Pace Constructions Pty Ltd v Petrelis
[2007] WADC 93
•8 JUNE 2007
PACE CONSTRUCTIONS PTY LTD -v- PETRELIS & ANOR [2007] WADC 93
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 93 | |
| Case No: | CIV:657/2001 | 15, 18-19, 22-25, 29-31 JANUARY, 1-2 & 5-8 FEBRUARY 2007 | |
| Coram: | MACKNAY DCJ | 8/06/07 | |
| PERTH | |||
| 54 | Judgment Part: | 1 of 1 | |
| Result: | Nil | ||
| PDF Version |
| Parties: | PACE CONSTRUCTIONS PTY LTD ANGELO PETRELIS LIBERATA MICHELA PETRELIS |
Catchwords: | Contracts Building Engineering and related contracts The contract Performance of work Turns on own facts |
Legislation: | Nil |
Case References: | Belgrove v Eldridge (1954) 90 CLR 613 McKay v Hudson [2001] WASCA 387 Belgrove v Eldridge (1954) 90 CLR 613 Brewarrina Shire Council v Beckhause Civil Pty Ltd [2005] NSWCA 248 Horton v Jones (1939) 39 SR NSW 305 J-Corp Pty Ltd v Gilmour [2005] WASCA 136 Johnson v Perez (1988) 63 ALJR 51 Kyren Pty Limited v Built Project [2006] SASC 204 McKay & Anor v Hudson & Ors [2001] WASCA 387 Monarch Building Systems Pty Limited v Quinn Villages Pty Limited [2005] QSC 231 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ANGELO PETRELIS
First defendant
LIBERATA MICHELA PETRELIS
Second defendant
Catchwords:
Contracts - Building - Engineering and related contracts - The contract - Performance of work - Turns on own facts
Legislation:
Nil
(Page 2)
Representation:
Counsel:
Plaintiff : Mr T R D Mason
First defendant : In person
Second defendant : In Person
Solicitors:
Plaintiff : Jackson McDonald
First defendant : Not applicable
Second defendant : Not applicable
Case(s) referred to in judgment(s):
Belgrove v Eldridge (1954) 90 CLR 613
McKay v Hudson [2001] WASCA 387
(Page 3)
1 MACKNAY DCJ:
Introduction
2 The plaintiff is a building company, presently subject to a deed of arrangement, which trades under the name "Pace and Brine".
3 The defendants at all material times have been the owners of a house and land at 13 Hill Terrace Mosman Park ("Hill Terrace") and a building and other improvements and land at 123 Thomas Street Subiaco ("Subiaco"), which is leased to BP and used as a service station.
4 In 1999 the plaintiff and the defendants entered into a written contract for the construction of various further improvements at Hill Terrace, for the consideration contained therein (the "LS contract").
5 Over the following months, the plaintiff carried out that work, or alternative work, and also additional work at Hill Terrace, and carried out work at Subiaco.
6 The plaintiff says that the basis on which that work was done was formalised by the parties' oral agreement, in March 2000, to be bound by the terms of a pro forma cost plus contract in relation to the additional work at Hill Terrace, the work at Subiaco, and also in relation to uncompleted work under the LS contract.
7 Alternatively the plaintiff says the defendants are liable on a quantum meruit, to pay for the work done.
8 The defendants deny they entered into a cost plus contract for that work, say that some items of work were the subject of specific fixed price agreements, whilst other specific items were to be charged on the basis of the reasonable cost thereof and the plaintiff's builder's margin of 15 per cent, and that apart from variations the LS contract went on undisturbed.
9 The plaintiff says that the sum of $12,296.80 remains outstanding on the LS contract, which was largely completed, and that the defendants are indebted under the LS contract and the alleged cost plus contract in the sum of $96,618.93.
10 The plaintiff also claims interest on any amount outstanding under the LS contract at the rate of 12 per cent, compounding annually, and interest on any amount outstanding under the alleged cost plus contract at a compound rate at 1.5 per cent per month.
(Page 4)
11 The defendants deny any indebtedness and say the plaintiff is liable to them for the cost of completion of some work under the LS contract and for the cost of rectification of other work performed defectively.
12 The issues sought to be raised by the defendants appear not in the defence but rather in further and better particulars filed on their behalf.
13 In circumstances where the defendants had elected to appear without representation it was decided at the start of the substantive trial that the matter go forward on the basis of the issues as they had emerged, not just from the pleadings but from other documents, without any attempt at amendment of the pleadings.
14 In that regard, and pursuant to an order of the court, the parties had prepared a Scott Schedule which canvasses many of the particular building issues.
15 Witness statements had also been exchanged pursuant to order and were duly tendered on each witness being called.
16 The defendants had in fact been represented until trial, when as stated they apparently elected to proceed in person.
17 Counsel who had been acting on their behalf, Mr Godfrey Taylor, informed me that he had provided advice to them on the conduct of the trial.
18 Mr Petrelis also had the assistance of a relative throughout the trial.
19 He conducted the defendants' case on his own behalf and that of his wife.
20 It would be remiss of me not to say that I was grateful to Mr Mason who, in so far as was consistent with his duty to his client, not only dealt with Mr Petrelis in a co-operative and courteous manner but was also of assistance to me in my endeavour to arrive at some understanding of the issues and evidence.
21 Although I was told the Scott schedule did not purport to be an account stated, it is the case that the parties have set out the effect of their competing versions, from an accounting perspective.
22 I have not attempted that exercise at this stage, but rather following delivery of these Reasons will hear further from the parties as to the consequences of the findings made.
(Page 5)
23 If it be necessary to make further findings in order to give effect to those already made, I reserve the right to do so.
History
24 The defendant said that he and his wife decided that they would renovate and extend Hill Terrace, and that he would do or arrange some work, and have a builder do the rest.
25 Plans were drawn and submitted to the local authority, the Town of Mosman Park (the "Council") as early as August 1998.
26 The basic concept, in relation to the house itself, was to construct a new freestanding structure within the inner angle of the "L" of the house, such to abut the same, and to be two storeys, but with a stair to the roof which would be constructed in such a way so as there to be a sundeck.
27 At some point the defendants engaged a designer or draftsman, Mr Graham Hilke, of Hill Keys Drafting Services ("Hill Keys"), as well as an engineer, Structerre.
28 The defendants became aware of the plaintiff as a potential builder through its presence nearby on another site.
29 Although Mr Petrelis thought that he made the initial contact, it would appear from the plaintiff's records that Mr Brine, then as now a director of the plaintiff, was first spoken to by Mr Hilke, probably on 5 March 1999.
30 In any event, thereafter there were meetings and discussions between Mr Brine and the defendants, usually with Mr Petrelis, although Mrs Petrelis was on occasions present.
31 Plans from Hill Keys were provided to the plaintiff and a number of quotations and other documents given by the plaintiff to the defendants.
32 The plans related not just to the proposed new house structure (the "shell") but also to major alterations proposed to the existing house (the "alterations").
33 Other work was also planned, including construction of a four car garage (the "garage"), removal of a swimming pool, and the construction of new boundary walls.
(Page 6)
34 During the discussions Mr Petrelis said he told Mr Brine that the defendants did not want to contract all of the work to one builder, but wished to do some work themselves, and would look to the builder in relation to specific items arising in the course of the latter, the work to be arranged by them generally to be done on a fixed price basis.
35 Although Mr Brine said he did not recall being told that, I would find it occurred.
36 Mr Petrelis also said he stipulated to Mr Brine that the plaintiff's price would have to include "making good" the shell with the existing house, although Mr Petrelis would remove obstructions, and also include conformity between old and new with levels, the use of similar windows and the like.
37 Again, Mr Brine said he did not recall those things being said but I find it did occur.
38 What is not in dispute is that an early stage, Mr Brine raised the question of the work being done on a cost plus contract.
39 That was a topic he returned to on many subsequent occasions.
40 The work being done in that way would be cheaper, he said, as particularly with older buildings the difficulty of the work could not accurately be foreseen, so a fixed price that might be higher than necessary was inevitable.
41 Mr Petrelis said he told Mr Brine he was not interested in any cost plus contracts, as he needed to be aware of costs on any given occasion.
42 Mr Brine denied that, and said Mr Petrelis suggested they do the new Hill Terrace work for a fixed price and see how they went.
43 He acknowledged however that Mr Petrelis was never keen on cost plus contracts.
44 It is clear I think that Mr Petrelis would have expressed a lack of interest in cost plus contracts on any occasion on which the topic was raised.
45 Reference was made to the possibility of work at Subiaco at this time.
(Page 7)
46 Eventually informal agreement was reached on the shell, the garage, and a number of other items of work.
47 On 28 September 1999 Mr Brine attended Hill Terrace and four letters of quotation, each dated 23 September 1999, were agreed and initialled by the two men, along with plans, in the case of some letters after discussion and amendment, and the pro forma LS contract was completed and executed.
48 The two then adjourned to Cottesloe, where Mrs Petrelis had a shop, where she executed the completed pro forma LS contract.
49 The work, and the consideration agreed in each case for it was:
1. Shell $115,569.00
2. Garage $ 41,385.00
3. Removal of swimming pool $ 5,290.00
4. Limestone boundary walls $ 9,602.50
Additional footing for side boundary wall $ 4,492.00
Boundary survey $ 460.00
Total: $176,798.50
50 It is common ground, given the pleadings and particulars, that in addition to the four letters, which are referred to in the completed pro forma, that Hills Keys plans, Structerre drawings and the surveyor's drawings of Cottage and Engineering Surveys also formed part of the LS contract.
51 It is common ground that on this day Mr Brine brought with him a completed pro forma cost plus contract, which was not executed.
52 Mr Brine claimed that Mr Petrelis said to him on that occasion that towards the end of the LS contract they could probably look at doing the balance of the Hill Terrace work on a cost plus basis and also do the Subiaco work on a cost plus basis.
53 Mr Petrelis denied that he had made any such statement, and I regard it as improbable that he did so.
54 Mr Petrelis also said that there was further discussion about making good between the old and new structures, and that Mr Brine agreed to that, on the basis that would involve all of the levels and ensuring that the
(Page 8)
- new work was made good to the existing house structure, and I find that occurred.
55 As appears later in these reasons, agreements were later reached that the plumbing work be done for a fixed price, and that a laundry and a portico be constructed, again in each case for a fixed price.
56 Some changes to the scope of the work the subject of the LS contract also occurred, particularly in relation to the staircase to the sundeck and its roof, and in relation to the location of the garage.
57 The latter resulted from damage which occurred to a limestone boundary wall in the course of work being done both on the defendants' property and on the property on the other side of the wall.
58 In that regard, I do not accept Mr Brine's assertion that moving the garage was unrelated to damage to the boundary wall, but rather arose from a desire on the defendants' part to delete a long gap between the garage and boundary wall.
59 I also note that Mr Brine asserted in relation to the garage that it was at that time that the garage roof was changed from metal to tile, when in fact the documents forming the LS contract show that the change had occurred prior to entry into that agreement.
60 Mr Brine said that work on the garage as amended had commenced prior to approval being given, and the work was 70 per cent completed by February 2000.
61 An invoice of 17 March 2000 from the plaintiff stated however that the garage was 70 per cent complete at that time, something Mr Brine endeavoured to dismiss by an assertion that the office accounting was then being changed.
62 Mr Petrelis said that the work the subject of the LS contract continued on substantially longer than claimed by Mr Brine, and I prefer his evidence in relation thereto.
63 In regard to Subiaco, as stated the question of the plaintiff carrying out work there was raised when the parties were negotiating the LS contract work.
64 Mr Petrelis said that he also told Mr Brine however that work could not then be done at Subiaco as planning approval had not been obtained,
(Page 9)
- and might never be obtained, there being a problem with the town planning scheme, and I accept that.
65 The plaintiff was asked to, and did carry out, minor repairs to the roof in July 1999, for which it invoiced the defendants and was paid.
66 Plans for the proposed changes at Subiaco, including the addition of a mezzanine floor, and new partitions, had been prepared by an architect, John Sneddon, and were passed to the plaintiff, which had a draftsman do some further drawings.
67 The plaintiff also prepared and provided a number of quotations for the Subiaco re-development, the prices being around $100,000, but the defendants did not accept the same.
68 An application for development approval was eventually made, and the plaintiff was involved in that, and arranged engineering drawings, for which it was paid.
69 A building licence duly issued, the plaintiff being named as builder, valid from 3 March 2000.
70 Construction work at Subiaco was first invoiced by the plaintiff to the defendants in the same month.
71 Notwithstanding the identify of the builder on the licence it was not then the case that the plaintiff was to carry out all of the building work at Subiaco.
72 Mr Petrelis said that BP had not been prepared to pay rent commensurate with the cost of the proposed re-development, and negotiations resulted in an agreement that BP would do some of the work itself.
73 As a result, Mr Petrelis said that in early 2000 he spoke to Mr Brine and offered the plaintiff the prospect of putting forward fixed prices for various parts of the work, on the basis that if in a particular case the price was competitive, the plaintiff would be used for that work.
74 Mr Brine was informed that the defendants intended to do some other parts of the work themselves, utilising sub-contractors, he said.
75 Mr Brine was told that although fixed prices would ordinarily be required, in some cases, where it would be difficult to provide a fixed price, the defendants would be prepared to agree to make payment on the
(Page 10)
- basis of the plaintiff's reasonable costs plus a 15 per cent builder's margin, Mr Petrelis said.
76 Hourly rates would be the same as those paid at Hill Terrace, he said he told Mr Brine, and the plaintiff would have to keep a record of the hours and also materials used.
77 Mr Petrelis said that Mr Brine agreed to proceed on that basis.
78 Mr Brine denies conversations of that kind occurred.
79 However, I find that did occur.
80 Mr Brine said that on 21 March 2000 he attended Hill Terrace and there met the defendants, Mrs Petrelis departing shortly after his arrival.
81 He and Mr Petrelis then sat down together at a small table in the shell, he said, and after he produced copies of the earlier Hill Terrace pro forma cost plus contract they "worked through" it.
82 Mr Petrelis was told the alterations to the existing house at Hill Terrace, and the Subiaco work, would be very messy, Mr Brine said, as both were old buildings.
83 There was an attempt by Mr Petrelis to negotiate down the 15 per cent builder's margin, Mr Brine said, but that failed.
84 Mr Petrelis then agreed to proceed on both jobs on a cost plus basis, and to abide by the terms of the pro forma cost plus contract, Mr Brine said.
85 However, Mr Petrelis said that he did not wish to sign the contract, for tax reasons, as he did not wish "to be locked in to the costs being incurred on one or other of the properties", Mr Brine said.
86 After he departed, Mr Brine said that he became very worried about Mr Petrelis not having executed the contract.
87 As a result he said he wrote a letter on the same day in the following terms:
"Please find enclosed copies of the Cost Plus Contract prepared by Clare for your job last year. It is understood now that on all works 1) over the Lump Sum Contract on Hill Terrace (other than already agreed variations) and 2) BP Service Station
(Page 11)
- 123 Thomas Street, Subiaco will be carried out on a Cost Plus basis in accordance with the enclosed contract.
Any queries please don't hesitate to contact me."
88 That letter of course says in effect that the LS contract had been vacated.
89 Mr Brine said that he had been surprised at the meeting when Mr Petrelis said to go ahead with both jobs, as he had not necessarily expected to obtain the BP work.
90 He said that in early April 2000, work started on the alterations to the existing house at Hill Terrace and to Subiaco.
91 In relation to work remaining under the LS contract at Mosman Park, he said that Mr Petrelis told him not to do it and that became the subject of later credits.
92 Invoices were subsequently sent which intermingled the Hill Terrace and Subiaco work.
93 Mr Brine said he would not have done that had he not been told by Mr Petrelis that he wanted the cost plus invoices for both sites together.
94 Mr Petrelis said those conversations simply did not occur, and he had no recollection of receipt of the plaintiff's letter dated 21 March 2000.
95 The onus is on the plaintiff to establish that a cost plus agreement of the kind alleged was made.
96 The plaintiff has failed to discharge that onus and I do not find that conversations of the kind described occurred or that there was any meeting of the kind alleged.
97 I have considered the copies of the letter, there being two slightly different copies, said to have been produced from the plaintiff's records, but after due consideration I am simply not persuaded that any such agreement was made.
98 In addition to matters already mentioned, there are a number of reasons why I generally prefer the evidence of Mr Petrelis to that of Mr Brine.
(Page 12)
99 First, the former plainly had a far better recollection of the work and of events, perhaps understandably, whilst Mr Brine had apparently spent significant time perusing the documents and did not always have a genuine recollection.
100 As mentioned, that was reflected in his error as to when the tiled garage roof became part of the LS contract, and the embellishment of the false memory with a conversation which could not then have occurred scarcely reflects real recall.
101 I was unimpressed with Mr Brine's attempt to explain away the March 2000 invoice which tended to contradict the evidence he had already given as to when work was practically completed.
102 Further, Mr Brine was prepared to attempt to justify work which was plainly defective or of a very poor standard, either by denial of that, or by claim that something further was to be done, where that was not apparently the case.
103 One example of that was the issue as to the effect of his mistake in allowing the shell suspended slab concrete pour to go beyond design thickness, dealt with below, where he was quite unwilling to acknowledge the defendants had been left with any problem.
104 There were several others.
105 The claimed events said to have surrounded the making of a cost plus contract on 21 March 2000 had an air of unreality, in my view, and the things attributed to Mr Petrelis were quite inconsistent with what I had observed of him, and appeared tailored to assist the plaintiff's claim, particularly in relation to the questions of compound interest, and the absence of any executed contract.
106 I have already noted that Mr Petrelis had no recollection of the plaintiff's letter said to have been sent following the agreement.
107 I would further observe that there is no reference in that letter to any specific agreement having been made, and the reference to "copies of the Cost Plus Contract prepared by Clare for your job last year" was at odds with there having been a detailed negotiation of the same document on that day, particularly when Mr Brine claimed that he had a great concern that it had not been executed.
(Page 13)
108 Why Mr Petrelis would agree to abandon the LS contract for the additional work at Hill Terrace in favour of a cost plus agreement, was not something which emerged.
109 It also seemed to be the case that notwithstanding the purported inclusion of outstanding LS contract work in the cost plus arrangement asserted in the letter, Mr Brine did not in fact always act as though that had occurred, although there was no real exploration of that issue.
110 Mr Brine's evidence that the plaintiff's invoices which combined the Hill Terrace and Subiaco work were prepared expressly at the request of Mr Petrelis, and only for that reason, was self-serving, and unlikely.
111 It was inconsistent with his evidence of later attempts to unravel the same and to characterise the various items of work, those being unaccompanied by any contemporary assertion that the defendants had brought about the state of affairs.
112 The invoices did not in all respects observe that amalgamation.
113 Also in relation to the two principal witnesses, Mr Brine asserted that he had sought, and been denied, the opportunity to rectify some items of work, but that was denied by the defendants, and I would not find on balance that it occurred.
114 One problem not perhaps of the plaintiff's or Mr Brine's making, but nonetheless still an obstacle to the provision of sufficient supporting documentation, was the lack of job cards for labour on the Hill Terrace site.
115 Those had, according to Mr Brine, been lost in the course of the plaintiff's administration.
116 Assuming that to be the case it was unfortunate.
117 The absence of such meant that Mr Brine's attribution of particular hours to various items of work was simply an estimate.
118 In circumstances where there was a failure to properly particularise work said to have been done on either site, in the invoices rendered at the time, that was also the case with many of the claims made by the plaintiff.
119 And, as I have already indicated, Mr Brine's unaided recollection was not generally to be relied on.
(Page 14)
120 I should also say something about the defendant's expert witness, Mr Jessett.
121 Mr Jessett is a building estimator, and has been self employed in that capacity for the last 18 years, he said.
122 His clients included many builders and architects, he said, and numbered in excess of 100.
123 An estimate of the value of some of the building work carried out by the plaintiff at both Hill Terrace and Subiaco was done by him on the basis of costs as such stood at about 1 June 2001, Mr Jessett said, those being perhaps 5 per cent more than would have been the case during most of 2000.
124 GST, which came into force on 1 July 2000, was not included, he said.
125 Mr Jessett agreed it was more difficult to make an assessment after the work was done, but said he "thought (he) was fair".
126 He also agreed that the building trade had been busy during the year 2000, ahead of the introduction of GST.
127 The margin of difference between an estimate made by him and actual building costs should only be "a few per cent, 5 per cent", he said. As to his ability to ascertain what work had been done, Mr Jessett said that in relation to "most of these things there is no plans … (and) it's just what's there … what I've seen and what I've been told was done".
128 I was impressed with Mr Jessett as a witness and his experience and expertise were undoubted, and really unchallenged.
129 Where Mr Jessett's estimate in any case has been generally adopted by me I have however allowed an additional 15 per cent, which I consider results in a reasonable allowance in all the circumstances, for reasons which include the following.
130 Mr Jessett's estimates were of course just that, the information available to him was less extensive than would ordinarily be provided by an instructing architect or builder, in some instances he was not aware of additional work, some work would have been the subject of GST, which he did not allow for, and, in relation to items the subject of a quantum meruit calculation, the obligation of the defendants was to pay a
(Page 15)
- reasonable price, which would not necessarily be the cheapest price available within the industry.
Scott Schedule
131 The form of the Scott Schedule is apparently based on the defendants further and better particulars.
132 The plaintiff, as it was required to do, participated in the completion of that document.
133 However, as appears above the position of the parties in relation to the basis on which all of the work was to be done and paid for differed, and in the event the defendants have succeeded on that score.
134 That creates a difficulty for the plaintiff, which was recognised by Mr Brine when he stated (par 375):
"Pace Constructions issued invoices as the works were being undertaken. These invoices included labour, materials and subcontractor costs over different areas of the Lump Sum Contract and Cost Plus Contract works. It is accordingly not possible to accurately split the costs in the invoices into arbitrary areas of the Lump Sum Contract and Cost Plus Contract."
135 376:
"For example, one load of sand could be delivered and invoiced, but the sand could have been used in each of the laundry, garage and old part of the Mosman Park House. For example, a carpentry labour invoice may be issued in respect of carpentry work undertaken during the course of a day on several areas of the Mosman Park House. For that reason it is not possible to split each of the invoices into individual areas of the works, as Petrelis seeks to do in the Scott Schedule."
136 Indeed, in evidence Mr Brine said the plaintiff's accountant did the initial work on the plaintiff's responses, and he then went over it, and did the best he could, "but guesses were involved".
137 Mr Brine also said that in the course of the work the plaintiff had an on site supervisor who had gone over invoices prior to issue, but that person was not called to give evidence.
(Page 16)
138 The plaintiff in fact did not call any employee or contractor who had carried out work for it on either site.
139 Further, the invoices from contractors who had done work on either site and suppliers who had provided materials were not admitted as evidence of the contents thereof, but rather only as documents received by the plaintiff.
140 Although counsel for the plaintiff in closing submitted that the defendants had failed to sufficiently challenge Mr Brine on his evidence as to the scope and value of the work carried out by the plaintiff on each site, I would not agree that in the circumstances that evidence can be regarded as unchallenged.
141 The plaintiff, through counsel, also submitted that in the event that the plaintiff did not succeed in showing work had been done pursuant to a cost plus contract it was still entitled to be remunerated on a quantum meruit basis.
142 Given the above matters, the lack of properly particularised invoices or other contemporary documents, the absence of the job cards referred to, Mr Jessett's opinion as to the overstating of hours said to be necessary for various items of work, and my inability to generally rely on Mr Brine's evidence, the problem becomes an insuperable one for the plaintiff, which bears the onus of proof.
143 In my resolution of the issues raised in the Scott Schedule I have done the best I can, but recognise that in the final analysis the plaintiff might well be left uncompensated for some work done by it, in respect of items where the parties had agreed that the plaintiff was to be remunerated on the basis of the reasonable cost thereof plus the builder's margin.
144 That would be regrettable, but in the circumstances outlined, ultimately a difficulty largely of the plaintiff's own making.
145 The Scott Schedule is divided into a number of sections and subsections.
146 Section A "List of Works" is apparently intended to permit the parties to set out their positions in relation to work done at each of the two sites, designated M and S respectively, including the value of it and the basis of the plaintiff's entitlement, where there is or was some dispute.
(Page 17)
147 The division of some of the work within the M subsection into designated rooms was apparently based on a summary of work put forward by Mr Petrelis for discussion at a meeting at which the parties attempted to resolve their difficulties.
148 Section B "Claims by defendant(s) to rectify work", contains within subs B1 items of alleged incomplete work or work alleged to have been done badly, as set out by the defendants with the plaintiff's responses.
149 The views of Mr Knowles, as set out in two reports and later repeated in evidence, form the basis for the defendants' allegations of defective work.
150 Subsection B2 contains "Items at Mosman Park not referred to in Knowles report", whilst subsection B3 has Subiaco items from the Knowles report.
Section A – List of works
A M Mosman Park Contract
A M1 Plumbing
151 On 12 October 1999 Mr Brine wrote to the defendants in terms which included the following:
"Please find below our quotation as received from AJ Plumbers for the plumbing work to your home at the above address.
We note that this work will need to commence before the limestone wall at the rear of your property can be constructed (i.e. the drain/sewer work).
- On your approval we will place an order with Alan for this work."
152 That amount represented the plumber's quoted price of $11,500, and 15 per cent, the builder's margin.
153 On 15 October 1999 Mr Brine again wrote to the defendants attaching the plaintiff's orders for the plumbing work.
154 The defendants say that there was an agreement for the plumbing work to be carried out for a fixed price. The plaintiff denies that.
(Page 18)
155 I find that there was clearly an agreement as alleged by the defendants.
156 The plumbing work was not completed by the plaintiff.
157 The plaintiff alleges that on a cost plus basis the value of the work charged for, including builders margin, was $8,694, although some work was not charged for.
158 Mr Jessett's estimate of the total value of the plumbing work, including that in A M1.1 and A M1.2 below, was $9,050, which after the 15 per cent adjustment becomes an amount of $10,407, and which I accept as a reasonable estimate.
159 For the reasons which appear below, an amount of approximately $1,780 ought be deducted from that, to reflect laundry plumbing costs, which were to be charged separately, as part of the laundry price.
160 The defendants also claim credits for plumbing work that was within the agreement, but not done, and those are dealt with later.
A M1.1 Additional plumbing
161 This was a variation, to be charged in addition to the above.
162 Although completion of the work was put in issue, the position here is unclear on the evidence.
163 It is said by the plaintiff to be included in its estimate of work under A M1.
A M1.2 Additional plumbing
164 This is said by the defendants to be part of the laundry price below, and by the plaintiff to be part of its plumbing claim above.
165 The former is the case.
A M2 Laundry
166 Although no formal written quotation was provided, I prefer the evidence of Mr Petrelis that agreement was reached for a fixed price for the laundry, to the evidence of Mr Brine, to the effect that there was no such agreement.
(Page 19)
167 A handwritten note provided by Mr Brine to Mr Petrelis, which sets out various costs, adds the 15 per cent margin, and contains a total of $10,802 was put into evidence.
168 As to the plumbing component in that note, there is a reference to "AJ $1,780", which in the absence of other submission I would assume to be one to AJ Plumbing, the quotation of which formed the basis of the plumbing agreement above.
169 The job was to exclude electrical work, tiling, and painting.
A M2.1 Additional laundry works
170 This is said by each of the parties to be referable to the laundry work above, and I make that finding accordingly.
A M3 Portico
171 Mr Petrelis said there was a fixed price agreed in relation to a new portico to be constructed in place of a Juliet balcony, and produced a handwritten note given to him by Mr Brine which set out various items, including a sub-total of $4,560 and two further sums which totalled approximately 15 per cent of that figure.
172 He said that after agreement that he would do some of the work, so as to in effect delete the subsequent costs set out, it was agreed that the work would be done for the sub-total price and margin.
173 Mr Brine denied that there was any agreement for the work to be performed for a fixed price.
174 Again, I prefer the evidence of Mr Petrelis and would find that there was an arrangement as alleged, the price then being $5,244.
A M3.1 Additional portico works
175 This is included in A M3 above.
A M4 Sand
176 I was informed that in relation to this and the following three items that each could be treated as a variation or separate fixed price agreement, and that the value thereof was agreed in each case.
177 The agreed value is $184.
(Page 20)
- A M5 Survey
178 The agreed value is $230.
A M6 Additional height on rear fence
179 The agreed value is $760.
A M7 Arranging Diggers and Truckers
180 The agreed value is $22.50.
A M8 Scaffolding for exterior plastering
181 Mr Petrelis said that it was agreed that the plaintiff would supply that for "around $2,000".
182 The plaintiff says that the value of the supply, including builder's margin, was $2,556.
183 In the circumstances, I adopt the latter figure.
A M9 Kitchen
184 In relation to this item and the items through to A M21, it is apparently not in dispute that the plaintiff was at least asked to provide labour to do the particular work, and that it was entitled to charge labour rates as set out in the LS contract, whether by agreement or because such were reasonable, together with the costs of materials used and the usual builder's margin.
185 What is in issue in each case is the value of the particular work, as so assessed.
186 In relation to the kitchen, the plaintiff claims $3,615, that including 90 hours of labour.
187 Mr Jessett said he could not "justify" the plaintiff's claim for "hours spent with bricklayers, plasterers, carpenters".
188 He had included the work set out in A M9.1, he said.
189 I note in that respect the plaintiff's closing submissions were to contrary effect.
190 Mr Jessett's total allowance for the kitchen work was $1,553, and I would adopt a value of that plus 15 per cent, for the reasons set out, which rounded off is $1,785.
(Page 21)
- A M9.1 Additional kitchen works
191 This is referable to A M9 above, being as stated within Mr Jessett's estimate.
A M10 Study
192 The plaintiff provided a written "rough estimate" of $1,084, with ceiling and wall patching to be "done later".
193 It now seeks $1,983.
194 Mr Jessett agreed he did not allow for a plasterer.
195 His estimate, as adjusted by me, is $1,289, and if the claim for the plasterer is added, there is little difference between the two, and I consider the plaintiff's figure of $1,983 has been made out.
A M10.1 Additional study works
196 This work ought be included in the above.
A M11 New dining room
197 There was some divergence as to the work, and I accept Mr Petrelis' verification of the information given to Mr Jessett in that regard.
198 The adjusted estimate of Mr Jessett amounts to $1,654, and he said that there was not much involved in the work.
199 On the other hand the claim of the plaintiff is for $3,953.
200 I allow $1,654.
A M11.1 Additional new dining works
201 This item is referable to the previous item.
A M12 Main bedroom
202 The plaintiff claims $352, and in cross-examination Mr Petrelis conceded that.
A M13 Main en suite
203 The plaintiff claims $4,839, and again Mr Petrelis conceded that.
A M13.1 Additional main en suite works
204 This is referable to the previous item.
(Page 22)
- A M14
205 The defendants' estimate of $690 exceeds that of the plaintiff of $471, which makes no allowance for bricks although such would necessarily have been involved, but I allow $471, as claimed.
A M15 Guest bedroom (bed 3)
206 Again, the plaintiff's estimate is less than that of the defendants' and I allow the former in the sum of $1,277.
A M16 Guest en suite (third en suite)
207 There is no agreement as to the work done.
208 The total put forward by the defendants for work in this area, which includes the following two items, is $2,470.
209 Mr Jessett's estimate was $1,812, or $2,084 after my adjustment.
210 The plaintiff claims $4,365.
211 This is an item where really I am able to do no more than apply the onus, which falls on the plaintiff, and to say that given what I have found in regard to Mr Brine's evidence, the uncertainties inherent in the plaintiff's methodology, and Mr Jessett's evidence and estimate here, that the plaintiff has failed to discharge that onus.
212 I then allow $2,470.
A M16.1 Additional guest en suite works
213 This is referable to the previous item.
A M16.2 Second en suite
214 This is also referable to A M16.
A M17 Sundeck
215 The plaintiff claims $3,475 for this and the following item.
216 Mr Jessett's estimate, as adjusted by me, was $2,215.
217 The plaintiff's claim includes delivery of marble tiles, unrelated to this item, and scaffolding, which Mr Petrelis said was not used for this work, and which would not appear to be required.
(Page 23)
218 Again, there is doubt surrounding the claim and I would rely only on the adjusted estimate of Jessett and allow $2,215.
A M17.1 Additional sundeck work
219 This is referable to the previous item.
A M18 Upstairs passage
220 Although not related to this particular item, Mr Petrelis acknowledged that the work the subject of the plaintiff's claim for $745 was done and I allow that amount.
A M19 Foyer
221 The defendants' allowance in the Scott Schedule and the plaintiff's claim are approximately 10 per cent apart and I allow the latter claim of $1,133.
A M19.1
222 This is referable to the above item.
A M20 Front entrance to formal lounge and study
223 The plaintiff seeks $709 and the adjusted estimate of Mr Jessett is $529.
224 There is little difference. However it was put to Mr Jessett that there was a need for rectification of the entrance as a result of work done by the defendants.
225 I would not find that was the case and allow the adjusted Jessett estimate of $529.
A M21 Exterior on existing building
226 The plaintiff claims $10,068.
227 Mr Jessett's allowance, after adjustment, is $7,577.
228 Additional work claimed by the plaintiff includes in particular work to the eaves, gutters and roof, including the laundry and garage, scaffolding hire, and a sand finish to external walls and the interior of the garage in lieu of a broom finish.
229 I allow the adjusted Jessett estimate of $7,577.
(Page 24)
- A M21.1 Additional exterior works
230 Mr Jessett said in cross-examination that he did not take this and subsequent sub-categories of A M21 into account when he assessed the value of the work under that item.
231 That being the case, I am left with the plaintiff's claim in each case, apart from observations of Mr Petrelis and the defendants' section of the Scott Schedule.
232 That does not present any difficulty in relation to this first item, which although in dispute is said by both parties to be referable to A M21.
A M21.2 Walk-in robe
233 The plaintiff claims $373.
234 This work would appear referable to making good between floors, and as such part of the work under the collateral agreement made at the time of the LS contract, and not able to be claimed separately.
A M21.3 Pool area
235 The plaintiff claims $5,200.
236 The defendants say this work ought be in A M21, and indeed construction of the pool wall is included within the description of the work under that claim. That was by the defendants, and was hence included by Mr Jessett, so that there is at least overlap.
237 There is other labour and materials claimed by the plaintiff, including "windows, doors and openings and building of pool surrounds", and "labour, concrete and mesh to pour concrete to porch and veranda near pool"
238 I am not persuaded on balance that this claim is justified as to the work done, and am unable to determine what a reasonable allowance might be.
A M21.4 Lounge room
239 The plaintiff claims $792.
240 Mr Petrelis said that work related to making good, and I accept that, and do not make any allowance under this head.
(Page 25)
- A M21.5 Air conditioning slab
241 The plaintiff claims $306 for this.
242 This was included by the defendants, and hence was considered by Mr Jessett in his assessment of the A M21 work and materials and I make no separate allowance for it.
A M21.6 Insurances, building licences, plans, engineer
243 The plaintiff claims a total of $4,618 for a variety of items.
244 The defendants response in the Scott Schedule was that the claim was disputed, and the contents were unclear.
245 I allow the cost of an amended building licence, $45, the drawings of Gino Lorenzon, $200, and insurance, $245, a total of $490.
246 The plaintiff was employed as a builder, not a consultant and in the absence of express agreement, I would not allow the time claimed, which would in any event appear greatly excessive, for talking to other people.
A M21.7 Disposal bins
247 The plaintiff claims $834.
248 I do not allow this.
A M21.8 Joinery
249 The plaintiff claims $2,667.
250 I am not persuaded on balance that the materials the subject of this claim ought be included within the ranks of items which were to be charged if provided, as opposed to items which fell within the LS contract, and I make no allowance.
A M21.9 GST
251 Although this was payable after 1 July 2000 the extent of the plaintiff's entitlement is unclear. I allow the sum of $500.
A M22 Hire of compactor
252 The plaintiff claims $185, which is not in dispute, and which I allow.
A M23 Sketch works and drawings for laundry
253 The plaintiff claims $264, which is not in dispute, and which I allow.
(Page 26)
- A M24 Sight, measure and changes to drawings
254 The plaintiff claims $230, which is not in dispute, and which I allow.
A M25 Title search
255 The plaintiff claims $55 which is not in dispute, and which I allow.
A M26 Supply of arch T-bar
256 The plaintiff claims $612, which is not in dispute, and which I allow.
A M27 Supply of louvre door and vents.
257 The plaintiff claims $690, which is not in dispute, and which I allow.
A M28 Obtain and provide engineering drawings
258 This item is in fact referable to A S 10.
A M29 Garage/retaining wall cavity fill
259 The plaintiff claims $1,200, and it would appear from the evidence of Mr Petrelis that the quantum is not in dispute.
260 The defendants expressed the view that the plaintiff was responsible for the need for work and materials of which this formed a part, on the basis that a retaining wall had been damaged by it.
261 However, as appears later in these reasons, I am of the view that the plaintiff is not so liable.
262 I allow $1,200.
A M30 Building/BCITF Fee
263 The plaintiff claims $299.
264 Again, it appeared that this item related to relocation of the garage as a result of damage to the retaining wall and for the same reason I am of the view that the plaintiff is entitled to an allowance as claimed.
A M31 Supply timber joinery
265 The plaintiff claims $1,860. It was not apparent that there was real opposition to the plaintiff's claim and I allow the sum of $1,860.
(Page 27)
- A M32 Roof repairs
266 Although the plaintiff's claim for $181.26 is referable to work done by it, the work was done at Subiaco and is unrelated to any of the work the subject of the present dispute and no allowance is made for it.
A M33
267 The plaintiff claims the sum of $575.
268 It does not appear that this was a report obtained at the request of the defendants, but rather it was essentially advice to the plaintiff as to its own position, and it ought not be charged to the defendants and I make no allowance for it.
A M34 Credit on PS amount for electrical work
269 It is not apparently in dispute that $3,000 ought be allowed under this head.
A M35 Credit on PS amount for plumbing work
270 It is not apparently in dispute that $1,600 ought be allowed under this head.
A M36 Credit on PC amount for two Humes doors
271 It is not apparently in dispute that $284 ought be allowed under this head.
A M37 Credit on PC amount for solid core door
272 It is not apparently in dispute that $80 ought be allowed under this head.
A M38 Credit for damaged light fittings in drive
273 It is not apparently in dispute that $150 ought be allowed under this head.
A M39 Builders margin on soak wells supplied by Galvin Concrete
274 The plaintiff claims $215.
275 Mr Brine said in evidence that there was an agreement that the plaintiff could charge its margin on soak wells to be paid for by the defendants.
276 Mr Petrelis denied that was the case and I do not find on balance that such occurred and make no allowance under this head.
(Page 28)
- A M40 Credit on PS amount on electrical work to garage
277 It is not apparently in dispute that $500 ought be allowed under this head.
A M41 Extra for alterations to brick work in front of garage
278 The plaintiff claims $373 for this item, on the basis that there was an agreed variation to the LS contract.
279 That is denied by Mr Petrelis, and again I would not find on balance that such occurred, and make no allowance under this head.
A M42 Extra on PS amount for white ant treatment
280 The plaintiff claims $376.
281 The defendant denied liability on the basis that no certificate had been supplied.
282 That has now been rectified and I allow the sum claimed.
A M43 Extra on PS amount for bins
283 The plaintiff claims $559.
284 The defendant denies liability for this claim and refers to the LS contract.
285 In that regard the initialled letter of quotation of 23 September 1999 which related to the shell provided under "Clean up" that all building debris would be removed, and also provided "2 x 10 m³ disposal bins allowed for".
286 In my view that could only be regarded as a provisional allowance, ie in the event more bins were required, such could be charged for.
287 I allow $559.
A M44 Credit on garage ceiling/ceiling to the sundeck stairwell
288 The plaintiff claims a credit was given for $1,530. It is not in dispute that the work was not done, although it ought to have been. It is referable to the LS contract, and ought be credited or the defendants ought have the cost of doing the work. They seek the latter.
(Page 29)
- A M45 Credit grano ramp and boat store
289 It is not apparently in dispute that there ought be a credit to the defendants in the sum of $1,050 in this head.
A S Subiaco
A S 1 Pre-cast concrete on mezzanine steel work
290 The plaintiff claims $10,549.
291 The dispute here concerns about $1,000 of additional work the plaintiff says was necessary, the concrete being supplied and erected at a cost of $8,300.
292 Mr Petrelis says that was pursuant to a fixed price agreement, the price to be that amount and the builder's margin.
293 It is not however necessary for me to resolve that issue, as he also said there had been a discussion with Mr Brine about some additional work, viz removal and re-instatement of a cyclone fence and a tyre rack, which it was not suggested ought not be paid for, whilst there was also an implicit concession in the evidence of Mr Jessett that there would be some clean up under the mezzanine after the work had been done.
294 The plaintiff's claim was put forward on the basis that there was a need for 28 hours of labour, and I do not find that to have been the case.
295 However, the plaintiff is entitled to an amount in excess of that conceded, and in doing the best I can I allow $10,000.
A S 2 Stud walls and ceilings on the mezzanine steel work
296 The plaintiff claims the sum of $14, 191.
297 The defendants say that there was an agreement that this work be done for a fixed price of $10,428, based on a quote from Condor Ceilings sent in a letter from the plaintiff, and agreed, together with the builder's margin, between Mr Petrelis and Mr Brine, save only for a change to the price based on a revised quote from Condor Ceilings, a further letter from the plaintiff and another conversation between the two men in which it was agreed that the price would be $9,068 plus 15 per cent.
298 Mr Petrelis said that he had not requested any additional work beyond one extra door frame, and was not told that any was necessary.
299 The estimate arrived at by Mr Jesset was $10,505.
(Page 30)
300 I find that there was an agreement for a fixed price and that the plaintiff is entitled to the sum of $10,428.
A S 3 Steel for canopy
301 The plaintiff claims the sum of $9,308, which is said to include replacement of supporting steel to hold up air-conditioning units and other work, including work to provide support for the ceiling.
302 The defendants through Mr Petrelis say there was a fixed price of $4,600, verbally agreed with Mr Brine, the price having gone from $2,000 to $4,000 to provide for support for the air-conditioning units and other things, and if other work had been done, he had not been made aware of it, nor asked to accept it.
303 I find that the position was as stated by Mr Petrelis and that the appropriate allowance is $4,600.
A S 4 Fix the roof above an internal wall
304 The plaintiff claims the sum of $4,428, that including, in addition to work on the roof, waterproofing, work by a roof plumber and various other things.
305 Mr Petrelis said that he asked Mr Brine for a fixed price, and was given an amount of $2,000, including the builder's margin, Mr Brine saying that he would do some of the work himself.
306 I find that there was a fixed price and that the appropriate allowance under this head is $2,000.
A S 5 Plumbing
307 The plaintiff's claim is for $5,423.
308 The defendants say that there was an agreement for the plumbing work to be done for a fixed price of $4,200.
309 It appears from two plumber's claims that extra work, including GST, to the value of about $650 was said to have been done, in part because of a change to the layout.
310 Mr Jessett, who understandably was not able to recall exactly what he had included, estimated the value of the plumbing work to be $3,824, or with my 15 per cent adjustment, $4,398.
(Page 31)
311 The documents are consistent with the plumber having given a fixed price, which is consistent with the evidence of Mr Petrelis that he and Mr Brine agreed such. I would find that was so.
312 However, it would also appear that there may have been some later change and the need for some further small jobs to be done, which Mr Petrelis has overlooked.
313 In the light of all of the evidence I allow $4,850.
A S 6 Supply and fit doors
314 The plaintiff claims $2,732.
315 The defendants say there was an agreed fixed price of $750.
316 However, Mr Jessett estimated the value of the materials and work, together with the builder's margin, to be $2,263.
317 The plaintiff includes waste bin hire at a total cost of $793.50 in its claim.
318 Mr Petrelis acknowledged in evidence that there ought to have been a general tidy up at the finish of the job at his expense, but thought only one bin ought to have been required.
319 There are invoices to support the hire of these and other bins, but in circumstances where the plaintiff did some items of work at Subiaco for fixed prices, and some on a quantum meruit basis, the difficulty the plaintiff confronts is to establish that a particular cost, here bin hire, was associated with the latter, not the former.
320 For the reasons already given, that is a problem of the plaintiff's own making.
321 Bin hire would not be required for this work, it would appear.
322 It appears, inter alia, from Mr Jessett's estimate, that there was however considerable work here beyond the supply of doors.
323 I make the usual adjustment to the Jessett estimate and allow $2,602.
A S 7 Install floor coverings
324 The plaintiff claims $6,350.
325 The defendants say there was an agreed fixed price of $4,436.
(Page 32)
326 In that regard, Mr Petrelis produced a letter from the plaintiff which set out and enclosed various quotations from carpet retailers for the supply and installation of vinyl tiles, and which sought instructions as to acceptance.
327 He said a price of $3,858 from Carpet Hotline was chosen by him, and after Mr Brine was advised of that, a price of $4,436, which included the builder's margin, was agreed.
328 The plaintiff's claim includes the costs said to have been associated with preparation of the floor, described as screeding, and an invoice from Jupps Floorcoverings which includes a pre-GST item of $950 for the supply and laying of a primer and screeding compound "to subfloor ready to receive vinyl tiles".
329 I note, and would infer that Mr Petrelis did not at the time pick-up the fact that Carpet Hotline's original quotation specifically provided "no floor preparation allowed for".
330 To accept such a quote is to assume liability for the reasonable cost of the preparatory work, and a mistake of the kind that would not alter contractual liability based on objectively observable circumstances.
331 Mr Jessett's estimate was $5,520, or $6,348 with the usual adjustment.
332 I allow the plaintiff's claim of $6, 350.
A S 8 Install insulation
333 The plaintiff does not claim an amount under this head, but says it is referable to A S 2 stud walls and ceilings on the mezzanine steel work, whilst the defendants say there was an agreed fixed price of $1,200.
334 It is not necessary to deal with this as a separate claim.
A S 9 Install window shop front
335 The plaintiff claims $3,928.
336 The defendants say there was an agreed fixed price of $2,500, and Mr Petrelis said he was given a verbal quotation for that amount.
337 The invoice which the plaintiff later received from Prestige Glass, which supplied and installed the window, was relevantly for $2,300, and a handwritten note on it reads:
(Page 33)
- "Invoice Angelo $200 blders margin only."
338 I infer that is an office record of the plaintiff, the document being produced by it.
339 Mr Brine acknowledged the absence of an agreement with Mr Petrelis to do some work but said he had used a bobcat inside the building, which had saved the defendants money.
340 The notated invoice supports Mr Petrelis' evidence of a fixed price, which in any event I would accept.
341 I allow $2,500.
A S 10 Obtain and provide engineering drawings.
342 It is apparently common ground that $920 ought be allowed under this head.
A S 11 Supply and installation of steel
343 It is apparently common ground that $2,550 ought be allowed under this head.
A S 12 Build a concrete ramp
344 The plaintiff claims $537.
345 Although the defendants complained about the work, and say that it had to be re-done, the sum of $950 is put forward by them.
346 In those circumstances I allow the plaintiff's claim of $537.
A S 13 Partition a temporary entry to the service station
347 The plaintiff claims $2,569.
348 The defendants say this work was to be done for the reasonable cost thereof and builder's margin, and nominate $1,150.
349 Mr Jessett's estimate, as adjusted by me, is $2,513.
350 I allow the plaintiff's claim of $2,569.
A S 14 Construct concrete footings to support the steel floor structure
351 The plaintiff claims $4,138.
(Page 34)
352 The defendants acknowledge this is a quantum meruit claim, and say $1,725 would be a reasonable amount.
353 Mr Jessett's estimate, as adjusted by me, is $4,039.
354 I allow the plaintiff's claim of $4,138.
A S 15 Screed the floor
355 The plaintiff claims $4,597.
356 The defendants say a reasonable amount would be $2,300.
357 Mr Jessett's estimate, as adjusted by me, is $2,966.
358 Any dispute as to the scope of the work does not extend to the large difference between the claim and estimate, and I would rely on the adjusted Jessett estimate.
359 I allow $2,966.
A S 16 Demolish internal wall and remove debris from site
360 The plaintiff claims $12,296.
361 The defendants say a reasonable allowance would be $5,980.
362 Mr Petrelis said that he had suggested to Mr Brine that a quote be obtained from Diggers and Truckers, but the latter said that he would be able to do the work himself, and that the cost of doing it would be no more than $5,000, which would be significantly cheaper than if done by a third party.
363 That estimate did not however firm into a quotation, he said.
364 Mr Jessett's estimate was $5,118, and it did not appear from his evidence that he had overlooked any major item of work or material claimed by the plaintiff.
365 The basis for a claim of the magnitude of the plaintiff's does not appear on evidence which I feel able to rely on, and I accept Mr Jessett's estimate, and after adjusting it allow $5,886 under this head.
A S 17 Relocate separate entries for two toilets and remove one dado stud wall in a toilet
366 The plaintiff claims $3,624.
(Page 35)
367 The defendants say a reasonable amount would be $2,990.
368 Mr Petrelis said there were items in the plaintiff's description of work which he had not asked for, nor approved, such as drilling holes for plumbers and shower fittings.
369 Mr Jessett estimated a cost of $2,616, and with my adjustment that makes for an amount of $3,008, which I allow.
A S 18 Remove and replace sections of wire mesh fence
370 The plaintiff says this item is included in A S 3, whilst the defendants say a reasonable amount for it would be $276.
371 It is not necessary for me to deal with it under this head.
A S 19 Install an additional waste pipe
372 The plaintiff says this is included in A S 5 whilst the defendants say it was a variation and a reasonable amount would be $403.
373 I accept the latter proposition.
A S 20 Fabrication of steel
374 The plaintiff claims $1,329 in relation to this item, which it says includes removal of partition walls to taxi area, disposal bin, removal of brick work to create a bearing area for steel work, and welding after the Delta erection, a beam having been left out to allow crane access.
375 The defendants do not agree to this item and make reference to A S 11 and A S 14.
376 There would appear to be a repetition of part of the work set out in A S 14, and I do not feel able to make any separate allowance in relation to it.
A S 21 Additional steel for awnings over pumps
377 The plaintiff claims $2,360.
378 The defendants say this work is included in A S 3.
379 Neither Mr Petrelis nor Mr Jessett gave evidence in relation to this item.
380 So far as I am able to see from the work and materials claimed, it is not included within A S 3.
(Page 36)
381 I allow the plaintiff's claim in the sum of $2,360.
A S 22 Remove old office brick work and end of retail area
382 The plaintiff claims $269.
383 The defendants say this forms part of the work in A S 16, but that does not appear to be the case.
384 I allow the plaintiff's claim of $269.
A S 23 Install second temporary wall
385 The plaintiff claims $527.
386 The defendants say this is not an agreed item.
387 Again, Mr Petrelis did not deal with this matter. I allow the plaintiff's claim of $527.
A S 24 Remove window to old rest room
388 The plaintiff claims $254.
389 The defendants say this is part of item A S 17.
390 It would certainly appear to be so and I would not make any separate allowance.
A S 25 Additional expenses
391 The plaintiff claims $3,642.
392 The defendants say they do not know what the detail of the claim is, nor whether it appears elsewhere.
393 Some detail is provided in par (i) and (ii) of the Schedule, as well as in the particulars provided in the plaintiff's column thereof, which make reference to invoices.
394 It is true, as Mr Petrelis said in evidence, that some of the costs would have had to have been paid.
395 I am however not persuaded that much of what is claimed ought be separately charged to the defendants account.
396 I accept, and note the defendants' concession, that some would probably be charged.
(Page 37)
397 Doing the best I can I allow $1,000.
A S 26 Strengthening floor where RSJ and In-Slab cut-off
398 The plaintiff claims $1,265.
399 The defendants say this is part of item A S 16.
400 No evidence was led about this on behalf of the defendants.
401 I allow the plaintiff's claim of $1,265.
A S 27 Cut-off RSJ in concrete slab to floor level
402 The plaintiffs claim $960.
403 The defendants again say this is part of A S 16 but evidence was not led by them in relation to it.
404 I allow the plaintiff's claim of $960.
A S 28 Make good brick column to front elevation
405 The plaintiff claims $617.
406 The defendants say they do not know this item, the description of which in the Scott Schedule is to "accommodate console wiring, plaster to make good, cement, Bunnings".
407 Mr Petrelis said he did not instruct Mr Brine to do that work.
408 I do not allow this claim.
A S 29 Move all old evaporative ducting
409 The plaintiff claims $331.
410 The defendants say this is part of A S 16.
411 No evidence was led by the defendants in relation to it.
412 I allow $331.
A S 30 GST
413 The plaintiff claims $2,020.
414 The defendants say the claim is unclear.
(Page 38)
415 Mr Petrelis acknowledged in evidence that some work did continue after 1 July 2000 and agreed in effect that GST would have been payable on that.
416 There is no break up of the claim, and it is reasonable to infer that some of it relates to items which I have disallowed.
417 Doing the best I can, I allow $1,000.
Section B – Claims by defendants to rectify work
418 Prior to a consideration of individual items, I ought say something about the evidence led from witnesses other than Mr Brine or Mr Petrelis in support of or in opposition to the same.
419 Mr Barry Knowles is a registered builder, building consultant and consultant inspector to the Builder's Registration Board. It was, as stated, his inspection of Hill Terrace and Subiaco in April and May 2001, and subsequent reports, which formed the basis of the defendants' further and better particulars, those in turn providing many of the claims in this part of the Scott Schedule.
420 I thought Mr Knowles was a very impressive witness, apparently knowledgeable as to present standards and requirements, careful, and untroubled by cross-examination.
421 The plaintiff called a well qualified architect of very long experience, Mr David Standen, who carried out inspections of Hill Terrace and Subiaco in November 2006, and in particular of those matters referred to in Mr Knowles' reports.
422 There were aspects of Mr Standen's evidence which troubled me, where he had apparently been unable to observe some feature of the work which was still present, as demonstrated by other evidence, or where he sought to justify some other aspect which appeared plainly unjustifiable, given other evidence, including photographs.
423 It is not necessary in the circumstances to detail those aspects, his evidence being of short compass.
424 I would not rely on Mr Standen's opinions where such were in conflict with those of Mr Knowles.
425 Engineers were called by both parties, Mr Scott for the plaintiff and Mr Airey for the defendants.
(Page 39)
426 The two had conferred, pursuant to a direction in that regard, and there was no great conflict between them.
427 The evidence of each was forthright and helpful, and I would generally accept it.
428 The defendant called three other witnesses in this area.
429 I have already spoken of the evidence of Mr Jessett.
430 A witness called by the defendants to give evidence as to the cost of various items of work was Mr Kevin Savage, who said that he had been engaged in the building industry for about 45 years, for 20 years as a registered builder, had worked as the project manager with Geraldton Building Co. and now did project administration work with Oldfield Knott Architects. Mr Savage said he had been engaged in work which involved cost estimation for about 15 years.
431 In April 2002 he was given the Mr Knowles report and was asked, he said, to cost the same.
432 In April 2005 Mr Savage said he adjusted the costs to reflect changes to that point.
433 Since then costs had increased again, he said.
434 Further, the costs had been calculated on the basis of the job as a whole, he said, although individual breakdowns had been calculated.
435 The cost of an individual item, if done separately, would be greater, he said.
436 He had also costed some items which he had been told were to be the subject of credits, Mr Savage said, in 2002, and had also included the costs for some others that appeared from quotes given to him by Mr Petrelis.
437 Mr Savage was critical of the state of the suspended slab and the installation of the windows and doors complained of by the defendants.
438 Mr Chris Brook is a registered builder who carried out finishing or remedial work at Hill Terrace in about 2001 and who provided a quotation for work to the roof at Subiaco in 2007.
(Page 40)
439 The evidence of each of Mr Savage and Mr Brook was given in an unexceptional manner, was not seriously challenged, and, in my view, was reliable.
440 There was one aspect of Mr Brook's evidence which was controversial, in regard to principle more than content.
441 That concerned Item B3 7 "rectify roof above main entry", in respect of which Mr Brook assessed the present cost of carrying out rectification work as being in excess of $13,000.
442 The plaintiff submitted that it was not appropriate to utilise that rate, but rather the cost of doing work in 2002 was more appropriate.
443 McKay v Hudson [2001] WASCA 387was cited as an example of the application of the principle.
444 A perusal of that case is likely to incline the reader to the view that it very much turned on its own particular (and unusual) facts.
445 In any event, the basis of the reduction in damages there was a finding of a failure to mitigate by the appellants, in circumstances where it was said the intransigence of the respondents ought to have caused the appellants to appreciate the existence of the need to do the necessary work themselves.
446 Here, although as I have already said the pleadings were of less than usual relevance, it is nonetheless the case there was no plea in the Reply of any failure to mitigate.
447 That being the case, no evidence was lead as to the history of the dispute after proceedings were commenced, beyond the fact that the plaintiff had for several years failed to properly particularize its claim, as to the means of the defendants, or as to the existence of other reasons as to why the work had not been done earlier.
448 Unlike in McKay, GST would have been payable whenever the work was done.
449 Further, if required to meet a claim for damages the plaintiff would be required to pay in the currency of the day. It has not yet been so called upon. In the absence of evidence as to the cost of the same work in 2002 I am not in a position to say whether any increase in costs represents more than the loss in value of money since that time.
(Page 41)
450 It is undeniably the case that damages for rectification, not yet done, are often awarded on the basis of the current cost of the same.
451 I consider that ought be the basis of the assessment here, in relation to claims for rectification not yet done.
452 In relation to those items the subject of estimates by Mr Savage I consider the 2005 estimate in each case ought be the basis of assessment, in the absence of any updated estimate.
Section B1 Mosman Parke
B1 1.1 Garage, pointing up under roof tiles
453 Mr Knowles evidence and photograph demonstrate this was poor work which would not ordinarily be painted, notwithstanding Mr Standen's assertion to the contrary.
454 As appears elsewhere I have however allowed the defendants' claim for rebuilding of the garage roof, so that no separate allowance need be allowed for this item.
B1 1.2 Replacement of delaminating render on garage wall
455 Mr Standen was only able to see some impact damage but it is clear from the evidence of Mr Knowles, and that of Mr Petrelis, that there is substantial delamination on the north wall.
456 Mr Savage's last cost estimate for the work was $747 and I allow that.
B1 1.3 Replacement of garage roof
457 An amount of $26,000 is sought by the defendant, based on Mr Savage's last estimate.
458 The garage roof consists of one ridge rising from the front to the rear at an angle of 7 degrees.
459 That is a small deviation from the horizontal for a tiled roof.
460 It was the way in which the roof was designed, as appears from the documents forming part of the LS contract.
461 The plaintiff failed to comply with the contract design in a number of respects.
(Page 42)
462 First, there is no grading marked on the timber used for the rafters. Timber with a grading of F8 was required, and that ought to have been marked.
463 Second, instead of the timber rafters being continuous and running across the top of the steel beams which also form part of the roof structure, such run from beam to beam and are not continuous.
464 Mr Brine said that was done due to the insistence of the defendants that there be more height, but I do not find that to be so.
465 Third, one of the steel beams was put out of place, and the result of that and the above is that there is greater deflection in the roof than would otherwise be the case.
466 The effect of that, I would find from the evidence, including the photographs, is that there is "waviness" in the roof, that being particularly apparent in the middle of the structure where the end of the roof drops down below the gutter top.
467 There is also a problem with the roof in that it leaks.
468 That is partly due to the plaintiff's failure to construct it correctly.
469 It is also due to the roof design itself, and, as Mr Airey pointed out, what is required is that the roof be either constructed of metal or have a metal cladding beneath the tiles, if leaking is to be avoided, altogether.
470 Having considered the matter, I have formed the view that the plaintiff ought be responsible for the cost of rebuilding the roof to the garage, and that it is reasonable to require that work to be done.
471 In the light of the evidence of Mr Airey and Mr Knowles I consider the plaintiff's failures to comply with the requirements of the contract in relation to construction of the garage roof to be significant and that those have both brought about the unacceptable "waviness" in the appearance of the roof and have made a substantial contribution to the leaking problem that the defendants have experienced with the garage.
472 There was no apparent justification for what simply appeared to be very poor workmanship.
473 The ordinary remedy would be the cost of rectification: Belgrove v Eldridge (1954) 90 CLR 613.
(Page 43)
474 The defendants would gain a significant benefit from performance of the obligation in that the appearance of the roof of the garage would be greatly improved, and there would be an amelioration of the leaking problem.
475 There may still be a problem with the ingress of rain following repair, although the extent of that does not appear.
476 It might be that the defendants would accept that, or that some further alleviation would be possible.
477 I note that Mr Brine, an experienced builder, was prepared to construct the garage on the basis of the plans as they stood, without considering it necessary to forewarn the defendants of any consequences.
478 Having to failed to build it properly he, on behalf of the plaintiff, now seeks to be relieved of the consequences of his breach.
479 The defendants are reasonably entitled, in all the circumstances, to the roof they contracted for.
480 I allow the sum of $26,000.
B1 1.4 Parapet top and capping on garage/laundry wall
481 Mr Knowles said that the masonry parapet that separates the garage and the laundry had been partially render coated above the roof line and metal capped, and the top line of the parapet is not straight and the capping is incomplete.
482 The photograph was consistent with that.
483 Mr Standen was unable to see any problem on his inspection.
484 Mr Brine accepted the work was unsatisfactory but said it needed to be completed, and that would have been at the defendants' cost. I do not agree.
485 I find there is a defect as described and allow the sum estimated by Mr Savage of $1,056.
B1 1.5 Waste of lead sheeting
486 The lead sheeting was used, and then removed, and apparently left with the defendants. I do not allow this item.
(Page 44)
- B1 1.6 Non use of tie down rods in garage roof
487 These ought to have been fitted.
488 I have already made an allowance in relation to the garage roof. I do not add to that in respect of this item.
B1 1.7 Incomplete render inside garage
489 When the garage was moved it was agreed the inside wall would be plastered, in lieu of the outside, but that was not done and I allow the claim of $750.
B1 1.8 Pier inside garage
490 The pier is incomplete, and I did not find Mr Brine's or Mr Standen's attempts to justify the position at all convincing.
491 This item was included by the defendants in their claim for replacement of the garage roof and was not separately costed and no additional allowance is made.
B1 1.9 Garage ceiling
492 Mr Brine said that the plaintiff's obligation to provide a Hardiflex ceiling was deleted from the contract by consent, and the defendants were entitled to a credit, and were given one.
493 The deletion was not admitted by Mr Petrelis, whose evidence I prefer on the point.
494 The allowance of $10,548 made by Mr Savage does however relate to a gyprock ceiling.
495 Mr Savage assessed the cost on that basis in the light of a drawing which he said provided for a gyprock ceiling to the garage.
496 However, the obligation of the plaintiff was to provide what was in the relevant quotation and that was, in the absence of other direction, a "Hardiflex ceiling".
497 The only evidence of the cost of such a ceiling before me is that relating to the credit purportedly provided by the plaintiff, and that is stated as being the sum of $1,530, and I allow that.
(Page 45)
- B1 1.10 Damp on rear garage wall
498 It is apparent from the evidence of Mr Knowles and Mr Petrelis that there is a problem with the rear wall of the garage, brought about by the fact that it is also a retaining wall and the cavity has been filled with concrete for part of its height.
499 The plaintiff stated Mr Petrelis was informed that there would be a problem and instructed it to proceed, and it was also said by Mr Brine that waterproofing was not part of the contract.
500 I do not find there was such an instruction, and it was the case that the plaintiff was required to seal the garage rear wall.
501 In those circumstances the plaintiff is liable for the cost of rectification, and I allow the sum estimated by Mr Savage of $4,007.
B1 2.1 Making good render on each side of door opening to garage
502 Mr Knowles said this was damaged, and I allow $107.
B1 2.2 Incomplete plaster around laundry window
503 Mr Brine said that an architrave was to cover this but I do not find this to be the case and allow $120 which Mr Brook said was the approximate cost of doing the work.
B1 2.3 Delaminating plaster in laundry passage
504 I allow $120 as claimed.
B1 2.4 Wall plaster of insufficient height in laundry
505 This was of insufficient height and the plaintiff ought pay the cost of remedy by Mr Brook of $120.
B1 2.5 Lining of laundry ceiling
506 I allow the sum claimed of $1,200, the work being part of a fixed price contract.
B1 2.6 Protruding roof frame in laundry
507 I allow the sum claimed of $80.
B1 2.7 Rectify work over door and window frames
508 Again, this would appear to be simply poor work.
509 I allow the sum estimated by Mr Savage of $512.
(Page 46)
- B1 2.8 Laundry wall plaster
510 This is incomplete and I allow $107.
B1 2.9 Laundry wall plaster incomplete and delaminating
511 I allow this in the sum of $107.
B1 3.1 Hardiplex sheet installed inside out
512 This was not done by design, nor with the consent of Mr Petrelis, on the evidence.
513 However, in relation to this item and those following, to item 3.4 inclusive, Mr Petrelis really conceded the work was not part of the laundry contract, so had to be paid for separately. Although I make findings, I may need to hear further from the parties.
514 I allow $512.
B1 3.2 Box gutter lacks outlet pipe
515 I allow this in the sum of $383.
B1 3.3 Games room render completion
516 I allow this in the sum of $1,065
B1 3.4 Games room timber over door and window frames
517 This was defective work, rectified by the defendants, and I allow $200.
B1 4 Games room rain water pipe
518 No separate allowance is sought for this.
B1 5.1 Soiled roof tiles
519 Mr Brine acknowledged this occurred during construction and that cleaning or replacement was required. That ought not be at the cost of the defendant and I allow the sum claimed, of $200.
B1 5.2 Sundeck roof tiles to be fastened
520 The plaintiff says, in relation to this and other sundeck items through to B1 5.6 inclusive, that at least part of the work fell outside the LS contract, and when done would therefore have been charged for.
521 Implicit in that proposition of course is an assertion that the defendants have not already paid for it.
(Page 47)
522 Prima facie on the evidence before me the work fell within the LS contract as varied, or was making good work, so that an evidentiary onus rested on the plaintiff to disturb that, which the plaintiff has failed to do.
523 I allow the sum claimed of $200.
B1 5.3 Re-lay ridge and hip tile caps on sundeck
524 The same position pertains here and I allow $300.
B1 5.4 Complete roof tiling to roof of sundeck stairway
525 The same position pertains here and I allow the sum claimed of $300.
B1 5.5 Sundeck stairway roof gutters
526 Again, the defendants are entitled to a credit for the cost of providing gutters themselves.
527 That being the case, I allow the claim of $2,200.
B1 5.6 Sundeck roof flashings to parapet walls
528 The same applies here and I allow the claim of $1,000.
B1 5.7 Rectification of flashing at junction of sundeck metal roof and tiled roof
529 Mr Petrelis said that this work was done by him and his brother, but in cross-examination said that could be a mistake. I do not allow this item.
B1 6 Gyprock soffit lining to linen cupboard
530 This has all the appearance of poor work, rather than of a deliberate limit to plastering of the wall inside the linen cupboard, as claimed by Mr Brine, and I allow the sum claimed of $270.
B1 7 Rectify garage
531 As appears elsewhere I have allowed the defendants' claim in relation to rectification of the garage roof frame.
B1 8 Installation of doors including motor and handsets to garage
532 There seems no dispute the doors were not installed. The defendants say the plaintiff declined to complete the work.
(Page 48)
533 I find that to be the case and allow a credit in the sum of $4,571.
B1 9 Finish of suspended slab to shell
534 When concrete for the suspended slab was being poured, Mr Brine was delayed on the stairs and by the time he reached the first level, concrete had already been poured beyond the specified depth.
535 As a result it was necessary for him to arrange for the excess concrete to be jack hammered off the slab.
536 That left a rough finish.
537 Mr Brine insisted in evidence that this was a good thing and that in the end no real problem had arisen from the mishap.
538 However, it is plain from the evidence of Mr Petrelis that the floor was not left in an even state but was both extremely rough and had many high points in it, so as to require substantial further work.
539 Mr Savage confirmed that in evidence.
540 I allow the sum of $2,256.
B1 10 Provision of a fillet above the portico
541 Given that these works were subject to a fixed price, the defendants are entitled to the sum of $100, having paid for the work which was not done.
Section B2 Items at Mosman Park not referred to in the Knowles report
542 The items in this section are credits claimed for work not done by the plaintiff or items of rectification of work done or damage said to have been caused by the plaintiff.
543 Mr Savage said that although he had set out an allowance for each of these items, most had resulted from information provided by the defendants, rather than from an assessment made by him.
544 However, it did not appear that was a discrete basis of opposition.
B2 1 Set and float staircase to sundeck.
545 This particular work was not done.
546 It fell within the plastering work for the shell under the LS contract, and the defendants were entitled to a credit for it.
(Page 49)
547 Mr Petrelis said that the plaintiff had fixed some battens on the wall so as to be able to receive gyprock, by agreement, and to avoid cracking of a plaster finish which would occur if it met a concrete surface after brick, but denied any "quid pro quo" had been agreed to.
548 I do not find it had.
549 I accept Mr Savage's estimate of $285, as claimed by the defendants.
B2 2 Concrete for Juliet balcony
550 The need for a credit is acknowledged by the plaintiff.
551 That would appear to be the case, and I allow Mr Savage's estimate of $78
B2 3 Sundeck staircase ceiling and insulation
552 There was to be a ceiling for the sun deck staircase roof, under the LS contract.
553 By agreement, the defendant assumed the responsibility.
554 The estimated cost is $210 and the defendants are entitled to a credit for that amount.
B2 4 Sundeck roof
555 The change to the sundeck included a change from a metal roof to tiles and the plaintiff accepts the defendants are entitled to a credit for the cost difference of $137
B2 5 Making good walls
556 This relates to making good between old and new parts of the house, there having been a failure to complete the plaster in some areas, so as to leave gaps.
557 The plaintiff was required to make good to walls and in relation to doors and windows, in addition to floors, there having been a collateral agreement to that effect at the time of entry into the LS contract, as described by Mr Petrelis, and the defendants are entitled to a credit which I allow in the sum claimed of $350, that being the approximate cost of the work done by Mr Brooks.
B2 6 Refit main ensuite doors
558 I allow Mr Petrelis' claim for $150.
(Page 50)
- B2 7 Setting of ceilings to concrete roof/floor
559 I accept Mr Petrelis' evidence, note the plaintiff's concession, and allow the claim of $375.
B2 8 Shell electrical work
560 A provisional sum of $3,000 was allowed in the LS contract for electrical works for the shell.
561 The work was not done, by agreement, and the defendants are entitled to a credit for $3,000.
B2 9 Shell plumbing
562 As appears, the provisional sum of $1,600 for plumbing ought be the subject of a credit to Mr Petrelis.
B2 10 2 Hume doors
563 I accept the evidence of Mr Petrelis that the doors were deleted from the LS contract and that it was agreed that the cost would be $284.
564 There ought be a credit for that sum.
B2 11 Solid core door
565 The defendants are entitled to a credit in the agreed sum of $80.
B2 12 Damaged light fitting
566 The defendants are entitled to a credit in the agreed sum of $150.
B2 13 Damaged telephone line
567 The defendants are entitled to a credit in the agreed sum of $215.
B2 14 Concrete at rear of garage
568 This was omitted from the Scott Schedule, but Mr Savage estimated, and I accept, the sum of $756.
B2 15 Garage electrical work
569 The defendants are entitled to a credit in the agreed sum of $500.
B2 16 Laundry electrical work
570 There having been a fixed price agreed for the laundry, and the electrical work not having been done, the defendants are entitled to a credit for $500.
(Page 51)
- B2 17 Indemnity for boundary wall payment
571 The defendants claim of $1,600 as reimbursement of their contribution to the underpinning of the western boundary wall, which is made of limestone and about four metres high, and which developed a tilt to the east during site works for the garage which were being carried out by the plaintiff.
572 Work was also being done on the adjoining land, coincidentally by a builder who is the brother of Mr Brine.
573 Discussions between Mr Petrelis and the neighbour resulted in an agreement that included, inter alia, a payment of $1,200, and the building of a wall at a cost of $400.
574 At the time Mr Brine denied the plaintiff was responsible for the tilt, pointing to an absence of disturbed ground.
575 Mr Petrelis was prepared to argue that line with the neighbour, and said in evidence that there was a doubt in his mind as to the cause.
576 The agreement between the owners presumably reflected both that doubt and a desire to get on with things.
577 No engineering or other expert evidence was adduced, other than a letter from the plaintiff's engineer which suggested that there had been a number of causes, including excavations on either side of the wall.
578 It is not enough for the defendants' work to have been merely a cause. Rather some breach of the contract as to the manner of carrying out the work must be shown.
579 The defendants have not discharged the onus of proof and their claim fails.
B2 18 Leak to sundeck roof
580 This is described by Mr Savage as:
"patch wall and make waterproof where plumbing pipes exit wall above sundeck roof".
581 The plaintiff says the work is an extra, but rather it was a repair. I allow the defendants' claim of $80.
(Page 52)
- B2 19 Sundeck staircase roof leak
582 Mr Savage's description is:
583 "rectify flashing to box gutter to alter sundeck roof"
584 The claim is said to be included in B1, 5.6 and the defendants do not pursue it under this head, as appears from the statement of Mr Petrelis.
B2 20 Plumbing to ensuite
585 The fixed price plumbing work included this, but it was not done, by agreement.
586 The amount claimed was $1,000, and I allow the defendants that that sum.
B2 21 Plumbing not completed
587 Although the sum of $200 was claimed, Mr Petrelis said that was too light and in his statement suggested an amount of $1,010 was more accurate.
588 I agree a greater allowance is required, and would refer to A M1.
Section B3 Subiaco
B3 1 Underside of suspended floor
589 The defendants abandoned this claim.
B3 2 Stained ceiling panels at north end of shop
590 This is at the south end in fact. Further, the work has not been done, contrary to the Scott Schedule.
591 Mr Knowles said that ceiling panels had been stained by storm water ingress.
592 For some reason Mr Standen was unable to see the problem.
593 The plaintiff is responsible for the relevant section of the roof.
594 The amount estimated by Mr Savage was $330, and I allow that.
B3 3 Pipes under basin
595 The pipes beneath the basin in a storeroom/office were described by one witness as "spaghetti", and the standard of workmanship, as stated by
(Page 53)
- Mr Knowles, is unacceptable and I allow the sum of $300 for rectification.
B3 4 Insulation to stud walls
B3 5 Capping to two columns in canopy support
597 I do not make any separate allowance for this.
B3 6 Removal of waste metal material left on roof
598 Other contractors also worked on the roof and Mr Petrelis conceded in cross-examination that he was unable to say who was responsible for the problem.
599 I do not make any allowance under this head.
B3 7 Rectify roof above main entry
600 Mr Knowles said that new roof sheets put in place by the plaintiff above the main entry to the shop had insufficient mid span support, the span between purlins being well outside the manufacturer's directions.
601 Mr Brine said, in effect, that the work was a "patch up" job, in circumstances where he had informed Mr Petrelis that the roof required substantial work, but was instructed not to do more as the latter did not wish to spend additional funds on the roof.
602 The work was plainly done in a defective manner, and I prefer the evidence of Mr Petrelis that was not brought about by any instruction given by him to Mr Brine.
603 The work having been paid for, the plaintiff is therefore liable for the reasonable cost of repair.
604 The work is substantial, as it requires the removal of the suspended ceiling, as appears from the evidence of Mr Brook.
605 For reasons already given I allow the present cost of doing the work, which would appear to be in excess of $13,000, and I allow that sum.
B3 8 Re-positioning of C section
606 A C section which supports a stud wall was fixed to the underside of the roof frame in front of it, quite unnecessarily, and in circumstances where it would ordinarily be obscured from view.
(Page 54)
607 Mr Brine sought to justify the work on the basis that the area was used for a workshop and there were some exposed steel beams in it, so that it did not really matter.
608 Mr Knowles regarded the work as unsatisfactory, which it clearly is, and it ought be rectified at the plaintiff's cost.
609 I allow the sum of $1,811 sought by the defendants, and estimated by Mr Savage.
Conclusion
610 As I indicated I may do at the conclusion of the trial, and as stated earlier in these reasons, I have not attempted any accounting exercise consequent on the findings made, but rather have decided to let the parties have these findings so that they can consider such and then apply for relief, the right to which is said to flow from the same.
611 As also stated, I reserve the right to make further findings, if necessary to give effect to these reasons.
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