilla said the very next thing he did was to arrange the attendance of a concrete cutter to cut up the concrete. After the concrete was carted away it was necessary to redo all the formwork including laying of crushed rock and the layout of reinforced mesh in anticipation of a further pour of concrete.
91. I was not impressed by Cuzilla’s evidence about his conversation with Boxshall regarding the sandblaster. It was not consistent. In contrast to the account of the conversation referred to earlier in these reasons in which Cuzilla said Boxshall told him Midway would resupply concrete if Bernardo was not happy he elsewhere said Boxshall told him ‘I will provide a sandblaster to try and fix it up and if you are still not happy I will supply concrete for it to be repaired’ to which Cuzilla replied, ‘okay’. Cuzilla also said that there was a discussion about the cost that would accrue and by whom it would be borne in the event that it proved necessary to repair the concrete that had been laid. That evidence and the account given of it was vague and varied in content to the extent that I am unable to place reliance on it.

Boxshall’s direct evidence

92. Boxshall said his business has been in operation for 12 years. He commenced his career as a concreter. The business averages 70 to 100 delivery loads of concrete a day. Boxshall qualified himself not just as the managing director of the defendant but in addition as having worked as an experienced concreter. I am satisfied that I can have regard to his evidence on matters relating to the application processes associated with concrete and an aggregate mix as I have afforded to Cuzilla.
93. Boxshall testified that he attended the site within days of being telephoned by Cuzilla on 10 April 2013. He said when he arrived the driveway had been poured. He said he suggested sandblasting but Cuzilla said nothing in response and the next thing he knew about the matter was when he was told that the concrete had been pulled up. He said that ‘it was ordered again and again it was buggered up’.
94. Boxshall said that concrete hardens within 25 to 30 minutes.
95. Boxshall agreed with Mr Cole that the defendant’s notice of defence made no positive assertion that the problems encountered with the works were the fault of the plaintiff.
96. In relation to the defendant’s quality control he said that the defendant:

·Tests for quality for large orders but not for the volumes at issue in this proceeding;

·Does not test the cement that comes from its supplier;

·Does not test the sand that comes from its supplier

97. Boxshall said there were 70 loads of mix delivered on 10 April 2013 and the only complaint received was from the plaintiff.
98. In relation to the alleged ‘further agreement’ and the conversation in which Cuzilla claimed that Boxshall said, ‘Ok I will supply the concrete for nothing[10]’ he said although he would have offered to help by way of the provision of a discount, he would not have offered to supply the concrete at no charge. He denied that because the invoice for delivery of concrete on 30 April 2013 made no reference to a price this proved it had been supplied by Midway gratis and instead he said that he would not disclose the discounted price on an invoice in order to avoid the risk of other customers also wanting similar indulgences. I accept that explanation.

[10] Another characterisation of the conversation to support a term of the further agreement advanced by Cuzilla

99. When asked if he agreed that the provision of less than 25 MPA created a problem he said, ‘No, not right away’ and ‘I agree technically that is so’.

The further supply

100. The further supply of concrete mix was delivered on site on 30 April 2013.
101. The fact that Cuzilla was willing to proceed with a further supply of the P725 mix from the defendant some two weeks after he encountered problems with the first supply is indicative that he had not formed any opinion that the problems of the appearance of the surface when he came to wash off the top layer from the driveway on 11 April 2013 was caused by the supply and manufacture of the concrete.
102. Cuzilla testified that on the occasion of the further supply no problem was encountered with pumping the mix. As I have already mentioned, this was corroborated by the evidence of the pump operator.
103. Cuzilla said that the further supply was laid to the rear courtyard, blind side, the side path, and the driveway area that had been cut up following the problems encountered with laying of the drive on 10 April 2013.
104. Cuzilla said that he again sprayed retardant and then went home. It was the next day that problems arose.
105. Cuzilla said he returned to site the following morning and that he started to wash off the top layer commencing from the rear of the site. He said it was very loose just as it had been on the morning of 11 April 2012 and the top surface was again washing off.
106. Cuzilla said he phoned Boxshall and told him that he was too much cream was washing off the surface. He said that Boxshall said words to the effect that he ‘must be doing something wrong’. Cuzilla said that Boxshall returned on site a couple of days later and told him that he should have let the concrete cure for 48 hours. Cuzilla said that in his experience it was not necessary to wait more than 12 to 16 hours. According to Cuzilla Boxshall said, ‘I will stand by my product’ and offered to pay for the testing of the concrete.
107. Mr Cole argued that based on the plaintiff’s evidence of his experience and work with exposed aggregate over some years on a regular basis and in the absence of evidence led by the defendant calling into question his skills or the methods he used on that occasion that I should not be satisfied that the cause of the wash off occurred in consequence of operator error on the part of Cuzilla. The fact is that Boxshall did call into question the means deployed by Cuzilla and, in particular, the sufficiency of time he allowed for the concrete to cure before undertaking the wash off. Cuzilla said that Boxshall responded on the phone by arguing that must have been doing something wrong.

The expert testimony as regards the first supply and the further supply

108. I have already mentioned that no samples were available for testing from the first supply of concrete delivered on 10 April 2013. The situation with otherwise with regard to the further supply on 30 April 2013.
109. Cuzilla testified that he contacted a company by the name of CRL and spoke with Gladman. Gladman holds a Diploma of Applied Chemistry from Gordon Institute of Technology and a Bachelor of Science from Deakin University. He is a Chartered Chemist. He is a director of CRL Pty Ltd. the company provides the services of mechanical and chemical testing of concrete, raw materials, mortars, grants and binders and chemical analysis of hardened concrete and related products. Gladman provided an Expert Report consisting of testing results of the compressive strength of certain block samples of concrete that Cuzilla said he retrieved from the site and stored in Bernardo’s garage. Cuzilla said that kept six blocks in Bernardo’s garage for a couple of months and then brought them to his garage and from when they were delivered up to CRL. Griffiths, a concreter labourer used on site by the plaintiff said that he was involved with Cuzilla in transporting to CRL the core blocks that had been cut out although he had played no part in cutting them out.
110. In the interim Cuzilla said that he ‘prepped up the whole job again’. He said he got a sore cutter into prepare the area for a third time in order to undertake a third pour.
111. A series of tests were conducted over time by CRL on the samples. The result initially identified a compressive strength of 9.5. However, it was agreed that the first test results were not reliable. Subsequent testing was undertaken at a later stages namely 28 days and 477 days and they recorded results below the expressed compressive strength for the mix. Gladman said he received further samples that were tested on 25 August 2014. Three slabs had delivered to the CRL laboratory. CRL organised to have core samples removed from slabs. Mudge could not attend. Gladman said that standards required that the cores be ‘conditioned’ prior to testing. The testing done on 15 May and 17 May 2013 record next to “Conditioning prior to test’ – ‘None’ and next to the test conducted after 28 days on 29 May 2013 ‘wet to test’. No explanation was offered of these terms. Indeed they are recorded as ‘as received’. The age at testing was 477 days from the pour date. Gladman said that in the early stages the number of days is important but ‘in the later stages, not so much’ because concrete develops strength with time. He said that at 28 days concrete will have reached approximately 90% of its ultimate strength.
112. Cuzilla said he took the results of the initial testing to testing to Boxshall at his office at Sunshine and showed them to him but he ripped them up. Boxshall could not satisfactorily explain his reaction to the test results but he remained convinced they were incongruous and attributable to external factors.
113. In regard to causation Gladman agreed with Mr Korman in the course of cross-examination that the tests undertaken on the concrete cores could not explain the cause for the concrete not obtaining a compressive strength of 25 MPA. 
114. Gladman testified that if water was added during pouring that would have a negative effect as it would reduce the strength. I have excluded the addition of water as a having occurred as part of the further supply on site and although there was evidence that water was added at the plant that evidence was given by the truck driver as regard the first supply only. It would be wrong to extrapolate from that testimony a conclusion in regard to the further supply. Therefore, I am satisfied that I can exclude the existence of water as a cause that resulted in the further supply of concrete not being able to reach a compressive strength of 25 MPA.
115. The plaintiff did not adduce evidence that because the samples it said were taken from the second pour when tested had not attained a 25MPA that this accounted for the excess wash off the day following the second pour on 30 April 2013. It may be that a failure of the concrete to obtain a compressive strength of 25 MPA could have led to the deleterious effect of the area concreted at some much later date but the evidence relied on by the plaintiff did not establish that such a mix would result in the account given of the surface appearance the day after it was laid and the loss and damage claimed by the plaintiff was not otherwise characterised.
116. Mudge provided two expert reports for the use of the defendant. He holds a Diploma of Geology from RMIT and a Certificate of Concrete Technology & Practice also from RMIT. He is a member of the Institution of Engineers and a Member of the Australian Society of Building Consultants. He is experienced in the inspection, assessment and testing of concrete works.
117. In relation to the first supply of concrete delivered Mr Mudge said:

‘the fact that the concrete would not pump does not automatically classify it as being “unsuitable for the purpose of exposing aggregate’”.

118. As regards the further supply and compressive strength of the concrete Mudge reported that:

3.1 The determined strengths of the concrete provided to CRL are, we submit, significantly lower than we would expect for exposed aggregate use – the usual target strength we understand, being 32 MPA

119. Mudge was not cross-examined.

Other complaints about surface result

120. The washing off of too much of the top surface layer is but one matter complained of and there is also the matter of holes that appeared in the concrete and described by Cuzilla as of a diameter of approximately a 20 cent piece and also of the rough surface.  I note however that Bernardo’s evidence was that the holes appeared as a result of the jet washing the plaintiff undertook and ‘pebbles being washed up’ and not that there were holes in the surface prior to these processes undertaken by the plaintiff. I am not satisfied that the presence of the same is attributable damage for which the defendant is liable due to the supply of concrete
121. The plaintiff submitted that if the measured strength was not 25 MPA then the concrete failed to meet the specification in the order. Furthermore, the plaintiff argued that the defendant offered no explanation why the concrete tested did not comply with the strength that was ordered.
122. The defendant submitted that there is no evidence at all supporting the plaintiff’s proposition that defective concrete caused overexposure of aggregate which was the principal cause of the plaintiff’s loss and damage. The plaintiff’s expert gave no evidence suggesting that the washout was connected to the measured weakness of the concrete.

Summary of the difficulties with the ‘further agreement’

123. In the course of final address, Mr Cole acknowledged the existence of difficulties the plaintiff faced in establishing the existence of a binding further agreement in the terms pleaded. I am simply not satisfied that the plaintiff’s evidence provides a sufficient degree of probability that any concluded, and therefore, enforceable ‘further agreement’ came into existence between the plaintiff and defendant. I have reached this conclusion for a number of reasons.
124. First of all, at the point in time relied upon for the coming into existence of the ‘further agreement’ there was no reason for Boxshall to agree to a free supply of concrete to complete the works. After all at that point the extent of the concrete that had been used was the amount applied to the driveway and it makes no commercial sense for the defendant to have offered to supply concrete to ‘complete the construction’ as opposed to just supplying the concrete for the driveway.
125. Second of all, while I am satisfied that Boxshall in all probability arranged for a sandblaster on site I am not satisfied that he agreed to pay the cost for the sandblasting.
126. Third, I am not satisfied on the balance of probabilities by Cuzilla’s evidence that Boxshall agreed to pay for resurfacing the driveway.
127. Fourth, I am not satisfied on the balance of probabilities that Boxshall agreed to the existing concrete being ripped up and the defendant supplying at no charge concrete to complete the construction.
128. Mr Cole submitted that in the event I was not satisfied about the existence of the ‘further agreement’ then in the alternative, I should be satisfied that the discussions that took place between Cuzilla and Boxshall and the matters the defendant agreed to undertake amounted to conduct in relation to the ‘first agreement’. Mr Cole submitted that the plaintiff’s damage ‘continued to flow from the further supply that stemmed from the first supply’. I am unable to accept that submission. The existence of the first agreement rises or falls according to its own terms. But if I am wrong in that conclusion then I would not be satisfied for the reasons stated of the existence of the terms alleged by the plaintiff as terms in relation to the first agreement for the first supply or that the washing away of the concrete when Cuzilla exposed the aggregate amounted to a beach by the defendant of such agreement.
129. The claim made for breach of contract of the further agreement must fail.

The provenance of the concrete blocks

130. The defendant further argued that the plaintiff had failed to satisfactorily establish that the blocks of cement provided for testing to CRL were removed from the path that was poured on 30 April 2103. It submitted that the evidence as to the blocks of cement originating from the 30 April 2013 pour resides exclusively with Cuzilla and that his evidence was unreliable. Griffiths was the only labourer called by the plaintiff and he said that on a date he could not recall, he assisted Cuzilla to load the blocks from Bernardo’s garage at 23 Prince Street into Cuzilla’s truck. He said that although he was involved in transporting the core blocks he had played no part in cutting them out.
131. I am not satisfied on the balance of probabilities that the samples have been identified as coming from the 23 Prince Street site.

Negligence

132. In a real sense the action in negligence falls away by reason of the failure of the plaintiff’s claim for breach of agreement. However, in the event I am wrong in having determined adversely to the plaintiff on the claims in contract, then I should address the claim in negligence.
133. On the more classical recourse to the law of negligence, was the plaintiff a person to whom a duty of care was owed by the defendant? The plaintiff submitted that it was and that the duty arose out of the fact that the defendant was in the business of a concrete manufacturer and supplier and that it entered into a contract with the plaintiff for the supply of 5 metres P725 St Albans pump mix which agreement contained the various terms relied upon in support of the breach of contract claim, that is to say, the duty to ensure that:

·The concrete would pump suitably for the construction of a rear courtyard, blindside & driveway (‘the construction’);

·The concrete would be suitable for the purpose of leaving an ‘exposed aggregate’ finish (identified by the ‘7’ in ‘P725’); and

·The concrete would be to a 25 MPA (identified by the ‘25’in ‘P7250’); and

·The defendant would exercise the due care and skill of an experienced concrete manufacturer

134. Mr Korman submitted that the plaintiff was not a person of particular vulnerability to whom a duty of care was owed. Had it been necessary for me to determine the question of vulnerability I would have found in favour of the plaintiff and concluded that it was not able to take the necessary precautions to protect itself against any negligence in the manufacture and supply of the concrete. Although not pleaded as such, the case conducted by the plaintiff was that just as the alleged presence of plastic was relied on as a breach of contract occasioning loss and damage, so too was it relied on as a particular of the claim in negligence. For the reasons already in my earlier findings on breach of agreement that allegation or particular of negligence fails.
135. In regard to the claim in negligence generally I should note that I do not regard it as necessary as a matter of law for a plaintiff to identify all of the constituent elements which might constitute a complex set of conditions that jointly are sufficient to produce an impugned consequence. Rather the question is whether the plaintiff has identified one or more specific conditions necessary to complete what may be a set of conditions sufficient to account for the occurrence. In March v Stramare [11]the High Court adopted a ‘common sense’ approach to causation. The occurrence is determined ‘by applying common sense to the facts of each case’ the question to be asked is ‘whether a particular act or omission… Can fairly and properly be considered a cause of the accident’ attribution of liability is difficult where more than one set of sufficient conditions accounts for a single injury. Causation involves two fundamental questions:

i.The factual question whether the defendant’s act in fact caused the plaintiff’s damage: causation-in-fact; and

ii.Whether, and to what extent the defendant should be held responsible for the consequences of his conduct: legal causation

[11] (1991) 171 CLR 506

136. Causation in fact relates to the facts or conditions which were causally relevant in producing the consequences. Whether a particular condition is sufficient to be causally relevant depends on whether it was a necessary condition for the occurrence of the damage. The causa sine qua non. Has the plaintiff proved that it was a necessary condition in order for the top layer to wash off to an excessive extent as described and for the concrete to have presented as it did, that the concrete supplied by the defendant by way of the second supply was not capable of reaching a compressive strength of 25 MPA? In my judgment, it has not.
137. Traditionally, the test whether the defendant’s wrongful actions did in fact cause the loss is the ‘but for’ test see: Chappel v Hart (1998) 156 ALR 517 in which the Court noted that the plaintiff must show the defendant’s action materially contributed to the plaintiff’s injury. Again by reason of the matters already referred to I am not satisfied as a matter of fact of the proof of this necessity by the plaintiff.
138. In an action in negligence, it is not sufficient for a plaintiff to merely prove that damage is of the kind that ordinarily does not occur without negligence. The fact that Cuzilla testified that he had performed this type of work on many occasions in the past without incident does not relieve the plaintiff of the necessity to ‘pin’ the negligence on the defendant. For example, the assertion that plastic was observed in concrete the day after it was laid does not of itself implicate the defendant and neither does the occurrence of the top layer washing off the following day of itself implicate a lack of compressive strength of concrete manufactured and supplied by the defendant. More is required by way of proof from the plaintiff in order to succeed on in negligence. The plaintiff as well in argument brought into aid the doctrine of res ipsa loquitur Mr Cole having submitted that the circumstances equate to a classic example of the application of that doctrine. Whilst every case is different it is permissible to infer negligence on the basis of res ipsa loquitor where:

i.There is an absence of explanation of the occurrence that caused the injury or loss and damage

ii.The occurrence is of such a kind that it does not ordinarily occur without negligence

iii.The instrument or agency or thing that caused the injury, or loss and damage is under the control of the defendant.

139. I am not satisfied that these elements exist. There are explanations that I have referred to that may very well account for the concrete’s appearance. As a result, I am not satisfied that it can be said that the occurrence of the concrete’s appearance and the reaction to the wash off is of such a kind as does not normally occur without negligence and lastly this is not a case whereby I am satisfied that the plaintiff has established that the cause of the damage is something under the control of the defendant.
140. A further anomaly in the plaintiff’s pleaded case however was that the claim brought in negligence was expressed in relation to the first agreement for the first supply of concrete but not the further agreement for the further supply of concrete. When this was raised with the plaintiff’s counsel, he expressed surprise and described it as another example of where the pleading may require a further amendment. Mr Cole submitted that it would be ‘awful’ if the plaintiff’s claim failed on a pleading point. I agree, however, the fact is that the plaintiff has had numerous opportunities to correct its pleading. Nonetheless, given the extent the proceeding had reached when this and like issues arose, I did not regard it as prudent to forestall the determination of the claim as argued and I have determined the matter as it was sought to be argued by the plaintiff.
141. If I had decided otherwise and had been satisfied that the samples did come from the further supply on 30 April 2013, the question would still need to be addressed whether the breach of contract or indeed any negligence in the further supply of 30 April 2013 had been established as caused by the concrete not having attained a compressive strength of 25 MPA with the resulting loss and damage. I would not have been satisfied that the plaintiff had proved that loss and damage as a matter of causation.
142. I have already made findings that the plaintiff was not supplied with a mix that did not pump and failed to meet the requisite characteristics expressed in the first agreement and the further agreement.  Hence I would not have been satisfied that the plaintiff had established negligence in the supply and manufacture of the concrete by reason of a lack of due care and skill.

Quantum of Loss and damage

143. The contest about quantum was fought as vigorously as the contest about liability. In light of my findings that the plaintiff’s claim for breach of agreement and in negligence has not been established the determination of the claim for loss and damage does not arise. However, there was significant evidence given by the plaintiff in support of the costs incurred as a result of the supplies of allegedly faulty concrete by the defendant including not just from Cuzilla but also from Watson and it is appropriate that in regard to that evidence I indicate what my findings would have been had the plaintiff established liability on the part of the defendant. Some parts of the claim for loss and damage were rudimentary in nature and others less so. The claims that might be described as rudimentary involved a number of invoices for expenses incurred in undertaking the construction and its reparation after the first supply and the further supply. The less straightforward and less satisfactory element of the claim by way of loss and damage involved the labour costs allegedly incurred on the construction.
144. The plaintiff produced for use in the proceeding, a ‘Schedule’ of costs said to have resulted from the breaches. They are divided by reference to:

·     the ‘First Pour’ commencing with expenses incurred from 27 March 2013 and concluding with the delivery of the first supply on 10 April 2013;

·     the ‘Second Pour’ commencing with expenses it claimed it incurred from 17 April 2013 and concluding with the delivery of the second supply on 30 April 2013;

·     the Final Removal and site preparation costs incurred and undertaken between 7 May 2013 and 3 June 2013

145. In regard to work done purportedly in for final removal and site preparation costs Cuzilla said he purchased mesh though there is no invoice for it. Moreover there was unsatisfactory evidence given by him about the invoice raised by the plaintiff and sent to Midway dated 18 May 2013[12] in relation to a repour consisting of a supply of labour, concrete, concrete pump and a loss of profits the invoice was incorrect and hence unreliable as no concrete or pump was associated with a third repour and none occurred. No sensible explanation was forthcoming for the plaintiff by way of explanation for the invoice. In my judgement and on a fair analysis of Cuzilla’s evidence he was all at sea in trying to explain the invoice and the anomalies. ‘You are going to have ask Donna about that’ was the oft expressed response of Mr Cuzilla when questioned about a multitude of matters raised by the invoice.

[12] Court Book, Tab 2

146. In order to buttress the expenditures claimed in the invoice dated 18 May 2013 Cuzilla relied on a work sheet of labourers and payments made to them and expressed as being for ‘Original Job Prep & Pour[13]’. It was not a contemporaneous record. The work sheet came about because Cuzilla said his work diary that he ordinarily used to record labour costs was stolen from his work vehicle after being broken into.

[13] Exhibit P3

147. Had the plaintiff established that in relation to the first supply the defendant was in breach of agreement that resulted in a compensable loss or that there was negligence it would have been entitled to claim the costs associated with the preparatory work for the driveway area. If liability had been established then the costs claimed in connection with the first supply would have been the natural and ordinary losses that I would have been satisfied flowed from the breach of agreement and/or breach of duty of care in the supply of the concrete mix in all respects save for the labour costs.  A similar analysis and result and exception would have followed in relation to the further supply.
148. By way of reconstruction and reconciliation of expenses and notably labour costs, the plaintiff relied on attributions he gave to and notified Watson of in connection with various cash withdrawals from a Westpac Business Account operated by the plaintiff. The handwritten document created by Cuzilla[14] itself served another purpose which was as the evidentiary foundation to support the invoice raised by the plaintiff and sent to the defendant claiming compensation and dated 18 May 2013.

[14] Exhibit P3

149. Of the labourers the plaintiff said he used on site only Griffiths testified. He said that although he could not remember the date he worked, he remembered the job and said he was engaged for about 4 or 5 days. He detailed the manual labour he was engaged in. His evidence did not corroborate the labour undertaken by other labourers relied on by Cuzilla as having worked on site for the number of days estimated by him.  He was that there was a variation in the days that he and other labourers worked on site and said of one afternoon, that ‘just two of us worked and the rest worked on other days’.
150. Mr Korman challenged Cuzilla in detail about how much labour was paid for in relation to the Bernardo construction. Counsel for the defendant submitted that it was a grossly exaggerated amount and that Cuzilla’s evidence that, for example, 4 men were engaged for a day to cement a crossover was vastly exaggerated. Cuzilla however did not concede the point. Of the preparatory work Cuzilla said was undertaken for the driveway this necessitated excavation, formwork/ laying of crushed rock, laying of reinforcing mesh and some 3 or 4 days thereafter the laying of the concrete mix. Cuzilla was challenged over elements of the labour cost for each part of the job including the footpath and crossover. He was asked to identify the labour cost associated with that work. He said that he had 4 men on site all day on the day of the pour and for the crossover, footpath, courtyard and driveway he estimated four days or 16 man-hour days. He estimated 2 people for 1 day were required for the crossover and the formwork. Cuzilla took delivery of the concrete from Pronto Concrete on 4 April 2013 and it was some time prior to that date that he was involved in the set up works including the crushed rock the formwork and mesh base preparatory to the first pour.
151. Cuzilla agreed with Mr Korman that it would be incorrect to proceed on an assumption that he worked with 3 other people for 3 ½ to 4 days to clear out the side drive and rear. This of course had the effect of calling into question the reliability to be afforded the reconstructed schedule of costs by way of loss and damage.
152. Cuzilla said that on 4 April 2013 ‘we laid the crossover and footpath which was not exposed aggregate’. He said this exercise involved 4 men working for 1 day. In regard to the form work and set up, Cuzzilla estimated labour consisting of up 2 to 3 men plus 1 day for the crossover and footpath. There was a cost in the use of a channel cutter for the curb work of All up Cuzilla estimated 8 to 9 man days was incurred by way of labour costs for the concrete.
153. I am not satisfied of the reliability of the costs incurred by the plaintiff by reference to the schedule of persons who are said to have worked on site. The defendant put to Cuzilla that the schedule was a falsity.  Watson acknowledged that it was not produced until after the works had been undertaken. Cuzilla said the sheet was prepared before the middle of May 2013 which is about the point in time when Cuzilla said his work diary was stolen from his car. There is no reliable first hand evidence upon which the estimates of labour can be based save for Cuzilla’s account. It is not appropriate that the court be expected to make an assessment of the labour costs in such uncertain circumstances and the plaintiff made no submission what a fair estimate would be.

Donna Watson

154. Watson testified. She is the financial controller/office manager of the plaintiff and the wife of Cuzilla She gave a good deal of evidence including:

·That Cuzilla had mentioned that there had been “pump problems” on 10 April 2013;

·That Cuzilla had returned to the site the following day, telephoned her and said there was plastic that was not coming off ad that the client was “on the ground”; and unhappy;

·That Cuzilla had contacted Midway and there was a discussion about sandblasting and that midway would “come to some agreement”;

·That none of the labourers utilised on site were registered for GST;

155. The plaintiff relied on a sheet of calculations prepared by Watson which was included in the court book of common documents[15]. Watson explained the document as one prepared by her and that “brought together all invoices, monies paid” the primary source document being a sheet written up and given to her by Cuzilla from the information he recorded in his work diary.

[15] Court Book Tab 36

155. In regard to the sheet prepared by Watson that detailed the use of labour on site she explained the process ordinarily applicable. She said that as well as the job in Prince Street Essendon undertaken for Bernardo, another job in that street was also on the books in April 2013.
156. Watson was impressive and gave a good account but she was restricted because of the inherent limitations in the provenance of and reliability of the information she was subsequently furnished by Cuzilla in relation to the construction.
157. I add as a final note that in the course of final submissions Mr Cole took issue with the notice of defence and characterised as unfair that the defendant had been permitted to introduce into evidence elements that it had not raised in its defence. In fact I did limit the evidence the defendant could adduce beyond the expert statement of Mudge and I as well excluded certain part of Mudge’s report that I was not satisfied complied with the provision of an expert statement. There is no question but that the notice of defence was singularly brief. It did not advert to the fundamental elements of causation upon which great significance was placed in the course of the hearing. Further and Better Particulars of Defence were requested and provided dated 2 May 2014. They reveal the narrowness of the request. Thereafter and up to the trial no other steps were taken by the plaintiff stemming from the defence. No pre-trial applications were made although there were occasions in which the defendant had raised deficiencies in the extent of the plaintiff’s obligations on discovery. In any event, and as I have made mention, there were omissions in the plaintiff’s own pleading that it was allowed to overcome in the course of the hearing.

Counterclaim

159. The counterclaim was straightforward and depended on the plaintiff’s admitted failure to pay the invoice dated 30 April 2013 in the sum of $2,480.00 because of what it said amounted to a ‘manifest defect’ in the manufacture and supply of concrete and hence as counsel put it, ‘We are under no obligation to pay for it’. It is apparent from the foregoing reasons that the plaintiff’s defence to the counterclaim must fail.
160. The orders of the Court are:

(i)The plaintiff’s claim is dismissed

(ii)There be an order on the counterclaim in the sum of $2,480.00

(iii)I direct that in the absence of agreement the proceeding be relisted in 7 days for the purpose of determining interest and costs.