Langham v McDonald - [2009] WADC 2

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LANGHAM & ANOR -v- McDONALD & ANOR [2009] WADC 2

CORAM: KEEN DCJ

HEARD: 15 OCTOBER 2008

DELIVERED : 15 JANUARY 2009

FILE NO/S: CIV 1141 of 2007

BETWEEN: RICHARD LANGHAM
KATHERINE LANGHAM
Plaintiffs
AND
BARRY McDONALD
LORRAINE McDONALD
Defendants

Catchwords:

Contract - Building and engineering - Entire or severable contract - Performance - Turns on own facts

Legislation:

Nil

Result:

Judgment for plaintiffs on part of claim
Judgment for defendants on part of counterclaim

Representation:

Counsel:

Plaintiffs: Mr T G Darge
Defendants: Mr D S Ellis

Solicitors:

Plaintiffs: SRB Legal
Defendants: Vogt Graham Lawyers

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

Firepat Pty Ltd -v- Clydebank Pty Ltd [2007] WASCA 13
Hoenig v Isaacs [1952] 2 All ER 176
Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221

KEEN DCJ: In 2007 the defendants were the owners of a property at Lot 42 Barcelona Drive, Brigadoon. This was vacant land upon which the defendants intended to build a house.
The plaintiff was engaged to do the earthworks at the property and the dispute before the Court is in relation to those earthworks.

The issues arising

By their statement of claim the plaintiffs claim the sum of $51,397.50. This claim is said to arise from the earthworks carried out by the plaintiffs pursuant to a quote given by them for such works. The claim also includes additional works and claims which make up the sum of $51,397.80.
The defendants admit that they requested the plaintiff to carry out earthworks at the premises. They deny that the works were completed or substantially completed. It is further alleged that the works were not carried out in a workmanlike manner in accordance with the requirements of the local authority or in accordance with the requirements for the construction on the property. It is also said the works were not carried out with due care and skill and in a manner that was fit for the purpose of erecting a house on those earthworks.
The defendants also allege in their defence that the quote which was accepted by them and which formed the basis of the contract was one dated 18 February 2007. It is said by the defendants that all of the work requested of the plaintiffs was included and allowed for in the quote.
The defendants further say that certain items in the final account, and in particular a bookkeeping fee, were not part of the agreement between the parties.
It is also the defendants' case that the plaintiffs did not complete the work in accordance with implied terms and the plaintiffs breached the agreement. Full particulars of the breaches alleged are set out in par 14 and par 15 of the defendants' defence.
The defendants say that they incurred a cost of $15,180 to remedy the breaches.
It is the defendants' case that the contract was an entire contract and that the plaintiffs having failed to complete the work they were not entitled to payment. It is further argued that the defendants are entitled to set off the damage sustained by them against any amount found to be due to the plaintiff.
As a further claim, the defendants say that the plaintiffs represented the work to be performed would cost approximately $23,000 such representation being made orally by the first named plaintiff and in writing by the quote dated 18 February 2007. It is said that the representation was misleading and deceptive and as a result of the misleading and deceptive conduct the plaintiffs and defendants entered into the agreement to do the works and the defendants have suffered loss. The defendants claim damages in respect of that loss.

Issues arising from the way in which the case was run

From the plaintiffs' point of view the case was run as one in debt. The plaintiffs' case is that a quotation was given and accepted, the work was carried out and the plaintiffs are entitled to be paid in respect of that work.
The issues raised by the defendants were expressed to comprise:
(a)the quality and character of the work carried out by the plaintiffs;
(b)the extent of the work done and the charges made for that work;
(c)whether the representations were made and if so, whether they were misleading or deceptive; and
(d)the claim to the bookkeeping charge.

The contract

As noted the contract is one to carry out earthworks at the property. I will deal with the evidence leading to that contract but there appears to be no dispute that the work carried out by the plaintiffs or to be carried out by the plaintiffs was that which was described in the plaintiffs' quotation dated 18 February 2007 subject only to reference to other documents. The defendants identify those documents in par 2 of their defence as being site plans, contour plans, house floor plans and shed plan provided to the plaintiffs by the defendants and in accordance with oral instructions as to the location of the septic tanks given by the defendants to the plaintiffs.
What the plaintiffs have agreed to in their pleadings is that the implied terms of the agreement referred to in par 10 of the defence and counterclaim and being:
"… that the work would be completed:
(a)in a workmanlike manner;
(b)in accordance with the requirements of the local authority;
(c)in accordance with the requirements for the construction of the proposed buildings on the premises" -
were limited to the plans for the proposed construction prior to the commencement of the plaintiffs' works but otherwise admitted those implied terms.
Returning to the quotation of 18 February 2007. This became Exhibit 5. It is necessary to set out that quotation in full and it is as follows:
"Mr Barry McDonald  18 February 2007
43 Rocklea Cres
Ellenbrook
6069  UPDATED QUOTE
Dear Barry,
Re – Lot 42 Barcalona Dr Brigadoon.
Please find below a breakdown of the estimated site costs. I have just estimated the time for preparing and cutting the pad area. If more or less time is needed the price will be adjusted accordingly. This quote is subject to digging and is valid for 30 days.
Cut pad up to 5m 4300m³ dirt to relocate and cut.
Cut pad with excavator approx cost/day @ $155/hr         $1,550.00
Cut pad with loader approx cost/day @ $110/hr         $1,100.00
Subtotal to prep pad per day         $2,650.00
House pad 38.5m x 16.5m x 600mm average depth
+ 2 x patio areas 4.2m x 10.9m x 300mm average depth of both
4 hours with bobcat @ $77/hr   $308.00
600m³ yellow fill sand @ $18.90/m³       $11,340.00
600m³ Spread, level and compaction @ $4.20/m³         $2,520.00
Shed pad 16m x 10m x 300mm
70m³ supply and deliver         $1,323.00
70m³ spread and level            $294.00
Engineers certificates x 2, base inspection and compaction $500.00
Transport plant and equipment   $450.00
Septic system with 2 x 13m leach drains         $5,500.00
30 tonne filter rock
30 tonne white coarse sand to shire requirements         $1,500.00
Trenching with excavator @ $155/hr
rock breaker @ $195/hr if required
Total cost includes GST       $23,735.00
We require to sight a copy of the shire confirmation and requirements prior to commencement. Shire bylaws require filter rock and white sand. It is the owners responsibility to advise the earth worker of any services below ground. Any damage is at the owners own risk. Payment is due in full on the day of completion of all site works. If you have any queries please call me.
Yours sincerely
Rick Langham."
The plaintiffs' case is that the acceptance of that quote by the defendants resulted in a contract whereby the plaintiffs were to carry out the work set out for the sum of $23,735 plus whatever work was involved and encompassed in the first part of the quote for preparation of the pad at the rate of $2,650 per day. Trenching and rock breaking were also to be charged by the hour.
The defendants' case is that the contract was for the sum of $23,735 plus excavator and rock breaking as provided. However, in essence the defendants' argument is that that sum includes the preparation of the pad.
In order to see how these two opposing positions come about it is necessary to review the evidence of matters leading to the formation of the contract.

Evidence as to the formation of the contract

The plaintiff Richard Langham gave evidence that he is an earthmoving contractor and that in 2006 he had been requested to attend at the property with a view to providing a quote for earthworks. As a result of his attendance at the property he prepared a quote dated 22 August 2006 which became Exhibit 1.
That quote provided for a total cost inclusive of GST of $23,530. The quote was expressed to be "subject to digging" and valid for 30 days. In relation to the cutting of the house pad it provided for cutting of the pad with an excavator for five hours and for three hours with a bobcat. Hourly rates were provided. It also provided for trenching with an excavator at $155 an hour and rock breaker at $195 per hour if required.
The quotation noted that the plaintiffs required to sight the Shire confirmation and requirements prior to commencement. The plaintiffs anticipated the work to take three to four days.
That quote was not accepted. Subsequently the plaintiff, Mr Langham, returned to the site with his engineer Mr Adrian Van Dongen and Mr McDonald. There they discussed the most economical way to produce a house pad noting that the building envelope for the construction of the premises had a fall of approximately 4.5 metres over its width of 30 metres. That could be accommodated by either filling with sand to that 4.5 metre depth or cutting back the land to a level surface.
Mr Langham said that he was provided with a contour plan which became Exhibit 2 and a report from UTS Soil Tech Pty Ltd dated 3 May 2006 which became Exhibit 3.
The contour plan shows the contours of the land over the area of the building envelope which was approximately rectangular and 50 metres by 30 metres. That contour plan also shows a position for the proposed residence to be built and a proposed shed. It also shows the position of leach drains and a septic system.
The UTS report (Exhibit 3) noted that there was massive laterite and laterite gravel across the site. The site was classified as "S" and the report noted "any fill to be used on the site should consist of clean, free flowing compacted sand".
Mr Langham described laterite as a conglomerate of compressed gravel. He was familiar with work in that type of ground condition.
Having inspected the site and received those documents the plaintiffs produced a further quotation dated 15 February 2007. That quotation became Exhibit 4 and provided for a total cost inclusive of GST of $30,095. In respect of the cutting of the house pad it provided for cutting the pad with an excavator for three days and with a loader for three days. It provided for four hours with a bobcat and was also subject to digging and for trenching with an excavator and rock breaker at hourly rates.
The plaintiffs' requirements about sighting the Shire confirmation continued as before. However, the quotation did not contain the anticipated length of time for the job as had the earlier quote being Exhibit 1.
That quotation (Exhibit 4) provided for a house pad of 600 mm average depth. It provided for the provision of and the spreading, levelling and compacting of 600 m³ of yellow fill sand. That was in respect of the house pad with the shed pad of 300 mm depth and involving 70 m³ of sand.
Mr Langham gave evidence that Mr McDonald required the quote to be rewritten "so that the bottom line did not look so high".
Accordingly, the plaintiffs produced the quotation of 18 February 2007 being Exhibit 5, the full detail of which is set out above.
In relation to the contract, under cross-examination Mr Langham was asked whether the price of $30,000 (being the quotation dated 15 February 2007 – Exhibit 4) was more than the defendants were expecting and more than he had said previously. He agreed that was the case. It was put to him that the defendants had asked him to bring the price down and he said that they had not. However he agreed that the defendants did care about the price.
He maintained his position that the defendants required the quote to be re‑written or "re‑phrased".
He denied that the quote was dressed up so as to give an unrealistically low total cost.
Mrs Langham also gave evidence in relation to these quotations. She said that she sent the quotation of 15 February 2007 (Exhibit 4) to the defendants. She said that she then received a call from Mr McDonald who asked her to change the way in which she had written the quote. He did not like the fact that it said $30,000. Mrs Langham said that Mr McDonald had told her that his wife would not like the way the quote said $30,000 and she agreed that she could re-write the quote to break it into two sections. The first would be the preparation of the pad and the second the known factors. Having done that she posted the new quotation, being the quotation of 18 February 2007 (Exhibit 5), to Mr McDonald.
Mrs Langham was cross-examined. It was put to her that during the course of the conversation that she had with Mr McDonald he told her that he had received other quotes. She denied this. It was also put to her that she was aware that he had other prices and that the going rate for the job was "effectively $24,000". She denied that she knew that but assumed that there would be other quotes.
It was put to her that that was the reason why Mr McDonald had asked her to reduce the price and she replied:
"No, he did not ask me to reduce the price. What he asked me to do was re-write the quote and break it up into two sections and I had advised him that, regardless of how the quote was written, how the words were written, at the end of the day, the price would still be the price because the time taken to do the prep work would still be the time taken and, ultimately, that's how the price would be done."
She went on to say that essentially there was no difference in those two quotes.
Mr McDonald was called to give evidence. He said that he had approached three earth workers to obtain quotes. He had a conversation with Mr Langham about what needed to be done on the block and his evidence was that Mr Langham said that he would send a quote in the post. He said:
"We had a kind of verbal conversation that it would be around 23 to, say, 24,000, because I had – obviously I had other quotes off other earthmovers and generally the same sort of conversation, same sort of prices range …"
As to the quote of 15 February 2007 (Exhibit 4) Mr McDonald said that on receipt of the document he rang Mrs Langham. He said that he said to her:
"Can you – I've had two other quotes, I've got two other earth workers and they come in around a certain price range, which would be $22,000, $24,000 and can you – can you match them sort of prices."
He said that Mrs Langham agreed to get back to him and he then received the quotation of 18 February 2007 (Exhibit 5) in the post.
Under cross-examination Mr McDonald was taken to the quotation of 18 February 2007 (Exhibit 5). He agreed that he had read the quotation when he received it. He also agreed that he noticed that there were two separate sets of figures.
He was also taken to the subtotal to prep the pad per day at $2,650 and agreed that that was a per day figure.
He was asked whether or not he added up the figures below that sum of $2,650 and he said "I just went to the total, like at the bottom with the GST".
It was put to him that when he received this quotation and examined it he knew that he would be paying $2,650 per day for cutting the pad. He said he did not get that impression because he got the impression that the total sum at the bottom was the figure with extra rock breaking. When it was put to him that he knew that he would have to pay $23,735 plus a daily rate of $2,650 to cut the pad he said that whilst the quote says that, when he had his discussion with Mr Langham Mr Langham had said it would only take a certain amount of days to do the cut and gave a price of $23,000 or $24,000.
He accepted that Mr Langham at no stage suggested that he knew how much rock breaking would be involved in the work.
Mr McDonald also accepted that he was aware that the quotation was merely an estimate. He was aware that he would be paying for any rock breaking that needed to take place and that that would cost an additional $195 per hour.
Mrs Lorraine McDonald also gave evidence. In her evidence‑in‑chief she said that after receiving the quotation of 15 February 2007 (Exhibit 4) it was she who had telephoned Mrs Langham and asked her why the quote was at the price it was because she had a previous quote. She said that Mrs Langham commented that the quote was "at the top end of the quote". I pause to note that this evidence is to be contrasted with the cross-examination of Mrs Langham in which it was put to her that she received a telephone call from Mr McDonald after receipt of this quotation. It was never put to Mrs Langham that she had a conversation with Mrs McDonald.
Under cross-examination the opening part of the quotation of 18 February 2007 (Exhibit 5) and being "I have just estimated the time for preparing and cutting the pad area. If more or less time is needed, the price will be adjusted accordingly. The quote is subject to digging" was put to her and it was suggested to her that she knew that it was merely an estimate of the costs of the works and she agreed.

Findings as to the contract

I find that the plaintiffs did send the three quotations which became Exhibits 1, 4 and 5 to the defendants. So much appears to be common ground.
I also find as a fact that the quotation of 22 February 2006 (Exhibit 1) fell away. Time passed and that quotation was not accepted. To the extent that it is in any way relevant, it is sufficient to note that the total cost inclusive of GST was expressed to be $23,530. It was an estimate which merely provided for cutting the pad with an excavator over a period of five hours and three hours with a bobcat. It anticipated the total work to take some three to four days.
By the time February 2007 came and the plaintiffs were requested to re‑quote the plaintiffs now quoted for cutting the pad with the excavator for three days with a use of a loader for a similar period and four hours with a bobcat. This is to be found in the quote of 15 February 2007 (Exhibit 4).
That quotation also noted that this was an estimate of the time for preparing and cutting the pad. It was subject to adjustment if more or less time was needed. All of this needs to be considered, and I so find, in the light of the fact that the UTS report (Exhibit 3) clearly shows that there was massive laterite and laterite gravels across the site.
I am satisfied that between 15 February 2007 and 18 February 2007 when the quote of that date (Exhibit 5) was given there was a telephone conversation between the plaintiffs and Mr McDonald concerning the quotation of 15 February 2007 (Exhibit 4). Mr Langham's evidence was that Mr McDonald had required the quote to be re-written. Mrs Langham's evidence was that Mr McDonald telephoned her in this regard. That is in stark contrast to the evidence of Mrs McDonald that it was she who telephoned Mrs Langham. As I have noted, this alleged conversation between Mrs McDonald and Mrs Langham was never put to Mrs Langham and indeed her cross-examination proceeded upon the basis that it was Mr McDonald who had informed her that he had received other quotes and asked for a reduction in the price.
Accordingly, I find as a fact that the conversation was between Mr McDonald and Mrs Langham and not with Mrs McDonald. I will come to how this affects her evidence later.
I am further fortified in this position by the fact that Mr McDonald said that he spoke to Mrs Langham.

I accept the evidence of Mrs Langham as to the conversation that she had with Mr McDonald concerning the revision of the quote resulting in the quotation of 18 February 2007 (Exhibit 5). I also accept her evidence that in the end the quotes are essentially the same.
It can be seen that the fixed costs which start with the four hours with the bobcat at $308 and finish with 30 tonnes of white coarse sand to shire requirements at $1,500 remain the same. The only difference between the two quotes is in respect of the cutting of the pad. In Exhibit 4 that is calculated at three days. It can be seen by a simple process of mathematics that each day is calculated on the basis of an eight hour day.
In the quotation of 18 February 2007 (Exhibit 5) it is now expressed to be merely a daily rate of $2,650. By a process of mathematical calculation it can be seen that this has now allowed for a 10 hour day and that was explained by Mrs Langham on the basis that she wished to be fairly generous with the time so that people had a good clear idea of the possible cost for the machines on the site.
Accordingly, where she says in her evidence that the two quotes are essentially the same she is correct. In Exhibit 4 whilst the plaintiffs have expressed the work to take three days it was always expressed to be an estimate and if more or less time was needed the price would be adjusted accordingly. In Exhibit 5 they have maintained the same position but merely expressed it to be a daily rate for a 10 hour day. In other words, the quotations have done precisely what Mrs Langham says that Mr McDonald asked for, that is, to break the quote down into two sections.
The quotation of 18 February 2007 (Exhibit 5) is clear on its terms. It was read by Mr McDonald and accepted by him by requesting the plaintiffs to carry out the works.
Accordingly, I find that the contract was in accordance with that quotation of 18 February 2007 (Exhibit 5). That contract did not provide for landscaping the site, a matter which is relevant to the evidence of the defendants and Mr Payne.

The course of the works and subsequent investigations

Mr Langham gave evidence that after the quotation of 18 February 2007 (Exhibit 5) was accepted he commenced work. He kept a diary of the work carried out and of the materials, the sand, provided to the site. That diary became Exhibits 7 and 7A. Mr Langham said that he wrote down the times of the machines on the site to work out what hours had been worked.
Referring to that diary he noted that the work commenced on 21 March 2007. That commencement involved the removal of top soil from the building envelope. He noted that the whole of the building envelope was to be levelled. He said that that did not affect his quote at all except the time factor for the rock breaking. The building envelope is larger than the house pad but the sand was only going to be for the house pad and for the shed.
He said that the work finished on 16 April 2007 but it had blown out "quite a lot".
In his evidence he said that they had to remove a lot of rock. Once the envelope was cut he said that Mr McDonald pegged out where he wanted the house to be. Mr Langham squared it up. He then proceeded to bring in the sand.
He said that the area in front of the house pad was not an attractive area because that is the area where they piled the rocks from the excavation.
Before bringing the sand on to the site a base inspection was carried out by Mr Van Dongen on 30 March 2007 and his certificate of inspection became Exhibit 6.
As I have noted, the next step was to bring in the sand. Mr Langham was asked what level of sand he was intending to put on the site and he said 600 mm over the house pad and 300 mm over the shed pad. He was taken to his quotation (Exhibit 5) and asked to explain what was meant by 600 mm average depth. He said:
"When you're rock breaking, it actually doesn't break smooth like this tabletop. You might have a piece sticking up 50 or 60 mm but if it's not in the footing line, it's not a problem."
Mr Langham said in his evidence that the sand was supplied by Catalano's. He said that consignment notes were provided and he produced into evidence a number of consignment notes which became Exhibit 8.
He said he also marked each load into his diary which was Exhibit 7.
Once the sand was delivered it was spread and compacted. In answer to a question as to how he would go about trying to meet the depth which he had quoted for he said:
"We set up another datum point and that's our final floor level for the sand. So it's basic with a laser machine, and you just keep putting sand until it matches that datum point."
Once the sand had been imported and compacted Mr Van Dongen attended the site and produced a further certificate dated 11 April 2007 which was his compaction certificate and which became Exhibit 13.
Mr Langham was questioned about the quantity of sand that he bought onto the site. He said that it was 841 m² and being 633 m³. He said that that is arrived at by calculating the tonnage according to the consignment notes and then applying a factor of 1.4 m³ to the tonne.
Under cross-examination Mr Langham was taken to the way in which the cut was carried out. He confirmed that the cut was one whereby the whole of the building envelope area was cut out.
Mr Langham accepted that there was a requirement to use clean free flowing compacted sand for the fill. He said that he had complied with that requirement. He accepted that if he had not complied with that requirement the work would not have been satisfactory.
It was put to Mr Langham that he used gravel as fill under the sand. The tenor of his evidence was a denial of that proposition. He said that the only gravel that was there was what was left after they cleaned up the site and they did not place gravel.
It was put to Mr Langham in cross-examination that Mr Payne from Derrick's Earthmoving had been to the site and had made a number of measurements of the depth of the pad which showed the level of the sand pad to be between 400 mm and 450 mm. Mr Langham disagreed with that.
A number of photographs were put to Mr Langham and these became Exhibit 18. Some of those photographs show a person holding a tape measure which shows above the level of the ground marks on the tape at 500 mm and 600 mm. In other words, the photographs tend to show that the level of the ground was below that level.
Prior to being shown those photographs it was put to Mr Langham that evidence would be led that the defendants did not get the full 600 m³ of sand, they got something less. Mr Langham said they got the full 600. He was asked to proceed on an assumption of a finding that the level was only 450 mm. He was asked if that was the case then the defendants did not get the 600. He said that would be right.
He was then asked:
"Evidence will be given that further work was done on the sand pad because we say the level was only about 450 mm from the base. Evidence will also be given that in order to build up the envelope up to the full 600 mm from the base about another 20 loads of sand was required. That would also suggest that the McDonalds didn't get their full quota of sand, wouldn't it? – It would suggest that, but it's not correct."
Mr Langham was also asked about the leach drains on the site. In evidence‑in‑chief he had said that these drains were moved and shire approval for the move was obtained. He said that it was his suggestion but ultimately it was the owners' decision.
Mr Langham was also asked in cross-examination about the condition in which the work was left. He said that he had not quoted to landscape the property and I have found accordingly.
He was also asked in cross-examination about the levels of the sand pad and it was suggested to him that it was not level. He said that he had used a laser level in order to make sure that the site was level.
Mr Van Dongen, the plaintiffs' engineer, gave evidence about the site and said that it was an S class site which means that it is slightly reactive. It was obvious that there was rock on the site.
He said that the depth for the works to be carried out would be 600 mm.
He confirmed that he carried out a compaction test of the sand placed on the land by the plaintiffs. He said he carried out his tests on the footing lines because that is where the house sits and where the weight is but he did tests in between as well.
His compaction certificate (Exhibit 13) gave a number of figures expressed in terms of one figure being placed over another. The top figure is the number of times that he dropped the weight on the sand penetrometer in order for it to travel 300 mm. It is to be noted that the penetrometer is first placed in the ground to approximately 150 mm before the testing is carried out. The requirements in respect of this site was for a minimum of seven blows for the next 300 mm.
It can be seen from the exhibit that each of the top numbers exceeds that number of blows.
The second set of numbers he described as:
"Well, you can either put the words 'solid rock refusal' – basically it means when I drove my penetrometer down, I drove through the next load of sand, the next 150 mm of sand. It's a 600 sand pad, and my readings would have been high and I would've hit something hard. You can hit – probably for argument's sake, you can hit gravel or clay and it can still travel. It can still actually travel. It might only travel 1 mm every blow but it still – so I put 10 plus to indicate it is hard ground."
He agreed in cross-examination that there is no indication whether the penetrometer was going through gravel or continuing to go through sand or had hit hard rock. He also agreed that the document does not indicate the depth of the reading or the depth at which he gave up.
Mr Van Dongen was asked about the existence of gravel under the fill. He said there was none. He said that based on his site inspection, namely his base inspection certificate, there was no imported gravel on the pad.
Mr Michele Ferritto is a civil engineer. He was called on behalf of the defendants.
Mr Ferritto had examined the site and it was his firm, McDowell Affleck, who produced the drawings for the design of the footings. He said in relation to those drawings that they provided for 600 mm minimum compacted sand pad. He said that the drawing which became Exhibit 17 provided that the builder was to follow the requirements set by the UTS Soil Tech report dated 3 May 2006 (which formed part of Exhibit 3). Also on Exhibit 17 it was noted that all top soil and vegetation within the building area had to be removed and the fill material to be quality sand with less than 4 per cent clay compacted uniformly to give standard Perth penetrometer readings of at least seven blows/300 below founding level of footing.
Mr Ferritto prepared a report for the defendants dated 14 September 2007 which became Exhibit 25A. That report noted on inspection that the sand pad was not a minimum 600 depth as required by the structural design drawings. Further it was said that cut gravel soils had been found and had been placed under the proposed residence to reduce the thickness of sand required in order to achieve the desired finished floor levels. He also noted there was gravel placed over the natural top soil of the site which could be seen in photographs which form part of the exhibit. Those photographs became Exhibit 25B.
Mr Ferritto produced a further report dated 30 April 2008 (Exhibit 26) in which he set out the requirements for the 600 mm compacted sand pad and the reason for this being mainly to have footings able to be dug into sand by the grano workers and for plumbers to install their plumbing in sand rather than hard gravel and rock. The report also specified why the sand had to be of a certain quality specified. In that report he also again noted that the sand pad did not match the 600 mm specified and that compaction tests encountered inconsistent results below 450 mm. His report generally confirmed the findings in the previous report.
Mr Ferritto's recommendations in his report were that the underlying gravel be removed. If it were not then the site would be classified a "P" (problem) site and the design of the footings would have to be amended.
He indicated that the cost of remedial work as completed by Derricks Earthmoving appeared to be reasonable for the reasons he set out. I will come to that cost later.
Mr Ferritto was taken to those photographs (Exhibit 25B) and noted that in photographs 1 and 7 that there was a band of dark coloured soil which was top soil. He also said there was a gravel fill layer. There was sand above.
He concluded that not all of the top soil had been removed and gravel had been placed over the top and then sand placed on top to form the sand pad. He estimated the depth of the sand in that area to be 450 mm.
He was then taken to photograph number 2 which was of another trench that was cut and said that the depth of sand there was 450 mm then exposing the underlying gravel.
Photograph number 9 in that series was taken of the same trench and it shows a measuring tape and he said that the depth shown on that tape was 450 mm.
His conclusion from his inspection was that in parts top soil had not been removed from the site prior to placing fill over it. Some portion of the fill over the top soil was gravel which he thought more likely cut from a higher level on the site. The sand pad depth was around 450 mm to 500 mm.
He was of the view that it was necessary to cut the site back to the natural virgin undisturbed ground to remove the top soil material and then place sand to the 600 mm depth as specified in the drawings.
Mr Ferritto was cross-examined about the drawings and the need for a minimum of 600 mm compacted sand pad. It was suggested that the drawing only shows it as being required in the sections as shown on those drawings. However Mr Ferritto's evidence was that the requirement for 600 mm was throughout the building site and not just at the footings shown in the sections.
He did not think it appropriate to place a section of gravel as fill. Structural performance would be a concern. He also said the top soil has to be removed because it contains vegetation matter.
A Mr Stockton from McDowell Affleck had carried out penetrometer tests. More will be said about this later. However, Mr Ferritto agreed that the readings for the depth of 150 mm to 450 mm were within the requirements of the design drawings.
Mr Ferritto thought that Mr Van Dongen's testing and results with the penetrometer were inaccurate and could not be taken as being suitable because the count of 10 plus means absolutely nothing if the penetrometer was going into gravel. However, in contrast, he did agree that that compaction certificate would be acceptable for the proposed building.
In relation to the photographs in Exhibit 25B Mr Ferritto noted on Exhibit 27 where it was that he said each of the photographs was taken and the direction in which the photograph was taken. It was suggested to him by counsel for the plaintiffs that particularly in relation to photograph number 1 that this was taken in the bund area, that is to say an area which was not part of the sand pad for the residence.
It can be seen that according to Mr Ferritto photograph number 1 in that series shows the trench in the eastern end of the building and extending from the building into what would be the garage area. The trench shown in photograph number 2 according to Mr Ferritto was a trench which ran in an approximate east-west direction in the eastern end of the building and heading in the direction of the proposed shed. Photograph number 5 was of that same trench, but taken from a different angle.
Mr McDonald in his evidence said little about the course of the works itself. However, he referred to Mr Payne attending at the site and digging some holes. When asked about the location of those holes he thought that they were more or less in the middle of the pad perhaps a little towards the front of the house. He observed gravel underneath the sand. He was asked whether he could put a figure on the depth of the sand. He said "some parts of it was like 150, and some parts was 350, some parts it was - you would be lucky to get 450 and it varied".
Mr Stephen Phillip Payne was called to give evidence. He is a self‑employed earthmoving contractor trading as Derrick's Earthmoving.
He had originally quoted for these works. His quote dated 8 March 2007 became Exhibit 35. It provided for a minimum pad depth of 600 mm and to "supply sand to give FFL (finished floor level) shown: 254.60 FFL (850 m³)". It further provided that no allowance had been made for rock breaking or unknown underlying debris and rock breaking would be charged at the rate of $145 per hour plus transport plus GST. The quote came to $24,530 inclusive of GST.
Mr Payne came to the site in early May 2007 having been asked by Mr McDonald to express an opinion about the site. He said that it appeared to be out of level and was not tidy and what he perceived not to be a good standard.
He gave evidence that there was a hand dug trench which appeared to be only 400 mm deep. He dug some test holes in other areas to check the sand depth over the site. There were some six or eight test holes and the sand was approximately 400 mm deep and below that was gravel, clay and rock material. He measured the depth with a tape measure.
He bought a laser level onto site and this confirmed his measurement of 400 mm.
He identified where he had dug these holes; approximately two or three across the centre of the site, two at the rear of the site and three or four across the front of the site. The site was the area in which had sand placed on it. He said that the holes were about a metre and a half to 2 metres from the edge of the sand area.
He said that he had found in the holes what could be described as gravel, rock and clay fill material which is the natural soil in that area.
Mr Payne was taken to Exhibit 34 and asked to mark that exhibit as to where he had dug the holes. He marked it with asterisks. There were two holes on either side of the alfresco area on the north side of the premises, one in the games room area, one in the dining room area, one in the centre of the alfresco area on the southern side, one on the corner of the verandah on the south‑east corner of the building and the other one in the walk-in robe area of the master suite.
Mr Payne expressed his concern to Mr McDonald that there was not a 600 mm sand cover and as to the nature of the fill material below the 400 mm of sand.
He provided a quotation to carry out further work. That was in the sum of $13,800 plus GST.
Mr Payne also gave evidence about conducting further investigations. He cut a trench (trench 1) across the centre of the sand pad. He described that trench on Exhibit 34 and it extended from the family area on the plan through to the front alfresco area. It was approximately 8 to 10 metres in length. He said that it revealed that the sand cover was a reasonably consistent 400 mm along the whole of the length of the trench and below that was rock and gravel clay fill material.
He carried out further cuts to the pad in the presence of Mr Ferritto. Again he marked Exhibit 34 with the position of those cuts. Trench 2 was a cut from the games room through the double garage area and trench 3 was a cut from the dining/family area on the diagonal through the lounge towards the study and verandah. He said that trench 2 was approximately 10 metres and trench 3 approximately 15 metres long.
Mr Payne was taken to Exhibit 25B being the set of photographs and said that photograph number 1 was the photograph of trench 2. This was consistent with the evidence of Mr Ferritto.
As to photograph number 2 he said that that was trench 3. That appears from Exhibit 34 to be in a different position to that shown by Mr Ferritto on Exhibit 27.

Photograph number 14 was a further view of trench 2.
Mr Payne carried out work on the site which involved the removal of the sand on the site. He estimated he removed between 200 and 300 m³. He said that the sand fill that he removed was a reasonably consistent 400 mm over the entire front two-thirds of the site.
Under cross-examination Mr Payne was asked whether he had observed a 2 metre high bund surround of large rock material. He said that he had. He accepted that that material had probably come from the excavations. He also accepted the amount of rock breaking which occurred was probably double the amount that he had estimated at $4,000 in a report that he had prepared for the defendants on 29 April 2008 (Exhibit 36).
When questioned about the difference in level on the site that he said that he had found, he agreed that the problem could be solved by putting in more sand and compacting it.
It was suggested to him that photograph number 1 in Exhibit 25B was a photograph taken in the bund area. He said that by his calculation it was in the building area. He also said that the materials that he dug out as unsuitable fill material was within the building area. He placed that on the rock areas of the bund.
Mr Payne agreed that in doing his remedial work he did not need to do any further rock breaking on the site. He agreed that he moved the existing sand to one side, got out the gravel, rock and clay material and then put more sand in and levelled it.
He said that what was required to convert the pad from 450 mm to 600 mm was 150 mm to 200 mm of sand, but that not only was it (generally) deficient by 200 mm it was deficient by a greater amount at the front of the site.
Mr Payne's invoice in respect of his remedial work was dated 27 September 2007 and became Exhibit 32. It was in the sum of $15,180 being $13,800 plus GST.
Mr Ben Michael Stockton, a trainee draftsman and soil technician with McDowell Affleck, was called to give evidence.
He said that he went to the site on 7 May 2007. He carried out compaction tests in five spots. His report became Exhibit 39. He noted:
"The depth of the sand pad does not match the minimum of 600 mm specified in the structural drawings 10783-01REVB and 10783-02REVB previously issued.
The compaction testing counted gravel giving inconsistent blow results from a depth of 450 mm."
When questioned about this he said that after a depth of 450 mm he encountered something that he did not believe to be sand and the test could not continue. He was getting inconsistent results and inconsistent depth readings with every blow.
He further investigated this by digging two holes. One was at the front of the pad looking at it from the driveway.
He was taken to Exhibit 18B. He said that that is a photograph showing the tape measure in the first hole that he dug. It is to be noted that he did not give evidence about the depth of that hole but it can clearly be seen in the photograph that if the tape measure is at the foot of the hole, then the hole would be something less than 500 mm in depth.
He was then taken to photograph D in that series of photographs which he said was a photograph taken at the second hole that he had dug. This second hole was at the back of the premises. Again it is difficult to assess precisely what the depth is but the figure of 500 is shown on the tape, but the figure of 600 is obscured by the tape barrel and so the only inference again is that if the tape is on the bottom of the hole then the hole is somewhat less than 600 mm deep.
Mr Stockton said that at the bottom of the holes was loose gravel.
Mr Stockton agreed in cross-examination that he was not concerned with the compaction of the materials in the first 450 mm. He said that he would normally do more than the five tests that he carried out on the site and also do tests in the middle of the pad, but on this occasion he did not because his first five tests results had given him enough to believe that the results were not consistent.

The plaintiffs' accounting

The plaintiff Mr Langham said in evidence that he prepared an interim account for the defendants. He gave this to Mr McDonald. The document was dated 3 April 2007 and became Exhibit 11. It was in the sum of $41,082. He said that he had done this at this stage because Mr McDonald had asked him where he was at with the works.
I am satisfied that Mr Langham accurately recorded the number of hours spent in the preparation and cutting of the pad in his diary. He was not seriously challenged on this although there was a challenge as to when he actually started work. I am also satisfied that it turned out to be more than was originally anticipated but again I am satisfied and find that he was asked to cut out the whole of the building envelope. Again there appeared to be no serious challenge as to this. It is also borne out by the size and amount of rock to be found in the bund which is demonstrated on the photographs and also the video take by the defendants of the site.
I am satisfied that those hours have been accurately transferred into Exhibit 11 on the first page. The page numbered "Invoice Number 159" being part of Exhibit 11 sets out the amount of sand to be placed on the site. That had not been carried out at that stage. Mr Langham said that this invoice was prepared to give the defendants some indication of the ultimate cost. He did not expect it to be paid at that time. It was not the final account.
The final account was dated 19 April 2007 and became Exhibit 12. That commenced by carrying forward the amount of $18,145 from Exhibit 11, p 1 which is headed "Invoice Number 158". Thereafter on Exhibit 12 are added the items in respect of sand and other items in relation to the work.
The other items claimed are in respect of sand supplied and delivered as per the quote. The quotation of 18 February 2007 provided for the supply and compaction of 670 m³ of sand for both the house pad and the shed. This has been charged in the tax invoice strictly in accordance with the quote.
I am also satisfied and find that Mr Langham accurately recorded the delivery of sand at the site from Catalano's. He has recorded that in his diary which became Exhibits 7 and 7A. It was also supported by the consignment notes of Catalano's. There was a suggestion in cross‑examination of Mr Langham that some of the sand may have been diverted to the adjoining property of Mr Tagliaferri upon which Mr Langham was also carrying out building works. Mr Langham accepted that from time to time sand may have been delivered to the Tagliaferri's but that essentially his record in respect of the amount of sand delivered to the site was correct. There was no real challenge carried out to his method of converting tonnage to volume. I therefore find that the plaintiffs did supply to the site about 670 m³ of sand as contracted for.
In further support of that I note that in re‑examination the plaintiff gave evidence that some 23 loads of sand were recorded as going to Tagliaferri and applying averages to those loads and applying the appropriate multiplier to get cubic metreage, Mr Langham calculated that about 632.5 tonnes or 451.79 m³ had been so delivered.
I accept his evidence in this regard.
Later in his re-examination Mr Langham did recalculate the amount of sand as sent to the defendants as representing 665.86 m³ which is slightly below that contracted for.
Returning to the invoice Exhibit 12, I am satisfied that Mr Langham did provide two engineer's certificates as per his quotation. However, whilst the plaintiffs contracted for two engineer's certificates as per the quote and provided these certificates, I find that the second certificate being the compaction certificate by Mr Van Dongen should not be the subject of recovery. For reasons that I will come to, it turned out that the defendants have had to remove the sand from the block, re-lay the pad and have it compacted afresh and so the compaction certificate from Mr Van Dongen was of no value to the defendants.
Accordingly, on Exhibit 12 I disallow the items for one engineer's certificate.
The next item on that invoice is in respect of 22 m³ of fill sand for a trench at the premises "as agreed". Mr Langham's evidence in respect of that was that Mr McDonald wanted to put sand into his power trench. This was not part of the original quotation. He said that he told Mr McDonald that would be an extra load. It came in at 22 m³ and he was charged for it.
Mr McDonald in his evidence said that a trench was put in to receive cabling. He said that Mr Langham was to come to put in some sand and back fill but it did not happen. He said that no sand arrived at site for this.
I cannot identify any independent evidence that an additional 22 m³ of sand was actually provided. Accordingly, the plaintiff has not satisfied his onus of proof in this regard.
Mr Langham also claimed for an hour and a half to clean up that trench area. I have not been taken to a record of this within Exhibits 7 or 7A. The evidence is in conflict with that of Mr McDonald and I am not satisfied that Mr Langham has produced sufficient evidence to justify this claim.
The next item is an additional three hours to widen the pad by the shed. Again Mr Langham merely says that Mr McDonald wanted more space by the side of his shed so they broke that out and dug the material out. Mr McDonald's evidence was that there was not enough dug in that corner to fit the shed on and the house would not fit. He said it was not cut to the peg.
Mr Langham's evidence was that he was told to cut out the whole of the building envelope. He says that he has charged in respect of doing so. It appears that this area forms part of the building envelope. I am not satisfied that this is additional work. Again I am not satisfied and I have not been taken to any particular record of this extra work so as to be able to form a view, on the balance of probability, as to whether this was additional work and carried out and the extent of it.
The next item is in respect of four hours to clean up the extra cut. Mr Langham said in relation to this item that "… because it was about three metres wide, I think there's quite a bit of material over the width of the pad back to ground level again". I did not fully understand that passage of evidence and again I cannot be satisfied on the evidence before me about this item. There is a general lack of specificity in relation to this item to enable me to make any finding.
The next item on Exhibit 12 is six hours extra rock breaker for septics to new location. The original quotation allowed $7,000 for the septic system including the provision of filter rock and white coarse sand. As I have noted, the evidence of Mr Langham is that this septic system was moved by agreement. There does not appear to be much dispute as to this.
As Mr Langham noted the original quotation was subject to digging. He said that he used a rock breaker for six hours for the purposes of the leach drain and that is what has been invoiced. Again there is a lack of specificity about this in the evidence. All that is basically said is that because the shed pad was going to become a dwelling it was necessary to go lower with the tanks so that there was a fall from the shed along the whole length of the building envelope to achieve that fall.
This lack of specificity creates a problem in as much as once again I have not been taken to any specific entry in the diary which deals with this aspect. I have found, in the plaintiff's favour, that the diary is an acceptable record of the amount of work carried out in the preparation of the pad. I was prepared to accept that Mr Langham has kept the detailed records in that regard and that they are reflected in the hours set out in Exhibit 10. If I take that stand in favour of the plaintiff, then the plaintiff can have little cause for complaint if he fails to prove additional times which are either not in the diary or, if in the diary or recorded elsewhere to which I have not been taken.
The next item is for five loads of water to wet the pad due to dry conditions. In his evidence Mr Langham said that the sand that was brought in was particularly dry and he had to bring in water trucks because there was not enough water on the site. The sand was dampened so as to get the compaction factor.
I would not allow this item. The quotation provided for the provision of yellow fill sand and for the spreading of that sand, levelling and compaction. In my view it is the plaintiff's obligation to provide that end result of compaction. If water is required to achieve that end and the plaintiff wished to provide for contingencies such as dry sand and the need for additional water, the plaintiff should have so provided.
The penultimate item on the invoice is six hours for a final clean up. The only evidence in relation to that was that this was just tidying up. Mr Langham said they had to move quite a few rocks away from the septic area and it was all excavated work.
Again for all the reasons given earlier I find that there is a lack of specificity in relation to this and there is no evidence of there being any agreement reached between the parties in respect of this item. It is an item that I would disallow.
The final item on the accounting is in respect of a claim for a 10 per cent bookkeeping fee because the account was not paid within seven days. There is no evidence to show that there was a contractual term consistent with such a claim.

Findings as to the work carried out

I find that the pad was cut and adequately cut by the plaintiff. There was generally little dispute as to the cut itself. Indeed Mr Payne acknowledged that no further cutting work was necessary when he carried out his remedial work.
I also find that the plaintiffs did have delivered to the site the amount of sand contracted for or at the very least an amount almost equal to that contracted for. The real issue in this case is whether or not sand was placed on the pad to the depth required.
I find that the contract required the plaintiffs to provide a sand pad of 600 mm average depth. I accept what has been said that in breaking the rock that that depth may not always be achieved and there may be a difference of 50 or 60 mm where rocks protrude. Nevertheless the contract was for the provision of a sand pad of 600 mm.
I am satisfied also and find that that was a depth that was required on average uniformly over the whole of the building area. It should also extend slightly beyond the building area as described in the evidence. I do not accept the argument put forward by the plaintiffs that that depth was only required underneath the footings as shown in the sections on Exhibit 17. The evidence is quite clear that the depth should be 600 mm overall. That was the evidence of Mr Ferritto which I accept. Further, it does not make sense to provide a sand pad of varying depths over the area of the building.
I also find as a fact that the sand to be provided was to be free flowing sand as provided in the UTS soil tech report. I find that to provide gravel or other material would not be adequate.
I am satisfied and accept the evidence of Mr Ferritto that to provide gravel by way of fill produces difficulties with compaction. The contract is specific. The contract is to provide yellow fill sand not gravel.
Notwithstanding my finding that the quantity of sand contracted for has been supplied to the site, I am not satisfied that the house pad has been created to a depth of 600 mm with free flowing sand as required by the contract.
The plaintiff says that sand was placed to this depth. Mr Van Dongen's compaction tests do not confirm this. Mr Van Dongen noted in his tests that he had struck something hard. He said for argument's sake you could hit gravel or clay but the penetrometer could still travel. However he was not able to say or there was no evidence to suggest that he could say that what he struck beyond 450 mm was in fact sand.
As against this there is the evidence of Mr Stockton who carried out his penetrometer tests. He stopped those tests when he got inconsistent results and dug holes. At below 400 mm or 450 mm he found material other than sand.
Mr Ferritto also carried out tests on the site. His evidence was absolutely clear and appears to be borne out by all of the photographs that in some places there was either deleterious material in the cuts or where the cuts showed sand, for example photograph number 2 in Exhibit 25B, the sand was only approximately 400 mm or 450 mm deep. This is also consistent with the evidence of Mr Payne. He cut the trenches and his evidence was that the level of the sand was, for example, 400 mm.
Whilst there are some differences between Mr Ferritto and Mr Payne as to exactly where these trenches were cut, I am satisfied that they were cut within the building area and not within the bund area.
Accordingly I find that inconsistently with the contract, 600 mm of free flowing sand was not uniformly placed on the house pad as required by the contract.
I am also satisfied on the evidence that there were areas of gravel and top soil below areas of sand. It is not possible to be specific as to where this occurred but that was the general tenor of the evidence of Mr Ferritto and Mr Payne which I accept.
Having accepted that position I am satisfied and find that it was necessary for the defendants to have the fill removed so that this deleterious material could be removed and the pad scraped back to the natural surface before being filled with sand to the required depth.
The sand taken off by Mr Payne was re-used and additional sand was brought in to build up the pad to the required 600 mm depth.
I am satisfied that Mr Payne has carried out this work and that the cost of doing so as set out in Exhibit 31 and his invoice (Exhibit 32) is reasonable. I accept the evidence of Mr Ferritto that he considered such costs to be reasonable. That expense includes not only the removal of the sand and deleterious fill and replacing it, but other items which appear to me to be reasonable. However, the need for an engineer to inspect the site and further compaction tests to be carried out I would not allow as I have disallowed the Van Dongen costs for a compaction certificate and the defendants would have required a compaction certificate in any event.

The misleading and deceptive conduct claim

The defendants claim that they entered into this contract with the plaintiffs by reason of the misleading and deceptive conduct of the plaintiffs in providing the quotation of 18 February 2007 (Exhibit 5) which had included in its terms "total cost includes GST $23,735".
In view of my findings in relation to the contract I am not persuaded that that quotation was in any way misleading or deceptive. Having accepted the plaintiffs' version of how that quotation came about following the quotation of 15 February 2007 (Exhibit 4), I am satisfied that the defendants were aware that the cutting of the pad would be an expensive exercise and would be cut at the daily rate provided for in the quotation. In Exhibit 4 some three days had been allowed for this. As it turned out more had to be cut out. It is to be noted that the house pad that was to be cut out was 38.5 metres by 16.5 metres. The whole of the building envelope was ultimately cut out and that comprises some 50 by 30 metres.
The defendants could have been under no illusion in my view that the total cost would be $23,735. To the extent that one must compare that with the quote from Derrick's Earthmoving (Exhibit 35) in the sum of $24,530 one need only note that that quote does not specify how big the pad was to be in terms of area but also provides that no allowance had been made for rock breaking and unknown underlying debris and rock breaking would be charged extra. It is difficult to compare the two quotes in this regard.

I am satisfied and find that the defendants' claim to misleading and deceptive conduct must fail. I am not satisfied that they were misled. It is difficult to arrive at a conclusion that they were misled when I have rejected the evidence of Mrs McDonald as to her alleged conversation with Mrs Langham. I find that she did not have a conversation with Mrs Langham. It is inconsistent with the way in which the case was put to the plaintiffs. Her credibility is affected in this regard and in that respect, to some extent, taints Mr McDonald's credibility as to whether or not he was misled.

Conclusions

By reason of my findings I am satisfied that the plaintiffs did not carry out these works in accordance with the contract. Not only did they not provide sufficient sand to achieve the required depth but also failed to carry out the work in accordance with the express and implied terms of the contract, that is to say to carry out the work in a workmanlike manner and in accordance with the requirements for construction of the proposed building on the premises. Fill other than free flowing sand was used.
The defendants argue that this was an entire contract and the plaintiffs not having completed the contract should not be entitled to any payment. The contract provides that payment is due in full on the day of completion of all siteworks. That does not of itself mean that the contract is an entire contract. The contract itself sets out a number of items of work to be carried out. Costs are set out for each of those items. It is not a case of a contract for a specified task to be performed for a single sum of money. Where that is the case, that is to say that parties having contracted to do an entire work for a specific sum, a party can recover nothing unless the work be done: Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221 at 233-4.
Even where there is an entire contract the principle is subject to qualifications to prevent injustice. For example, where the contract has been substantially performed so that failure to perform is "slight or trivial" the contract price may be recovered subject to any claim for damages for the breach (see Hoenig v Isaacs [1952] 2 All ER 176).
I find that this was not an entire contract. The mere fact that payment was deferred until completion of all of the works does not render it an entire contract. It contains specific items of work at specific prices. This is a provision stipulating the time at which payment was to be made, rather than a provision stipulating a condition precedent which had to be completely performed before any payment was due; cfFirepat Pty Ltd -v- Clydebank Pty Ltd [2007] WASCA 13.
Further, I am satisfied and find that a substantial amount of the work has in fact been done. For example, the pad has been cut and cut correctly. I have also found that a substantial amount of sand has been provided. There has been no dispute about the shed pad which has been done and I have made my findings in respect of the septic system. There has been no evidence led of any remedial work in respect of this.
In the circumstances I am satisfied that there has been a substantial performance of the contract and that the plaintiffs are entitled to recover on the contract.
However, I do find that there has been a breach of the contract in as much as the plaintiff has not provided the 600 mm sand pad as contracted. That breach must sound in damages in favour of the defendants. The defendants counterclaim for damages and claim to set that sum off against such sum as is owed to the plaintiffs.
Returning to the plaintiffs' invoice, having found that the required quantity of sand was delivered it is not for me to try to speculate as to where it may have ended up. It is sufficient to note my finding that there was not a uniform covering of the pad at 600 mm.
Having made various disallowances for other items in the plaintiffs' final account, the plaintiffs' claim is now allowed at $40,872.00.
Interest is allowed on that sum under the Supreme Court Act at the rate of 6 per cent per annum from 19 April 2007 to the date of trial, viz 15 October 2008, in the sum of $3,648.25.
Set off against this sum is the defendants' counterclaim in the sum of $15,130.00 (being $15,180.00 less $50.00 for the compaction certificate) together with interest thereon from the date of Derrick's Earthmoving invoice (Exhibit 32) viz 27 September 2007 to date of trial at 6 per cent being $955.72.
The net result is:
Plaintiffs' claim   $40,872.00
Interest thereon $3,648.25
Subtotal$44,520.25
Less:
Defendants' counterclaim  $15,130.00
Interest thereon     $952.57
Subtotal$16,082.57
Net Total$28,437.68
There will be judgment for the plaintiff for $28,437.68 and I will hear from counsel as to costs.