FRROKU v CARREL - [2016] SADC 136

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
FRROKU v CARREL
[2016] SADC 136
Judgment of His Honour Judge Cuthbertson
11 November 2016
MAGISTRATES - APPEAL AND REVIEW
Application to review a judgment in a minor civil review dismissing a claim for the recovery of money and allowing a counter-claim by the respondent.
HELD:
1. The applicant had substantially performed the contract to build a fence and was therefore entitled to the balance of the contract sum less any compensation for failure to render the services with due care or skill.
2. The damages awarded to the respondent were excessive.
3. There be judgment for the applicant for $1249.
Competition and Consumer Act 2010 s 2; Australian Consumer Law s 60, s 61, referred to.
Williamson v Murdoch (1912) 14 WALR 54, considered.

FRROKU v CARREL
[2016] SADC 136

The applicant brought a claim for monies owed on a contract as a minor civil action in the Magistrates Court. He had built a bluestone wall for the respondent at the respondent’s home premises at Blewitt Springs. He had received only part payment from the respondent and sued for the balance of $2049.
The respondent counter-claimed initially for an amount of $3450. The respondent did not particularise his complaints other than to assert that the applicant had failed to carry out services as a stone mason with reasonable care and skill and that he had destroyed personal property belonging to the respondent.
The respondent asserted that the applicant was in breach of the Australian Consumer Law.
Sub-division (B) of the Australian Consumer Law s 60 & 61 reads as follows[1].
60 Guarantee as to due care and skill
If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
[1] Schedule 2 of the Competition and Consumer Act 2010.
61 Guarantees as to fitness for a particular purpose etc.
(1) If:
(a) a person (the supplier) supplies, in trade or commerce, services to a       consumer; and
(b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;
there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.
(2) If:
(a)     person (the supplier) supplies, in trade or commerce,
services to a consumer; and
(b)     the consumer makes known, expressly or by implication, to:
(i)     the supplier; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;
the result that the consumer wishes the services to achieve;
there is a guarantee that the services, and any product resulting
from the services, will be of such a nature, and quality, state or
condition, that they might reasonably be expected to achieve that result.
(3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.
(4)   This section does not apply to a supply of services of a professional nature by a qualified architect or engineer.
Section 2 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010) defines “services” to include,
(a) any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and
(b) without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:
(i) a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or
(ii) a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or
(iii) a contract for or in relation to the conferring of rights,   benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; or
(iv)     a contract of insurance; or
(v) a contract between a banker and a customer of the banker   entered into in the course of the carrying on by the banker of the business of banking; or
(vi)   any contract for or in relation to the lending of money;
The relevant provision is sub-paragraph (b)(i).
The contract in question, being a contract to provide a bluestone fence, is a contract for the performance of work which may or may not include the supply of goods.
Accordingly, it being a consumer contract for the supply of services there is a guarantee that the services i.e. the labour to build the fence “will be rendered with due care and skill.”
Clearly also the respondent, as a consumer, relied on the skill or judgment of the applicant.
The nature of the complaints made by the respondent concerning the building work of the applicant became apparent during the trial.
1)It was asserted that the bluestone wall was not constructed sufficiently close to the building to which it was abutting, leaving a gap of 50 – 60 mm.
I would agree that the gap was excessive and that this work was not performed “with due care and skill” and was not appropriate building work.[2]
[2] See Exhibit P4, photo 11 - Adelaide Magistrate Court exhibit list.
The applicant’s explanation for the gap was that the parties had agreed that the respondent would provide the foundation for the fence. The foundation did not go closer than 50 – 60 mm to the building and hence the applicant simply built the wall to the edge of the foundation, thus the gap of 50 – 60 mm.
I note that, during discussions after the respondent had declined to complete payment, the applicant had offered to remedy this defect by placing additional cement at the end of the wall thus blocking the gap. This solution was rejected by the respondent on the basis that it would be unsightly.
The applicant could easily have extended the foundation, which did not need to be deep as it need not have been weight bearing. This would have been better work practice and would have involved minimal additional work.
The respondent is entitled to some compensation to remedy the cosmetic defect caused by the size of the gap.
2)The next complaint is that the wall on one side had not been properly pointed and was unsightly by dint of the failure to point and the use of concrete blocks as a substitute for bluestone, the blocks having been taken from the pre-existing retaining wall that had been demolished.[3]
[3] See Exhibit P4, photo 13 - Adelaide Magistrate Court exhibit list.
The applicant’s explanation for this was that the wall on the side where the pointing had not been carried out and where unsightly concrete blocks had been used was to be covered by earth because a garden bed, much higher than the wall on that side, sloped down to meet the wall and would cover the apparently unsightly area.
In other words, that side of the newly constructed wall was to function as a retaining wall in lieu of the demolished retaining wall.
The applicant said that when he quoted on the building of the wall there was a pre-existing retaining wall made of concrete blocks and that his understanding was that that wall would remain in place and the wall he was to build would be placed on the outside of that retaining wall. Hence, the parts of the new wall behind the old, existing retaining wall would not be seen in any event.
When he arrived to do the job he found that part of the concrete block wall had been demolished. It was therefore necessary to build the bluestone wall wider so that it would be strong enough to act as a retaining wall in lieu of the demolished wall.
I accept that explanation.
There is some support for that proposition.
1)The photographs showing the unpointed section is in the area where one would expect the earth from the garden bed to be pressing against it, making the unpointed parts invisible.
2)The respondent said, in his evidence before the Magistrate, that while he was digging the foundations for the new bluestone wall, he undermined the foundation of the concrete block wall and caused it to collapse.[4] This does not sit well with the respondent’s claim that the concrete block wall was deliberately removed in accordance with the parties’ intention when the contract was concluded, so that the blocks from it could be used for another wall.
3)The respondent admitted that he intended the area to be filled with soil and hence a substantial part of the bluestone wall would have been covered from sight.[5]
[4] See Magistrate Court evidence p28, 29.
[5] See Magistrate Court exhibit P5, email dated 22 September 2014.
In my view, there is no merit in the complaint that the side of the wall was unpointed and used unsightly concrete blocks as I find that it was always the intention that the wall would be covered by earth. I regard as specious the claim that the pointed section is not sufficient to permit some steps down to the entrance.[6] In my view steps could still be constructed while hiding the unpointed section of new wall.
[6] See Exhibit P5.
Accordingly I would not award any compensation under this complaint.
3)A further complaint is explained in the expert report of Robert Wheatley, a constructional stonemason who provided a quotation dated 20 February 2015. He said:
This pier has eroded mortars because less than a standard gauge mortar was used, the stone is delaminating as it was laid with the grain vertical rather than horizontal, which is critical with layered stone. There are sides of the Pier where the previous stonemason has used mortar the whole way up as the corner instead of making stone corners.[7]
[7] See report dated 20 February 2015.
The independent expert retained by the Court, Mr J R Robinson, reported on 22 July 2015,
While Mr Wheatley’s specification can be considered ‘best practice’ that is not to infer that the applicant’s method is not acceptable (How the pointing is to be performed is a matter of contract).
The requirement in the legislation is not that the supply of services be “best practice.” It is sufficient that the services be supplied “with due care and skill” as required by the legislation and Mr Robinson’s report which I accept, asserts that they were in this respect. The photographs confirm my view that the workmanship appears to be adequate, allowing for the fact that the workmanship on the back side of the fence is unpointed because it would be covered up.
In my view there is no merit to this complaint.
4)The next complaint was that the applicant used concrete blocks from the demolished or collapsed concrete block wall that were the property of the respondent.
The fact that the blocks were used leads to two complaints: firstly, that the bluestone wall is made unsightly by the use of concrete blocks. I have dealt with that complaint. It was to be hidden from view by earth backfill.
On the other hand I see no reason to disagree with the Magistrate’s finding that permission was not granted by the owner of the blocks for their use in the wall.
To that extent the respondent is entitled to damages for the wrongful use of his blocks.
5)The length of the wall was only 5.8 metres when it should have been 8 metres.
The quotation for the wall suggested it would be 8.5 metres long.
This length could have been a mere estimate based on an attendance at the location and the pointing out by the respondent of the approximate location of the wall. It was agreed that the foundations for the fence were to be dug and poured by the respondent. The applicant did not want to attend the location any more than was necessary because of its distance.
He attended and the foundations had been laid by the respondent. He built the fence where the foundation indicated it should go.
Whether the parties actually agreed for a fence eight metres long or a fence from a certain location to a certain location which happened to be approximately eight metres long doesn’t matter.
There was a variation in the contract. The variation was that the fence, as indicated by the concrete foundation, was now to be 5.8 metres in length, the length of the foundation.
It is significant that the respondent, in the email to the appellant[8] in which he lists his complaints about the performance of the applicant, while descending into sufficient detail to complain about the leaving of a basket of rubbish, fails to make any complaint about the length of the wall.
[8] See Exhibit P5 - Adelaide Magistrate Court exhibit list.
In my view, the fact that the respondent placed the fence where indicated by the fence’s owner does not constitute that the provision of services was not without “due care and skill”.
I would award no compensation on this ground.
What is appropriate compensation for the services provided without “due care and skill”?
1) The gap between the fence and the wall is inadequate.
A mere look at the photographs is sufficient to come to that conclusion.[9]
[9] See Exhibit P4, photo 11 - Adelaide Magistrate Court exhibit list.
During the review the respondent produced a report suggesting a solution to the problem by the supply and installation of a post similar to other posts in the vicinity of the wall.[10] He claims $982.30.
[10] See Exhibit R32 - District Court exhibit list.
The applicant asserts that a figure of $982.30 is excessive for the supply and placing in situ of a post similar to the other posts to block the gap caused by the wall.
The cost seems to me to be excessive. The applicant asserts that it could be done for about $200.
Not having had the opportunity to see and hear the maker of the quotation cross-examined, nor his explanation as to how the figure of $982 is arrived at I will do my best to assess damages by making a rough estimate of what I think the costs might be. The installer would have to make a special trip some distance in order to perform the work. No doubt he could make it at a time that was convenient to him to fit in with his other work and possibly other work in the area or nearby. I would award $400 for this work.
2) The wrongful use of the respondent’s concrete blocks
As I have said, in my view, the collapse of the wall was accidental and at the time that the contract was concluded the respondent understood that the concrete block wall would remain in position and would act effectively as a retaining wall protecting the newly constructed bluestone wall.
The respondent now claims that he would have used the concrete blocks in a new wall. We are not told where the new wall was to go, how long the new wall was to be and how the loss of, at most, 26 blocks would have fundamentally affected this new wall.
I accept that the blocks could not be replaced with blocks with a similar appearance.
I do not know, however, whether the wall could have been constructed by being slightly modified with the absence of the 26 blocks by making it shorter or lower without affecting its aesthetic and practical function. The respondent has a duty to mitigate his damage.
The respondent presents a quotation from Noarlunga Paving and Outdoor Centre for a similar style block which is $1233.60 for a quantity of 29.
The applicant asserts that in fact only 26 blocks were involved rather than 29.
Nevertheless an exorbitant amount is claimed for 26 old cement blocks that had been in a retaining wall. The correct measure of damages is the effect on the proposed fence to be built using the blocks.
The onus of proof is on the respondent. He would need to demonstrate that the 26 missing blocks were crucial to the new wall he proposes to build with the concrete blocks from the old retaining wall and he would need to demonstrate that the lack of the 26 or 29 blocks would have a significant deleterious effect on the proposed new fence. He has failed to do so. In any event, his damages would be no more than for the cosmetic effect of a modified new wall.
I will make a robust estimate of damages for the loss of the ability to make use of his blocks which are in the wall constructed by the applicant at $400.
Resolution
In my view the applicant has substantially performed the contract and he is entitled to the contract price with set-offs for the areas where the workmanship was less than guaranteed under the Australian Consumer Law.
In Williamson v Murdoch[11] the plaintiff sued for payment for clearing and fencing the defendant’s property, although some stumps and grass trees remained to be moved. He was held entitled to the agreed price, less damages for the failure to complete. McMillan J said, “The plaintiff had broken his contract, but he certainly had not given the defendant the right to treat him as a person who had abandoned his contract.”[12]
[11] (1912) 14 WALR 54.
[12] See page 56.
The plaintiff was held to be “entitled to the agreed price, less damages for the failure to complete.”[13]
[13] See Cheshire & Fifoot's Law of Contract 9th Austn Ed: para 26.13.
The work was not performed with “due care or skill” in relation to:
1) The gap between the fence and the shed - $400.
2)The use of property of the respondent, namely the cement blocks -$400.
The respondent is not entitled to the excessive amount suggested by Mr Wheatley to knock the whole pier down and rebuild it nor to the excessive amount claimed for the loss of certain concrete blocks.
The orders of the learned Magistrate are set aside and in their place I make the following orders.
There be judgment for the applicant for the claim of $2049.
There be judgment for the respondent on the counter-claim to the following extent:
Cost of rectification of gap between fence and shed - $400.
Use of cement blocks belonging to respondent - $400.
The sum due to the applicant is therefore $1249.