Modern Roofing Tasmania Pty Ltd v Dunkley
[1988] TASSC 100
•7 October 1988
Serial No B 32/1988
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Modern Roofing Tasmania Pty Ltd v Dunkley [1988] TASSC 100; B32/1988
PARTIES: MODERN ROOFING TASMANIA PTY LTD t/as
MASTERVIEW WINDOWS
v
DUNKLEY, KennethDUNKLEY, Dorothy Lillias
FILE NO/S: 155/1987
DELIVERED ON: 7 October 1988
JUDGMENT OF: Underwood J
Judgment Number: B32/1988
Number of paragraphs: 35
Serial No B 32/1988
List "B"
File No 155/1987
MODERN ROOFING TASMANIA PTY LTD
trading as MASTERVIEW WINDOWS
v
KENNETH DUNKLEY AND DOROTHY LILLIAS DUNKLEY
REASONS FOR JUDGMENT UNDERWOOD J
7 October 1988
This is a claim for damages for breach of contract.
The plaintiff company's business is (inter alia) the replacement of old windows with new aluminium ones. The first defendant owns and, with his wife the second defendant, lives in a two storey house at 30 Burnside Avenue, New Town. The ground floor is brick veneer and the upper storey built with artificial weatherboards. The defendants decided to remove the existing wooden windows and replace them with aluminium ones. They made contact with the plaintiff and, on the 13 May 1986, a Mr Johns who was a salesman for the plaintiff called at 30 Burnside Avenue and discussed the matter with the defendants. As a result of this discussion agreement was reached that the plaintiff would install eight aluminium windows in the upper storey, five aluminium windows on the ground floor, fit all the new windows with fly screens and install a sliding aluminium door at the rear of the house on the ground floor.
There was some conflict between the evidence of Mr Johns and the evidence given by the first defendant concerning the conversations which led to the making of a written contract to carry out the work. Generally, where there is conflict I prefer the evidence of the first defendant to that given by Mr Johns whose frequent recourse to the practice he ordinarily followed when negotiating contracts for the installation of aluminium windows bespoke a poor memory of the actual discussions.
On the 13 May 1986 Mr Johns took with him to Burnside Avenue a miniature sample of the type of window installed by the plaintiff. It was common ground that agreement was reached that the plaintiff company would remove the whole of the interior of each window, leave intact the stiles and architraves and in the aperture fit the new aluminium window. This process was referred to as a partial removal. The windows to be removed were vertical opening sash windows. It was also common ground that the replacement windows were also to be vertical opening sash windows. Two of the existing windows on the ground floor (referred to in the contract and the evidence as windows nos. 1 and 2) and one in the upper storey (no 13) were divided into three sections by two mullions. The two outside sections of these windows were sash opening and the centre section a single piece of glass. The width of the centre section was 1200 mm. and the each outside section 780 mm. There was discussion between Mr Johns and the defendants with respect to the colour of the proposed aluminium windows, their method of opening and their shape. I find that, although there was no specific reference to the spacing between the mullions in windows numbered 1, 2 and 13, the first defendant made it clear to Mr Johns that he wanted all the new windows to be the same as the existing windows except of course, that the construction would be aluminium.
Following this discussion, Mr Johns made approximate measurements of the apertures into which the new windows were to be fitted to enable him to calculate a contract price. He explained to the defendants that the precise measurements would be made by the tradesman who would install the windows. Mr Johns noted the measurements on a piece of paper. The parties then gathered round a table in the house at Burnside Avenue and Mr Johns completed one of the plaintiff's printed standard order forms. He calculated a price of $9,540.00 for the work. The defendants accepted this price and agreed that the work should proceed.
I reproduce below the face of the standard order form after completion by Mr Johns:
[Diagram]
On the reverse side the following printed conditions were set out:
"Conditions of Sale
1 The customer and the Company acknowledge that this agreement embodies the whole agreement between them and supersedes any and all oral and written negotiations and communications by or on behalf of any of them.
2 Any delivery date given is approximate only.
3 The Company shall not be obliged to perform or undertake any work, matter or thing not specifically mentioned in this order and agrees to undertake only that work described on the face hereof. Any extra work as shall be required to complete installation shall be additional cost to the customer.
4 If a claim is to be made to the Company it must be in writing and must be accompanied by an amount equal to 85% of the contract sum. The balance of 15% remaining to be paid may be retained by the customer until such claim is rectified or settled."
By letter dated 14 May 1986 the plaintiff wrote to the defendants accepting "your request to have work carried out by our Company at your premises in keeping with the details contained in our Order No. MW 0575."
The installation was carried out by a sub–contractor, Mr Harris. The plaintiff gave him a carbon copy of that part of the contract containing the measurements and diagrams. Mr Harris went to 30 Burnside Avenue and measured the windows to be replaced. These measurements he recorded on a form which was later handed to the manufacturer, Richards Aluminium. With respect to windows numbered 1, 2 and 13, this form disclosed the overall measurement of the window, and by diagram, showed that each was to be divided into three sections by two mullions with vertical opening sashes in the two outside sections only. No measurement was made or shown on the form of the width of any of the three sections. Mr Harris made his measurements without discussion with either of the defendants.
All the windows were manufactured and delivered to the site. As was discovered later, the width of the three sections in windows numbered 1, 2 and 13 differed from the existing windows in that each of the opening sections was 900 mm wide and the centre section 950 mm.
Mr Harris commenced installation of the windows and very soon there arose disputes between him and the first defendant with respect to the standard of his workmanship which necessitated the intervention of Mr Woods, the plaintiff's construction manager. Work proceeded over the course of a few days until all the upstairs aluminium windows were in position. The installation of the bathroom window was incomplete as a difficulty in finishing it off had arisen. All the other upstairs windows were finished and the matching aluminium flashings to the exterior architraves and sills fitted but the interior wooden reveals were not nailed down at the request of the first defendant who wished to sand them down and chamfer the edges to improve the finish.
Mr Harris then proceeded to remove window number 1 on the ground floor and insert its aluminium replacement. As soon as this was done, the first defendant noticed that the width of the three sections in that window, window number 2 and window number 13 in the upper storey was not the same as the original windows. He immediately complained about this. There was a dispute on the evidence about what then transpired. On this matter I rely upon the evidence of Mr Woods who demonstrated a reliable and accurate memory of what occurred.
Mr Woods was summoned to the site as a result of the first defendant's complaint about the positioning of the mullions. I find that when the first defendant made his complaint known to Mr Woods the latter pointed out that the order form (the contract) did not specify the width of any of the three sections. The first defendant complained that the new windows altered the appearance of his house and that he had told Mr Johns that he wanted the new windows to be the same as the old ones. He demanded that the plaintiff replace windows numbered 1, 2 and 13 with windows divided into three sections identical in width to the old windows. In the course of this discussion the first defendant offered, as a compromise, to accept window numbered 13 but maintained that those numbered 1 and 2 must be changed. At this stage, in addition to finishing the bathroom window and rectifying some acknowledged faulty workmanship, there remained four windows and a sliding door to be installed before the contract work was complete. Mr Woods said he told the first defendant that he could not authorise the replacement of windows numbered 1 and 2 and that the matter would have to be referred to the manager. He said that, "there was a mutual agreement that no further work would be done [on the windows] until we'd sorted it out."
I find that the first defendant suggested to Mr Harris that he could fill in the rest of that working day by installing the sliding door but, for a reason which is not clear, that was not done and the workmen left the site. No further work was done by the plaintiff pursuant to the contract, and no money was paid by the defendants.
Eventually, in 1988, the first defendant engaged another tradesman, Mr Baier. He arranged for the manufacture of replacement windows 1 and 2 divided into three sections of identical width to the original windows. Mr Baier installed these and the remaining windows on the ground floor, the first defendant having himself installed the sliding door at some earlier time. Mr Baier also inspected the upstairs windows installed by Mr Harris and formed the opinion that they had not been installed in a good and workmanlike manner. Each of these windows and the aluminium flashings to the sills and architraves were removed and replaced at the expense of the first named defendant. The cost of all this work was the subject of a counter–claim for damages for breach of an implied term that the plaintiff would perform the contract in a good and workmanlike manner.
After work was suspended, the first defendant spoke on the telephone to the then manager of the plaintiff company but his evidence as to what was said is unclear except that the plaintiff's manager spoke of referring the matter to solicitors.
On the 1 August 1986 the plaintiff's solicitor wrote to the defendants' then solicitor in the following terms:
"I advise that I act for Modern Roofing (Tasmania) Pty Ltd trading as Masterview Windows.
I am instructed that Mr Kenneth Dunkley ordered windows to be installed at his residence for the sum of $9,540.00.
I am further instructed that windows were manufactured, delivered and installed to the value of $9,235.00 and your client has refused to permit my client to complete the work.
I understand that you act for Mr Dunkley and advise that I am instructed to take legal action to recover the sum of $9,235.00 unless Mr Dunkley agrees to pay the same within 21 days of the date hereof."
On the 4 August 1986 the defendants' solicitor replied at length detailing complaints about the standard of workmanship and referred to windows numbered 1, 2 and 13 in the following terms:
"Your clients are aware that the two front windows were to be the same size as the original windows. Your clients, for some unknown reason, have elected to install windows of different dimension. [sic] My clients had already ordered new blinds and awnings to match the windows and of course, the windows installed by your clients do not match the original internal dimensions. I believe this matter can be settled in early course provided your clients are prepared to make good their faulty workmanship and install the front windows on the original agreed dimensions. My clients are prepared to agree to leave the large rear window as it is (despite the fact that it is not the correct size).
Would you please advise me whether your client is prepared to complete his obligations."
On the 15 August 1986 the plaintiff's solicitor replied as follows:
"I refer to your letter of the 4 August 1986 and advise that I am instructed that Mr Dunkley ordered replacement windows of the same overall dimensions as his existing windows and did not give any special instructions to maintain the original internal dimensions of the windows.
I am further instructed that your client instructed my client's tradesmen to cease work. However, my client is willing to complete the work on the windows if your client will permit them to do so.
I enclose herewith a photocopy of the agreement signed by Mr Dunkley.
Please note that it contains details of the windows to be replaced.
I advise that, if your client continues to refuse to allow my client to complete the installation of the windows, I am instructed to proceed to take legal action in this matter."
There was admitted into evidence a series of letters from the plaintiff's solicitor to the defendants' solicitor written between the 3 September 1986 and the 3 February 1987. From all this correspondence I infer:–
1That the first defendant maintained throughout that it was a term of the agreement that the width of the three sections of windows numbered 1, 2 and 13 were to be the same as those they were to replace.
2 That, with respect to the work done, it was below standard and required rectification.
3That, if the plaintiff accepted the first point and agreed to replace windows numbered 1 and 2 the first defendant would permit it to re–enter the property to complete the contract work but not otherwise.
4That the plaintiff maintained throughout that there was no term of the agreement with respect to the width of the sections of windows numbered 1, 2 and 13 and it would therefore not replace those aluminium windows and, if the defendant accepted this proposition, the plaintiff's agents would re–enter the property, make good any faulty workmanship and complete the contract.
The plaintiff claims:
1That there was an implied term of the agreement that the defendants would permit the plaintiff or its agents to enter on the property at all reasonable times to carry out the contract work.
2 That the defendants were in breach of that term.
3By reason of that breach the plaintiff has suffered damage namely, the contract price of $9,540 less certain set offs for work not done and the cost of rectifying faults.
4Alternatively, that the defendants repudiated the contract and the plaintiff accepted that repudiation.
There is no evidence to support the proposition that either the defendants repudiated the contract or that the plaintiff accepted any repudiation. It is clear from the correspondence between solicitors, which terminated approximately two weeks before the writ was issued, that both parties maintained the stance that the contract was still afoot and that there remained obligations which had to be performed.
With respect to the claim for damages for breach of the implied term the defendants submitted that:–
1 The second named defendant was not a party to the contract.
2 Although there was an implied term of the contract as claimed by the plaintiff, the defendants were not in breach thereof as permission was given to re–enter for the performance of work in accordance with the terms of the contract.
In the absence of repudiation and acceptance, it was common ground that, if the plaintiff failed to establish a breach of the implied term, the whole of the plaintiff's claim must fail as the terms of the contract entitled it to recover nothing until the whole of the agreed work had been carried out. See, Britain v Rossiter (1879) 11 QBD 123; Dakin v Lee [1916] 1 KBD 566; "Partial Performance of Contracts" (1941) 57 LQR 373 at 385 et seq.
It is necessary to construe the terms of the contract with respect to the manufacture and supply of windows numbered 1, 2 and 13. The parties reduced the terms of their contract to writing. The document was signed by the first defendant. Although he said he did not read it all, he had every opportunity to do so and is bound by its terms. See L'Estrange v Graucob [1934] 2 KBD 394. On the side that the first defendant signed there appears a reference to conditions on the back, the first of which provides that the written document embodies the whole agreement.
As a general rule, when parties reduce their agreement to writing, parol evidence to add to, alter or vary any of the terms thereof is inadmissible. See Goss v Nugent (1833) 5 B & Ad 58; Bank of Australasia v Palmer [1897] AC 540 at p. 545; O'Connor v. Hume [1954] 1 WLR 824. The terms of this contract make it clear that the parties intended that the whole of their bargain should be confined to the written document. This does not of course, of necessity, exclude all implied terms. See Heinmann v The Commonwealth (1938) 38 SRNSW 691 at 695; Bell v Lever Bros [1932] AC 161 at 226; Shirlaw v Southern Foundaries(1926) Ltd [1939] 2 KB 206 at 227.
It was an express term of the contract that windows numbered 1 and 2 would be approximately 1300 mm x 2800 mm overall and window number 13 1200 mm x 2800 mm. overall. By the diagram in the section headed "special instructions and house plan" it was a further term that each such window would be divided into three sections with vertical sash openings in each outer section. The document does not specify the width of each of those three sections.
The task is to construe the meaning of the term, expressed by the drawings, with respect to windows numbered 1,2 and 13. In doing so, evidence of the first defendant and Mr Johns as to their intention and understanding is inadmissible. The court must construe the meaning of the drawings from the document itself. This rule was expressed by Lord Wilberforce in L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 at 261 as follows:
"The general rule is that extrinsic evidence is not admissible for the construction of a written contract; the parties' intentions must be ascertained, on legal principles of construction, from the words they have used. It is one and the same principle which excludes evidence of statements, or actions, during negotiations, at the time of the contract, or subsequent to the contract, any of which to the lay mind might at first sight seem to be proper to receive."
However, in Prenn v Simmonds [1971] 1 WLR 1381 his Lordship said at 1383 and 1384:
"The time has long passed when agreements, even those under seal, were isolated from the matrix of facts in which they were set and interpreted purely on internal linguistic considerations. There is no need to appeal here to any modern, anti–literal, tendencies, for Lord Blackburn's well known judgment River Weir Commissioners v. Adamson (1877) 2 A.C. 743, 763 provides ample warrant for a liberal approach. We must, as he said, enquire beyond the language and see what the circumstances were with reference to which the words were used, and the object, appearing from those circumstances which the person using them had in view. Moreover, at any rate since 1859 (Macdonald v. Longbottom 1 E. & E. 977) it has been clear enough that evidence of mutually known facts may be admitted to identify the meaning of a descriptive term."
In the present case, the drawings are ambiguous to the extent that they do not specify the position of the mullions in windows numbered 1, 2 and 13 and consequently, the width of each of the three sections. In this circumstance it is permissible to have resort to the "matrix of facts" in which the term is set. In Godelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Mason J said at 352:
"The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible to more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although as we have seen, if the facts are notorious knowledge of them will be presumed."
The matrix of facts in the present case is that the new windows were to replace and be the same as the old ones except that their construction was to be aluminium. The specified overall size and manner of opening of the new windows was identical to the old windows and the inference is plain that, by the drawings of windows numbered 1, 2 and 13, which showed the existence of two mullions, the parties intended that these mullions be placed in the same position as they were in the windows which they were to replace. It is inconceivable that the parties intended that the width of the three sections was a matter of no consequence and something which could be left to the discretion of the manufacturer.
Windows numbered 1, 2 and 13 were not manufactured in accordance with the terms of the contract and the first defendant was entitled to reject them. The implied term, breach of which the plaintiff relies upon as sustaining its cause of action, was to permit entry to the house at all reasonable times to perform work in accordance with the terms of the contract. The correspondence I have referred to makes it clear that the plaintiff sought re–entry to do work other than in accordance with the terms of the contract, namely the installation of windows of a size and construction other than that agreed to, and accordingly, the defendants' refusal to permit re–entry for that purpose was not a breach of the implied term.
It is unnecessary to embark upon a consideration of the counter–claim for damages as the quantum of the claim was less than the contract price of $9,540.00.
With respect to the contracting parties I find that the second defendant was not a party to the contract. Although the document is headed "Customers Mr and Mrs K Dunkley, Address 30 Burnside Avenue, New Town, Phone 283597" I find that that information was inserted by Mr Johns without express or implied authorisation from either defendant. Only the first defendant signed the document and accordingly, the second defendant can only become a party to the contract if the first defendant signed as agent for his wife and in doing so, he had her authority, actual or apparent. See Chitty on Contracts 25th ed para 2247 et seq. In evidence, the first defendant said that he did not sign as agent for his wife. He said that he was the sole owner of the house and that he alone was a party to the contract. The second defendant did not give evidence. Although I am satisfied that the second defendant played an equal part in the discussion with Mr Johns concerning the selection of the style and colour of windows to be installed she did not thereby expressly or inferentially represent that the first defendant was signing the contract in part as her agent or that she was a party to the agreement.
For these reasons there will be judgment for the defendants against the plaintiff.
0
1
0