Jalak Pty Ltd v Chargold Project Management Pty Ltd
[2009] VCC 792
•15 July 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST – BUILDING CASES DIVISION
Case No. CI-08-02032
| JALAK PTY LTD | Plaintiff |
| v | |
| CHARGOLD PROJECT MANAGEMENT PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE ANDERSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1-3 and 6 July 2009 |
| DATE OF JUDGMENT: | 15 July 2009 |
| CASE MAY BE CITED AS: | Jalak Pty Ltd v Chargold Project Management Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0792 |
REASONS FOR JUDGMENT
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| Catchwords: | Building contract – Concreting subcontract – Delays in completing the works – Application of liquidated damages – Defective works – Release of retention moneys – ABIC MW.SC-1 2003 major works subcontract. |
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Duggan | Eric Faulkner |
| For the Defendant | Mr S. Stuckey | Peter Mann Pty |
| HIS HONOUR: |
1 Jalak Pty Ltd trades as Webb Concreting. In 2005 it undertook concreting works associated with the Ocean Beach Resort at Thirteenth Beach Golf Links, Barwon Heads. The plaintiff was a subcontractor of the defendant, who was the head
contractor for the project. The development was a tilt-slab construction, and the
concreting works were extensive. The subcontract price was $1,048,850.2 The plaintiff originally quoted in January 2005, although it was a revised quotation on 4 May 2005 which was accepted by the defendant on 6 May 2005. Shortly afterwards the plaintiff commenced work on the site.
3 On 9 August 2005, the parties executed a standard form subcontract ABIC MW. SC- 1 2003. The contract provided for “substantial completion” of the subcontract works by 15 August 2005. Ultimately the works were substantially completed in about
January 2006.
4 The present dispute arose because the plaintiff claimed that it had not been paid all its entitlements under the subcontract. The defendant claimed that delays, poor workmanship, and other matters, entitled the defendant to set off certain sums against amounts that would otherwise be payable to the plaintiff.
5 The specific issues in dispute between the parties are as follows:
(1) Delay to completion of the works: a. the defendant claimed that completion of the works was delayed by
24 weeks, or 168 days;
b. the defendant allowed an extension of time for delays associated with the
steel works of 36 days and delay costs of $16,925.80 (including GST);
c. the plaintiff claimed a further 31 days of delay and delay costs of
$19,900.12 (including GST);
d. the defendant deducted the sum of $33,000, being liquidated damages as specified in the subcontract at $250 per day, for a total of 132 days;
e. the plaintiff alleged that the defendant did not follow the appropriate
procedures for deducting liquidated damages under the subcontract and
did not give the notices required by clause M11.1, M11.2, M12.1 and
M12.2.
(2) Rectification of defective workmanship:
a.
The defendant claimed that as a result of the plaintiff’s defective workmanship it was entitled to damages for breach of contract and to draw on the retention moneys held as security under the subcontract.
b.
The cost of rectifying defective work was set out in the particulars to paragraph 10 of the defence. The most substantial item was the sum of $75,207.88 (including GST) for the alleged cost of additional grinding required to achieve an acceptable polished surface to the concrete floors.
c.
The security held under the subcontract was 5% of the subcontract price as adjusted, held by the defendant as a cash retention. Ordinarily 50% of the security would be released on practical completion, and the remaining 50% when the defendant issued a final payment statement.
d.
The defendant did not release any part of the retention sum held as security, claiming that the cost of rectifying defective work exceeded this sum.
e.
The plaintiff claimed that the defendant did not follow the appropriate subcontract procedures in claiming a set-off against moneys due to the plaintiff under the subcontract, and in particular the requirements of clause C5.1 and N4.2 of the subcontract, and that in the circumstances the retention moneys were improperly withheld.
(3) Variations:
a.
On 6 June 2005, the plaintiff issued quotation number 185 for “concrete change of mix for polishing” for a total price of $4,200 plus GST. The defendant instructed the plaintiff to proceed with the works by facsimile dated 12 August 2005 (PCB 5.5) at the quoted price noting that “this is to
be invoiced separately as a PC sum (Polished Concrete) under the
Contract”. The works were completed by the plaintiff. The defendant says, however, that pursuant to clause J4.1 of the subcontract the plaintiff is not entitled to be paid for the variation because it failed to submit an invoice and make a claim for the additional work. As a consequence, the defendant did not claim the sum from the proprietor pursuant to the head contract.
b.
It was conceded by plaintiff’s counsel that three variations totalling $7,370 (excluding GST) approved by the defendant on 21 July 2005 (PCB 5.3) had been allowed by the defendant in payment advice no. 5 on 15 August 2005 (PCB 5.6).
6 The determination of these issues depends primarily upon a careful examination of the terms of the subcontract. In their final submissions, each party’s counsel contended that the provisions of the subcontract document should be strictly construed, and that the court should ensure that where a party bears the onus of proof, the evidence should be scrutinised to ensure that the relevant party had met the required standard.
7 The subcontract provided a comprehensive procedure for dispute resolution and a range of options for the parties, including mediation, expert determination, and arbitration. The parties, however, chose to have their dispute resolved in the present court proceeding.
8 Only five witnesses were called at the trial. The plaintiff called Mr John Webb, the principal of the plaintiff, who supervised the works on site, and a concrete expert, Mr William Gladman. The defendant called the supervising architect, Mr Michael Nowson, the defendant’s contract administrator, Mr David Boekel, and the
defendant’s site foreman, Mr Andrew Burnett.
9 Because of the passage of time since the relevant events, the evidence of the witnesses generally lacked precision. The witnesses gave their evidence by reference to the contemporaneous correspondence and other documents. I consider that the use of documentary evidence is the most reliable basis for determining the disputes between the parties.
Delay claims
10 The issue of delay to the works was raised in early correspondence between the parties. By letter dated 6 July 2005 to the plaintiff (DCB 144), the defendant noted, “Panel works are now behind schedule which will delay other works. Please advise
how you intend to make up time on this project to pick up the program. If costs are
incurred by us through the head contract works they will be charged onto youraccount”.
11 By letter dated 17 August 2005 to the plaintiff (DCB 162), the defendant referred to certain works on site not happening as planned. The letter continued, “We require
you to make every endeavour to maintain and pick up the schedule on site which
includes lifting panels as soon as possible. Panels need to be lifted urgently to
ensure works for follow-on trades are not delayed. Any cost on delays to theschedule caused by your works will be to your account”.
12 11 September 2005 to the defendant (DCB 166), the plaintiff made comments about
its workforce and performance. The defendant responded by letter dated
In September 2005, there was an exchange of correspondence. By letter dated 170). This letter is of some significance, as it is relied on by the defendant as a contractual notice.
13 After introductory remarks about the plaintiff’s workforce and performance, the letter continued, “Your non-rectification of non-performance under clause G1 and G2
leaves us no alternative but to invoke the clauses under section M1, M2 and M5. substantially. May we remind you that your signed contract schedule 1 item 20 states that substantial completion was to be 15 August 2005. Now some four (4) weeks after this date you are approximately 35% complete. The contract quite clearly states that liquidated damages of $250 per calendar day can now be applied until the completion of your work. It is not our intention at this stage to apply these damages but if you do not immediately rectify the situation you will leave us no alternative but to apply the damages from the contracted date of substantial completion. We urgently require a program of works to be drawn up by you showing your full scope of works day by day until your estimated completion date. Once received, these dates will be monitored against your performance. It is to be understood that on supplying us with this document does not in any way shape or form release you from any contract conditions relating to non-performance nor any penalty that may or may not arise from such performance”.
14 The plaintiff replied by letter dated 4 October 2005 (DCB 173), noting that, “The last
of the panels standing were erected on the 2nd of September, and still to this date no steel work has been erected. We cannot finish off the bondeck, but mainly the props holding these are temporary and on hire and need to be removed ASAP. The
question of paying for extra hire is now being raised”.
15 By letter dated 25 October 2005, the plaintiff submitted invoice number 371 (PCB 5.12) claiming $16,925.80 for prop and frame hire. This issue was again raised by the plaintiff in a letter dated 23 November 2005 (PCB 5.16) which read as follows, “Due to the unforeseen slowness of the steel erectors I have again been put in the
position where I have to request another extension of time and hire payment. be able to meet this timeslot. We are urgently awaiting the erection of the centre and western stairwells. This is slowing our progress immensely. Props and formwork frames are still on hire in these areas”.
16 By letter to the plaintiff dated 20 February 2006 (DCB 195), the defendant notified the following decisions:
a. it asserted that the substantial completion of the subcontract works had been delayed 24 weeks (i.e. to 30 January 2006); b. it allowed the plaintiff 36 days’ extension of time due to “delay by steel works”; c. it claimed an entitlement to deduct $33,000 liquidated damages, being 24 weeks less 36 days, or 132 days at $250 per day; d. it allowed the plaintiff extension of time costs of $16,925.80 for invoice number 371 for “prop hire”; e. it claimed that it was entitled to deduct from the subcontract, as “delay cost”, $16,074.20 (including GST). 17 In a letter dated 23 February 2006, to the defendant (PCB 5.25), the plaintiff described the deductions as “grossly unfair” and advised that the plaintiff would “be seeking a professional opinion on this matter and will send a reply soon”. On 15 February 2006 the plaintiff had issued invoice number 380 for $35,865.25 (PCB 5.21) for “completion of concrete works to first floor and ground floor verandahs”. Payment advice number 15 (PCB 5.22) bears the same date, 15 February 2006, although the defendant’s counsel, Mr Stuckey, in final submissions, asserted that the document may have been “issued” at a later date to take account of the calculations referred to in the 20 February 2006 letter.
18 Mr Stuckey submitted that this conclusion followed from a comparison between payment advice number 14 dated 19 January 2006 (PCB 5.20), which showed the figure of $10,865.65 for “approved variation/adjustment”, and payment advice number 15, which showed, for the same item, the figure - $3,747. Mr Stuckey said the difference of $14,612 was the “delay cost to be deducted from contract”, referred to in the 20 February 2006 letter, of $16,074.20, excluding GST.
19 Mr Stuckey referred to handwritten notations on the plaintiff’s discovered copy of payment advice number 15 as follows:
“Total claim $39,451.77 Deduct delay $16,074.20 $23,377.57 Leaves $6,877.57”
20 Mr Stuckey submitted that:
a. the figure of $39,451.77 was the amount claimed by the plaintiff in invoice number 380 of $35,865.25 plus GST, b. the delay figure to be deducted was the sum calculated in the defendant’s letter dated 20 February 2006; c. from the balance of $23,377.57, if the total for payment of $16,500 referred to in payment advice number 15 were deducted, it would leave $6,877.57. 21 There was no cross-examination of Mr Webb about these matters, and Mr Boekel said that he could not recall any discussions with Mr Webb about the figure of $6,877.57.
22 By letter dated 24 March 2006 to the defendant (DCB 205A), the plaintiff claimed the following:
a. between 25 October 2005 and 23 December 2005 it was delayed “through no fault of our own, 31 days, 4.3 weeks”; b. “extra hire for formwork frames and panel props” totalling $19,900.12 (this was the subject of invoice number 385 dated 23 March 2006); c. a credit for the liquidated damages deducted by the defendant of 31 days, being $7,750 (this was the subject of invoice number 386 dated 23 March 2006 (DCB 205B)). 23 The defendant responded in a letter dated 3 May 2006 (PCB 5.36) rejecting the claims and stating that “steelwork delays have been accounted for in our correspondence dated 20th February 2006 and prop hire costs have been deducted”. The letter therefore rejected the plaintiff’s “claims for delay costs”. By letter dated 23 May 2006 to the plaintiff (DCB 217), the defendant confirmed the “full and final payment for the project ... (other than retention held)”. A cheque for $3,866.06 was enclosed in accordance with the calculations set out in the letter.
24 In relation to the issue of delay, Mr Webb said that he tracked the job from a chart supplied by the defendant which was in the site office. A delay had occurred with the works, as the steelwork holding the tilt-slabs had not been installed by the relevant subcontractor. This meant that until the props holding the walls could be removed, some floor slabs could not be poured. Two claims for delays and the associated costs for prop hire were submitted. Mr Webb said that the last concrete was poured by mid-January 2006, and the plaintiff remained on site until late March or early April rectifying defects.
25 Mr Boekel gave evidence that he attended at the site for inspections and meetings. He said that by the end of October 2005 he was personally not happy with the plaintiff’s progress. He said he was not sure whether the steel work delayed the plaintiff’s work. Mr Boekel said that although the defendant was not required to pay liquidated damages under its head contract, the delays to the project had kept the defendant on site longer than planned, and this involved the defendant in additional costs for site staff and facilities. Mr Boekel could not say when the head contract works had been due for completion, but thought that the project ran overtime by about four weeks.
26 Mr Burnett was on site each day and had day-to-day contact with Mr Webb. Mr Burnett gave little evidence about the progress of the works, apart from the rectification of concrete works by the plaintiff.
27 In relation to the issue of delay and the deduction of liquidated damages, the defendant generally bears the onus of proof, although the onus would be upon the plaintiff in relation to the outstanding claim for an extension of time of 31 days and the associated delay costs of $19,900.12 included in invoice number 385.
28 Clause A6.1 of the subcontract provided that “the contractor will administer this subcontract”. This obligation is detailed in a number of parts of the subcontract which set out the procedures to be adopted in relation to the making and assessment of claims. By clause A8.1 the subcontractor had 15 days to give written notice disputing determinations by the contractor (including “a payment statement, notice, written decision or written assessment issued by the contractor”). By clause A8.2, a failure to give such a notice of dispute meant that “the subcontractor will not be entitled to dispute the matter at all”.
29 Clause L1.6 provided the procedure for dealing with the plaintiff’s claim for an extension of time and associated delay costs. The plaintiff could only make such a claim if (relevantly) the delay and associated costs were “caused by the contractor failing to give access to the site in accordance with clause F1”.
30 Clause F1 provided that the defendant must give the plaintiff access to the site from 10 May 2005. The plaintiff was given access to the site on about that date. The plaintiff’s complaint was that it was not permitted unimpeded access thereafter to carry out its works. The evidence on this issue was limited, although the fact that the defendant was prepared to allow 36 days, and delay costs of $16,925.80 as claimed in invoice number 371, suggests that there was some basis for the initial claim and, if the cause continued, for a further claim.
31 Clause L2.1, however, required the subcontractor to notify the contractor within two working days of becoming aware of the start or end of a delay to the progress of the subcontract works. Further, the claim was to be regarded as a claim to adjust the
subcontract (clause L1.4), and the provisions of section H (other than the claim
period of two days) were to apply (clause L1.5).32 In the present case the plaintiff’s claim was made by letter dated 24 March 2006. Even if the claim were to come within the relevant cause of delay set out in clause L1.6, the claim is subject to the “time bar” set out in clauses L2.1 and L1.5, and cannot succeed.
33 section M of the subcontract. Under the subcontract, the plaintiff was obliged to bring
the subcontract works to substantial completion by 15 August 2005. By
The defendant’s claim for liquidated damages is to be considered pursuant to date for substantial completion, the defendant “must promptly [as soon as
practicable] notify the subcontractor in writing of the contractor’s entitlement to
liquidated damages”, and by clause 11.2 may then, “or at any time up to the issuing
of the final payment statement… decide to enforce its entitlement to liquidated
damages against the subcontractor”.34 The plaintiff submitted that clause M11.1 had not been complied with, as the defendant had not given the required notice. As its clause M11.1 notice, the defendant relied upon the letter dated 17 August 2005 and the letter dated 21
September 2005, which Mr Stuckey said, “formalised” the matter.
35 Substantial completion was due on 15 August 2005. This date was not adjusted until 20 February 2006. In my view the letter of 17 August 2005 cannot be sufficient notice for the purposes of clause M11.1. The required notice needed to “notify the
subcontractor in writing of the contractor’s entitlement to liquidated damages”. The
“entitlement” arose as a result of the plaintiff having failed to reach “substantial
completion by the date for substantial completion as adjusted”. The letter dated
17 August 2005 referred to specific matters on site which led the defendant to state
that it required the plaintiff “to make every endeavour to maintain and pick up the
schedule on site”. The letter concluded, “Any cost on delays to the schedule caused
by your works will be to your account”. The letter is inadequate notice for the
purposes of clause M11.1 because of the failure of the letter to specifically refer to
the fact that substantial completion had not been reached by 15 August 2005 and to
the defendant’s consequential entitlement to liquidated damages.36
limits under the subcontract are very strict. As has already been noted, clause L2.1
required a subcontractor claiming an adjustment to the date for substantial
completion to notify both the start and end of the delay within two working days. The
letter dated 21 September 2005 could not be regarded as being within the time
contemplated by the subcontract. The letter would otherwise appear to comply with
clause M11.1. It referred to the plaintiff’s failure to reach substantial completion by
The letter dated 21 September 2005 was not sent “as soon as practicable”. The time calendar day can now be applied”) to the fact that the defendant therefore had an entitlement to liquidated damages. The letter would also have satisfied clause M11.2 by indicating (by the words “it is not our intention at this stage to apply these damages”) that it had not at that point decided to enforce its entitlement to liquidated damages against the plaintiff. I consider that the reference in the letter to clauses M1, M2 and M5, and the absence of any reference to clause M11, was of no consequence. 37 to enforce its entitlement to liquidated damages
Once the defendant decided “” the subcontractor in writing of the contractor’s decision”, and, by clause M12.2, “when
the contractor prepares the next progress payment statement, it must state the
amount of liquidated damages to which the contractor is entitled at the date of thatpayment statement”.
38 defendant was obliged to assess any claim for a progress claim “within 20 business
The procedure for dealing with progress payments is set out in clause N4. The Clause N4.1 further provided that one of the matters the defendant “must take account of” in assessing a claim for a progress payment, was “the contractor’s
entitlement to liquidated damages in accordance with clause M11, since any previous
progress statement, calculated up to the date of the progress statement”.
39 By clause M11.2, the defendant had the “time up to issuing the final payment
statement under clause N11 to enforce its entitlement to liquidated damages against
the subcontractor”. By clause M12.1, the defendant, having made the decision to
enforce its entitlement to liquidated damages against the plaintiff, “must immediately
advise the subcontractor in writing” of that decision.40 2006. By clause N11.1 the contractor was obliged to “promptly assess the final
claim”. A final payment statement should be issued within 30 business days of the
receipt of the claim or any requested additional information. Payment advice
number 15, dated 15 February 2006, was the last payment advice in the standard
format used by the defendant, to be issued. It provided for a payment to the plaintiff
of $16,500. Payment advice number 15 does, however, make an adjustment for
liquidated damages. As I earlier referred to, when a comparison is made of the item
The plaintiff apparently made its final claim by invoice number 380 dated 15 February is changed from $10,865.65 in number 14, to - $3,747 in number 15. The explanation given by Mr Stuckey for the difference of $14,612 was that this represented the sum of $16,074.20 exclusive of GST, being the figure for “delay cost to be deducted from contract” calculated in the defendant’s letter dated 20 February 2006.
41 It is clear, therefore, that at some stage, after payment advice number 14 dated defendant had decided “to enforce its entitlement to liquidated damages” against the plaintiff. However, the defendant did not “immediately advise the subcontractor in writing” of the decision (as required by clause M12.1), and “the next progress payment statement”, number 15 dated 15 February 2006, did not “state the amount
of liquidated damages to which the contractor is entitled at the date of that payment
statement” (as required by clause M12.2). It was not until the letter dated 20 February
2006 that written notice of the defendant’s decision to enforce liquidated damages
was given and the amount of liquidated damages was stated.42 There is no evidence as to whether the amount of $16,500 referred to in payment advice number 15 was paid to the plaintiff. As I referred to earlier, Mr Stuckey in his final submissions suggested that subsequently an adjustment was made, taking into account the plaintiff’s final claim in invoice number 380, and adjustments for liquidated damages, less the delay costs allowed to the plaintiff. These matters were the interpretation given by Mr Stuckey to the handwritten notations on the plaintiff’s copy of payment advice number 15. Mr Webb was not asked about these matters in evidence, and Mr Boekel had no recollection.
43 The defendant’s letter to the plaintiff dated 23 May 2006 is said to “confirm our full and final payment for this project”. The letter took no account of the plaintiff’s further claim for delay costs contained in its letter dated 24 March 2006 or invoices number 385 and 386 dated 23 March 2006. I do not consider, however, that these matters have any significance for present purposes.
44 The defendant’s claim for liquidated damages must fail because the defendant:
a.
failed to comply with clause M11.1 that it “promptly notify the subcontractor in writing of the contractor’s entitlement to liquidated damages” after the plaintiff had failed to reach substantial completion by the contract date;
b.
failed to comply with clause M12.1 by failing to “immediately advise the subcontractor in writing” of its decision “to enforce its entitlement to liquidated damages”;
c. failed to comply with clause M12.2 by failing in “the next progress payment statement” to “state the amount of liquidated damages to which the contractor
is entitled at the date of that payment statement”.
Defective workmanship
45 During the course of the concreting works, issues arose about the standard of workmanship. The defendant later dealt with a number of these items by claiming to be entitled to set-off certain sums against the plaintiff’s entitlements under the sub- contract, including in relation to retention monies.
46 finish and would be polished to show the white stone in the mix. The architect issued
Polished concrete wall panel: It was intended that the concrete would have a white “be erected on site in proposed location and alternative finish applied”. On 29 September 2005 the architect noted advice received (DCB 172) that the “faults with
the panel do not relate to on site workmanship but rather to the concrete
manufacturer and supplier”.
47 Patching of wall panels: On 17 November 2005 the defendant notified the plaintiff (DCB 185) of a need for patching on three wall panels to “rectify honeycomb due to lack of vibration” and to fill lifters and propping holes. The plaintiff advised the defendant (DCB 186), “all panels patched as of 10am 18/11/05. Lifters and propping points as we go”.
48 Repouring floor slabs and patching cracked slabs: On 3 February 2005, the architect issued instruction number 27 (DCB 191) attaching plans “which define areas where
concrete is to be broken and removed due to unsatisfactory finish deemed not fit for
repair and/or polishing”. The instruction also referred to further areas requiring “grout repairing”. Three slabs were noted on the plans as requiring replacement. This work was undertaken by the plaintiff. A facsimile from the defendant to the plaintiff dated
slabs identified for replacement indicated that certain slabs could be “crack repaired by concrete polisher…otherwise the slabs are required to be broken out and repaired”. The plaintiff apparently reached an arrangement with the concrete polisher, Mr Brett Robinson, of Concrete Concepts Floor Grinding which was recorded in a facsimile dated 15 February 2006 from the defendant to the plaintiff (DCB 194). These rectification works also proceeded. Mr Webb said that the plaintiff did the work although he did not accept that it was the plaintiff’s responsibility.
21 March 2006 (DCB 205) noted that as at that date “
by the superintendant architect have not yet been commenced”. The other
rectification work required by the architect was further described in a letter dated 349 Concrete slab levels: By facsimile dated 21 February 2006 from the defendant to the plaintiff (DCB 196), it was noted that “as work has progressed in the leisure wing
such as installation of windows to a straight line, it has become evident the concrete
slab levels exceed the allowances in the code”. Concern was also expressed “that
this problem may also exist in the units especially where vinyl tiles are to be laid on
the forms”. On 24 April 2006, the defendant sent by facsimile to the plaintiff (DCB 212) part of an invoice from Delta, the vinyl flooring sub-contractor, with the cost of “floor preparation to vinyl and vinyl tile areas”. Mr Webb said in evidence that when the plaintiff left the site the vinyl layer was happy and there were no outstanding
defects.
50 Defects lists: In a letter dated 20 February 2006 to the plaintiff (DCB 195), to which reference was made earlier, the defendant purported to deduct liquidated damages and concluded by stating that the calculation of the “delay cost to be deducted from a
contract” was “subject to all rectification on site by 6 March 2006”. On 23 February
2006 (PCB 5.24) the plaintiff wrote to the defendant stating “due to circumstances outof my control we will not be finished by 6 March. Please have a defects list available
by 7am Monday the 27th February. I’ve been asking for two weeks now”. The
defendant responded that day (DCB 197) noting that “an inspection on site in relationto your defects (i.e. panel surfaces, floor finishes, cracks in floor, removal of unsatisfactory slabs, floors out of level) took place with the site foreman on 6
February 2006”. A defects list was issued on 2 February 2006 (DCB 200) “based on inspection by David Boekel and Andrew Burnett on 2 February 2006”. The list was extensive and referred to the problems previously raised including floor levels and cracking. There was however no reference to the placement of aggregate and any difficulties achieving a satisfactory polished finish.
51 Concrete edges to steel: By facsimile dated 9 March 2006 to the plaintiff (DCB 203A), the defendant required “edges of concrete to steel to be saw cut”. This issue tended to be subsumed in correspondence concerning the concrete finish. In a letter dated 7 April 2006 (PCB 5.33) the plaintiff stated that the defendant’s foreman, Mr Burnett, had advised Mr Webb “to leave the edges proud by approximately 3mm and not to edge these”. The plaintiff refused to carry out this work unless it was paid as a variation.
52 Placement of aggregate to achieve satisfactory polished floors: The first reference to this item appears to have been in a letter from the architect to the defendant dated 29 March 2006 (DCB 206). The letter stated: “We note the lack of aggregate showing to
the first floor courtyard deck area and realise this is due to the construction of the
suspended deck with ‘normal’ concrete and an item we are prepared to consider for
approval…Due to the concrete contractor installing a product below the level of finish
required for polishing, which all parties were well aware of, we note that additional
rectification grinding will be necessary. This is required to the edges of the decks to
level the concrete with the top of the steel PFCs and to delete all screeding bar
marks and most pitted imperfections. This is not something that was accounted for inthe provisional sum or the original floor polishing contractor’s quotation”.
53 By letter to the defendant dated 2 April 2006 (PCB 5.32), the plaintiff responded in relation to the “polished concrete to first floor balconies”. The letter stated: “After
consulting the concrete tester and explaining the situation of the hardness of the
concrete on these balconies he explained to me that 40mpa should be ground within
a week to expose as much stone as possible as in the first seven days the strength is
still rising, i.e. concrete poured on the 8th November 2005 was 31mpa in seven days
but by 28 days was 46mpa and at 90 days it is 55.5mpa. As of 31st March 2006 thisconcrete is 136 days old”. On 4 April 2006 the architect issued instruction number 178 (DCB 207) relating to “polished concrete finish”. The architect’s letter dated 29 March 2006 was sent by facsimile to the plaintiff on 7 April 2006 (DCB 208) although
it is not clear whether architect instruction number 178 was also sent to the plaintiff.
54 The architect’s instruction stated: “contractor is to complete a first floor deck area
immediately with an acceptable level of finish to the polished concrete showing
adequate exposed aggregate (which formed part of an earlier variation), a uniformed
finish with square edges and no screeding bar marks. We have serious concerns
with the level of finish being achieved thus far including the lack of aggregate
exposed in the courtyard area. This is to be rectified before any of the exposedconcrete finish will be signed off ”. Evidence at the trial by the plaintiff’s expert, Mr surface must be able to withstand grinding, the bond of paste and aggregate gets stronger with time and at least seven days curing was required before grinding could commence.
55 There is other correspondence in evidence about these issues, particularly between the architect and the defendant and between other sub-contractors and the defendant, although it does not appear that the correspondence was copied to the plaintiff. I will refer to some of this correspondence later when dealing with issues of quantum.
56 Mr Webb said in evidence that the plaintiff commenced rectification work in late January 2006. Mr Webb said that the concrete grinder, Brett Robinson of Concrete Concepts, had started work. He was struggling, he was understaffed and his machinery was not powerful enough. Mr Robinson had told him that the concrete was too hard for him to grind.
57 Mr Webb said that the plaintiff had replaced a number of slabs. It had rectified all the defects on the defects list and after the plaintiff left the site it was not called back to site to rectify anything else. In March 2006, Mr Boekel had told him over the telephone that all defects had been completed to the contractor’s satisfaction. The plaintiff had not received correspondence about large sums being spent on concrete grinding. Mr Webb said the plaintiff did not do any further work after he met with Mr Boekel on 12 December 2006. Mr Webb said the architect had not told him that the plaintiff’s work had been “satisfactorily completed” despite a statement to that effect by the plaintiff’s solicitor in a letter dated 9 August 2007 (PCB 5.41).
58 By the end of March 2006 Mr Webb said that he was aware that there was a problem with the concrete slabs. The grinding was not exposing the aggregate enough and the plaintiff was being blamed. Mr Webb said that one of the problems was that the concrete had been left too long before the grinding started and better results were achieved if the concrete was ground within seven to 10 days as the concrete continued to harden over time. In May 2005, in conjunction with the concrete grinder, the plaintiff had prepared a one m2 sample of the concrete finish. The polished finish showed an even distribution of aggregate and had been approved by the architect. The architect later complained that the slab finishes showed an uneven distribution of aggregate. Mr Webb rejected the suggestion that this was due to over-vibration of the concrete during placement and said that it was due to uneven grinding.
59 Mr Gladman has had 40 years experience in the concrete industry. His qualifications are as a biochemist but his experience included concrete testing and examination of defective concrete. Mr Gladman did not attend the construction site and was reliant upon instructions from Mr Webb and photographs taken on site. His conclusion was that any problems with the finish of the concrete was not due to the placement of the concrete but had resulted from insufficient grinding or “variations in the depth of grinding” which was “rectified by additional grinding”.
60 In cross examination, Mr Gladman adopted statements contained in briefing papers prepared by Cement Concrete and Aggregate Australia (the peak industry body), including statements as to the need to take care in the laying of concrete to ensure that aggregate is evenly placed in the mix and to avoid overworking the concrete surface as this may cause the aggregate to settle.
61 Mr Nowson, the supervising architect, gave evidence that, as regards the “exposed aggregate” finish to the concrete, that it was of a “quality considerably below that of the prior agreed samples”. Mr Nowson’s view was that “in a large number of
locations the concrete was over agitated” and that “this led to inconsistency to the
uniformity of the aggregate and the general lack of exposed aggregate after the first
stage of grinding”. This issue was first raised whilst the plaintiff was on site both
verbally and in the correspondence in early April 2006. A site inspection was held on
4 August 2006 with the defendant. It was considered by the architect that the quality
of the finish did not meet the standard of the sample slab. After “considerable
negotiation” with the defendant a variation of an additional $10,000 was approved so
that a second concrete grinder could “perform further work to remove additional
concrete to try and achieve a greater consistency of appearance”. Ultimately, after
further polishing, the contractor was able “to achieve a standard which was
passable”. Mr Nowson said that this result was “considerably better than earlier”
although there were still areas on site with very little aggregate exposed. The
architect had directed that three floor slabs be replaced and patching work be done in
other areas. This work had been completed by the plaintiff and was “signed off” at the
end of the job although Mr Nowson said that he was “not particularly happy” with the
result.
64 overworked or over-vibrated and the aggregate had fallen. He observed that in some
areas the aggregate followed the shape of the reinforcement bars. Concrete grinding
had started immediately, but some areas required “excessive grinding”. Generally
the quality of the concrete surfaces was “pretty substandard” and edges to steel
beams were “very untidy”. The concrete slabs did not achieve the required levels
and there were variations of 10-20mm. The plaintiff’s rectification work was “not
62 Mr Boekel said that he examined the floor slabs before they were ground. He could see the outline of the reinforcement in a grid pattern which indicated to him that the aggregate was unevenly placed in the concrete. Mr Boekel also observed other
window contractor placed aluminium angles at the base of windows to hide variations
in floor levels. This involved additional cost. The vinyl layer also did extra work to
level the floor surfaces. Concrete edges along the steel were left too high and with
rough edges. The unevenness of the aggregate in the slab became apparent when
defects including floors out of level and unacceptable cracking in the slabs. The was brought in. Melbourne Diamond Grinding used larger equipment than Concrete Concepts but were only on site for a week. Mr Boekel said that the problem had not been solved and Mr Webb “was aware of the issues” and that there had been a “lot of discussion”.
63 Mr Boekel said that the plaintiff left site in March 2006 and the defendant rectified the aggregate issue. It continued with Concrete Concepts for a couple of months but the exposed aggregate was “very patchy” and “inconsistent”. When the architect
unacceptable
defendant brought a number of grinding firms to site including Tile Busters. Whendetermined in early August 2006 that the polished concrete was “”, the defendant was not paid for this additional work. The defendant was paid the provisional costs sum of $76,851 for the concrete polishing and an additional $10,000 variation allowed by the architect.
Mr Burnett said that he had observed the concreting works. The concrete had been unevenness of the floors was also shown up when the windows were placed. The plaintiff “had a go” at most of the defects but further work was later required. The plaintiff left the site before it finished rectifying the defects. The finish of the exposed aggregate was “patchy and inconsistent” and was “nothing like the sample”. Tile Busters achieved a finish which was closer to the sample and which was accepted by the architects. Tile Busters used the best equipment with heavier diamonds than the earlier grinding contractors. Mr Burnett considered that this should not have been necessary if the plaintiff had carried out the concreting work properly.
65 By clause G2 of the sub-contract, the plaintiff had an obligation “to conduct and complete the sub-contract works in a proper and workmanlike manner”. The defendant claimed that the plaintiff had not met its obligations in a number of respects including, significantly, the finish achieved to the polished concrete floors which it alleged required additional grinding because the aggregate was unevenly distributed. Under the sub-contract, a cash retention of five per cent of the sub- contract price was to be held as security and released in accordance with section C of the sub-contract, as to the 50 per cent after notice of practical completion was given (clause C6), and as to the balance after a final payment statement was issued (clause C8).
66 By clause N4, the sub-contract provided that “when assessing a claim for a progress payment, the contractor must take account of” a number of matters including “any claim by the contractor for a set off of monies due under this sub-contract”. Under clause N11 when issuing “a final payment statement”, the contractor must acknowledge its “obligation to release any remaining security under clause C8”. By clause C4.1, the contractor was only entitled to draw on the security provided by the sub-contractor by way of cash retention if “a payment statement issued by the contractor in its favour” under section N of the contract had not been paid by the sub- contractor within 30 calendar days. These procedures were not followed and defendant’s counsel acknowledged in final submissions that the defendant had not been entitled to draw on the retention monies. Mr Stuckey submitted, however, that this had little consequence as the defendant was entitled to a set off in respect of the cost of rectifying the plaintiff’s defective work and this was sufficient to extinguish the plaintiff’s claim.
67 It is necessary to examine each of these claims for set off made by the defendant. The first group of claims were deducted in the “final payment” calculations contained in the defendant’s letter dated 23 May 2006. It included four items:
a. $990 for render to external exposed concrete wall panel in lounge, 22 m2 by $45; b. $890 for aluminium angles to bottom of windows in leisure wing due to slab out of level in accordance with Australian standard; c. $425 for scissor lift hire 16/3/06, 17/3/06 and 20/3/06 = 2.5 days by $170; d. $3,633 floor preparation due to uneven slab (50% of floor preparation cost of $7,774.80). 68 It was not contended by the plaintiff that the letter dated 23 May 2006 did not constitute a “final payment statement” for the purposes of clause N11 or a “progress payment statement” for the purposes of clause N4 of the sub-contract. As part of the statements, the defendant was required to take account of any set off of monies to it under the sub-contract. The plaintiff did not dispute the decisions made by the contractor as the plaintiff was obliged to do under clause A8 of the sub-contract. In the circumstances, I consider the plaintiff was not “entitled to dispute the matter” in this proceeding.
69 In any event, I am satisfied in respect of three of the items, that the costs represent the cost of rectification the defendant was obliged to pay as a result of the plaintiff’s defective work. The exposed concrete wall was defective because of contamination in the concrete mix which meant that a white finish was not achieved. Although the contamination was apparently due to a fault in the concrete supplied, the plaintiff
216) requiring the wall to be rectified at “no cost”. The panel was rendered at an
additional cost to the defendant of $45 per m2. Originally, as the notation by Mr
must accept responsibility for it. The architect issued instruction number 206 (DCB involved. Ultimately it appears that the total area rendered was 22 m2.
70 I am satisfied that the floors were out of level and did not meet the required tolerance specified. The rectification work was appropriate. It was at additional cost to the defendant and was established by an invoice and factory works order from Ballarat Windows & Doors (DCB 247 and 248). The claim for scissor lift hire was not supported by an invoice or evidence of the circumstances which required the lift to be on site. Mr Stuckey referred to the invoice from EQ Hire (DCB 213A) sent to the plaintiff on 24 April 2006 for a “cleaning fee” of $286, which would not seem to be relevant.
71 The defendant claimed the cost charged by the vinyl layer in the part of a letter from the sub-contractor (DCB 213), sent to the plaintiff with the facsimile dated 24 April 2006. I am satisfied that the slab floors were out of level and required rectification before the vinyl and vinyl tiles could be laid. The defendant claimed 50 per cent of the vinyl layer’s charges. Mr Boekel said this was because, although on all jobs some remedial work needs doing as part of the vinyl laying, there was “more on this job”.
72 The defendant makes a number of further claims for set offs as follows:
a. $315 for prop hire; b. $286 being the cleaning fee claimed by EQ Hire; c. $1,939.40 for aluminium coving; d. $1,200 charged by Concrete Concepts to remove a 22mm hump near unit 35; e. $75,207.88 paid to Tile Busters as the additional cost of grinding to polish slabs. 73 The defendant claims the sum of $315 for prop hire. On 25 October 2005, the defendant notified the plaintiff by facsimile (DCB 176) that it would apply to the plaintiff’s account a charge from Crane Trucks of Geelong of $512.33 inclusive of
GST to “pick up steel props Dendy Street, Moolap and deliver to Thirteenth Beach”. An invoice from Crane Trucks of Geelong (DCB 249) claims $315 plus GST to “p/up props Hicthcock Street, Barwon Heads deliver to Denbigh Street, Moolap”,
apparently on 26 October 2005. The amount is different (even allowing for GST)
although the two documents seem to relate to the same event. It is not clear how the
claim arises from any breach by the plaintiff of its sub-contract obligations. It does
not appear to relate to defective works. If the defendant claims the amount as a set
off it should have taken the item into account when processing the plaintiff’s progress
claims and made an appropriate adjustment. It is now too late to do so.74 The defendant claims to set of the sum of $386 being the “cleaning fee” claimed by EQ Hire. There was some evidence that whilst on site the scissor lift was splashed with concrete during a concrete pour. Mr Stuckey, however, relied upon the invoice as evidence in support of the deduction of $425 in the final payment statement. I do not propose to allow this sum as a further set off. The evidence of the plaintiff’s
responsibility for this item is inadequate.
75 The defendant claims a set off of sums totalling $1,939.40 for aluminium coving used to rectify problems arising from the uneven levels of the floor slabs. There are invoices from Direct Aluminium supporting the claim (DCB 250-252). I am satisfied that the plaintiff should bear these costs.
76 The defendant claims a set off of the sum of $1,200 (inclusive of GST) being the amount quoted by Concrete Concepts on 26 July 2006 (DCB 219). The quotation describes the work as follows: “As requested by Chargold Management, Concrete
Concepts will attempt to rectify the 22mm ‘hump’ in the middle of the balcony in unit
35. The main concern being grinding down too far and exposing the steelreinforcement
reimbursed by the proprietor. Mr Boekel said that additional grinding was necessary
outside one balcony because water was ponding. The matter was raised very
generally by Mr Stuckey in his cross examination of Mr Webb. Mr Webb, so far as he
was able to respond, said it may have been an area where the plaintiff was directed
by Mr Burnett that the balcony should fall crossway by 20mm. I am not satisfied that
the plaintiff should have any responsibility for this item. The quotation for the
remedial work was given on 26 July 2006, long after the plaintiff had left the site. Mr”. Mr Boekel said that this sum was paid by the defendant and not factual basis for the claim was not sufficiently clear from the evidence at the trial.
77 In the amended defence, the defendant claimed payments to Tile Busters totalling $75,207.88 for the additional cost of grinding to polish the slabs. It is necessary, however, to carefully examine all of the floor grinding work carried out on site.
78 Special condition B10 provided in relation to “polished concrete, coloured concrete” as follows: “Allow provisional sum of $70 m2 for supply and installation of finishes to
concrete flooring to all areas previously indicated as polished concrete and coloured
concrete…Areas allowed for provisional sum to be confirmed prior to
contract…Suggested nominated contractor for polished concrete Prestige GrindingGeelong”. By clause K1.2 of the sub-contract “a provisional sum is a sum included in
the sub-contract for foreseeable work which could not be fully described at the date
of the sub-contract because details were unknown”. There was some uncertainty
about the extent of the area of floor slabs. Mr Nowson thought it would be over 1,000
m2.79 A number of concrete grinders performed work on site:
a. Marcus of Geelong Grinding was on site when a photograph was taken by Mr Boekel of his grinding equipment on 22 September 2005. Mr Boekel said that Geelong Grinding were not there for very long. It performed work which was invoiced in the total sum of $6,974, calculated as 317 m2 at $20 per m2 plus GST. The invoice (DCB 245) was faxed to the defendant on 28 September 2005 and later paid.
b.
Concrete Concepts apparently first performed work on site on 24 October 2005 and rendered invoices to the defendant as follows:
Date Amount
25 November 2005 $ 5,442.80 26 January 2006 $ 5,236.00 12 February 2006 $ 2,189.00 19 February 2006 $ 5,115.00 26 March 2006 $ 6,050.00 11 April 2006 $11,000.00 29 May 2006 $15,400.00 13 June 2006 $ 8,250.00 28 June 2006 $ 8,800.00 14 July 2006 $ 8,800.00 26 July 2006 $11,000.00 $87.282.80 (including GST)
80 The defendant as at 30 June 2007 had made payments to Concrete Concepts totalling $63,294.45, less a credit of $4,188.35, making a net payment of $59,106.10. The invoice dated 12 February 2006, (DCB 241) and earlier invoices, described the work as “grind balconies in preparation of coating process”. The later invoices had a different description of the works:
a. The invoice dated 19 February 2006 (DCB 240) described the work as of upstairs areas” in relation to nine specific units.
b. The invoice dated 26 March 2006 (DCB 239) described the work performed as “attempted to rectify poor quality of concrete in units and exposing as much aggregate as possible” in relation to five specific units. c. The invoice dated 11 April 2006 (DCB 238) described the work performed as “attempting to rectify poor quality of concrete in units and exposing as much aggregate as possible. Attempting to rectify edges of patios where the
concrete meets the steel” in relation to six specific units.
81 The early invoices set out the work covered by each invoice as follows:
25 November 2005 – 237.4 m2 at $20 or $45 per m2.
26 January 2006 – 114 m2 at $40 per m2.
12 February 2006 – 63 m2 at $30 per m2.
19 February 2006 – 155 m2 at $30 per m2.
82 The remaining invoices total $69,300. If the contractor charged the later work out at $30 per m2, the total area covered by those invoices would be 2,310 m2, and the total of all Concrete Concept invoices, approximately 2,879 m2.
83 Melbourne Diamond Grinding invoiced the defendant on 3 April 2006 (DCB 244) for $3,630 being for “grinding to corridors” 220 metres at $15 per metre plus GST.
84 Tile Busters presented three invoices totalling $71,809.87 including GST:
a. 12 September 2006 (DCB 232), for $11,550 for “diamond grinding for polished concrete, including edges, grouting process and seal 210 m2 at $50
per m2”.
b.
3 October 2006 (DCB 231), for $28,295 for “diamond grinding for polished concrete, including edges, grouting process and seal”. This work included 143.53 m2 at $50 per m2 and 412.14 m2 at $45 per m2 plus GST.
c.
6 November 2006 (DCB 229), for $35,362.80 (less $3,089.10 plus GST unpaid from previous invoices), making a claim for work covered by the invoice of $31,964.79 including GST.
85 The total invoices and payments by the defendant were as follows:
Sub-Contractor Invoices Paid M2
Geelong Grinding $6,974.00 $6,974.00 317 Concrete Concepts $87,282.80 $59,106.10 2,879 Melbourne Diamond $3,630.00 $3,630.00 220 Grinding Tile Busters $71,809.87 $68,481.87 1,243.56 Totals $169,696.67 $138,191.97 4,659.56 86 The defendant has received from the proprietor $76,851 (PCB 5.34) and an additional $10,000, making a total of $86,851. The total payments to the grinding contractors were $138,191.97. The total shortfall was therefore $51,340.
87 I am satisfied that the plaintiff’s workmanship was defective and that the aggregate was not evenly placed in the concrete, making it more difficult than would ordinarily be expected for the grinding contractor to achieve an acceptable polished finish to the floors.
88 I prefer the evidence of the defendant’s witnesses in this regard to that of Mr Webb. There were a range of other problems with the slabs. Three slabs needed to be replaced altogether. Other problems including excessive cracking, rough edges and unevenness in the levels that required rectification work. The contemporaneous documents do not refer to the placement of the aggregate as a specific problem until the architect’s letter of 29 March 2006 (DCB 206). There is a quotation from Melbourne Diamond Grinding (DCB 204) which is undated but probably was prepared in March 2006 as the contractor invoiced for its work on 3 April 2006. The Melbourne Diamond Grinding quotation contained the following statement: “Please
note that due to the substandard finish to the concrete in question, we cannot
guarantee the amount and distribution of aggregate. The flatness of the floor is also
below standard and others can hold no expectations in relation to the finish of the
floor. We would require your foreman to sign off on our completed works beforeleaving site and we hope we can be of help in rectifying your problem”.
89 I have noted already the comments in the invoices of Concrete Concepts from 19 February 2006 onwards that the work completed was, “exposing grind and repair to the balconies, attempt to level the unevenness of upstairs area”. I consider it is likely, as Mr Boekel said, that the aggregate was a problem discussed on site with Mr Webb before the matters were raised in the architect’s letter. Also, there were photographs taken as early as 1 February 2006 which show a significant lack of uniformity in the aggregate placement in the slabs which inevitably would have required additional grinding to expose the aggregate.
90 I have referred to the comments of the grinding contractors in a quotation and invoices. I have done so, not necessarily as evidence of the truth of their contents, but simply as contemporaneous documents which make the evidence of Mr Boekel, that the aggregate problem was discussed on site with Mr Webb, more likely. One of the striking features of the defendant’s case, however, was the lack of evidence from any of the grinding contractors. Accordingly, whilst I am prepared to accept that the plaintiff’s workmanship was not acceptable and additional rectification was required at the defendant’s expense, I have difficulty quantifying the defendant’s loss without more detailed evidence about what the contractors did on site.
91 Mr Nowson thought that the slab areas were more than 1,000 m2. The grinding contractors claim that they ground areas totalling over 4,500 m2. I consider in the circumstances that I should allow only 50 per cent of the additional cost to the defendant of the grinding work of $51,340 or $25,670.
92 The assessment of damages is not always a precise exercise. In this case, I have adopted the same approach the defendant took in relation to the additional charges of the vinyl layer, that 50 per cent of the charges should be the responsibility of the plaintiff. In making an allowance of 50 per cent of the shortfall to the defendant for grinding costs, I have had regard to the following matters:
a.
the responsibility of the plaintiff for rectifying the consequences of uneven placement of aggregate in the slabs which required additional grinding;
b.
the fact that the defendants used four grinding contractors and the grinding work was carried out over the period September 2005 to October or November 2006;
c.
the plaintiff was only on site until about early April 2006 and there was no contact with him about the rectification work after that date;
d.
the total area worked upon, as claimed by the contractors, indicated that the same area must have been worked upon many times;
e.
despite the apparent shortfall in payments to Concrete Concepts, for which no explanation was offered, it was nevertheless a substantial sum for its work particularly as there was criticism in the evidence of the effectiveness of the equipment used by that contractor;
f.
the lack of any evidence from the grinding contractors made it difficult to assess the effectiveness of their work.
Variations
93 work for a price of $4,200 plus GST. The defendant instructed the plaintiff to
proceed, and the work was performed. The plaintiff, however, made no claim as it
was required to do by clause J4.1 of the sub-contract. In my view, the claim under
the contract must fail. The Statement of Claim contained a general alternative claim
for work and labour done. Mr Boekel gave evidence that, as a result of the plaintiff’s
failure to make a claim under the sub-contract, no claim was made by the defendant
under the head contract. If the plaintiff were to succeed in recovering the sum, the
defendant would not be able to pass on the cost to the proprietor. In these
circumstances, it would not be appropriate to make an order for restitution in the
plaintiff’s favour. Although the plaintiff carried out the work at the defendant’s request
The only variation claimed by the plaintiff, in issue, was a quotation for additional it was reimbursed by the proprietor. Further, the plaintiff was aware of the requirement under the sub-contract to follow appropriate procedures if it wished to make a claim. The claim based upon a quantum meruit must also fail.
Conclusion
94 It is appropriate to set out my findings and to leave it to the parties to consider what final orders are appropriate, having regard to matters such as GST and interest and after checking my calculations. In summary, my findings are:
a.
the plaintiff was not entitled to its further claim of $19,900.12 (including GST) in invoice number 385 for delay costs;
b. the defendant was not entitled to deduct liquidated damages; c.
the plaintiff cannot now dispute the allowances to the defendant made by it in the final payment dated 23 May 2006;
d.
the defendant is entitled to set off the following further sums for defective workmanship:
(i) $1,939.40 (including GST) for aluminium coving paid to Direct Aluminium;
(ii) $25,670 (including GST) for additional concrete grinding;
e.
the plaintiff is not entitled to claim $4,200 plus GST for work it completed at the direction of the defendant.
- - -
Certificate
I certify that these 26 pages are a true copy of the reasons for decision of His Honour
Judge Anderson delivered on 15 July 2009.
Dated: 15 July 2009.
Julien Lowy
Associate to His Honour Judge Anderson
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