Modern Building Solutions Pty Ltd v Fine Touch Pty Ltd

[2021] NSWDC 451

District Court

New South Wales

Medium Neutral Citation:

Modern Building Solutions Pty Ltd v Fine Touch Pty Ltd [2021] NSWDC 451

Hearing dates:

06-07 May 2021, 11-12 May 2021

Date of orders:

12 May 2021

Decision date:

12 May 2021

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Judgment for the Defendant.

Catchwords:

Contract – Building Work – P was a subcontractor to D which held a contract to provide painting services to a builder – Whether contract was for the provision of painters at an hourly rate or a fixed price contract which was varied from time to time – Conflict of evidence – Objective intention of parties to be found in method of payment used and from documents generated by the parties.

Accord and Satisfaction – Whether such a case made out.

Category:

Principal judgment

Parties:

Plaintiff – Modern Building Solutions Pty Ltd
Defendant – Fine Touch Pty Ltd

Representation:

Counsel:
Plaintiff – A. Bailey
Defendant – L. Byrne
Solicitors:
Plaintiff – P. Knap (Knap Lawyers)
Defendant – M. Mazzone (Diamond Conway Lawyers)

File Number(s):

2020/00107901

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: This is an action for damages for breach of contract. The dispute between the parties concerns how the consideration that was to pass from the defendant to the plaintiff for work done by the plaintiff for the defendant was to be calculated. The plaintiff claims $121,862.85, alleging that that sum, plus sums already paid by the defendant, was the proper consideration for the work done by the plaintiff for the defendant.

2. Both the plaintiff and defendant, each a company, is a contract painter. The directors of the plaintiff are Mr Ireneusz Kaminski, who is known as Irek, and his son, Mateusz Kaminski, who is known as Matthew. Essentially, the plaintiff is a company representing a family business. Both Irek and Matthew are painters. The other active person in the family is Irek’s wife, Yola, who is clearly Matthew’s mother. She does typing work and the like for her husband and son.

3. The defendant probably started out in life as a partnership between Mr Nick George Bouras and Mr Epaminodas Makris who, like many modern gentlemen, was named after an ancient Greek hero. Mr Epaminodas Makris has not played any active part in these proceedings. However, his son, Mr Philip William Makrys, who is known as Philip, certainly has. The only mention of Mr Makris Snr is that he has, from time to time, given certain advice to Philip.

4. The managing director of the plaintiff is Irek, and Philip describes himself as the contracts manager of the defendant. He has spent 15 years in the painting industry since he was either 17 or 18 years old. He has always worked for the defendant, as one would appreciate. His curriculum vitae is exhibit 3. He has worked both as an apprentice painter, a tradesman painter, a site manager and project manager and has attended to the control of personnel on site and the imposition of standards, as well as being the contract manager for the defendant.

5. The relevant project on which both the plaintiff and the defendant were working is known as St Patrick’s Green. On the Princes Highway at Kogarah on its western side is an historic sandstone church name after St Patrick. It is the parish church for the parish of Kogarah. On the opposite side of the Princes Highway is a government high school. On the northern side of St Patrick’s Church is the St George Private Hospital. St Patrick’s Green is an aged care facility on the southern side of St Patrick’s Church, occupying what was originally an area used by the church primary school. Behind both St George Private Hospital and the Catholic land is the St George Hospital. Antecedent to working in the St Patrick’s Green project, the defendant had engaged the plaintiff to provide painting services at a project at the St George Hospital that is closely nearby.

6. In his affidavit, Philip describes the St Patrick’s Green development thus:

“12. On or about 20 February 2017, Brookfield Multiplex Constructions Pty Ltd engaged the defendant to provide internal and external painting services in accordance with a scope of works at buildings 1, 2 and 3 at the St Patrick’s Green aged care facility at Kogarah…

13. The project scope of work comprised:

(a) Residential Aged Care Facility…consisting of 92 bedrooms    (100 beds). This facility will occupy levels 1 to 4 of building 1.

(b) 105 no. Independent Living Units…in a mix of apartment   types and sizes across buildings 1, 2 and 3.

(c) 138 no. space two level basement car park with back of house

storage and miscellaneous areas.

(d) Community areas for residents including:

(e) Commercial kitchen

(f) Café and terrace

(g) Meeting rooms

(h) Theatrette

(i) Hairdresser

(j) Library

(k) Landscaped courtyard.”

According to the following paragraph of Philip’s affidavit of 13 August 2020, the defendant was due to commence work under its contract with Brookfield Multiplex Constructions Pty Ltd in early August 2017.

7. Prior to the commencement of the current proceeding, it would appear that there was an amicable relationship between the plaintiff and the defendant, between Irek and Matthew on the one hand and between Philip and Mr Nick Bouras on the other hand. The defendant had previously engaged the plaintiff as a subcontractor on a number of commercial projects. They included the Cessnock Correctional Centre, Shearwater Apartments at Warners Bay, a property at 65 Sussex Street, Sydney, a project at 23-25 Allen Street, Waterloo and a project at George and York Streets, Sydney. The current proceedings were commenced by a statement of claim filed on 9 April 2020. Philip’s affidavit contains this matter:

“10. Prior to approximately November 2017, the plaintiff and the defendant had an excellent and close professional relationship. For example:

(a) On 11 December 2017 I provided a good character reference for Irek. At page 24 is a copy of the reference. I gave Irek the reference to help him with his visa status so he could remain in the country;

(b) In February and March 2018, the plaintiff and the defendant gave consideration to forming a partnership in a joint venture in development/building projects. At pages 25 to 28 is a copy of the emails in relation to projects at Kellyville and Cairns;

(c) On 11 May 2018, I provided commercial references for the plaintiff to Matthew which were then sent by him to the NSW Government in relation to the work being carried out for the defendant by the plaintiff on projects being undertaken at York and George Streets, the Cessnock Correctional Centre and 65 Sussex Street, Sydney…

(d) On 28 November 2018, I was a witness in a Local Court dispute between the plaintiff and one of its sub-contractors Mustafa Karame on this St Patrick’s Green, Kogarah project, which is the subject of these proceedings…”

8. It is clear that, on some occasions, the plaintiff provided to the defendant experienced painters and charged the defendant a daily rate for the work that they did. On other occasions, the defendant provided a budget for works to the plaintiff, which would form the basis of a fixed price contract. The issue before me is whether the work done by the plaintiff for the defendant on the St Patrick’s Green project was a fixed price contract or whether it was a contract for the provision of workers on a daily hire basis.

9. Irek, in his primary affidavit of 2 June 2020 said this of what he normally did:

“5. In the day to day operation of [the plaintiff], I am responsible for project management on each site and ensuring compliance with the scope of work under the contract awarded to us. That would involving acquiring subcontractors to work on site, identifying the work the subcontractors are required to complete and agreeing timeframes for completion. For certain jobs undertaken by [the plaintiff], I would inspect the work to ensure compliance with Australian Standards but this was not always the case with every job as different contractors had different requirements.

6. [The plaintiff] was first incorporated in 2012. Over time [the plaintiff] initially undertook painting work, then painting and carpentry work. Since 2017, [the plaintiff] has held a general builder’s licence and it undertakes a range of building work. For a period of five years prior to [the plaintiff] incorporating, I worked as a painter taking on painting work subcontracted from various companies.

7. Over the life of the company, we always had a written contract for work undertaken. Fine Touch was the only company who [the plaintiff] did not have a written contract [with]. For work undertaken with [the defendant], any work undertaken started with a telephone call, following which [the plaintiff] issued a quote, which was either agreed immediately, or after some discussions.”

10. There is really no dispute that, at the end of July 2017, Philip asked Irek for help in completing the contract that the defendant had at St Patrick’s Green. Irek’s affidavit contains this:

“8. At the end of July 2017 Philip…called and asked for help to finish his contract at St Patrick’s Green…[The defendant] were the main contractor to Multiplex for painting work on the job. A conversation occurred between us where words to the following effect were spoken:

Me: ‘Listen Philip, I can organise for you boys but only for an hour rate. I will charge you $40 per hour plus GST.’

Philip: ‘Okay, thank you. So when can you send and how many boys there? And another thing no one can know that the boys are from you. Only that all people are from Fine Touch, otherwise Multiplex and Unions will make me a problem.’

Me: ‘I understand. That’s okay.’”

On the other hand, Philip in his affidavit says this:

“On or about late July 2017 I had a telephone discussion with Irek. To the best of my recollection we have a discussion to the following effect:

Makrys: ‘Irek, Fine Touch has been engaged by Multiplex as a painting subcontractor on the St Patrick’s Green project at Kogarah. We need some more men straight away. Can we get MBS to send up some painters? We can work out the rate for each of them depending on who you send.’

Irek: ‘Yes, we can do that.’”

11. Of course, Philip does not say that the rate at which the painters were to be provided was discussed but that appears to be of no moment because it appears to be common ground that the going rate that the plaintiff provided tradesmen painters to the defendant was at $40 per hour plus GST. The work at the St George Hospital, work being performed nearby, as I sought to show, was being charged at an hourly rate of $40 plus GST, as one can find on p 68 of the court book. Also, one will find in the tax invoice concerning the St George Hospital work that is found on p 68, an invoice dated 6 August 2017, that for at least one, if not two workers, their labour was being charged not at $40 per hour plus GST but at $35 per hour plus GST. A document found at p 60 of the court book indicates that the lower rate was being paid to two workers, one named Joseph and the other Lucas, who were not painting to the standard required by Philip and, clearly, Irek agreed with that. Although the document at p 60 of the court book is noted to be about “St Patrick’s Green”, it bears date 1 August 2017 and clearly relates to work being done at the time, not at St Patrick’s Green but at St George Hospital, the work at St Patrick’s Green not commencing until 3 August 2017, that is, the work being done by the plaintiff for the defendant. The plaintiff did not have a workforce of paid employees. Perhaps its only paid employees were Irek and Matthew. The plaintiff preferred to engage subcontractors, that is, men that could be described as self-employed painters, because Irek believed that their work was done better than work of people employed under a contract of service.

12. According to [10] of Irek’s primary affidavit, he provided four painters to start at St Patrick’s Green on 3 August 2017. At that time the plaintiff had three main subcontractors, RS Paint Pty Ltd, which appears to have been a company used by Mr Rafal Stankiewicz, PT Fenik Pty Ltd, a company used by Peter Fenik, and KK Painting Pty Ltd, a company used by Mr Tomasz Kozlow. It was the usual practice of Irek to ring one of those three subcontractors and ask if they had men available. If they did, those men were deployed on the particular site. According to Irek’s affidavit, both he and Matthew also attended the site on 3 August 2017 and had a discussion with Philip. According to Philip there was such a discussion. The discussion, according to Irek, was this:

“Philip: ‘Irek, I can give you this building 1, level 5-11 in contract and I will pay for all material. I have a good budget for it.’

Me: ‘Philip, what exactly needs to be done and how much is the budget’

Philip: ‘I will send you information about what is in the scope of work and you give me the price.’

Me: ‘Okay send it to me but I told you that we can do it for $40 per hour plus GST, labour hire. I do not know how many boys you need.’

Phillip: ‘Okay Irek, we will work it out. I will need at least four painters as soon as possible.’”

Philip deposes to this conversation:

“Makrys: ‘Irek, thanks for supplying resources for us. I’d like to offer you this building 1, levels 5 to 11 as a contract. I will use my Fine Touch workers to do the rest of the buildings. I will supply all the materials. And I will break it down to show exactly what needs to be done by MBS. I need you to provide me with a contract price for the works now that you are familiar with the site and the work required when you can. In the meantime commence on site and we will agree a price within the next week or two, like we always do.’

Irek: ‘Please send me the detailed scope confirming the work that you have shown me and Matthew this morning, so that I can put together my price. But help me out brother because we need the work so you need to help me out with a figure like you always do.’

Makrys: ‘I will email everything we need through today but work out your estimation as well as to make sure you are comfortable on the job.’”

13. The conversations deposed to by each of Irek and Philip are similar but it appears to me to be unlikely, bearing in mind the pre-existing relationship between the parties, that it was necessary for Irek to reiterate a rate which he was charging for the provision of workers on a daily payment rate. The rate was well established. There was no dispute between the parties that, when this work commenced, it had been agreed that the plaintiff would be remunerated by the defendant by the payment of the daily rate for each tradesman painter provided and if work was to be done by either Joseph or Lucas that they be paid not at the rate of $40 per hour plus GST but at the rate of $35 per hour plus GST.

14. The question is whether that initial contract was novated with a new term as to the remuneration or whether there was a fresh contract on at a fixed rate. That the meeting took place on 3 August 2017 is confirmed by an email, which can be found at p 61 of the court book. That is an email from the defendant to the plaintiff sent by the defendant’s then estimator, Mr Mahim Subedi. The email which Mr Subedi sent to the plaintiff was copied to Philip. The email merely states, “Please take these drawings with you tomorrow morning when you go onto the St Patrick’s Green site.” Annexed to that email were documents said to be St Patrick’s Green plans building 1 levels 5-11. At 12.24pm on 3 August 2017 Philip sent an email to the plaintiff and copied it to Mr Subedi. It is addressed to both Irek and Matthew. It contains this matter:

“Thank you for your time this morning on site, please see below scope of works for you to email me contract price.

Price 1

Level 5 - level 11 internal painting to apartments

Exclude level 9 unit 45, which is the prototype unit we completed

[There follow 15 lines containing further details of what work was to be done on building 1 levels 5 to 11.]

Please give me a price from level 5 - level 11

Price 2

Lobby’s[sic]

Same scope as above

Please include all painting to dado rail also.

Please exclude painting to lobby ceilings as we will do these.

Please give me separate price on levels 5 - level 11.

Please note I will supply the paint, you will need just to allow for labour and tools including platform ladders.

Please make sure once we agree that we are including to do all necessary signoffs/QA procedures.”

15. An email was sent by Mahim Subedi to the defendant later on 9 August 2017 at 7.48pm. That email provided a budget. It indicated that, although Philip’s email of 3 August 2017 asked for two prices, they had now been combined into one price and the budget for the project was $62,500 plus GST. It would appear that the sending of the email by Mr Subedi on 9 August 2017 was prompted by a discussion between Philip and Irek on 8 August 2017. [13] of Irek’s affidavit is this:

“On 8 August 2017, Philip telephoned me. A conversation took place and words to the following effect were spoken:

Philip: ‘Irek, have you worked out the price for the building 1 levels 5 to 11? I sent you the scope of work. I need you to let me know as I need to have it sorted out.'

Me: ‘Philip, I saw your email but what is your budget?’

Philip: ‘I need to check. Mahim will email to you what we have.’

Me: ‘So send me and we will see.’

Philip: ‘It will be good if you can take this on contract.’”

16. There is no dispute between Irek and Philip as to a telephone discussion that they had shortly after the plaintiff received Mr Subedi’s email giving the budget for the work. Irek says this conversation occurred:

“Me: ‘Philip, it is no business for me as the price is too low. So, thanks but I am not interested. I prefer like now, just giving you boys on per hour rate.’

Philip: ‘Ok, Irek, but I can give you two additional buildings to paint. I will send you a budget for it. Please work out and we will talk.’

Me: ‘Philip, send me and we will see. I want to take contract from you, but the budget must be good for me.’

Philip: ‘Ok Irek, I will work [it] out. Can you send me 2 more boys there as I need them.’

Me: ‘Let me organise the boys and I will call you back.’”

According to Philip this is what the conversation was:

“Irek: Philip, I got the budget from Mahim. Can you please give me a bit more because you know what Multiplex are like when it comes to the extras. I will leave it with you but please help me out. Can you give me some more money or increase our settlement on one of the other jobs we are doing for you?

Makrys: Irek, this is a tight job. Maybe I can give you more areas to increase your overall contract value. I will come back to you but Irek, we’re not far apart regardless. So carry on and we’ll work something out.’

Irek: Okay, work it out and let me know with the extra areas you are giving me because it will get messy for me to charge you hourly rate for all these contract works.’”

Leaving aside the detail, it is clear that, in essence, the plaintiff was not enchanted with the budget proposed by the defendant or the works thus far offered to the plaintiff and it was suggested by Philip and accepted by Irek that more work would be offered to them at an increased budget.

17. On 14 August 2017 at 3.47pm Philip sent an email to the defendant. The substance of the email is this:

“If you would like to meet on site tomorrow to run through this please let me know, I will be there from 12.30pm until 5pm for a principal meeting but please have a look at the figures and get back to me.

Please keep in mind this does not include for any damages by other trades, this will be a variation and when your contract work is held up for whatever reason you can work for me on day labour.

Please look at the buildings individually as there is less/more work in some buildings so you cannot apply an estimate to these units like a normal job.

•   Building 1 - 55 units (minus display) $62,500

•   Building 2 - 16 units $16,500

•   Building 3 - 32 units $40,055.”

If my mathematics be correct, which is always problematical, the total of those three sums is $119,055. Despite inviting a meeting on 15 August at the site, a meeting which is attested to by Philip, Irek said that there was a telephone conversation about this offer. [23] of Irek’s affidavit is this:

On 14 August 2017, I saw an email from Philip with the Fine Touch budget for 3 buildings … Shortly after the email arrived, Philip telephoned Irek. I was present at the time and heard a conversation in words to the effect of:

Philip:    “What do you think about the budget? It’s a good price.”

Irek:    “Philip, are you serious. This is impossible to do for that price.”

Philip:    “Is it really that bad?”

Irek:    “Yes, someone rip you off. It’s a lot of work. What I can only do is check it again and I’ll let you know.”

Philip   “Work it out and let me know as soon as possible.”

Irek:   “No problem. I will keep my boys at the per hour rate.”

Philip:   “Yeah, yeah.”

On the other hand, this is what Philip deposed to in his affidavit:

“23. On 15 August 2017, I met with Irek on site at St Patrick’s on the Green. To the best of my recollection we had discussion about the price of the contract services to the following effect:

“Makrys: ‘Irek, I sent you the budget for each building. So can we work to this?’

Irek: ‘No way, I cannot do it.’

Makrys: ‘Irek, I can go up to $170,000 considering that you have done all this work for me; and I will give you a good variation with the church next door. Irek, don’t forget with what you are paying your boys you are in front and making more than me on this job.’

Irek: ‘Yes, we can do it for that but see if you can give me some more works or variations.’”

18. The fundamental question for me is whether the conversation deposed to by Philip as occurring on Tuesday 15 August 2017 on site took place. Another material witness on this issue is Matthew. He maintains that he overheard the telephone conversation, deposed to by his father, between his father and Philip on 14 August 2017. He says the conversation that he overheard was this:

“Philip: ‘What do you think about the budget? It’s a good price.’

Irek: ‘Philip, are you serious. This is impossible to do for that price.’

Philip: ‘Is it really that bad?’

Irek: ‘Yes someone rip you off. It’s a lot of work. What I can only do is check again and I’ll let you know.’

Philip: ‘Work it out and let me know as soon as possible.’

Irek: ‘No problem. I will keep my boys at the per hour rate.’

Philip: ‘Yeah, yeah.’”

In the following paragraph of his affidavit, Matthew attested that he was present on site on the following morning, 15 August 2017, when he met Philip. According to Matthew, this was the conversation:

“Philip: ‘Did your dad work out the price?’

Me: ‘I’m not sure. My dad will work it out and we will let you know as soon as we know.’

Philip: ‘It’s a very good price for the project. The budget is $170,000 for three buildings.’

Me: ‘We will see, Philip. We will work it out and let you know.’”

19. There is a number of references thereafter. One thing is clear, however, and that is how the work as being billed and paid for. On 18 August 2017 at 23:49 the plaintiff sent to the defendant two invoices. One was for work at the St George Hospital and the other was for work at St Patrick’s Green. The email in question is exhibit E. The email, the tax invoice for the St Patrick’s job, bears date 18 August 2017 and is numbered 244. It bills 173 hours at $40 per hour, a total of $6,920 plus $692 GST, equalling $7,612, and the heading on the invoice is for work done between 3 and 16 August 2017. A second email was sent on 18 August 2017 at 23:53, some four minutes later. It attached an invoice numbered 245. That is headed “First Progress Payment” and bills $9,440 plus GST of $944, giving a total of $10,385. Annexed to it are pp 79, 80, 81 and 82 of the court book, being tables of work which may have been done in a way that has never been adequately explained in evidence. According to a computation at the end of the document on p 80, it appears that it was estimated that 8.034% of the work to be done in building 1 had been completed and the following two pages show that no work had been completed on building 2 or building 3. How exactly the sum of $10,385 has been calculated is unclear to me and inadequately explained in the evidence.

20. On 23 August the defendant sent an email to the plaintiff concerning, inter alia, a tax invoice which says:

“Total of 173 hours (not approved). Yours hours are more than what was signed off on the daily timesheets - please check hours and let me know.”

Then there was a reply from the plaintiff to the defendant at 12.31pm on the same day, that is, an hour and a half later. It purported to enclose the timesheet for St Patrick’s Green, which can be found at p 86 of the court book. At 13:07 on the same day, the defendant, by email, advised this:

“On your attached timesheet - no one worked on Wednesday 9 August 17. That is where the difference in hours would be but also keeping in mind when amending invoice that Lukas and Josef are on a lower rate than the rest. Please send through your amended invoice.”

An updated invoice was sent on 25 August 2017, that is, an updated copy of invoiced 244. That claimed 71 hours at $40 per hour and 86 hours at $35 per hour, which, plus GST, gave a total of $6,435. That clearly was for work done on a daily hire rate between 3 and 16 August 2017. That was paid by the defendant by electronic fund transition on Thursday 24 August 2017. In other words, the defendant accepted that the work done up until 16 August was governed by the daily hire rate agreement and the defendant’s case is that, thereafter, the work was being charged at the contract rate agreed between Philip and Irek at the meeting on the site on 15 August 2017.

21. Invoice number 245 was never paid. That appears to have been seeking to charge for work done perhaps between 16 and 18 August or perhaps all the work that had been done by the plaintiff for the defendant at the contract rate since 3 August 2017. What I have just set out is set out in [24] of Philip’s affidavit. Philip’s affidavit goes on to say this about tax invoice 245:

“25. At pages 86 to 92 is a copy of the plaintiff’s email to Brigitte [Mr Nick Bouras’s daughter and the business manager of the defendant] and myself dated 18 August 2017 enclosing tax invoice 245 dated 18 August 2017 and the works progress sheet. The invoice is a progress claim 1 for St Patrick’s Green. It is not charged on an hourly rate but on a fixed price basis. The invoice is for the contract services work which fell within the scope of works as set out in my email of 14 August 2017.

26. The works progress sheet verifies percentages and areas of the contract’s scope of works that had been completed by the plaintiff for that period in support of its progress claim. It is only relevant to a contract on a fixed price basis.

27. On or about 19 August 2017 I had a telephone conversation with Irek in relation to invoice 245. To the best of my recollection we had a discussion to the following effect:

Makrys: ‘Irek, I received your invoice, please update and issue a revised invoice when you walk the site in detail and properly assess exactly what has been completed. This will work to your favour as you’ll probably be able to up the amount by the time you do this.’

Irek: ‘No problem. I’ve received payment for the day works invoice anyhow so I am okay.’”

22. The only problem is that, as I have already recounted, the day labour invoice was not paid until 24 August 2017. Therefore, Irek could not have said what is attributed to him if the conversation deposed to by Philip occurred on or about 19 August 2017. That day was a Saturday. 24 August 2017 was a Thursday. It might only have been said if the conversation to which Philip deposed happened on 26 August 2017. However, I do know that on Saturday 26 August 2017 at 11.25am Philip sent to Irek an email, the substance of which is this:

“Please forward me your final costing for this so I know contract value. I gave you the budget but I know you had to make some more add ons with the sanding and the stuffing around so please send this through next week.”

The first line of that email, which I have omitted, refers to an attachment which counsel are agreed refers to nothing because nothing was attached to the email. According to [28] of Philip’s affidavit, the request was for a “new contract figure to factor in minor additional works”. On 29 August 2017 at 22.26 Irek sent an email to Philip. It says this:

“I did calculation and checked how many hours we need to finish off St Patrick’s job. If my calculation is correct we can lose money when we take this job but please check my calculation and watch working hours maybe I did mistake maybe my work progress calculation is wrong I do not know.

But I know my boys and I know they working so I think someone lost too much time before us.

Philip if you find any exit from this situation please let me know.”

I have corrected some obvious misspellings in that email from Irek. It should be clear that Irek’s first language is not English but Polish. Annexed to that email were two attachments, one of which was called “St Patrick Work Progress” and another was “Work Hours at St Patrick”. The first document shows completion of 13.24% on building 1, no completion of any work on building 2, completion of 78% of the work on the ground level of building 3 but no other completed works on building 3. The other annexure is a spreadsheet, which was so small I could not read it. A full copy of it is exhibit C. It seems to show that 699 hours of work had been done, which, calculated at the rate of $35 per hour, the rate that was actually paid by the plaintiff to its subcontractors, amounted to $24,465, but the percentage of works completed was only 13.24%, which amounted to $15,623. However, 13.24% of $170,000 is $22,508. Exactly what exhibit C shows has not been adequately explained.

23. On 30 August 2017 at 7.32 there was an email from Philip to the plaintiff. It was this:

“Work out your total lump sum for the contract of St Patrick’s Green all together because there is another variation I have for you there. We will agree a total figure for the job. I gave you the budget but had to increase it for the extra sanding and delays you’ve had so work all of this out and let me know.”

According to Irek, he had a conversation with Philip after receiving Philip’s email to this effect:

“Me: ‘If you want me to take this as contract, you have to give me $330,000 plus GST and plus variation.’

Philip: ‘I will work [it] out.’”

He also deposes to this conversation with Philip on 30 August 2017:

“Philip: ‘Hi, Irek. I need to finish this job. Please help us. Do not worry about the payments. I will talk to Nick [Bouras, the managing director of Fine Touch…] and we work it out. If you help me Nick will appreciate it. The contract it’s very good price it’s very good.’”

In the following paragraph that appears in the affidavit, Irek explained what he thought was happening and then said this:

“Me: ‘No, Philip only hourly rate, so, $40 per hour and we can work because your offer is too low. We can help you only on a per hour rate.’

Philip: ‘Okay I will work [it] out.’”

24. What is deposed to by Philip is very different. [30] of Philip’s affidavit is this:

“I refer to paragraph 28 of Irek’s affidavit. The conversation at paragraph 28 did not occur. I did not ever have a conversation with Irek or Matthew in which I agreed that the defendant would pay the plaintiff $330,000 plus GST plus variation for St Patrick Green project. After receiving the email on 29 August 2017 I have a telephone conversation with Irek which to the best of my recollection was to the following effect:

Makrys: ‘I have your contract sum of $170,000 as agreed. I can go up slightly to cover you for these extra bits and pieces and I can give you the church next door variation.’

Irek: ‘Thank you.’”

25. The further job to which Philip was referring in that part of his affidavit was not a job in the church next door but in the adjoining presbytery. On 31 August 2017 an email was sent by the defendant to the plaintiff attaching a price and photographs for the painting of the presbytery at St Patrick’s. It enclosed a letter from Fine Touch to Brookfield Multiplex Constructions Pty Ltd for the work to be done at the presbytery, which carried an estimated total cost at $19,500 plus GST with an option for painting of the front fence and gates for $1,500.

26. On Friday 1 September 2017 Matthew sent an email to the defendant concerning a number of jobs that the plaintiff was doing for the defendant. About the St Patrick’s Green work this was said by Matthew:

“As per inspection of the site today with you Philip, there is a lot of stuff which needs to be done for us, as door frames, window frames, wall patches, etc. We cannot give you lump sum for this project through the fact that we have discussed today on site I was to minimising any confusion and misunderstanding on this job and to keep quality and follow the program to do this per $40 per hour rate per painter.”

On the defendant’s argument, this was backsliding by Matthew to avoid a contract that his father had made with the defendant on 15 August. The problem with that is that, on 15 September 2017 at five minutes past midnight, the plaintiff sent to the defendant tax invoice number 269, which bears date 14 September 2017. That claims a first progress payment of $56,100 inclusive of GST. $56,100 is exactly 30% of $187,000, which is, of course, $170,000 plus GST of $17,000. This, I am asked to accept, was merely fortuitous and what was, in fact, being billed was a lump sum for a number of days worked by painters provided by the plaintiff to the defendant on a daily hire basis. I cannot accept that.

27. However, the plaintiff, in particular through Matthew, says that this is an arrangement that was asked for by Philip, with which they were happy to comply. That invoice was paid by the defendant by cheque on 14 September 2017, according to [64] of Philip’s affidavit. This “complication” is compounded by the fact that a further invoice was sent by the plaintiff to the defendant under cover of an email dated 3 October 2017 at three minutes past midnight. The invoice sent is dated 2 October 2017 and is numbered 281 and is headed “Progress Payment” and claims $74,800 inclusive of GST, which is exactly 40% of $187,000. These two documents are powerful evidence of an acceptance by the plaintiff that they were working on an agreed price contract of $187,000 inclusive of GST. The exact sum of $74,800 was never actually paid by the defendant to the plaintiff but there were a number of payments made after the contract was completed, the contract between the plaintiff and the defendant ending on 2 November 2017. Payments were, in fact, made on 9 November, 4 December and 21 December 2017.

28. Returning to the question of the payment by the defendant of the invoice numbered 269, I have found in the court book at p 123 a copy of a cheque drawn by the defendant on the Delphi Bank, which bears the date of 14 September 2017 for the sum contained in invoice 269 and signed by Mr Bouras. On it has been endorsed in someone’s hand two things. On the one hand is written “SPG third to be sent inc. GST equals 56,100.” In someone else’s hand below that are written the words “Contract $170k plus GST.” At p 124 of the court book there is an email which claims to attach the cheque, which I find to be rather odd.

29. I now need to return to further factual disputes. [34] of Philip’s affidavit contains this matter:

“On 1 September 2017 I had a telephone conversation with Irek in relation to Matthew’s email of 1 September 2017. To the best of my recollection we had a discussion to the following effect:

Makrys: ‘Irek, what’s this rubbish about not able to do the job for a lump sum. We already have a deal for $170,000.’

Irek: ‘Don’t worry about Matthew’s email Philip he is still young and learning. He doesn’t understand sometimes we need to compromise and help each other out but I told him “Philip will look after us with other jobs anyway”.’”

That conversation is denied by Irek and that denial can be found at [8] of Irek’s second affidavit affirmed on 26 August 2020, which is exhibit A2.

30. I return now to the issue about invoice 269. Philip’s affidavit contains this matter:

“38. On 14 September 2017, Irek came to the defendant’s office in Alexandria to pick up forms to drop off to the union head office in Lidcombe…We had a chat about various projects. To the best of my recollection, I had discussion [about] St Patrick’s Green to the following effect:

Irek: ‘We are looking for a contract payment for St Patrick’s Green.’

Makrys: ‘How much do you say is done?’

Irek: ‘I’d say we have done 35%.’

39. I then rang [defendant’s foreman on site] and the conversation then continued,

Makrys: ‘Phil says if I give you 30% you’re in front big time because there is defects and whatnot that has not been included.’

Irek: ‘Okay that’s fine let’s go with 30%.’

Makrys: ‘Okay so that’s 30% of $170,000 plus GST which is $56,100 including GST.’

40. Brigitte then wrote out a cheque for $56,100 which I handed to Irek at the meeting. The conversation continued:

Makrys: ‘Can you issue me the invoice for this straight away?’”

Clearly, the invoice issued after the cheque had been handed over. It may be that the cheque was signed by Brigitte. I can work out the surname, Bouras, but the initial is unclear.

31. On or about 15 October 2017, according to Philip’s affidavit, he had a telephone discussion with Irek about the price for the contract services. To the best of his recollection this was the conversation:

“Makrys: ‘I acknowledge that St Patrick’s Green project has been tight financially for you. But I can give you the substation at Homebush and I will make sure that I will look after you on the final figure at Cessnock. Also I’m tendering on a job at Point Piper that I can give you if I win that tender.’

Irek: ‘Okay, no problems.’”

In his affidavit in reply Irek said this:

“the conversation between Philip and I took place on 15 October 2017 but not in the terms described by him but in words to the following effect:

Philip: ‘Do any of your boys have a licence to operate boom lift of over 11 metres tall? If so, I can give you an extra contract at Homebush substation.’

Me: ‘Yeah, I can do this. I’ll take one boy from York Street and he can do the work.’

Philip: ‘Okay, when can you start?’

Me: ‘Whenever you are ready for us.’

Philip: ‘Okay, I’ll let you know when I agree with the substation management.’

Me: ‘Let me know what we have to do and how much you can pay for this?’

Philip: ‘I’ll give you the address. My budget for this is $8,000.’”

In a following subparagraph of his affidavit Irek deposed to living near Homebush at that point of time and, therefore, he drove past the substation to look at the site from outside. Clearly what Irek remembers is more detailed than what Philip remembers but the important point is that Philip was offering the plaintiff more work, work which the plaintiff was happy to accept. This, of course, is consistent with each of the parties wishing to retain an amicable working relationship, with give and take. Sometimes a budget might be tight; sometimes a loss was possible; other times a profit might easily be made.

32. On 30 October 2017 at 22.50 an email was sent by Yola to both Brigitte Bouras and Philip Makrys, attaching an invoice and a timesheet for the job at St Patrick’s Green. The invoice is dated 30 October 2017 and is numbered 300. It is headed, relevantly, “Progress Claim”. There was also a claim made in it for insurance premiums but that claim is irrelevant and is no longer an issue between the parties. The price of the claim is $180,654.41 plus GST of $18,065.44, making a total of $198,719.90. It would appear that the documents accompanying the invoice are pp 133 and 134, which in larger size are pp 137 and 137A of the court book, and show totals of all hours worked since between 10 August 2017 and 25 October 2017 by a large number of different workers. The total number of hours is tallied at 7,551 hours.

33. One attachment is on p 136 of the court book. That shows invoice numbers 245, 269, 281 and 300. Invoice 281 concerns an insurance premium. As to invoice 245, it was for $5,440 and said “Not paid yet”. Invoice 245 is the one that the defendant says was superseded by invoice number 269 dated 14 September 2017. Of invoice 269 it is said that $1,000 had been paid and of invoice 300 it is said that $180,654.41 had not yet been paid. That is the figure only made in the progress claim before GST was added. This appears to be some sort of tally of outstanding moneys. Other documents attached to this appear to relate to claims made upon the plaintiff by its subcontractors.

32. Philip maintains that, after receiving the invoice of 30 October 2017, he had a telephone conversation with Irek. In his affidavit Philip said this:

“46. On or about 31 October 2017 after receiving invoice 300, I had a telephone discussion with Irek. To the best of my recollection we had a conversation to the following effect:

Makrys: ‘Irek, Yola has sent through invoice 300 which is on a time basis. On top of it you have charged your insurances. Are you aware of this?’

Irek: ‘She probably wanted just to show you what the charges could have been if the works were done on an hourly rate. I will check and call you back.’

Makrys: ‘Irek are you for real. Go and get stuffed. We have almost finished the job and now an invoice with hours has been populated[sic, scil. ? proposed]. Come to the office to sort this out. And keep in mind I just gave you the church variation for the church next door and the substation at Homebush. You guys have put in this bogus invoice because you are angry about the visa issue with Rafa at Cessnock.’

Irek: ‘I will come in.’”

This conversation is denied by Irek in his second affidavit affirmed on 26 August 2020 at [15].

35. It is common ground that invoice number 300 was never paid. It is also common ground, as I have already stated, that work was completed by the plaintiff on 2 November 2017. Both Irek and Matthew deposed to a meeting at the office of Fine Touch on 4 December 2017. According to Irek’s affidavit of 2 June 2020 this was the conversation:

“Nick: ‘We don’t have money. We have lost money on this. If you sign this deed, I can give you an extra $40,000 in the next project.’

Me: ‘Okay, give me $40,000 now, and I can hit(?) without signing the deed.’

Nick: ‘No…’

Me: ‘What about the money we’ve paid for the boys?’

Nick: ‘This is your problem that you paid people from your pocket and I don’t care about it, we do not have money because Multiplex does not pay us.’”

That is, in fact, the last paragraph of the affidavit of Mr Kaminski’s affidavit of 2 June 2020 which was read in these proceedings. Matthew’s affidavit contains this matter:

“34. On 2 November 2017, Irek and I met with Philip and Nick Bouras…to discuss an outstanding payment owed to MBS totalling over $600,000 across a number of jobs we had with Fine Touch. The meeting took place at Fine Touch office at Alexandria. At the meeting, a conversation took place where words to the following effect were spoken:

Philip: ‘Irek, can you work out a figure that is going to help us out’

Nick: ‘We cannot pay you the whole amount now as we are still waiting for money from Multiplex. If you can work out your final figure for the job as we lost massive money on the project and it will be appreciate if you can help us. I can promise that I can pay you $40,000 extra in the next project to partially cover the loss from this project.’”

In the following paragraph of his affidavit, Matthew said that he was surprised by what he had heard and the conversation continued where Irek said words to the effect of, “I can check what we can do.”

36. Philip deposes to having a telephone discussion with Matthew on 2 November 2017 but had no recollection of any meeting on that day at the defendant’s office in Alexandria. According to Philip the conversation was this:

“Makrys: ‘Matthew, I’m trying to close out all our projects. I want you guys to come in and give me your final figure for St Patrick’s and Cessnock so we close it out for good.’

Matthew: ‘I will speak with my dad and put a figure to you to help you out. Look, I will have a look at it and take some of my margins off my contract.’”

On 2 November 2017 an email was sent by Matthew to Philip. That email can be found on p 195 of the court book. The email greets Philip with, “Hi”. It continues thus:

“I hope you well.

So I have done all calculation and checked that how I can work it out for help you best I can. This is the outcome.

As per previous document equals 258,094.41$.

We will [be] able to deduct: -52,886.5$ (to help you out).

We need to receive 205,207.91$.

Plus the last invoice from our guys which worked for you on site 11,690$ plus GST we can show you invoice if required.

Total equals 216,897.91$ plus GST.

Thank you.”

A further email was sent by Matthew to Philip on 3 November 2017 at 12.55pm. It adjusted a figure to be $219,372.94 including GST. If my mathematics be correct, that means $199,429.99 before GST. It is unclear to me how that total was arrived at or what amendment was being made to it.

37. At 2.08pm on the same day Philip replied to the defendant in this fashion:

“I’ve had a quick chat with my dad and Nick regarding St Patrick’s and Cessnock figures. These are where the figures sit currently with them after endless discussions. St Patrick final figure $200,000 plus $19,500 (variation).”

The email then continues with a “final figure for Cessnock”, which I understand to be the figure for Cessnock gaol and then the email continues:

“We are currently apart on St Patrick’s by $49,153.50 because you included $7,054.41 in your overall revised figure.”

The email then continues with why they are apart on the Cessnock figure and then Philip sets out that he wanted to discuss the matter with Mr Nick Bouras on the following Monday and then he would contact Irek and/or Matthew after that. That email can be found at two places, at the foot of p 196 and also on p 197. The court book also contains an invoice sent on 12 November 2017 for work between 26 October and 2 November in the sum of $12,859 inclusive of GST. As I understand it, that was for work on the presbytery rather than for work on St Patrick’s Green itself.

38. It is common ground that on 4 December 2017 an amount of $55,000 was paid by the defendant to the plaintiff for work done on the St Patrick’s Green project. That, according to the final paragraph of Philip’s affidavit, was paid by cheque number 580353. That is confirmed at [47] of Matthew’s affidavit. The payment on 5 December 2017 is, in substance, the last matter referred to by Matthew in his primary affidavit. [48] refers to the work at the presbytery at St Patrick’s, which was a separate job. [50] of Matthew’s affidavit refers to a payment being made of $45,100 on 21 December 2017.

39. In Philip’s affidavit there is reference to a meeting on or about 14 December 2017. According to Philip, Irek and Matthew went to the defendant’s office at Alexandria. According to Philip, this was the conversation:

“Makrys: ‘We need to close off St Patrick’s Green. I’ve already offered to increase the contract price to $200,000.’

Irek: ‘That is not enough. It doesn’t cover invoice 304 for day labour.’

Makrys: ‘The most I can do is to increase it to 210,000 to cover that invoice as well. The contact started at $170,000 so I am being more than fair. Plus I gave you the church variation and the substation.’

Irek: ‘Okay $210,000 it is.’”

In the following paragraph of his affidavit, Philip deposes to summing up the situation with these words:

“I’ve already paid you $169,000 including GST so that leaves a balance of $41,000 excluding GST. Including GST it is $45,100.”

According to Philip, they then continued the discussion that was taking place in regard to other projects. According to Philip, the meeting ended when Irek said:

“I will work everything out and come to see you with my own settlement form.”

40. In his second affidavit of 26 August 2020, Irek said that this conversation “didn’t occur”. He gives four reasons. The first was that Philip sent a login and password details for the ACONEX system, which is a project management system used by Fine Touch. How that proves that the conversation did not take place is a mystery. The second reason given by Irek is that the conversation on 4 December 2017 referred to in his affidavit led him to believe that Fine Touch had no money because Multiplex was not paying them. However, there were still discussions between Brookfield Multiplex Constructions Pty Ltd and the defendant, which were finalised on 12 December 2017. A deed of release executed on behalf of the defendant in favour of Brookfield Multiplex Constructions Pty Ltd can be found at pp 203 and 204 of the court book and that showed an amount payable by Brookfield Multiplex Constructions Pty Ltd to the defendant of $163,869.45 from an overall balance due of $191,744.50, the difference being an amount of money retained by Brookfield Multiplex Constructions Pty Ltd of $27,875.05. That, of course, means that there is no substance in the second reason put forward by Irek. The third reason given by Irek is this:

“at points in time after 12 December 2017, Fine Touch would likely have received the final payment from the head contractor given a deed of release between Fine Touch and Multiplex signed in counterpart by Fine Touch on 12 December 2017.”

That is the point I have just made. The fourth reason put forward by Irek is this:

“Having checked the banking and accounting records, I say as at the date of swearing of this affidavit MBS has only been paid the sum of $185,900 (incl GST).”

However, as I understand it, an amount of $237,435 has actually been paid by the defendant as set out in [65] of Philip’s affidavit. In other words, what was put forward by Irek as reasons for proving that the conversation alleged by Philip to have occurred on or about 14 December 2017 are without any value. A second affidavit was affirmed by Matthew on 29 April 2021 but does not deal with this particular issue.

41. There was, it would appear now beyond doubt, a further meeting on 21 December 2017. Philip’s affidavit contains this:

“60. On 21 December 2017, Matthew and Irek came to a meeting with myself and Nick at the defendant’s offices to discuss the amounts payable to the plaintiff across multiple jobs including St Patrick’s Green. Matthew and Irek brought me then a summary of the amounts they claimed to be outstanding. At page 121 is a copy of the summary sheet that Matthew and Irek brought with them to the meeting. The amount that the plaintiff sought in settlement of the claim for St Patrick’s Green was $45,100.

61. During the meeting Irek or Matthew said words to the following effect:

‘The $45,100 for St Patrick’s Green is the agreed settlement amount from our meeting on 14 December 2017.’

62. At the meeting Nick wrote out and gave to Matthew a cheque for $45,100.”

According to [65] of Philip’s affidavit, the cheque for $45,100 was cheque number 580376.

42. This meeting is crucial as far as my determination is concerned. The document which, according to Philip, was taken by Irek and Matthew to this meeting can be found at p 52 of the court book and at p 209 of the court book and further copies are exhibits 4 and 5. I asked the parties to produce the original of that document. The defendant tendered exhibit 4 and exhibit 5. It is hard to tell which is the original but it appears to me to be likely that it is exhibit 5, which has some holes in the top left-hand corner, indicative of having been stapled at some stage to other documents. The important point is what has been written on exhibit 5 in red ink and there is also material in black ink and there has been circling in both black pen and blue highlighter.

43. Mr Bouras swore an affidavit on 14 August 2020. It is exhibit 2. That affidavit contains this matter:

“7. On 21 December 2017, Philip and I met with Matthew and Irek at our offices to discuss multiple subcontracts between the plaintiff and the defendant. I recall that Matthew and Irek brought with them a summary of the amounts they claimed to be outstanding. That summary included an amount of $45,100 for St Patrick’s Green. Annexed to this affidavit and marked with the letter ‘A’ is a copy of that summary. I do not recall that there was any substantive conversation about this payment as it reflected what had already been agreed.

8. I then signed and handed a cheque for $45,100 to Irek or Matthew.”

There is no dispute that such a cheque was, in fact, received by the plaintiff and banked.

44. In [18] of his affidavit of 26 August 2020 Irek said that the document, which is now exhibit 5, was not prepared by MBS, that is, by the plaintiff. As I understand it, that is also the position adopted by Matthew. Both Philip and Mr Bouras in cross-examination have averred, Philip on affirmation and Mr Bouras on oath, that the document was not theirs but was brought to the meeting by Matthew and Irek. There is no reason for me to disbelieve Mr Bouras. Nothing that he said in evidence appeared to me to be contentious, other than this very issue.

45. The cross-examination of Philip on this issue commences at p 107 line 3 of the transcript of 7 May 2021. That cross-examination convinced me that what was being said by Mr Makrys was truthful. In essence, he said why would he produce a document and then write matters on it if it was his document and what he wrote on it was inconsistent with what he had typed on it? His is completely acceptable evidence. When I look at the document, it appears to me that what Mr Makrys and Mr Bouras said is correct. I cannot accept what has been said on this issue by Irek and Matthew. I accept that they took to the meeting the document which is exhibit 5 and other copies of which I have pointed out are in evidence.

46. On the document is headed “Outstanding”. There are then three columns. The first column is headed “Description”, the second column is headed “Work”, and the third column is headed “Receivable”. Why would sums to be paid or payable by the defendant be described by the defendant as “Receivable”? That would be nonsense. Under the heading “Description”, most noted are “settlement attached”, but the evidence is that nothing was actually attached. Next to three of the eight items is an invoice number. The first work described is “Sussex St var”, which I take to be variations at the Sussex Street job. The amount that was “receivable” was $187,867.96. Written next to the heading “Work” are the initials “TBA”. Written near the amount receivable are the words “Contract paid varies only check now”. The next item is “Cessnock”. I believe that to be a reference to the Cessnock gaol job. Claimed as receivable was $28,579.30. Written next to that in red ink is “Approved pay”. The next work is described as “Infinity”. What was claimed to be receivable was $192,603.62. What is written in red ink is “Pay $180,000” then a word which appears to be “contract”. The next job is described as “Waterloo - storage”. That refers to invoice 309. The amount receivable was $940. Written next to that in red ink is “Pay”. The next work is described as “York Street” and in “Receivable” is written “$69,795”. Written next to that in round brackets in red are the words “Nil to give”. That may mean that the defendant had not received payment from the builder and, therefore, could not yet pay the plaintiff.

47. The next work is St Patrick. Claimed as receivable is $45,100. That has been circled in red and written next to it in red ink is the word “pay”. The next work is described as “Waterloo variation” and “Description” provides “Invoice 229”. The amount said to be receivable is $9229.00 and written next to that in red ink is “$6,229.00”. The next job listed is the presbytery job and reference is made to invoice 303, but nothing was said to be receivable and next to that has been written in red ink “Paid”, and that word has been circled with red ink. The matter endorsed on the foot of the document in black ink appears to be some problems with some of the work which relate to columns and is irrelevant.

48. After that meeting, an email was sent to Mr Bouras and Mr Makrys and signed “Yola and Irek”. That contains this matter:

“Subject: Agenda - Meeting discussion”,

Thank you for your time this afternoon this afternoon. And thank you very much for the payments. I would like to clarify some things that we discussed in the meeting. ‘Infinity’:

[omitted as irrelevant]

‘Sussex Street’:

[omitted as irrelevant]

‘York Street’:

[omitted as irrelevant]

If I missed anything, please let me know.

Have a nice rest of the week and lovely long weekend of Christmas time. See you in the mid of January to discuss next projects.

Thank you in advance for your cooperation with us and we wish that we will be liaising together in the future for the time in perspective.

Kind regards,”

Then follow, of course, the names Yola and Irek.

49. Looking at that I notice a page of the court book that I was asked to overlook or not to read, having yellow marked along its right-hand edge. It is strictly irrelevant but it does confirm that on 14 December 2017 there was a meeting attended by at least Matthew Kaminski at the office of the defendant at Alexandria. It is p 210 of the court book and it is addressed to Brigitte Bouras and says this:

“It was nice to see you today at your office. Please find attached the documents as requested.”

The documents as requested were a subcontractor’s statement and deed relating to the work that I have described as being the Cessnock Correctional Centre or Cessnock gaol job. And another document at p 212 describes it as the Hunter Correctional Centre, Cessnock. That means that it is correct that there was a meeting on 14 December at the defendant’s premises as deposed to by Philip. The claim made by the plaintiff in exhibit 5 for finalisation of the St Patrick’s Green work was $45,100 and that was paid. That is consistent with the conversation deposed to by Philip at the meeting that he says occurred on 14 December 2017 as set out at [56] to [58] of his affidavit.

50. I, therefore, must accept the evidence of Mr Philip Makrys over that of either Irek or Matthew Kaminski. Insofar as there is any inconsistency between the three gentlemen, I prefer the evidence of Mr Makrys. Accordingly, I accept that on 15 August 2017 an agreement was reached between the plaintiff and the defendant when Irek accepted the proposal of $170,000 plus GST as the basis of a fixed price contract. Clearly, there were variations agreed subsequently and concessions made by the defendant to increase the sum from time to time. The sum was only finalised after all work had been completed in the meeting that occurred on 14 December 2017 and, when that was agreed, the plaintiff put forward the outstanding sum of money of $45,100 at the meeting held on 21 December 2017 and accepted it.

51. In making those findings, I can understand the position subsequently put forward by the plaintiff. The plaintiff clearly made a loss on this contract but, as at Christmas 2017, had reached an accommodation which all felt to be satisfactory and, from what I described towards the beginning of these reasons, a cordial relationship existed between the plaintiff and defendant, at least until 28 November 2018. It would appear that the breaking down of the relationship between the plaintiff and defendant only occurred perhaps shortly before the commencement of these proceedings on 9 April 2020.

52. However, in theory, our law of contract is objectively determined. There must be offer, acceptance and consideration. Here, the offer was payment for doing painting works at the St Patrick’s Green site as a subcontractor to the defendant, which had entered into a contract for the painting work with the building contractor. A price was fixed for that work on 15 August 2016 and clearly governed the question of payment after 16 August 2017 as the payment on a day rate basis stopped when amended invoice 244 was paid. The parties approached the resolution of the question on 21 December 2017 as being an accord and satisfaction.

53. One can look at it in that way and, if one looks at the contract concluded on 15 August 2017, one can clearly see consideration moving from the defendant to the plaintiff to achieve that accord and satisfaction. However, I prefer to view the effect of the meeting of 14 December 2017 and 21 December 2017 as confirming the pre-existing relationship and allowing for variations and the defendant trying to reach further accommodation with the plaintiff.

54. Does anyone want any further reasons?

MAZZONE: No further reasons.

KNAP: No further reasons, no.

55. HIS HONOUR: I have enquired of the parties where any further reasons for judgment are required and none is so required. So those reasons I give judgment for the defendant against the plaintiff.

56. Is there any special order about costs sought?

MAZZONE: There’s no special order, your Honour.

HIS HONOUR: All right. Is that so, Mr Knap?

KNAP: Thank you, your Honour.

HIS HONOUR: I order the plaintiff to pay the defendant’s costs.

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Decision last updated: 01 September 2021