Lawrence v Lotyczuk

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LAWRENCE -v- LOTYCZUK [2003] WADC 285

CORAM: VIOL DCJ

HEARD: 27 & 28 NOVEMBER, 2, 3 & 5 DECEMBER 2003

DELIVERED : Delivered Extemporaneously on 5 DECEMBER 2003 typed from tape and edited by Trial Judge

FILE NO/S: CIV 1132 of 2001

BETWEEN: GREGORY NEIL LAWRENCE
Plaintiff
AND
MONIQUE LOTYCZUK
Defendant

Catchwords:

Contract for building renovations - Claim by electrician for work done - Counterclaim by owner for breach of contract etc - Turns on own facts

Legislation:

Nil

Result:

Judgment for plaintiff in the sum of $6,961.15
Judgment for defendant in the sum of $37,820.78

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr G Porter

Solicitors:

Plaintiff: In person
Defendant: Talbot & Olivier

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

Nil

Case(s) also cited:

Nil

VIOL DCJ: This matter arises out of the building of very substantial extensions by the defendant of a house owned by her at 9 Mann Street, Cottesloe. An architect, Philip McAlister, was retained by the defendant to design and supervise the work and the job was put out to tender. The successful tenderer was a building company known as Logan Parker. A building contract was entered into (which became Exhibit 1), and the architect prepared plans and specifications (Exhibit "B") which included details of the electrical work required (section "K" in Exhibit "B").
Certain demolition work was carried out preparatory to the commencement of the renovations. The builder had retained an electrician; however, the contract permitted the defendant to nominate certain tradesmen to do their work. The defendant knew the plaintiff socially. The plaintiff had advised the defendant that he was, among other things, a qualified electrician.
They discussed the job and ultimately the defendant decided to appoint the plaintiff to do the electrical work in lieu of the person appointed by the builder. After discussions with the architect and with the consent of the builder, the defendant entered into an agreement with the plaintiff to do the electrical work. The figures involved in the contract generally were not completely clear; however, it appears that the original price allocated to electrical work by the builder for the defendant was $18,935.
The plaintiff's proposed figure was $19,000 and the defendant accepted this figure.
The work generally commenced in January 1999. It is said that after a number of disputes as to the plaintiff's work and moneys owing he left the site in July 1999 before the electrical work had been completed. Ultimately, another electrician, Absolute Power (and in particular Shane Wilson), was appointed to complete the electrical work. Mr Wilson's account for his work was in the sum of $19,282.30.
In the meantime the plaintiff had submitted claims to the defendant for work said to have been done by him in the sum of $32,838.55. Of this the defendant paid all but $6,961.15. This amount was claimed by the plaintiff from the defendant or, as in the statement of claim pleaded, alternatively, a reasonable sum for provision of additional works.
The defendant in her amended defence and counterclaim denied the plaintiff's claim and alleged, among other things, the plaintiff's breach of the agreement to complete the electrical work.
On the basis of the pleadings the defendant claimed from the plaintiff the sum of $45,399.38. The make‑up and basis of this claim is referred to later.
Prior to the trial the plaintiff had been represented by solicitors; however, for reasons which appear on the transcript, such representation ceased and the plaintiff appeared in person. Because of difficulties experienced by the plaintiff in obtaining some relevant papers from his former solicitors, at my suggestion and to avoid any delay or adjournment of this matter, the plaintiff made an application pursuant to O 18 r 5 of the Supreme Court Rules requiring the counterclaim to be heard first.
I propose to deal with the evidence of each witness and to make appropriate findings as to the matters in issue as it becomes relevant and possible.
The defendant, Ms Hodara, confirmed the early history of the matter as outlined by me and described generally the renovations and their position on the site. These matters are evidence from the plans and specifications. The defendant said that after she met the plaintiff socially she accepted his representations that he was an experienced electrician and his quotation in the sum of $19,000.
The defendant, as part of the agreement with the plaintiff, paid 40 per cent of the contract price of $19,000, that is $7,600, before the defendant substantially started his electrical work. This was paid on 15 December 1998. Delays, she said, occurred from an early stage in the plaintiff's work; however, she paid invoices from him as and when they were received. There was apparently a considerable amount of trust as to the work said to have been done by the plaintiff and the subject of his accounts which were paid by the defendant.
As the job progressed early in 1999 the plaintiff complained to the defendant about most of the other people connected with the project. He assured the defendant that he, the plaintiff, was doing a "great job". The defendant accepted this. There were a number of complaints from various tradesmen, the builder and the architect as to the plaintiff's attitude and failure to do his work properly. The defendant became, she said, "a go‑between", that is, attempting to mediate between the plaintiff and the other trades.
The plaintiff began to threaten to leave the job, however, the defendant's ex‑husband, Mr Lotyczuk, attempted to dissuade the plaintiff from this course of action; however, the plaintiff did leave in July 1999. The plaintiff apparently blamed the builder for the situation. The defendant paid the plaintiff's various invoices. She mentioned a threat made by the plaintiff concerning the non‑payment of invoices by other people for whom the plaintiff had worked.
Ultimately, the defendant arranged for Shane Wilson to complete the electrical work, the defendant having also arranged for a friend, Dr Taylor, to assist her in sorting out the delays and payments being made, in particular to the plaintiff. The builder ultimately claimed that because of the plaintiff's failure to do his work in a proper and timely manner his, the builder's, work was delayed for 45 days. Negotiations arose relating to that and the architect certified that the builder was entitled to be paid compensation on the basis of 40 days' delay, referable to the plaintiff. After negotiation an amount, including a part referable to the 40 days, was claimed by the builder from the defendant. The amount was $20,000 for a total of 14‑1/2 weeks, of which the plaintiff was said to be liable for 8 weeks. The defendant paid the $20,000 to the builder.
The defendant was cross‑examined at some length by the plaintiff. The defendant confirmed the trust she had in the plaintiff that he would do the electrical work in a proper and timely manner. The plaintiff did some work other than the electrical work in and around the house. The defendant paid the plaintiff for this work. The defendant agreed that some alterations were made to her requirements from time to time on the building. This cannot be said to be unusual. The defendant said these changes were discussed and arranged with the architect. The defendant could not recall the plaintiff in effect making his own decisions as to some of the electrical work and its planning.
In re‑examination the defendant confirmed that the original completion date for the work was mid‑July 1999. The defendant struck me as an honest and reliable witness. She had a limited knowledge of building and obviously relied upon the plaintiff to carry out his agreed work in a competent manner.
Mr Philip Godfrey Payne is the co‑ordinator of business names at the Department of Consumer Employment Protection. He gave certain evidence as to the registration of the plaintiff's businesses at the relevant times.
Mr Philip McAlister was the architect who prepared the plans and specifications for the project and administered the carrying out of the work, including the assessment of claims for payment by the builder. He was of the view that the plans and specifications were adequate for this project. He confirmed that he passed on directions to the various trades through the builder. This, he said, was normal procedure. He said that the plans and specifications were adequate for the purpose of carrying out the work, including the electrical work. He said he had difficulty discussing the plaintiff's work with him. The builder reported similar difficulties to him. When given accounts from the plaintiff to assess, the architect had difficulty understanding some of the costs claimed by the plaintiff.
At this time the work began to slow down. He said that the plaintiff's attendance on site was spasmodic. The builder reported difficulties liaising with and directing the plaintiff. The electrical work was slow. The plaintiff's attitude to Mr McAlister, he said, was "hostile" and "aggressive most of the time". Mr McAlister struck me as being a very reasonable and fair‑minded person. The plaintiff complained about the accounts not being paid, although he still said he wished to complete the work. This was in mid‑1999. Mr McAlister said that some of the accounts presented by the plaintiff were for work which he, the architect, did not see completed. The architect gave some examples of delay caused by the plaintiff.
The builder submitted a claim for delays caused by the plaintiff's failure to carry out his work in a timely manner. After consideration, an extension of time notice, Exhibit "H", was given to the builder. As previously mentioned, the architect assessed the delay caused by Mr Lawrence of 40 days, then there were the negotiations to which I have already referred and, ultimately, a settlement figure of $20,000 was said to be appropriate. It was, he said, "a reasonable assessment of the loss". Because there were other causes of the delay, this figure referable to the plaintiff was calculated as being 8/14.5 of $20,000, that is $11,034.48.
In cross‑examination the architect said that he was on site about 20 times in the actual contract period of 16 to 18 weeks. He said it was not uncommon for building work to be delayed until after Christmas and January because of the shutdown generally in the industry. The building job was not a "shambles" as suggested, but a protracted project. The builder, Mr Logan, did supervise the job, he said, and the builder complained to the architect that the plaintiff was simply not on site and electrical work was not happening. The job, so far as he was concerned, was not treated as a joke by the various trades as suggested by the plaintiff. As with most jobs, there were changes made to the plans which caused some delays.
The architect was a very fair witness whose evidence supported the defendant's case generally.
Because of the difficulties she was experiencing with the house the defendant sought the assistance of Dr Ronald Taylor, who was the husband of a friend of the defendant. Dr Taylor gave evidence for the defendant. Dr Taylor has had a long experience in project management in many places in the world, including projects in Western Australia. He acted, it seems, as an agent for the defendant, assessing the progress of the project, the causes for the delays, the work of the plaintiff and the accounts rendered by him. In my view he gave a very fair and balanced opinion of what he found. The plaintiff, he said, was disruptive on site and did not do his work in a timely manner. Dr Taylor concluded that the plaintiff appeared to be intent on maximising the money he could make out of the project. The plaintiff's defective work and his tardiness were an important contributor to the delays on site. Dr Taylor was a party to the negotiation which led to the final amounts found to be owing to the builder in the light of delays.
In cross‑examination, Dr Taylor enlarged on his previous opinions, giving examples of the plaintiff's poor reputation and work on the site.
Mr Michael Lotyczuk was previously married to the defendant. He is an estate manager. He has remained on reasonably friendly terms with the defendant. Although separated around the time of the building he was helping the defendant with the house project.
He had some authority over the job in the absence of the defendant. He, Mr Lotyczuk, attended the site very regularly from December 1999. He said the plaintiff began his work diligently but this changed and that he was not timely in his work. The plaintiff's reputation and failure to do his work properly was summarised by Mr Lotyczuk at the transcript, page 200 to page 202. Eventually the plaintiff left the site and Mr Lotyczuk arrange for Shane Wilson to take over the electrical work.
He, Shane Wilson, was to work under the plaintiff's direction so that he could inform Mr Wilson as to the whereabouts of wiring, switches, junction boxes, etc. Mr Lotyczuk could not recall any arrangements being made for the plaintiff to be paid for this supervision. The plaintiff was never spoken to by Mr Lotyczuk about the plaintiff being permitted to leave the site. Very fairly, in my view, Mr Lotyczuk said that there were a number of reasons for delay on the job including the plaintiff's and, as a result, there was animosity between the trades.
Because the plaintiff did not install the wiring downstairs in time the ceiling was put in before the wiring was completed. The plaintiff returned and, according to Mr Lotyczuk, ripped the ceiling out to put his wiring in. Mr Lotyczuk, himself, had doubts as to the plaintiff's veracity. There was no contractual arrangement, he said, between Mr Lotyczuk and the plaintiff. In cross‑examination Mr Lotyczuk agreed that when delays occurred, for example from rain when the roof had not been completed, the plaintiff suffered the same as the other trades.
The situation at the house concerning the plaintiff's relationship with other trades apparently reached the stage where there was a threat of violence upon the plaintiff by one of the other tradesmen. Mr Lotyczuk generally confirmed the views of other witnesses as to the plaintiff's attitude on the job and the standard of his work and the delays caused by him.
Mr Shane Wilson is an electrical contractor carrying on the business of Absolute Power. He has had long experience in household electrical work. He was asked to help complete the electrical work on the site and at Mr Lotyczuk's request, rang the plaintiff to arrange to meet him on site. It was arranged that Mr Wilson would complete the electrical work, the plaintiff being available to advise as to the positioning of various items. At no time did the plaintiff advise Mr Wilson that he, the plaintiff, had been dismissed from the job. Mr Wilson was paid weekly for the work he did.
He confirmed his account attached to Exhibit 9 headed "Summary of Invoices Rendered by Absolute Power". He spoke of difficulties accessing the wiring because of the walls and ceilings being constructed in such a way as to conceal the wiring. He confirmed that Exhibit 10, "Summary of Incomplete Defective and Remedial Work", represented - save for item 34 and item 55 - work he had to do to either complete or make good the work the plaintiff had been required to do under the contract.
He confirmed that some of the work which the plaintiff alleged was not the subject of the plans and specifications was, in fact, meant to be done by the plaintiff; also, the work said to have been done by the plaintiff was not, in fact, done and he therefore carried out such work as reflected in the schedule. Mr Wilson confirmed that the electrician is obliged to comply with the various requests by the builder to be on site at certain times. Further, if the electrician was not liaising with the builder, as is normally the case, the job would not go to plan.
It was Mr Wilson's view that a reasonable price for electrical work quoted by the plaintiff was $15,000 (remembering that the plaintiff's price was $19,000), although he said the plaintiff's price was "not too far off the mark". The total time spent by the plaintiff on the phone to Mr Wilson or on site was, he said, about seven or eight hours.
In cross‑examination Mr Wilson did not detect, he said, any animosity or "aggro" on the plaintiff's part at the first meeting on site. With the help of the defendant and Ron Taylor, the positioning of the plaintiff's cables and switchings was found and together they set out to complete the plaintiff's unfinished work. Unlike the plaintiff they did not need to damage the ceilings etc, to do their work, he said. Mr Wilson did not find any dangerous, improper, careless electrical work on the part of the plaintiff.
Mr Wilson said that although he completed the work under the supervision of Dr Taylor there was some input by the plaintiff. Mr Wilson said that if when tendering he had any doubt as to the work to be done he would contact the architect and/or the builder. He was never asked to use his own ticket for the job.
The plaintiff then gave evidence. He confirmed the commencement of the relationship with the defendant and the arrangement for him to do the electrical work on the job. He is qualified as an electrician, gas installer and refrigeration air‑conditioning contractor. He suggested that just as his work began he and the defendant had relationship difficulties. She was never cross‑examined on this point. He prepared the quotation, making its terms clear to the defendant. It was his position that he was to install only the cables necessary and "hardware" for that; that is to say, not switch plates etc.
His work began on 27 November 1998. He did work for the defendant outside the contract. His work on the meter box was extra to his contract. The defendant's position was that this work was in effect voluntary on the plaintiff's part. Invoice 0301 in Exhibit "L" covers this work.
The plaintiff dealt with other invoices in Exhibit "L", his first comment being that they were easy to understand. Having read the invoices and heard the plaintiff's explanation, I cannot agree with this assertion. I am not surprised that Dr Taylor and Mr Lotyczuk had difficulty understanding the plaintiff's accounts.
The accounts, for example, did not make clear what work was being done or that, on occasions, the work was an extra. The plaintiff's evidence was that every invoice prepared by him was given personally to the defendant and when he received payment this was endorsed on the original and prepared to return to her. I am unable to accept that this occurred on every case. The plaintiff's accounting system appeared to be lax, his evidence as to the matters was quite unconvincing.
I accept that the plaintiff did work as required by the defendant and billed her outside the scope of the agreement with the defendant and that he is entitled to charge for such work as extras. He suggested he was often the only person on the job and the others involved were the cause of all delays. I am unable to accept this.
The plaintiff explained the work he did relating to the invoice on Exhibit "L" which the defendant said she did not receive. Some of his explanations were difficult to understand; for example, some of the charges for travelling. He stated that he was unable to contact the architect. I cannot accept this. The architect's evidence on this point is far more acceptable and is supported by other witnesses.
Some of the amounts charged are difficult to accept; for example, $10 for use of his mobile phone by the architect.
By February 1999 he said the work had not progressed and he agreed with the defendant that he would not get the February payment. As this situation continued he thought he said his contract had expired. He offered to leave the site and this was agreed to. He also asserted that he was not being paid for his work.

Having considered the oral evidence and invoices, I am quite satisfied that the defendant paid all accounts given to her by the plaintiff within a short time of receipt. I reject the plaintiff's assertion that non‑payment was a possible reason for him to leave the job. As to Invoice 749, although the plaintiff doubted that he had been paid this amount it is clear that he was. The unusual state of the plaintiff's invoices can be seen from Invoice 1999: it is not for any amount, it is undated and has limited information. Despite this the plaintiff said he gave it to the defendant.
The plaintiff advised the defendant that he was leaving and accepted the sum of $1,000 so that he could disappear from the site. Despite this he made the arrangement to return to the site and to perform more work and to send accounts to Mr Lotyczuk and to assist Mr Wilson. The first of such accounts was that for $2,772.60. This was "negotiated down" to $2,500 by Mr Lotyczuk and it was paid in full.
The plaintiff said that the invoices around November 1999 show that he had been co‑operative. This may have been the case in the latter part of 1999 but, as later found, this was not the case early in that year. He said that the siting of the air‑conditioning electrical supply was not clear on the plans and disputed the amount claimed by the defendant relating to that item. His explanation at page 355 of the transcript was not particularly convincing.
He dealt with other work the subject of invoices to Mr Lotyczuk, and explained the need for such work. He insisted that he had done the work the subject of the three invoices amounting to $6,961.15, for which he was not paid. He concluded his evidence‑in‑chief by maintaining that he was available and visited the site regularly, including during Mr Wilson's time there.
The plaintiff was cross‑examined at length. He agreed he had helped Mr Wilson on the site no more than twice. He was rather evasive in relation to this matter. He was cross‑examined as to the handling of invoices to the defendant and his answers, in my view, were evasive and inconsistent. I conclude, having seen and heard the plaintiff, that he did not give those invoices to the defendant which she said she had not received. I also conclude that the plaintiff received the sum of $26,578.60 from the defendant, those invoices being set out in Exhibit "L".
He denied in effect the base of the original discussion regarding the contract with the defendant. He agreed that the plans and specifications detailed the electrical work to be carried out by him. He was not able to point to any specific exclusion from his contract with a need for stainless steel switch plates. He spoke of changes to the plans and specifications regarding the supplying of a cable for the meter box. He, in my view, tended to minimise the work required of him under the plans and specifications. He said that he had advised the defendant of all extras and the rate to be charged for this. The documents tended to show that the plaintiff was not on site from February until 1 May 1999. In this regard Invoice 2473 of Exhibit "L" should be considered. He suggested that he worked on the site from February to August 1999, however, the documentation does not support this.
It appears that he was invoicing for electrical work on the letterhead of businesses for which his electrical contracting licence had been suspended. His later explanation for this was unconvincing. On the basis of his evidence I am not satisfied that the plaintiff installed the electrical switch boxes completely. He said that some of the work he did in the latter part of 1999 was extra to the contract. He was cross‑examined as to why he left the job. On the basis of his answers and the evidence generally I am able to conclude that the plaintiff left the site because of the non‑payment of his accounts.
The plaintiff said he was not rude and abrupt on site and to the defendant and did ask her to make the builder speed up his work. He denied that the defendant was asking him to stay on site. He agreed that by August 1999 he had been paid $17,000 but said much of this amount was for extras.
The plaintiff called Mrs Nova Oldfield, a legal officer for the Public Trustee. She told me about seeing the plaintiff cutting holes in the lower ceilings on Christmas 1999/2000. Her evidence was not particularly helpful to the plaintiff.
Having heard the evidence, it is convenient to summarise the claims of the plaintiff and defendant. The plaintiff, it is clear, claimed $6,961.15, being the amount of three unpaid invoices for work said to have been done by the plaintiff under the contract, including "extra work".
The defendant's claim was on various bases:
1.The sum of $7,578.60, being the difference between the amount paid to the plaintiff, $26,578.60, and the contract price, $19,000, described as "damages/restitution for false representations as to the work completed". That is set out in the defence par 7, par 8 and par 9.
2.The sum of $11,034.48 previously referred to "for breach of contract arising from costs of delay".
3.The sum of $4,196 for breach of contract arising from additional cost caused by the plaintiff's damage to the building and there are three figures set out amounting to that amount.
4.$19,282.20, damages for breach of contract being costs of rectification and completion of work by Absolute Power.
5.$3,308, damages once again for breach of contract, being work not done by the plaintiff under the contract, kitchen down lights, TV room, driveway lights and the air‑conditioning power board.
Before dealing with the claim and counterclaim, it is convenient to make some general findings fundamental to the determination of this matter. Such findings arise clearly from the evidence, especially that led by the defendant much of which evidence was not the subject of cross‑examination by the plaintiff and/or evidence on his part:
1.The plaintiff agreed to do the electrical work the subject of the plans and specifications for the sum of $19,000.
2.The defendant asked the plaintiff to do extra electrical work and work in other areas, for example plumbing, general manual work etc. The plaintiff was entitled to be paid for that work.
3.The plaintiff's attitude to almost everyone connected with the job, from the defendant to Mr Lotyczuk, Mr Taylor to the builder, the architect and others was quite unsatisfactory. I accept that on occasions he was aggressive and argumentative and "pig‑headed". He was rarely willing to seek clarification on matters normally one would need to. His attitude caused considerable problems on site and off site, especially regarding communication.
4.The plaintiff began his work with some enthusiasm, however this changed early in 1999.
5.The plaintiff was reasonably diligent and timely until approximately the end of February 1999 when his work suffered from a failure to carry some of it out in a timely and competent manner. His tardiness led to considerable delays on site.
6.Despite all this, the defendant paid the plaintiff as and when she received invoices from the plaintiff, including payments for extras and work other than electrical work.
7.The plaintiff's delays caused a number of problems, however it was his decision to leave the site. There was no basis in law or fact why he should not have stayed on site and completed the defendant's work. The defendant did not want him to go.
8.The plaintiff's accounts were in poor condition and very difficult to follow.
9.The defendant was very trusting of the plaintiff.
10.The defendant had no option in the circumstances to:
(a)Get help from Dr Taylor.
(b)Get help from Mr Lotyczuk.
(c)To appoint Mr Wilson to complete the plaintiff's work. Even then, the plaintiff was not largely unco‑operative with Mr Wilson.
11.Towards the end of 1999, the plaintiff did some work for the plaintiff and was paid for some of this work, his accounts being checked by Mr Lotyczuk. Such work also continued into 2000.
I will now turn to the various amounts claimed and the basis of such claims, either factual or at law. The plaintiff has claimed the sum of $6,961.15, representing the amount of three unpaid invoices to Mr Lotyczuk the subject of Exhibit "L". As to these generally, it cannot, I consider be said that this work was not carried out by the plaintiff. The prices which, although the plaintiff maintained were appropriate, were "suggested prices" to be subject of negotiation with the plaintiff and Mr Lotyczuk. The evidence relating to this work from both the plaintiff and on behalf of the defendant was not particularly satisfactory. I consider, however, that there was no basis at law why the plaintiff should not be entitled to such of these amounts as I find, doing the best I can on the evidence, are payable by the defendant. The three accounts in fact were the subject of little, if any, relevant evidence from the witnesses. Mr Lotyczuk referred to other accounts he had checked, for example, item 28 for $2,772.60, but did not deal with the three accounts the subject of the plaintiff's claim.
Dealing with those three accounts, as to the account dated 17 January 2000 for $3,786.70, this is work carried out by the plaintiff. The plaintiff's evidence was that he did such work at a time when Mr Lotyczuk was involved and obviously the builder was still overseeing the site. Save for the amount of $122.50 for work done on the lower level ceiling on 6 January 2000, in my view, it has been established that this work should be paid for by the defendant, an amount of $3,664.20.
As to the account dated 24 January 2000 for $628, this work I find the defendant liable for, save for the item relating to the dealing with the ceiling on 22 January 2000 for $127.50, leaving an amount of $500. The third item is that dated 24 January 2000 for $2,546.45. This amount should be allowed in full. The plaintiff's claim against the defendant therefore should be allowed in the total sum of $6,711.15.
I will turn now to the amounts claimed by the defendant. The first item is that for $7,578.60. I am unable to find on the evidence a sufficient basis upon which it could be said the plaintiff had not performed the work the subject of his account for $26,578.60. Much of this work was for extras and work other than the electrical work. Although the plaintiff did not complete the work the subject of the contract, the evidence does not make it possible to separate out the work the subject of Exhibit "L" which was not done and/or completed. I am not satisfied that the defendant has established this claim and it will be dismissed.
As to item 2, the claim for $11,034.48. It is clear that the plaintiff was responsible for considerable delays on site. These were the subject of evidence from a number of relevant witnesses. The architect's allowance of 40 days for such delays was reasonable and acceptable. The amount awarded, therefore, in relation to that is $11,034.48.
As to item 3, the claim for $4,196. The evidence clearly established the allegation that the plaintiff caused damage to the ceilings and ridge capping. Exhibit 5.2 and Exhibit 5.2.1 and the evidence of the builder in particular confirm this. The sum of $4,196 will be awarded under this head.
As to item 4, the claim for $19,282.30. The evidence of Dr Taylor, Mr Lotyczuk and Mr Wilson and that of the defendant have established, in my view, that the plaintiff did not complete his work and did not do some work in a competent manner. The work done to complete or rectify such work is detailed in the accounts from Absolute Power, Exhibit 9, and in Exhibit 10. The amount paid to Absolute Power of $19,282.30 should be awarded to the defendant by way of damages for breach of contract by the plaintiff.
As to item 5, once again the evidence establishes the defendant's claim for $3,308. Mr Wilson referred in detail to this work being necessary as part of the plaintiff's contract and not being done by him. Exhibit 10 was dealt with in detail in the evidence of Mr Wilson, with the relevant items being 9, 22, 34 and 45.
The defendant is therefore entitled to judgment in the sums I have mentioned, a total of $37,820.78.
The result is that the plaintiff's claim is allowed in the sum of $6,961.15 and the defendant's counterclaim is allowed in the sum of $37,820.78, which also operates as a set‑off.
I will need to hear from the parties as to the orders to be made consequent upon these reasons, including any allowances for interest.

[2003] WADC 285

5 December 2003 typed from tape and edited by Trial Judge