Hue Huu Quang v Albert Cement Pty Ltd No. Scgrg-97-102 Judgment No. 6283 Number of Pages 10 Contracts

[1997] SASC 6283

IN THE SUPREME COURT OF SOUTH AUSTRALIA

COX, J

Contracts - building, engineering and related contracts - performance of work - remedies for breach of contract - damages - measure of - appeal from Commercial Tribunal - contract for various domestic building work - appellant dissatisfied with respondent's building work in a number of respects - Tribunal required to 'act according to equity, good conscience and the substantial merits of the case' - Tribunal including experts entitled to use own knowledge and judgment - Tribunal's findings reviewed - measure of damages or compensation for negligent advice by builder discussed - award of compensation to appellant increased as Tribunal must have overlooked evidence of an expert witness - appellant remains liable to pay for work done less cost of remedying defects. Builders Licensing Act 1986 ss27, 32; Commercial Tribunal Act 1982 ss8,13,15-20, referred to. Ory & Ory v Betamore Pty Ltd
(1993) 60 SASR 393, discussed. M S & B T Tincknell Pty Ltd v Strata Plan No. 2444 Inc. (1992) 59 SASR 356; Trittenheim Pty Ltd, Heaney & Heaney v H. & H. Gills Nominees Pty Ltd (1994) 63 SASR 434; Chan v Medical Board of South Australia (1986) 41 SASR 434; Keller v Drainage Tribunal & Montague [1980] VR 449, considered.

ADELAIDE, 16 April 1997 (hearing), 8 August 1997 (decision)

#DATE 8:8:1997

#ADD 18:8:1997

Appearances:

Appellant :

Counsel: Ms D A Strassnick

Solicitors: Tindall Gask Bentley

Respondent:

Counsel: Mr C J Allen

Solicitors: Armour & Allen

Order:

COX J

The appellant, Mrs Quang, is the owner of a house at Tapleys Hill Road, Seaton. On three separate occasions in the second half of 1995 she engaged the respondent, Albert Cement Pty Ltd, a firm of concreting contractors, to do certain work in the front and back yards of her house. She was dissatisfied with certain parts of the work and on 15 March 1996 she took proceedings against the respondent under s32 of the Builders Licensing Act 1986 (since repealed). By her amended claim, filed on 12 July 1996, she sought $16 525 to make good the defects and other losses which were said to have resulted from the respondent's failure to do the work properly. The respondent counterclaimed $1 450 for an unpaid account for part of the work. There was a four day hearing in the Commercial Tribunal in September and December 1996. The Tribunal delivered its judgment and reasons on 20 December 1996. As far as disputed facts were concerned it took an unfavourable view of the appellant as a witness. It preferred the evidence of the respondent's manager, Mr Monteleone. It disallowed many of the items in the appellant's claim and took a broad axe to the others, with the result that she recovered a judgment of $1 010. The respondent was awarded $1 000 on his counterclaim. So the dispute ended substantially in a draw and both sides were left to pay their own costs. The appellant has appealed to this Court against the whole of the judgment. (Her notice of appeal deals compendiously with both claim and counterclaim, and no objection was raised about that.) Her grounds of appeal challenge certain of the Tribunal's findings and complain of its assessment of compensation. She seeks an increased award or, alternatively, that the matter be remitted to the Tribunal for re-trial or re-assessment. She also seeks an order dismissing the respondent's counterclaim.

It was not disputed that the Tribunal had jurisdiction to hear and determine these matters. The Tribunal was constituted under the Commercial Tribunal Act 1982. On this occasion it consisted of a Magistrate and two members drawn from panels established under s8 of the Act. I am told that one of the panel members who sat on this case (Mr Robinson) was a retired general builder. The other panel representative (Mr Fiora, a chemical engineer) was the consumer representative.

A question arose on the hearing of the appeal as to the principles upon which the Tribunal was required to act. Section 13 of the Commercial Tribunal Act provides - "(1) The Tribunal shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms and, subject to subsection (2) and the provisions of any other Act, is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks fit.

(2) The Tribunal is bound by the rules of evidence in -

(a) disciplinary proceedings;

and

(b) proceedings related to a contempt of the Tribunal."

Sections 15 to 19 of the Act give the Tribunal many of the powers and functions and obligations commonly conferred upon a court, and s20 provides for an appeal, including an appeal on a question of law, to the Supreme Court.

Provisions along the lines of s13 are not uncommon. They are not usually given the expansive interpretation that their language would appear to suggest. Section 13 itself was considered by the Full Court in Ory and Ory v Betamore Pty Ltd (1993) 60 SASR 393. There the Commercial Tribunal was hearing a dispute between a tenant and its landlord about the tenant's rights and obligations under the lease. One of the questions asked in a case stated under s19 was whether it was open to the Commercial Tribunal, having regard to the requirement that it "act according to equity, good conscience and the substantial merits of the case," to resolve the dispute between the parties in a manner other than by the application of established principles of law and equity. As to this Duggan J, with whom the other members of the Court agreed, after setting out the provisions of subs(1) of s13, said - "The subsection cannot have the effect of excluding altogether the application of all legal principles which would otherwise be applicable. In the light of the broad range of commercial matters within the jurisdiction of the Tribunal it is highly unlikely that the legislature intended to remove the degree of certainty which the law attempts to bring to such transactions. The relevance of these legal principles is also demonstrated by the Tribunal's power to state a case on any question of law for the opinion of the Supreme Court (s19) and the appeal as of right to the Supreme Court on a question of law (s20).

In Eagle Star Insurance Co Ltd v Yuval Insurance Co Ltd [1978] 1 Lloyd's Rep 357 at 363, Goff LJ, when interpreting a similar provision in an arbitration agreement, said that it enabled the arbitrator "to view the matter more leniently and having regard more generally to commercial considerations than would be done if the matter were heard in Court". I think the same can be said of the effect of this subsection." (at 414)

When it comes to matters of procedure and evidence and propounding remedies, I think the Commercial Tribunal, constituted to hear a particular case in accordance with s8 of the Act, can sometimes exercise more freedom than would be permissible in an ordinary court. This was a typical building dispute. Obviously Mr Robinson was chosen under s8 because he was an experienced builder, and Mr Fiora was chosen as a person representative of members of the public who dealt with builders. It was likely that they might have views of their own about what in fact happened in this case and the reason for it and what should be done about it - for instance, in the case of the flooding problems - that did not harmonize completely with the evidence of any of the witnesses. They were, I think, entitled to use their own knowledge and judgment in such matters as long as they gave the parties fair warning of what they had in mind, if that went beyond the evidence of any witness, so that the party adversely affected had an opportunity to make an appropriate response by way of evidence or argument. So far as compensation for breach of a statutory warranty (s27) is concerned, see s32(6) of the Builders LicensingAct; and see generally M S and B T Tincknell Pty Ltd v Strata Plan No. 2444 Inc. (1992) 59 SASR 356, Trittenheim Pty Ltd, Heaney and Heaney v H & H Gills Nominees Pty Ltd (1994) 63 SASR 434, at 441-2, Keller v Drainage Tribunal and Montague [1980] VR 449, at 453 ff. and Chan v Medical Board of South Australia (1986) 41 SASR 434, at 446-448.

The appellant's allotment is on the eastern side of Tapleys Hill Road. The block slopes from west to east. The natural soil is for the most part sand, so it readily absorbs rainwater.

The first contract was for additional concrete paving in the driveway area at the front half of the block adjacent to its northern boundary. The appellant realized that adding to the existing artificial surfaces was going to increase a problem she already had with stormwater flowing down the driveway towards a workshop area at the back of the block. She raised the subject with Monteleone and he explained to her that there were three courses available -- to install a sump with a pump to send the stormwater back up the driveway and out onto Tapleys Hill Road; to install a sump with a bore hole deep enough to take the stormwater into the underground aquifer; and to install a sump with a soakage hole. The appellant, the Tribunal found, chose the third course, because it was the cheapest. The respondent dug a channel or sump across the opening of the workshop to catch the stormwater and connected it with a pipe to a second sump and soakage hole nearby. This was fitted with a vertical length of PVC piping into which had been cut slots in various places to allow water to filter through to the surrounding soil. The hole around the PVC pipe was then filled with coarse aggregate. There was a dispute about the length of this pipe. The work was completed by the beginning of August 1995. In July 1996 there was heavy rain which caused flooding of the sump and soakage hole. This allowed water to enter the workshop. It was obvious that the method selected for disposing of the stormwater was inadequate.

The second contract was for the construction of a concrete retaining wall along the southern fence alignment at the back of the house.

The third contract was for more concrete work at the back - widening some existing concrete paths, redirecting one or two stormwater pipes from the roof of the workshop, putting a concrete floor in a prefabricated garden shed that the appellant had bought, and extending the concrete paving in a verandah/patio area. The price for that work was $1 450 and it is the subject of the respondent's counterclaim.

Later the appellant arranged for another concreting contractor to lay more concrete in the backyard.

The effect of all of this concrete work was to leave the appellant with a very small lawn area in the centre of her backyard. The heavy rain in July 1996 showed that there was a flooding problem in the backyard as well as outside the workshop. In the opinion of the Tribunal the problem was aggravated by the concrete work carried out by the second contractor.

The appellant called evidence about the nature of certain defects in the work done by the respondent and the manner and cost of their rectification. The flooding was the major problem but she also complained of cracks in the verandah/patio extension and of the rough finish of that work, of similar poor workmanship in the shed floor, and of cracking in the concrete around another sump or soakage pit that the respondent constructed at the back of the house to take stormwater from the workshop roof.

The major items in the appellant's claim were $2 660 for rectification work in relation to the concrete paving and $11 760 for dealing with the problem of flooding. The Tribunal allowed her $450 (by way of discounting the counterclaim) under the first head and $1 000 for the second. She complains on the appeal that both assessments were wrong in principle and contrary to the evidence.

I described very briefly the respondent's method of dealing with the stormwater problem in the driveway of the house. It was part of a job that included removing and replacing an existing strip of concrete in the centre of the driveway, widening the driveway to create a car-parking area, widening the entrance of the driveway and concreting the crossover to the street, and constructing the drainage arrangement in the vicinity of the workshop. The price for all of this work was $4 500.

The Tribunal accepted the appellant's case that, following the completion of all of the concreting and other work I have mentioned, there was a flooding problem in the driveway area of the property and also in the backyard. The evidence of the appellant's plumbing expert, Mr Watson, was that it would cost $11 760 for his firm to put it right. As to this the Tribunal said -

"In our opinion Albert Cement Pty Ltd is not liable for the whole nor indeed the majority of that problem and hence is not liable for the whole nor a majority of that cost."

The Tribunal was critical of Monteleone's inclusion of a sump and soakage hole as one of the suggested means of dealing with stormwater from the extended driveway. In its opinion, it should have been obvious that the soakage hole would not be able to cope with a heavy downpour on such a large run-off area of concrete. It considered that Monteleone had been negligent in giving the appellant such advice. It made no such criticism with respect to the second sump, in the backyard. It was never designed to take all the excess water in the backyard but simply to take the stormwater from the workshop roof, and it appeared to do that adequately. The flooding in the backyard had multiple causes including the severe reduction of the lawn area. However, the respondent's contract was to lay concrete in the backyard, not to cure a multiple-caused water problem there.

In my opinion, those findings were open to the Tribunal on the evidence and I see no reason to disagree with them. Certainly the Tribunal was entitled to find that the appellant had not proved its case with respect to the backyard flooding.

That disposes of grounds 5, 6 and 7.

The Tribunal made an assessment of the appellant's loss with respect to the respondent's poor advice about the first sump.

Mr Watson gave evidence in support of his estimate of $11 760 to provide adequate stormwater drainage for the whole of the property. He regarded the respondent's two soakage pits as quite inadequate; what was needed was a suitable pumping pit that would discharge the stormwater through a pipe into Tapleys Hill Road. His proposal was to dig a pit in the lawned area in the backyard and drain the existing sumps into the pit, whence an electric pump would take the water out into the street. The quotation provided by his firm, Starfire Trading, included $6 650 for the pump and other materials and $500 for the electrician. In cross-examination he said that a very large sump and soak pit, without a pump, would not be enough to cope with repeated rains.

The appellant's other expert, a building contractor named Street, thought that the respondent had not provided a sufficient area of soakage to handle the volume of water which fell or drained onto the driveway and the sump itself. He thought there were three possible solutions - to increase the size and depth of the existing soakage hole, although this might still cause problems with very heavy, prolonged rain; to pump the water from the workshop sump out to the street; or, thirdly, to drain the water from the workshop sump to a backyard sump and, again, pump the water to the street. Mr Street considered that the most efficient system would be the combination of a large sump and an electric pump.

On the matter of compensation the Tribunal had this to say - "We can but take a broad axe approach to resolving the problem. Our best estimate is to allow Mrs Quang $1,000 to cure the stormwater problem which she has in her driveway area. We arrive at that figure by allowing for the cost of cutting a trench along the length of the driveway, removing the cut concrete and soil, installing a stormwater pipe and reconcreting the trench. We reject the quotation for that work provided by Star Fire Trading. We believe that quotation to be excessive even allowing for the fact it relates to joining the two soakage holes. To allow Mrs Quang any more than that would be to place her in a better position than she would have been had an adequate solution been installed in the first instance. However, in that situation there would have been an added cost to Mrs Quang to have that adequate solution installed at that time. She should not be allowed to profit from Mr Monteleone's negligent advice.

We do not allow any amount for the flooding problem in her backyard. In our view that is self inflicted. We are not persuaded it was caused by any work done by Albert Cement Pty Ltd."

The appellant complains that the Tribunal, having found that the respondent was negligent in the advice it gave the appellant about the means of disposing of the driveway stormwater, erred in allowing only $1 000 for the cost of remedying the deficiencies in the respondent's work. It should have made an award of $11 760 in conformity with the only evidence before it on the matter of remedial cost, namely, the evidence of Watson.

The Tribunal's remedy of $1 000 to cut a trench and install a pipe along the driveway seems at first sight to be quite inappropriate. None of the witnesses, including Monteleone, said that this would be an adequate solution and, bearing in mind that the allotment sloped from west to east, it hardly could be. However, I do not think that the Tribunal can have been so absent minded or wrong headed as to think that a stormwater pipe laid alongside the northern fence would, without more, solve the problem. It must have been saying, in this somewhat cryptic passage, that the best solution to the flooding outside the workshop would be a pipe out into the street, serviced by an electric pump, but that the flooding problem was not caused solely by the additional driveway paving which the respondent laid, so it was unreasonable in all the circumstances to expect it to meet the whole of the cost; hence the order that it contribute the estimated cost of installing the pipe. There is a question whether this was a proper order to make in the circumstances.

Ms Strassnick, for the appellant, submitted that the respondent had contracted to construct a concrete driveway that did not flood, that it had failed to do that, and that it was obliged now on ordinary principles of contract law to do what it had undertaken to do. It should therefore be required to meet the full cost of making the driveway flood-free. The fact that the respondent's sump arrangement formed only a part of a $4 100 contract, and that the appellant's expert was quoting $11 760 to put everything right, was beside the point; the appellant was entitled to get what she bargained for. The argument was reinforced by reference to the provision for statutory warranties. See s27(2)(a) of the Builders Licensing Act.

I do not accept this submission. I think the effect of the Commercial Tribunal Act and s32(6) of the Builders Licensing Act was to give the Commercial Tribunal a broad power to provide a reasonable solution to this common type of problem. The strict application of legal principles in building disputes will not always provide a sensible and just result. Besides, the respondent did not warrant that its sump arrangement would always work no matter how heavy or prolonged the downpour. It must have been obvious that the more expensive proposals, especially the first, would provide a better solution; otherwise, why put them forward? The Tribunal accepted Monteleone's evidence that the appellant opted for the third method, "as a temporary measure" (to use her words), because it was the cheapest. She could hardly have meant by "temporary" merely that it would not last as long as the other methods. She must have meant that she was willing to make do with an inferior method until she could afford to replace it with something better. Precisely what degree of failure, by reason of occasional heavy rain, the notion of "temporary" could be said to have accommodated was, naturally enough, not spelled out. The Tribunal must have decided that, whatever the implied standard, the respondent's sump failed to achieve it. It would have been unreasonable, however, to expect the respondent to meet the cost of a gold-plated system when it had only been paid to provide something markedly cheaper. What the Tribunal has held, in effect, acting under s32(6)(b) of the Builders Licensing Act, is that the respondent should compensate the appellant for the money she threw away because of its negligent advice, and that a fair solution would be to require the respondent to contribute $1 000 towards the larger cost of the stormwater pipe and pump that were needed to provide an adequate all-weather system.

There is a question whether it was open to the Tribunal on the evidence to make this kind of assessment. In my opinion, it was. Pumping the water from the respondent's northern sump to the street was simply an adaptation or modification of the scheme recommended by the appellant's own expert for the entire water problem. The Tribunal ignored the backyard flooding in propounding its order, obviously because it took the view that that was not the respondent's responsibility, but there is no reason why the appellant cannot use the Tribunal's arrangement to drain the whole of the backyard as well. The respondent had quoted a single price for lengthening and widening the driveway and installing the sump arrangement and there does not appear to have been any evidence before the Tribunal of the proportion of the contract price that could reasonably be attributed to the workshop sump and fittings. Nor was there evidence of the cost involved in buying a stormwater pipe to go along the northern boundary and installing it in the way proposed by the Tribunal - an amount that the Tribunal evidently reckoned at not more than $1 000. I think it would have been better had the Tribunal put its contemplated solution to the parties or their witnesses in the course of the hearing so that they could comment or call evidence about it, but I would not, in the circumstances, set aside the award for that reason. The statutory procedure gives the Tribunal a deal of latitude in using its own judgment and experience and applying a broad axe solution to a building dispute. Given the nature of the Tribunal's jurisdiction, this Court should be slow, I think, to interfere with a decision of the Tribunal on the ground of informality. The appellant has not shown that she was unfairly treated by the Tribunal's procedure or decision on this aspect of her claim. She did not say that, had she known what the drainage system would cost, she would not have embarked on the drive-widening project. I would reject ground 4.

Ground 2 complains that the Tribunal erred in finding that the respondent had constructed soakage holes three metres deep and says that it should have found that they were only one metre deep. Accordingly (ground 3) it should have allowed for the cost of digging the sumps or soakage holes out to the correct depth.

These grounds relate to the way the respondent constructed the two sumps. Monteleone's evidence was that he fitted a vertical pipe, three metres long and punctuated with holes, into the northern sump so that the stormwater that gravitated into the sump would drain away into the sandy earth underneath it. The southern sump, in the backyard, was of similar design but the vertical pipe, he said, was only two metres long. There was evidence from the appellant's experts, Street and Watson, that they poked a broom handle or stick into the pipes and found that they were only one metre long. The only explicit finding on the subject in the Tribunal's reasons relates to the northern sump. In describing the work done by the respondent the Tribunal states that the respondent dug a hole three metres deep and then lowered a three-metre length of PVC pipe into it. The Tribunal did not comment on the evidence of the appellant's witnesses. Monteleone's evidence about the length of the pipe was substantially supported by his workman, Mr Pihneri. The two bodies of evidence were not necessarily inconsistent with one another; the pipe could have been accidentally obstructed, when Street and Watson inspected it, by something that could have been easily removed. No-one, it seems, actually excavated the sump in order to measure the pipe or even probed into the pipe with a wire. The Tribunal, in commenting on the appellant and Monteleone in the witness box, said that the latter "proved a more reliable witness who we generally accept as a truthful witness whose evidence we could rely upon." The Tribunal was entitled to make a finding about the length of the PVC pipe that accorded with its view of Monteleone's reliability. Grounds 2 and 3 cannot succeed, therefore, in so far as they relate to the northern sump. Should the appellant follow the course proposed by the Tribunal (and her own experts) and fit an electric pump to that sump, the length of the vertical drainage pipe will cease to be important.

Monteleone's evidence about the second sump was that the vertical pipe was two metres long. The Tribunal made no finding on the subject. It did not need to, because it considered that this sump and soakage hole performed its intended purpose. The Tribunal said -

"Clearly it was not designed to take all water run-off. It was designed to take the stormwater from the workshop roof. It apparently does that adequately."

Grounds 2 and 3 fail.

Ground 1 complains of the Tribunal's failure to award the appellant anything with respect to the concrete floor that the respondent put into the small garden shed.

There appears to have been an issue at the trial on the appellant's amended claim as to whether the floor of the shed was lower than the surrounding concrete paths, so that the shed flooded when it rained. I say "appears" because any claim about this in the appellant's amended claim is far from explicit. Nor is there much evidence on the subject of the shed flooding. Evidently there was some discussion between the appellant and Monteleone as to whether the shed should be placed on a concrete slab or whether it was better to put the shed into position and then pour the concrete inside the C channels around the bottom edge of the structure. Monteleone recommended the second procedure as providing greater stability. The shed was already in position and pegged when he turned up to make the floor. He poured the concrete to the top of the C channels. He said in evidence that the floor he constructed was at the same level as the surrounding concrete which the respondent also laid. The Tribunal's reasons refer to this evidence and add -

"Mr Monteleone says that the slab of concrete laid outside the door of the garden shed was sloped so that any stormwater would flow on to the then existing lawn area."

I have been unable to find that last piece of evidence in the transcript but, even assuming that I have somehow missed it, I do not think it really matters. The appellant called a concrete contractor named Brand as an expert witness. He said that he inspected the premises on 29 June 1996 after heavy rain and he found that the toolshed was flooded. He said in his report, "The floor was lower than the level of the surrounding concrete paths." He recommended that the shed or the floor be raised to remedy the problem. His report was admitted in evidence. Brand was also called by the appellant as a witness and the respondent's counsel did not question him about his report and his evidence with respect to the floor and path levels. In the circumstances, it would seem fair to conclude that the respondent was not challenging Brand's observations and opinion on this subject. The Tribunal does not refer to Brand's evidence. I think they must have overlooked it. The result is to invalidate that part of the Tribunal's reasons.

It would be oppressive to send the matter back to the Tribunal for it to re-examine this question, especially where the expert's evidence is so clear and he was not challenged in the witness box.

Subject to a consideration of ground eight, therefore, the appellant was entitled to succeed on ground one and be reimbursed for the $360 she paid Brand for raising the level of the floor in the toolshed and adjusting the height of the shed door.

Ground 8 is the appellant's objection to the Tribunal's allowance of $1 000 to the respondent on its counterclaim.

The counterclaim was for $1 450 representing the respondent's unpaid account on the third contract. This was for widening the paths in the backyard, redirecting the stormwater pipes from the roof of the workshop, concreting the floor of the garden shed and the area outside, and extending the verandah/patio area. The agreed price was $1 450 and the respondent says it did the work and has not been paid for it. The Tribunal considered that the work was defective in two ways - first, the respondent should have cut a control joint in the slab of concrete extending the verandah/patio area and, secondly, there were small areas of concreting that were not completed in a tradesman-like manner. Its criticisms were directed chiefly to the failure to finish off the work in an aesthetically acceptable way. The Tribunal took what they called a "broad axe approach" to the matter and reduced the counterclaim by $450. Accordingly they gave judgment for the respondent in the amount of $1 000 on the counterclaim.

The appellant argues that the Tribunal, having found that the work was inadequately done, should have refused to make any award in the respondent's favour on the counterclaim.

The Tribunal did not explain how it arrived at the figure of $450. I presume that it estimated that the appellant, if she wished, could have the specified defects remedied for not more than $450. Perhaps it thought it could be done for less. I have already explained why, in my opinion, the Commercial Tribunal is entitled to take a broad view in dealing with an issue of this kind. It was proper to compensate the appellant for the respondent's poor workmanship but there was no reason why she should be permitted to avoid altogether her contractual liability with respect to the third contract. I would not interfere with this aspect of the Tribunal's decision on the counterclaim.

I should point out that there is a duplication of subject matter, in part, in ground 1 and ground 8. The third contract included putting the concrete floor into the garden shed. The respondent's quotation for that work appears to have been $400. The appellant was claiming $360 to have the floor of the shed raised (ground 1) - something that the respondent should have got right in the first place - and she was also resisting the respondent's counterclaim which included the cost of putting in that floor (ground 8). The appellant was not entitled to be compensated twice with respect to the same piece of defective work. If the floor, though defective, was still of substantial value to her, then she was entitled to the cost of having its level raised in order to keep the water out. On that footing she would recover $360 under ground 5 by way of compensation for the respondent's breach of warranty, but she would have to pay the respondent for putting the floor in. However, I think the better way of looking at it - and it is slightly advantageous to the appellant - is to treat the respondent as having failed altogether to carry out the terms of its undertaking with respect to the shed floor and so to disallow $400 on the counterclaim, but then on the claim to refuse to reimburse the appellant for Mr Brand's bill as well. That has the effect of reducing the respondent's judgment on the counterclaim to $600.

For these reasons the appeal will be allowed for the purpose of varying the judgment on the counterclaim to $600. There will be no variation of the award of $1 010 to the appellant on her own claim.

I shall hear the parties as to costs in the Commercial Tribunal and on the appeal.