Nurkic v J-CORP Pty Ltd
[2008] WADC 159
•24 OCTOBER 2008
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: NURKIC & ANOR -v- J-CORP PTY LTD [2008] WADC 159
CORAM: STEVENSON DCJ
HEARD: 1-9, 18 APRIL 2008
DELIVERED : 24 OCTOBER 2008
FILE NO/S: CIV 784 of 2006
BETWEEN: ABDULLAH NURKIC
IRENA NURKIC
PlaintiffsAND
J-CORP PTY LTD
Defendant
Catchwords:
Contract - Lump sum building contract - Domestic home - Notice of price increase - Works did not commence - Interpretation of contract - Repudiation of contract by builder - Whether plaintiffs elected to exercise contractual right of termination - Plaintiffs built with another builder - Did the plaintiffs fail to mitigate their loss - Assessment of damages
Legislation:
Local Government (Miscellaneous Provisions) Act 1960 (WA)
Supreme Court Act 1935
Result:
Judgment for the plaintiffs in the sum of $91,989.52 plus interest to be calculated
Representation:
Counsel:
Plaintiffs: Mr M D Cuerden
Defendant: Mr G M Abbott
Solicitors:
Plaintiffs: Bruce Havilah & Associates
Defendant: Hotchkin Hanly
Case(s) referred to in judgment(s):
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452
Bellgrove v Eldridge (1954) 90 CLR 613
Browne v Dunn (1893) 6 R 67
Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653
Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd (2008) 244 ALR 1; [2008] HCA 10
Hadley v Baxendale (1854) 9 Exch 341
Livingstone v Rawyards Coal Company (1880) 5 App Cas 25
Luxer Holdings Pty Ltd v Glentham Pty Ltd (2007) 35 WAR 254
Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1991) 33 FCR 1
Ridge v BGC Construction Pty Ltd [2007] WADC 117
Robinson v Harman (1848) 1 Exch 850
Sacher Investments Pty Ltd v Forma Stereo Consultants Pty Ltd [1976] 1 NSWLR 5
Shevill v Builders Licensing Board (1982) 149 CLR 620
Waters Lane Pty Ltd v Sweeney [2007] NSWCA 200
Wiltrading (WA) Pty Ltd v Lumley General Insurance Ltd (2005) 30 WAR 290
STEVENSON DCJ:
Introduction
The plaintiffs are the registered proprietors of Lot 15 (60C) Glenelg Street, Applecross ("the Site").
On 17 June 2005 the plaintiffs entered into a lump sum contract with the defendant, whereby the defendant agreed to build a family home for the plaintiffs on the Site ("the Works"), in consideration for a contract price of $238,138 ("the Contract Price") in accordance with the terms and conditions of the Contract ("the Contract").
However, prior to the defendant commencing the Works on the Site it issued a notice of price increase to the plaintiffs dated 14 September 2005 for the sum of $16,670. As a result of the notice of price increase the contract did not proceed and instead both parties sued each other for their claimed legal entitlements.
The issues for determination include:
(a)was the defendant entitled to amend the Contract Price by issuing the notice of price increase to the plaintiffs;
(b)if not, were the plaintiffs entitled to terminate the contract;
(c)if so, what is the proper measure of the plaintiffs' loss;
(d)did the plaintiffs fail to mitigate their loss;
(e)did the plaintiffs lawfully elect to terminate the contract; and
(f)if so, what is the defendant's contractual measure of damages.
The pleadings, as is often the case, raised a number of issues which were either abandoned at trial or not relied upon. Various amendments to the pleadings were therefore made in the course of the trial to clarify the real issues between the parties. The parties also, in view of the substantial factual material, agreed an amended chronology dated 22 April 2008 which was filed after the parties' written closing submissions and with the benefit of the transcript. The chronology, which has been partly amended to refer to the relevant facts, is attached as Annexure A as an aide‑mémoire to assist the reader to understand these reasons for decision.
In summary, after the events which caused the Contract not to proceed, the plaintiffs engaged another builder to build a home on the Site. By these proceedings, they seek to recover the additional costs of building at a later time from the defendant, on the basis that the defendant repudiated the Contract by seeking to impose a price increase. The plaintiffs also seek to recover associated loss and damage arising out of the delay caused by the Contract being terminated. The defendant by its counterclaim seeks to recover from the plaintiffs its loss for work done on the basis that the plaintiffs elected to exercise a contractual right to terminate the contract.
The lump sum building contract
The contract used by the parties was the Housing Industry Association Limited lump sum building contract (Form 8B – November 2001). The relevant provisions are as follows:
"1. AGREEMENT TO BUILD
(a)The Builder agrees to execute and complete for the Owner the building work described in Item 3 of the Schedule ('the Works') upon the land and existing improvements described in Item 3 of the Schedule ('the Site') in a proper and workmanlike manner and in accordance with this Contract and the drawings, plans and specifications (inclusive of all addenda and colour schedules) agreed between the parties and annexed hereto and for the purpose of identification signed by each of them (which said drawings, plans and specifications and colour schedules are hereinafter collectively referred to as the 'Construction Documents') for the price and otherwise upon the terms and conditions herein appearing.
…
4.THE PRICE
(a)The price for the Works shall be the amount set out in Item 6 of the Schedule which shall be subject to the adjustments herein provided for. The price so adjusted shall hereinafter be called the 'Contract Price'.
(b)Should the Builder be unable to commence the Works within the period shown in Item 6 from the execution of the Construction Documents due to delays outside the Builder's control as specified in Clause 7(a) hereof the Builder shall be entitled to amend the Contract Price prior to the commencement of construction of the Works in relation to the cost of materials and labour to be supplied to complete the Works together with that additional percentage cost set out in Item 11.
The Builder shall notify the Owner in writing of the amended Contract Price prior to the commencement of construction of the Works.
(c)The Owner shall be entitled upon receipt of a notice issued by the Builder pursuant to Clause 4(b) to terminate the Contract by written notice to the Builder within TEN (10) days of receipt of such notice and provided the Owner pays the Builder in accordance with Clause 13(c) of the Contract.
…
7.TIME FOR PERFORMANCE
(a)Subject to this Contract the Builder shall commence the Works by the time specified in Item 9 of the Schedule or as soon thereafter as may be reasonably practicable and shall proceed therewith with reasonable despatch and diligence and reach Practical Completion within the time specified in Item 9 of the Schedule, PROVIDED THAT:
(i)the Owner shall have complied with any notice given by the Builder pursuant to Clause 2(c) hereof;
(ii)the Builder is satisfied that the boundaries of the Site have been adequately delineated;
(iii)provision has been made for adequate water supply to the Site; and
(iv)the Builder has received approval to the Construction Documents from all relevant authorities.
(b)Notwithstanding provisions to the contrary contained in this Contract the Builder shall not be responsible for any delays caused by any matter or thing over which the Builder shall have no control including (without limiting the generality thereof): -
(i)…;
(ii)any alterations to the Construction Documents resulting in alterations to the Works;
(iii)any instruction or delay of instruction by or any omission of the Owner;
(iv)…;
(v)…;
(vi)…;
(vii)any cessation of work pursuant to Clause 13;
(viii)any delay in the commencement or continuance with the Works, caused by or resulting from an order or directive of a relevant authority; or
(ix)any delay caused by proper investigation of any of the above by the Builder or the Owner.
(c)Upon the happening of any of the events aforesaid the Builder may notify the Owner thereof and shall be entitled to such extension or extensions of time for completion of the Works as shall in the circumstances be reasonable and if there shall be any dispute the provisions of Clause 16 shall apply. Extra costs necessarily incurred by the Builder by reason of an extension of time shall be paid for by the Owner but only if the extension of time was due to a breach of the provisions of this Contract by the Owner or an act or omission on the part of the Owner.
…
15.EVENTS ALLOWING OWNER TO TERMINATE
The Owner may, in addition to any other rights under this Contract, terminate this Contract in any of the following events:
(a)any substantial breach of this Contract by the Builder.
…." (Emphasis added)
The evidence of the witnesses
(a) Irena Nurkic
Mrs Nurkic had carriage of the dealings with the defendant on behalf of her husband. They purchased the Site on 1 August 2004 for $278,000 with a loan of $150,000. Their intention was to build a family home for themselves. In September 2004 they visited various display homes to find a builder.
In early October 2004 Mrs Nurkic met a sales representative of the defendant, Mr Craig Marshall, at a display home. She told him that, because the Site was a small block, new plans would need to be prepared for the proposed two‑storey home. Mrs Nurkic also told Mr Marshall that they wanted to locate the house as far from Canning Highway as possible and to ensure that there were no windows, or minimal windows, facing Canning Highway to reduce the noise.
In late October 2004 Mr Marshall provided Mrs Nurkic with a hand‑drawn sketch of the proposed home. In early November 2004 Mrs Nurkic received a draft plan dated 1 November 2004 from the defendant. She then used baking paper to trace over the defendant's plans to indicate requested changes. This resulted in a further draft set of plans dated 2 December 2004 being prepared by the defendant and given to Mr and Mrs Nurkic in early December. Again using baking paper, Mrs Nurkic traced over the plans and indicated to Mr Marshall some requested changes. As a consequence the defendant prepared a further set of amended plans, also dated 2 December 2004 which were given to Mrs Nurkic in January 2005. These reflected her requested changes.
In January 2005 Mrs Nurkic prepared a consent form for the owners of the property at 60B Glenelg Street, Applecross. The form was signed by Mr and Mrs Ardestani on 16 January 2005 and they confirmed they did not object to the plaintiffs' proposed front setback or the building of a parapet wall on the border. Mrs Nurkic discussed the neighbours' consent with Mr Marshall on 30 March 2005 and told him that she had obtained consent from the owners of 60B Glenelg Street. Mr Marshall's response was that it had to be done on an official basis and that the defendant would attend to it.
On 16 February 2005 Mr and Mrs Nurkic signed a preparation of plans agreement with the defendant which was witnessed by Mr Marshall. On 21 February 2005 the plaintiffs paid a deposit of $2,200.
Mrs Nurkic confirmed she and her husband executed the contract on 14 June 2005. It is common ground that the contract is dated 17 June 2005, the date it was executed by the defendant. Also on 14 June 2005 Mr and Mrs Nurkic signed the addenda to the contract setting out the specifications for the home together with Structerre's certificate of inspection dated 3 March 2005 and the building plans dated 9 May 2005. Mr Marshall did not mention to Mrs Nurkic at the time that the defendant was having any difficulty in obtaining planning approval from the City of Melville.
At the meeting on 14 June 2005 Mrs Nurkic raised with Mr Marshall her concern that a number of the windows shown in the building plans were sliding windows and not awning windows as had been previously requested by the plaintiffs. Mrs Nurkic said she had asked from the outset for awning windows. On this occasion she was told by Mr Marshall that this detail could be changed at the pre-start meeting and she should raise the issue at that time. She said all the relevant windows were discussed. I infer from the evidence of Mrs Nurkic and find that Mr Marshall did not indicate to her that there would be any resultant delay to the approvals processes as a result of waiting to the pre‑start meeting to make the necessary amendments to the plans. Mrs Nurkic was not directly cross‑examined on this point. Later in the trial, her counsel indicated she was prepared to be re-called to deal with the windows dimension issue as it emerged as a part of the defendant's case, but the offer was not taken up.
On 14 July 2005 Mrs Nurkic met with the defendant's contract administrator, Ms Sue Helem, for the purpose of having the pre‑start meeting. By this time the plaintiffs had applied for and been granted finance.
Mrs Nurkic asked Ms Helem at the pre-start meeting to change the relevant sliding windows to awning windows and was told that this would cause a delay. Notwithstanding this, Mrs Nurkic said that on returning home she cut and paste the relevant windows on to the plans and caused the document to be faxed to the defendant. At the time she also asked to meet with Mr Bill Hughes, the defendant's general manager. She met with him and was told in response to her concern about delay that, because the issue had not been addressed previously, he would "look into the issue and get back to her". Mrs Nurkic caused a letter to be sent to the defendant dated 14 July 2005 by facsimile. In part the letter provided (which needs to be understood in the context of her evidence on the issue as a whole):
"Windows – please note we forgot to change upstairs bathroom window from existing sliding window (18x6 obsec.) to an awning window (15x5 obsec.).
We have been to our Council this afternoon, and we were told there should be no problems with awning windows,
except the following three that I'll change now:
•Sitting room upstairs window – I've asked you to centre it and make it a smaller awning – please make it now awning window 11x11 and centre it (this is more than sufficient for ventilation and light requirements)
•Bed 3 window – make it now awning window, obsecured (sic) glass with 11x8 dimensions
•Dining room – make it awning 6x11 (not 6x9.5 as I've told you this am).
With these changes to the windows, we were told, Council should not make any problems."
On 3 August 2005 Mrs Nurkic gave a letter dated 2 August 2005 to Mr Hughes. The letter was tendered to prove the fact of the communication and not as to the truth of its contents. The letter contained various allegations by the plaintiffs of "slow process" on the part of the defendant and complaints that although had been told that any issues would be dealt with at the pre-start meeting, at the time of the meeting they had been told that extra time would be required, e.g. in respect of the windows "even though we are not changing their size". Mrs Nurkic said Mr Hughes informed her, having looked at the defendant's records on his computer screen to check its status, that he would discuss the matter with Ms Helem. Mrs Nurkic said she did not receive a response from either Mr Hughes or Ms Helem in relation to the issues raised.
On 25 August 2005 Mrs Nurkic went to the City of Melville to inquire about progress. She was told the building licence had been approved so she went to the cashier and paid the outstanding amount of $279.02 with her credit card, so as to enable the licence to be released to the defendant to avoid any further delays.
The following day, Friday 26 August 2005, Mrs Nurkic advised Ms Helem that she had been to the City of Melville and had paid the amount due to enable the building licence to be released. However, Mrs Nurkic was informed by Ms Helem that she should not have done so, because the defendant was in the process of drawing a cheque to make this payment. At the time Ms Helem indicated to Mrs Nurkic that it took about five days for a cheque to be obtained using the defendant's accounting system.
Mrs Nurkic said she met with Mr Hughes on 3 September 2005 and and gave him copies of two letters she had written about their dealings with the defendant. The first concerned the plaintiffs' dealings with Ms Helem whom they met at the pre‑start interview on 14 July 2005. The letter is critical of the defendant and its handling of their file. The second letter also dated 3 September 2005 expressed "gratification" for the work Mr Marshall had done in helping the plaintiffs to "design and get closer to the home we want to build".
Mrs Nurkic said that Mr Hughes listened to her and, although he said he would speak to Ms Helem, he did not get back to her.
Mrs Nurkic said she received a contract variation (No 11) dated 5 September 2005 from the defendant on or about 11 September 2005. She was unable to recall whether she received the contract variation before she received the defendant's undated letter enclosing the final house plans. The final house plans sent to the plaintiffs by Ms Helem on or about 10 September 2005 was signed by the plaintiffs on 11 September 2005.
On 16 September 2005 Mrs Nurkic said she received the defendant's letter dated 14 September 2005 ("the price increase notice"). The letter was sent by post to the plaintiffs by Mr David Hansen, who was the defendant's contracts manager at the time. No prior oral notice to Mrs Nurkic of the sending of the letter was given by any of the defendant's representatives with whom she had been dealing. The price increase notice provided as follows:
"We are close to commencing construction of your home at the above address. Unfortunately, because of circumstances outside our control, we have been unable to commence construction within 45 working days from the date of the Contract (in this case, 16th August 2005). In the meantime, housing prices have increased substantially because of the demand in housing, which has led to increases in rates charged by tradesmen and in the costs of materials from suppliers.
Item 4(b) of your Contract states:
Should the Builder be unable to commence the Works within the period shown in item 9 (sic) (FORTY FIVE (45) working days) from the execution of the Construction Documents due to delays outside the Builder's control as specified in Clause 7(a) hereof the Builder shall be entitled to amend the Contract Price prior to the commencement of construction of the Works in relation to the cost of materials and labour to be supplied to complete the Works together with that additional percentage cost set out in Item 11.
The Builder shall notify the Owner in writing of the amended Contract Price prior to the commencement of construction of the Works.
Due to the delays, we have been unable to hold the price for you, and an increase of $16,670 has been assessed on your total Contract. We are mindful that when you entered into this Contract, you did so with a certain budget and that any cost increase may not have been taken into account. However, Perceptions will regrettably require you to contribute a further sum of $16,670 under Clause 4(b) of the Contract.
Would you please sign the attached Variation to Contract within ten (10) working days and return it to Sue Helem in the envelope provided. Failure to return the signed VO within the ten working days will result in a further increase being incurred.
Upon our receipt of the signed Variation, construction on your home will commence.
Please do not hesitate to contact me if you have any enquiries regarding this matter of 6451‑5500.
Yours sincerely
[Signed]
David Hansen
Contracts Manager."
Mrs Nurkic said she received the price increase notice on her return home from work on Friday, 16 September 2005. She telephoned Mr Hughes and Mr Hansen on Monday and Tuesday, 19 and 20 September 2005 and left messages for them to return her call. Mr Hansen called her on 20 September 2005 and she arranged to meet him on 21 September 2005. She said Mr Hansen made it plain to her that if she had "come to negotiate the price she should not have because it was non-negotiable". Mrs Nurkic took the opportunity to "put her case" to him as he had recently become involved. She said that in the course of their discussions Mr Hansen told her the delay had been caused because the building licence came after the 45 day working day period, that is, after 19 August 2005 (although at the time he was probably working on 16 August 2005 as noted on Exhibit 1.104). She asked him why the building licence application had been lodged "so late". Her evidence was that Mr Hansen said that the planning approval had not been issued until 26 July 2005. At the time he showed her the front page of the approval. This was the first occasion she became aware that the planning approval had not been received until 26 July 2005. She was "surprised" because she understood planning approval had been obtained in late March or early April 2005 and she asked why, if it had only been a conditional approval at that time, it had taken four months to obtain the unconditional planning approval.
Mrs Nurkic said that Mr Hansen left his office and after a few minutes returned and told her that he would "look into the issue and get back to her".
Mrs Nurkic gave her letter dated 21 September 2005 to Mr Mike Russell, the defendant's then general manager, to the receptionist when she met with Mr Hansen. She also provided copies of the letter to Mr Hansen and to Mr Hughes.
Mrs Nurkic's evidence‑in‑chief was that on 27 September 2005 Mr Hansen called her and said:
"There has been a small mistake on our part, a small delay. We will reduce the price increase from $16,670 to $14,000 something."
After this discussion Mrs Nurkic prepared and sent on 28 September 2005 the plaintiffs' letter dated 27 September 2005 to Mr Russell, and also copied it to Mr Hughes and Mr Hansen. She did not receive any reply and on about 5 October 2005 she called Mr Hansen to, first, confirm that he had received his copy of the letter and, secondly, in the hope that the defendant would be prepared to negotiate with them on the basis that it did not want to lose their custom. However, Mr Hansen confirmed receipt of the letter and no offer of reconsideration or willingness to negotiate to keep the contract alive was forthcoming.
In the circumstances Mrs Nurkic said she and her husband then began the process of contacting other builders and speaking to friends about their experience with a view to obtaining new plans for their home and engaging a new builder. This process started in October 2005 and included discussions with the Small Builders Broker and meetings with various other possible builders. She explored the possibility of being an owner‑builder.
By letter dated 10 October 2005 Mr Hansen advised the plaintiffs that any plans in their possession were "copyrighted to our company and, hence we would need to come to an arrangement in order for you to use these plans in the future". The letter went on to claim the sum of $14,340 as follows:
"We have considered the circumstances on your file carefully, and under Clause 13 of the Building Contract, we now seek compensation for costs incurred up to the date of termination. Please find a breakdown of costs associated with the works completed by ourselves:
1.Survey/Engineering $1,669.00
2.Working drawings $3,100.00
3.Shire application $2,416.00
4.Water Authority $243.00
5.Administration $400.00
6.Sales/Marketing $6,512.00
TOTAL$14,340.00
This amounts to $14,340. After the deposit paid by you of $2,200 the balance owing is $12,140.
Please forward payment of this amount within 14 days."
On 19 October 2005 Mrs Nurkic said she went to the City of Melville and requested all the information in their possession in relation to the granted planning approval and building licence issued for the Site. By letter of the same date the City of Melville advised the plaintiffs of the information requested as follows:
"Thank you for your letter received on 19 October 2005.
The following is a list of dates relating to correspondence between the City of Melville and the applicant throughout the planning process.
18 March 2005 Planning application received
30 March 2005 Further information letter sent to Perceptions.
18 April 2005 Letter sent to WAPC for comment due to lot abutting Canning Highway.
4 May 2005WAPC sent response to City of Melville.
18 July 2005 Formal neighbour notification documents received.
26 July 2005 Approval letter prepared for checking.
8 July 2005Approval letter signed and sent to Applicant.
Following the planning process, the City's records indicate that an application for Building Licence was made on 5 August 2005 with a decision made on 22 August 2005. The applicant was subsequently notified and the Licence was collected on 26 August 2005."
In discussions with the representative from the Small Builders Broker the person became aware that the plans and addenda were prepared by the defendant and advised the plaintiffs that they would need to resolve their dispute with the defendant before the matter could be progressed. The plaintiffs then went elsewhere having lost more time.
Mrs Nurkic met with Mr Brian Sweet on 15 November 2005 and discussed the possibility of him being prepared to build their home. During this discussion the use of a costs plus contract was raised for the first time and Mr Sweet advised he could prepare the building plans for her. She said that her own inquiries led to an owner-builder course which she intended to attend, but was advised by their finance broker that the banks would not provide finance. Accordingly, she did not proceed down this route.
Mrs Nurkic said she continued to make inquiries of other builders (including Priority One) and of likely prices. At this time she started to prepare a new set of plans for the home by reference to the setbacks and other parameters but was conscious of the need to ensure that she did not breach the defendant's copyright in the existing plans. Various differences in design were incorporated by her to minimise the risk of any copyright issue being raised by the defendant.
On 23 December 2005 Mrs Nurkic made a formal application to the City of Melville for access to its documents in relation to all planning approval and building licence approvals concerning the defendant in order to clarify what had happened. Then followed a series of letters between the parties' solicitors beginning with the plaintiffs' solicitor's letter dated 3 November 2005, the defendant's response dated 7 November 2005, the defendant's solicitor's letter dated 24 November 2005, the plaintiffs' solicitor's letter dated 24 January 2006, the defendant's solicitor's letter dated 21 February 2006, and the plaintiffs' solicitor's response of 3 March 2006. During this period the plaintiffs received notification from the Department of Land Information dated 9 February 2006 that the defendant had caused an absolute caveat to be lodged on the title of the Site on the basis that it claimed an estate or interest in the property "as chargee pursuant to the lump sum building contract".
In the course of Mrs Nurkic's evidence, I was advised by her counsel that it was agreed between the parties that the amended September 2005 plans, to the extent that it was relevant (which is not admitted by the plaintiffs), did not give rise to any consequential planning issue, except possibly, and again this is not admitted by the plaintiffs, in respect of the windows.
Mrs Nurkic gave evidence that in March 2006 she met again with Mr Sweet and gave to him her further plans and design on "the baking paper" and that, in April 2006, she received from him a first draft set of drawings. Thereafter there were various exchanges with Mr Sweet "back and forth" in respect of the plans.
On 9 May 2006 the plaintiffs wrote to their neighbours by registered mail to obtain their consents in respect of the front setback and parapet walls. The registered post receipts were produced in evidence.
The plaintiffs lodged a planning approval application dated 8 May 2006 with the City of Melville and paid the fee of $558.90 on 10 May 2006. Proof of payment was produced together with the Australia Post registered mail receipts.
On 29 May 2006 the plaintiffs received planning approval from the City of Melville for the development of a two storey single house with a value of $243,000. On receipt of the planning approval Mrs Nurkic sent it to Mr Sweet so he could organise a building licence.
Mrs Nurkic said their intention was to arrange with Aussie Home Loans to reissue the previously approved loan to enable them to proceed with the defendant. At the time they owned an investment unit in Fremantle which was mortgaged with Resi and they applied for a further $50,000 by way of extension of the mortgage on that property. By letter dated 9 June 2006 from Resi, the plaintiffs were informed that their loan application to increase the loan amount by $50,000 had been approved in principle. This was formally approved unconditionally by Resi by letter dated 30 June 2006 to the plaintiffs. Settlement of the further amount of loan of $50,000 was advised to the plaintiffs by letter dated 27 July 2006.
On 2 August 2006 the plaintiffs signed a building licence application and lodged it on the same day with the City of Melville which named the builder as EAB Engineering and Building Services ("EAB"). Payment of the fee associated with the application was made by the plaintiffs on 2 August 2006, the amount being $1,975.45.
On 22 August 2006 the City of Melville approved the grant of the plaintiffs' building licence. The final plans the subject of the building licence are Exhibit 1.149. On 8 September 2006 the plaintiffs executed a cost plus contract with Brian and Anne Sweet trading as EAB Engineering and Building Services.
Prior to the entry into the building contract with EAB the plaintiffs had made further inquiries of other builders with respect to their willingness to undertake the building project and their price. Mrs Nurkic said she made further contact with Mr Peter Grygiel of Highbury Homes whom she had met in 2005. She said she contacted him in August 2006 to obtain an estimate of the building costs. Before proceeding with EAB she had received a verbal indication of the cost Highbury Homes estimated as set out in its written communication dated 15 September 2006, being a total $409,261.
In addition Mrs Nurkic said she had met Mr John Geha, a director of Westview Projects Pty Ltd in early 2006 and that in August 2006 he advised her orally and confirmed subsequently in writing by letter dated 18 September 2006 that his company's building cost of the home proposed to be built by EAB was about $382,768, subject to the level of finishes selected "and market conditions throughout the construction period".
Mrs Nurkic said they intended to obtain a further loan from Aussie which was already the subject of a loan. In this regard she contacted Mr Joe De Sousa and produced various emails in respect of the proposed increase in the principal of the loan. However, the proposed construction loan did not settle because, on the day of settlement Mr De Sousa became aware of the defendant’s caveat. As a result of the lodging of the caveat by the defendant over the property Mrs Nurkic said the proposed loan from Aussie did not proceed.
Mrs Nurkic said site works on the home began in late September 2006 or early October 2006 and gave evidence that the building was not yet finished. She said that they had paid all the builder's bills to date and had refinanced everything they owned in order to do so.
She said the property in which they resided at all material times was at 21 Jane Road, Applecross and was co-owned by them and her brother and sister‑in‑law. In negotiations with Resi she said they obtained a loan offer to increase the existing mortgage to obtain further funds (see the loan offer dated 31 May 2007). This settled on 22 July 2007 and involved the existing loan being split into four separate loan accounts.
In respect of completion of the home, Mrs Nurkic said that the kitchen and kitchen appliances, tiling, plumbing, electrical work, balustrade, painting of doors and ceilings, laundry cabinets, paving, garage, concrete and door, security and crossover and soakwells were all yet to be completed.
Mrs Nurkic clarified her initial evidence in relation to the rent she and her husband paid to her brother and sister-in-law for residing in the property at Jane Road. She said that in 2005, before any dispute arose with the defendant, she thought it was appropriate that they compensate her brother and sister‑in‑law while living in the Jane Road property. She initiated the topic with her brother and sister-in-law who agreed, while they were living there and the house on the Site was being built by the defendant, that they would pay $75 per week rent. In October 2006 on the emergence of the difficulties with the defendant Mrs Nurkic said that her brother initiated a rent increase to $300 per fortnight. The rent was effectively doubled. It is common ground that the plaintiffs have paid the sum of $300 per fortnight to Mrs Nurkic's brother and sister‑in‑law from October 2006 to the present date.
In cross-examination Mrs Nurkic said when she met with Mr Hansen, he said (consistently with her evidence in chief):
"There was a small mistake on our part, a small delay. We are willing to drop the price increase, reduce the price increase from $16,670 to $14,000 something."
This issue was canvassed on more than one occasion, but the evidence of Mrs Nurkic in cross-examination was that, at her first meeting with Mr Hansen, he indicated to her that he would consider the defendant's records so he could advise her "why it took four months to obtain the planning approval". According to Mrs Nurkic, when Mr Hansen telephoned her about a week later he did not mention town planning at all. Instead, Mr Hansen offered to reduce the contract price increase to "$14,000 something". She did not disagree that the exact figure mentioned was $14,289. In cross-examination she said it was at the meeting with Mr Hansen that she first realised there was an issue with the planning approval. Prior to this, she admitted she was frustrated by the slowness of the whole process, "including the delay with the applying for the building licence". She was "very worried that a price increase was coming" and she "tried to do everything to minimise that and to help in any way". For this reason she started to return documents that needed to be delivered to the defendant by hand rather than by post and also telephoning the City of Melville to see if there was anything she could do to assist the process.
Mrs Nurkic gave evidence in cross-examination that she had hoped the defendant would be prepared to negotiate the proposed price increase so she and her husband could "move on and get a win‑win situation and continue" to build with the defendant.
In cross-examination Mrs Nurkic said that the second paragraph of her letter to the defendant dated 27 September 2005 was based on advice obtained by her husband from a lawyer in his workplace. The letter provided:
"After receiving the letter regarding the price rise of $16,670, we have decided to terminate current contract we hold with Perceptions as this is way out of our budget.
We are entitled to terminate this contract pursuant to clause 4(c). We understand that you require a payment for your expenses pursuant to clause 13(c) of the contract. Therefore, we must know how much we need to pay you to exercise our right under clause 4(c) of the contract.
As requested by our lawyer, please provide us a specification list and costing of all the jobs that you have done in relation to Job No 60588, as well as the total cost."
Mrs Nurkic's evidence was that she wrote the letter straight after Mr Hansen had provided her with the $14,000 reduction in price increase on the telephone. She said:
"I felt I had no other option other than to say goodbye to Perceptions because I couldn't afford it and tell them, 'Let's clear the bill. Send us whatever you have spent on us and we'll pay it'."
She explained how she felt:
"I was put at an ultimatum, either I pay that amount or they won't continue the work. The only other option I had if I couldn't pay was to say goodbye to them and continue to look for another builder … this was the purpose of the letter."
In cross-examination Mrs Nurkic said she did not commence the process of looking for another builder immediately because she was waiting for a response from Mr Hansen. In the end she telephoned him hoping the defendant would think twice and say "We've come so far, we don't want to lose them as customers, let's drop this price even further and negotiate more". This was her hope. But there was no indication the defendant was so minded based on her telephone conversation with Mr Hansen. I interpose that, when Mr Hansen subsequently gave evidence on this issue, it was obvious, to all in the courtroom at that moment, that both parties had missed an opportunity to properly explore their differences because their real interests (at least on the evidence) were a lot closer than either had apparently realised at the time.
On receipt of the defendant's letter dated 10 October 2005 setting out the costs incurred by the defendant, Mrs Nurkic contacted Craig Marshall to determine the amount of his commission because she was suspicious that the total costs claimed by the defendant was $14,340. She thought this was "very coincidental" to the sum of $14,289, which amount the defendant wanted by way of a price increase. Mrs Nurkic felt the amount claimed "was very wrong" and sought legal advice from her solicitor on 19 October 2005.
Mrs Nurkic impressed me as a witness. She was a credible and reliable witness, notwithstanding that she obviously had a close personal interest in everything that happened. She went to some lengths to be fully prepared for the purpose of giving evidence at the trial. Where there is a conflict with her evidence and that of the witnesses on behalf of the defendant in respect to matters concerning the plaintiffs' contract and associated approvals, I prefer the evidence of Mrs Nurkic. Her account was borne out by the documentary trail on all relevant matters. This is not surprising. The reality is that from the defendant's viewpoint the plaintiffs' contract was "just another job" in the overall scheme of the defendant's business. This is consistent with the impression I got from the defendant's witnesses who generally had no recall at all about some of the meetings and discussions with Mrs Nurkic.
(b) William Hughes
Mr Hughes gave evidence on behalf of the defendant. He has been involved in the building industry for about 25 years. He has a trade certificate and is a registered builder. At the relevant time in 2005 he was employed as general manager of "Perceptions" which specialised in building two-storey homes using a standard range of products. He described the usual process by which Perceptions would build a home for their client, and the process of making the application for planning approval and obtaining a building licence. Mr Hughes also described the process by which the contract administrator would work with the client at the pre‑start interview and the preparation of variations.
In cross‑examination Mr Hughes accepted that his nine month position in the role was as a caretaker while the defendant appointed a full-time general manager. In August‑September 2005 Mr Hughes assumed an assistant role to a new general manager during a three month changeover period. Mr Hughes said Mr Hansen was responsible for preparing variations, including price increases but that these were ultimately required to be approved by the general manager. Mr Hughes did not sign the price increase assessment sheet dated 14 September 2005, but somebody did.
Mr Hughes confirmed in cross-examination that Ms Sue Helem was a contract administrator whose role was to finalise the contract details so the file could go to the next stage of construction. Mr Hughes accepted that, the defendant was aware as early as 2 December 2004 (the date of the defendant's preliminary drawing) that it would be necessary for the defendant to obtain letters of no objection from affected neighbours. In any event, this requirement was crystallised by 16 February 2005 the date of the preparation of plans agreement.
During cross-examination Mr Hughes confirmed he had made a handwritten note on the plaintiffs' letter to him dated 2 August 2005 to the effect that he met with them on 14 July 2005 and had also made a note "Issues sorted, 15 August 2005". However Mr Hughes had no recollection of the meeting or the discussion. Nor did he have any recollection of the issues raised by the plaintiff or of how the matter was resolved. He considered that his note was a record that the issues raised by the plaintiffs "had been closed".
Mr Hughes was cross-examined about the notation "waiting amended plan approval, Bill Hughes is okay to put this through without approval" on the price increase assessment sheet. Mr Hughes said he may not have seen the sheet and said it did not contain any of his handwriting. He also denied he would have given "a verbal authority without backing it up with a signature". Mr Hughes was taken to the defendant's internal records and also its communications with the City of Melville to the effect that the building plans were being re‑submitted "showing windows to upper floor changed".
In evidence‑in‑chief, Mr Hughes was taken through the pre-start variation quotation, the subsequent variations and amended building plans and asked to identify a number of windows which had been changed from sliding to awning in style and at the same time a number of windows which had been changed in size. Relevant to this issue, Mr Hughes gave evidence that the defendant's preferred window supplier was "Affinity Windows", a member of the same group of companies. However, Mr Hughes was unable to say whether a change from sliding to awning windows, given the standard product line of Affinity Windows, would result in a need to change the sizes of the windows. He was unable to be precise without reference to the catalogue and said "some may and some may not" require a change in the dimensions of the windows when changing the style from sliding to awning. It is clear that Mr Hughes appreciated the purpose of the questions and their importance from the following exchange (T 309):
"Ms Hellem would be the person who would know the answer to that question, would she? – Presumably, because she would've had to have asked the question."
Mr Hughes was taken to Item 2 of variation No 11 dated 5 September 2005 which recorded a "no charge" for the provision of an 8 x 9.5 awning window with cathedral glazing in bedroom 3 "due to roof below" and deletion of Item 50 from variation No 9 dated 17 August 2005. Mr Hughes accepted that the later variation was not a result of a specific request by the plaintiffs but due to building constraints subsequently identified by the defendant which affected its design considerations. In other words, there was an error in the defendant's drawings.
In cross-examination Mr Hughes accepted that the defendant had sent the amended plans to the City of Melville before the final plans were in fact signed by the plaintiffs. The evidence is that the defendant sent the amended plans to the City of Melville for approval on 9 September 2005 (day 60, although they were not formally received by the City of Melville until 12 or 15 September 2005) and approved on 22 September 2005. Receipt of the approval by the defendant occurred on 27 September 2005 (day 71).
Mr Hughes said in cross-examination that on receipt of the building licence the contracts manager then undertook an assessment to determine whether a price review "should be done on the job". Subject to this process and a decision from the general manager as to whether a price increase would be applied, the job could then proceed to construction.
Mr Hughes said in cross-examination that the defendant regarded the changes to the windows as a "major change" at the stage of the pre‑start meeting because it would cause an extended approval process. He described the purpose of the pre‑start meeting as being to finalise the clients' selections, by which I infer he meant matters which would not result in the need to obtain an amended building licence. This is not wholly consistent with the advice given to the plaintiffs by the defendant's representatives, in particular Mr Marshall at an earlier stage, in respect of the windows issue to the effect that this could be resolved at the pre‑start meeting.
Mr Hughes accepted that the pre-start meeting occurred on 14 July 2005 and that the variations arising out of the pre-start meeting were sent to the defendant's drafting section for preparation of the final plans on 18 August 2005. Mr Hughes accepted that the final amended plans were eventually sent to the City of Melville on 9 September 2005. On the question of delay his evidence in cross‑examination was that:
"The building licence was issued on 19 August 2005? – Yes.
Any delay until that point of time wasn't due in any way to compliance with item 4 of the letter of 30 March 2005, was it? – Well, no, because the building licence was received within the time frames.
Okay, and you would accept that, would you, that …? – Well, it's self‑evident. I mean, the building licence was applied for and received within the contract period.
Yes? – Or the performance period, so there couldn't have been any delays.
You would say, would you, then that the building – the obtaining of the planning approval and the building licence was irrelevant in this particular case to the price increase that was imposed? – Yes, because if they were received within the 45 days then there's compliance, so you can't levy that as being something that hasn't, you know, come within the performance period of the contract.
Is the effect of your evidence that the sole issue that gave rise to the price increase being imposed in this case was the subsequent approval of the plans received on 29 September – of the amended plans received on 29 September 2005? – Yes. My summary of this is that the obvious – well, I say obvious – the cause that they have levied the price increase on is because of the extended time to get the extended building – or get the amended building approval in place before they would commence the works. That would appear to be the assessment, but again, I have not been involved in the process so I can't say that that's exact, but that would be my assessment."
In cross-examination Mr Hughes agreed that the statement in the defendant's solicitor's letter dated 24 November 2005 that the failure by the defendant to commence the works within the 45 working days "was occasioned by lengthy delays on the part of the City of Melville in providing planning approval and then a building licence" was not in fact the case. I note that by this date Mr Hughes had ceased employment with the defendant and he was not the person giving instructions on the matter.
In view of the time elapse, and that the plaintiffs' job was just one of many files he dealt with while in the role, it is understandable that Mr Hughes did not have any or a complete recall of all events and had to refresh his memory from his own notations on the documentation. He gave his evidence in an open and forthright manner and in my view did his best to assist the Court. Much of his evidence concerned an explanation of the documentary evidence contained in Exhibit 1.
(c) Matthew Owen
The plaintiffs called Mr Owen, a director of Owen Consulting. Mr Owen has over 18 years experience in the property development industry and considerable experience as a quantity surveyor.
Mr Owen's opinion is set out in his report of 12 April 2007. In his opinion the total construction cost on a lump sum basis to construct a building based on the defendant's drawings dated 9 May 2005 using current costs as at 12 April 2007 was $303,000 excluding GST. His opinion was based on an estimate summary which contained a breakdown of the component costs of the building.
Mr Owen also produced a letter dated 30 July 2007 in which he indicated that the cost estimate contained in his report of 12 April 2007 could be "referenced and adjusted against the building cost index should the need arise". In this regard he referred to the WA government Department of Housing and Works current building costs index which he said confirmed that the costs escalation for 2006 was 12 per cent and that it estimated a similar cost escalation for 2007.
Mr Owen also produced a letter dated 24 September 2007 in response to a report prepared by Dr Geoffrey Wilson dated 28 August 2007 on behalf of the defendant. Mr Owen's evidence is that Dr Wilson's estimate is reflective only of the cost to build the proposed house by a high volume project home builder and does not necessarily reflect the cost of building by an independent builder not in the same market. Mr Owen said that Dr Wilson's report was based on using "bulk quantities" available to the project home industry. However, as a quantity surveyor he approached the task by "rolling up" the smaller items into an indicative cost estimate based on knowledge and experience of actual costs incurred for such items, but without the detailed specific cost of each individual item of supply and labour. In his opinion the "bulk quantities" methodology is used primarily in the high volume project home industry where builders can, by reason of the sheer number of houses being built, maintain a database with precise costings. Mr Owen accepted that builders in the project home industry may be in a better position to estimate the actual likely cost because they are using "real data" and might know from negotiations with suppliers about prospective price increases (decreases were not mooted).
In cross-examination Mr Owen confirmed he did have regard to Rawlinson's Australian Construction Handbook but used it as a reference source only and otherwise relied upon his own knowledge and experience in making his assessment of the estimated costs.
Mr Owen also said in cross-examination that quantity surveyors worked to plus or minus 5 per cent, whereas builders in tendering often used plus or minus 10 per cent. However, he did accept that high volume project home builders often had a margin of 5‑10 per cent and that therefore the tolerance used by a quantity surveyor in such circumstances would be unacceptable. For this reason, and because of the nature of the high volume project home industry, Mr Owen expressed the opinion that he would expect that industry to be able to build a home cheaper than a builder on a one-off basis. He said the government Department of Housing and Works indices were prepared and updated quarterly.
I accept the expert opinions given by Mr Owen as being truthful and accurate. No basis was demonstrated that would make it unsafe to accept his evidence.
(d) David Hansen
Mr Hansen is a qualified building inspector and member of the Australian Institute of Building Surveyors. He has been involved in the construction industry for about 30 years. For the period April 2005 to October 2006 he was employed by the defendant as a contracts manager. His primary responsibility was to consider price assessment increases in respect of contracts which had "gone over the 45 day contract period to be assessed where it's beyond the builder's control and it needed a price assessment to be analysed". He reported directly to the general manager.
Mr Hansen said he was provided in each case with a price assessment sheet completed by the contracts administrator responsible for the particular file. The price increase assessment sheet presented to him contained the factual information of dates relevant to the contract and approval dates required to assess the 45 days or over period. He said the top part of the plaintiffs' price increase assessment sheet contained this information and was completed by Ms Helem. He said the second part of the sheet under the heading "Contract Manager to complete" contained his workings which indicated the proposed price increase of $16,670. He said he did not sign the sheet as general manager. Mr Hansen confirmed that the information relied upon by him for the purpose of making the decision was contained on the sheet, and in particular, the record of the contract date, the contract expiry date, the approval dates and the re‑submission to Shire date. He first saw the plaintiffs' price increase assessment sheet on about 14 September 2005. He described his task on receipt of the sheet as follows:
"My task was to assess that and confirm that the contract was over 45 days in respect to not going to site. From there I had gone to the information, assessed that there was some approval dates but there was a re-submission to Shire, and there's a final plan signed by the client on 13 September and relevant information that led me to come to the conclusion that price assessment was warranted because it was over the 45 day period."
I note the plaintiffs' price increase assessment sheet incorrectly states the contract start date as 14 June 2005 (it was 17 June 2005). As a consequence, it also records an incorrect contract expiry date of 16 August 2005 (it was 19 August 2005). Mr Hansen did not appreciate this at the time he did the price re‑calculation and submitted the form to the general manager for approval.
The plaintiffs' price increase assessment sheet under the heading "Extenuating Circumstances" contained the following note made by Ms Helem:
"… received F/P signed by client 13/9 resub client changes windows ground & first floor 3½ weeks for costings. Done by Sarah had to be redone by David."
Mr Hansen said that based on the information contained on the sheet presented to him he considered, at the time, that the cause of the delay was "a re‑submission to the Shire and due to plans not being signed by the client and changes in windows as per the notes …". Once Mr Hansen had formed his view that the delay was not caused by the builder, he used the defendant's business records to calculate an increased contract price on the basis that the start date and price model was re-set to 30 September 2005. Mr Hansen said the final figure, which he calculated to be $16,670, represented the "percentage increase on labour and materials over the period of time from February 2005 to 30 September 2005 minus the 45 days price movement". On the same day that he received the plaintiffs' price increase assessment sheet, Mr Hansen said he met with the general manager (not Mr Hughes) who then initialled the sheet.
Mr Hansen then prepared the defendant's letter of 14 September 2005 to the plaintiffs and having signed it, caused it to be sent to them. Mr Hansen's evidence was that the letter was a standard pro forma letter used by the company to inform its clients of the exercise by the defendant of its right under cl 4(b) of the Contract to increase the contract price. The letter to the plaintiffs was accompanied by formal variation No 12 dated 15 September 2005 (a day later). The variation of $16,670 was raised by Ms Helem for the "price increase as per attached letter".
Mr Hansen said he subsequently met with one of the plaintiffs on 21 September 2005, but his evidence was that he did not recall the meeting or any conversation he had at the time. However, by reference to Exhibit 1.110 (a copy of variation No 12 dated 15 September 2005) Mr Hansen confirmed that he had made a note to the effect that he had advised Mrs Nurkic on 27 September 2005 that the costs would be reduced to $14,289 "due to delay on administration" as per the note. He did not recall the circumstances of the conversation or why it occurred and did not know how he arrived at the figure. However, in his evidence‑in‑chief he described it as "just a price reduction to hopefully keep the contract alive".
Mr Hansen also confirmed that the handwritten note on the plaintiffs' letter dated 21 September 2005 to the defendant made on 27 September 2005 at 3.00 pm to the effect that the plaintiffs were not going to proceed with the contract was his and signed by him. The previous telephone conversation that day between Mr Hansen and Mrs Nurkic when he advised of the reduced amount of $14,289 was noted by Mr Hansen as having taken place at 12.45 pm.
As a result of receiving the plaintiffs' letter dated 27 September 2005, Mr Hansen caused the defendant's letter of 10 October 2005 to be prepared and sent to the plaintiffs, advising that the amount due to the defendant under cl 13(c) was $14,340 less $2,200 deposit which meant that a balance of $12,140 was owed.
In cross-examination Mr Hansen gave conflicting evidence as to whether at the time he recalled reading on the price increase assessment sheet the notation by Ms Helem "waiting amended plan approval, Bill Hughes is okay to put this through without approval". Initially he agreed he had read the words and then he later (after objections to the line of questioning by the defendant's counsel) said he did not. The plaintiffs rely on this evidence, as one example which is indicative of the unreliability of Mr Hansen's evidence generally.
Mr Hansen was cross-examined in relation to what steps he took, if any, to satisfy himself that the cause of the delay was a result of circumstances beyond the control of the defendant. Based on my assessment of the manner and way in which Mr Hansen gave his evidence, including the content of his evidence, I find that he did not make any specific inquiry in this regard by reference to the documents on the file or of the defendant's contract administrator, Ms Helem, or of any other person at the time he completed the price increase assessment sheet. This was notwithstanding a note on the sheet under the heading "Extenuating Circumstances", which referred to a 3½ week period for the defendant to attend to costings of windows on the ground and first floor. Mr Hansen accepted that this period was an excessive period, but his evidence was that he did not take this into account in his decision-making or the performance of his calculations on 14 September 2005. However, he used this fact (at least when he gave his evidence at trial) as a reason to justify the subsequent reduction in the price increase offered to the plaintiffs.
Importantly in my view, Mr Hansen did not undertake any detailed or proper inquiry into the history of the plaintiffs' contract and the precise reasons for the delays which occurred in the approvals processes. After several objections by the defendant's counsel, Mr Hansen gave evidence in cross‑examination that he did not take the 3½ weeks for the costings into account because it "was already outside the 45 working day period under the contract". I find that Mr Hansen did not have regard to any delays within the 45 working day period. Nor did he have regard to the cause of those delays or, in particular, whether they were in part or in whole attributable to the defendant, or due to matters outside the defendant's control.
Mr Hansen in cross-examination confirmed that the job cancellation form did not contain the manager's signature authorising the cancellation of the plaintiffs' contract and that he had no recollection of discussing the document with Mr Russell, the general manager at the time. By reference to the original document, Mr Hansen confirmed that the figure 6,512 in relation to "commission to sales consultant" was written on top of Liquid Paper. I infer the liquid paper was used to amend a different figure, even though other figures on the document were simply crossed out and amended.
No
Date
Working Days from Contract
Evidence
Event
137 Monday
10 October 2005
80 Ex 1.124 Defendant prepares letter to the plaintiffs seeking payment of costs of $12,140. 138 Second half of
October 2005
T-114/37 The plaintiffs start looking for another builder. 139 Thursday
19 October 2005
88 T-117/36
Ex 1.125
Plaintiffs write and deliver letter to the City of Melville regarding request for information on all planning and building issues relating to the Site. 140 Thursday
19 October 2005
88 T-117/46
Ex 1.126
City of Melville respond to Plaintiffs' letter. 141 Friday
20 October 2005
89 T-115/42 Plaintiffs receive letter from the defendant dated 10 October 2005. 142 Thursday
3 November 2005
Ex 1.128
T-123
Plaintiffs' solicitors write to defendant alleging that all delays are attributable to the defendant and asserting the basis of termination was failure to commence works by 16 August 2005. 143 Early
November 2005
T-118/30 Plaintiffs first contact Brian Sweet. 144 7 November 2005
Ex 1.129
T-123
Defendant writes to plaintiffs' solicitors – taking advice. 145 15 November 2005
T-118/30 Plaintiffs meet with Brian Sweet. 146 Thursday
24 November 2005
Ex 1.130
T-123
Hotchkin Hanly write to Bruce Havilah & Associates demanding payment of the defendant's costs to date of $12,140. 147 6 January 2006 Ex 1.127
T-122/17
Plaintiffs lodged FOI application with the City of Melville.
No
Date
Working Days from Contract
Evidence
Event
148 24 January 2006 Ex 1.131
T-123
Bruce Havilah & Associates write to Hotchkin Hanly inter alia seeking a licence for the plaintiffs' to use the defendant's plans and drawings. 149 9 February 2006 Ex 1.132
T-124
Registrar of Title notifies the plaintiffs that the defendant has lodged a caveat against the title to 60C Glenelg Street.
First seen by Mrs Nurkic about 9 or 10 February 2006.
150 Tuesday
21 February 2006
Ex 1.133
T-123
Hotchkin Hanly advise plaintiffs' solicitors that plaintiffs can use the defendant's plans if they pay a $5,000 fee and the defendant's costs of $12,140. 151 3 March 2006
Ex 1.134
T-123
Bruce Havilah & Associates write to Hotchkin Hanly regarding a licence for the plaintiffs' to use the defendant's plans and drawings. 152 Sunday
2 April 2006
Ex 1.149 EAB produce plans for proposed two‑storey Nurkic home at 60C Glenelg Street, Applecross. 153 Monday
8 May 2006
Ex 1.140 Plaintiffs complete planning application for approval to City of Melville annexing EAB plans and stating approximate cost of the development is $243,000. 154 Tuesday
9 May 2006
Ex 1.135 Plaintiffs write to Ardestanis and owner of 1/832 Canning Hwy re variations to development requirements. 155 Monday
29 May 2006
Ex 1.143 City of Melville grants planning approval to EAB designed home.
No
Date
Working Days from Contract
Evidence
Event
156 Wednesday
2 August 2006
Ex 1.145 Plaintiffs make application to City of Melville for building licence.
Building licence application received by City of Melville.
157 Tuesday
22 August 2006
Ex 1.148 Building licence approved by City of Melville to Mr B Sweet of EAB Defendants. 158 Tuesday
8 September 2006
Ex 3 Plaintiffs enter into Lump Sum Contract with EAB Defendants. 159 Tuesday
8 September 2006
Ex 1.151
T-136/27
Plaintiffs enter into cost plus contract with EAB Defendants. 160 Sunday
13 September 2006
Ex 1.150 Plaintiffs receive email from Zoron Ereiz (Mrs Nurkic's brother) re rent $150 per week.
1