Platinum Constructions Pty Ltd v Stoddart Rae (Illawarra) Pty Ltd
[2017] ACTMC 8
•24 May 2017
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Platinum Constructions Pty Ltd v Stoddart Rae (Illawarra) Pty Ltd |
Citation: | [2017] ACTMC 8 |
Hearing Dates: | 14 & 15 March 2017 |
DecisionDate: | 24 May 2017 |
Before: | Magistrate Theakston |
Decision: | 1. 1. Judgment to be entered for the Plaintiff in the sum of $3,757.40, for the claim and $395.41 for interest up to judgement. 2. 2. The usual order as to interest, as described at rule 1622 of the Court Procedures Rules 2006. 3. 3. Judgment to be entered for the Defendant to the counterclaim. |
Category: | Principal Judgment |
Catchwords: | CONTRACT - Breach of building contract - Delay in installing roof with subsequent damage due to rain - NEGLIGENCE - Whether concurrent duty of care - DAMAGES - whether damages pleaded or parties deliberately chose different basis for determination |
Legislation Cited: | Court Procedures Rules 2006 |
Cases Cited: | Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 BrookfieldMultiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36; (2014) 254 CLR 185 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1992) 174 CLR 64 Hadley v Baxendale (1854) 9 Ex 341 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; [2001] NSWLR 705 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 |
Parties: | Platinum Constructions Pty Ltd (ACN 158 476 183) (Plaintiff) Stoddart Rae (Illawarra) Pty Ltd (ACN 061 644 317) (Defendant) |
Representation: | Counsel Mr D Robens (Plaintiff) Mr B Buckland (Defendant) |
| Solicitors Kamy Saeedi Law (Plaintiff) Patane Lawyers (Defendant) | |
File Number: | CS 967 of 2015 |
MAGISTRATE THEAKSTON
Introduction
1. Professional home builders develop their projects with the assistance of tradesmen, subcontracted for that purpose. The latter contribute to discrete stages of the building work and are engaged within a deliberate sequence of programmed works.
2. This is a claim by a builder (Platinum) against a roofer (Stoddart) for failing to complete the task of roofing 14 units at a development in Watson. Rain fell, and damage was observed in a number of units. The claim was in both contract and tort and sought the following damages:
a.(a) costs of engaging an alternative roofer to complete the roofing work,
a.(b) costs of repairing the damage to the units, and
b.(c) costs arising from the delay in completing the project.
3. It is common ground that:
a.(a) Stoddart was engaged by Platinum to install the roofing and guttering at the site, and part of that agreement is evidenced in writing within a quotation.
a.(b) That agreement was for Stoddart to supply and install all roofing, guttering, fascia, skylights and flashing in relation to the roofs of the units, but not in relation to the front awnings of the units.
b.(c) Stoddart commenced the work.
c.(d) It rained.
d.(e) There was water damage to the relevant units.
4. The following issues remain to be resolved:
a.(a) Initial difficulties with the pleadings, namely
i.(i) the timing of the relevant rain event,
i.(ii) breach date, and
ii.(iii) the marking of the claim as ‘liquidated’.
i.(b) When did the agreement require the roofing to be completed?
ii.(c) Did Stoddart complete the roofing?
iii.(d) Did Stoddart breach the agreement?
iv.(e) Was the water damage caused by Stoddart’s breach?
v.(f) Was further work by another roofer necessary?
vi.(g) What damages flow from the breach?
vii.(h) What was the final contract price and any outstanding balance?
viii.(i) What are the net damages?
ix.(j) Interest up to judgment
x.(k) Did Stoddart owe Platinum a duty of care in the circumstances?
• 5. Stoddart counterclaimed that Platinum had failed to pay the final invoice issued under the agreement. It is common ground that the amount claimed was not paid. The remaining issue was whether or not the outstanding amount was due and payable.
• 6. The key players in the dispute, in addition to the parties, are:
i.(a) Mr Youssef Jabal, a director of Platinum,
i.(b) Mr Robin McNeil, the foreman of Platinum at the relevant time,
ii.(c) Mr Jonathon Marsh, the initial area manager of Stoddart,
iii.(d) Mr Sean Cooper, the replacement and current area manager of Stoddart, and
iv.(e) Mr Thomas Yong, a financial director of Stoddart.
Initial difficulties with the pleadings
Timing of the relevant rain event
• 7. The Statement of Claim pleads that on or about 24 February 2015, moderate rain fell at the site and caused water damage to the property. The evidence of Mr Jabal and Mr Cooper supports this claim. Ultimately, this allegation was not in dispute.
• 8. However, the uncontested evidence at the hearing indicated that rain also fell at different times during the period 24 February to 27 April 2015, and there was a major rain event on or about 8 April 2015. The evidence suggests that the damage to three of the four damaged units was discovered after that major rain event, and in relation to the fourth unit, Unit 1, weeks later on 28 April 2015.
• 9. While this discrepancy was identified by counsel for Stoddart during the hearing and addressed during Platinum’s submissions, it was not addressed within Stoddart’s submissions. I also note that the breach was pleaded to have occurred and continued before any of those rain events. I have accordingly proceeding on the basis that no issue is taken by Stoddart about any inconsistency between the rain event pleaded and those established by the evidence.
Breach date
• 10. The Statement of Claim alleges Stoddart breached the agreement as Stoddart did not complete the installation on or before 12 January 2015. Platinum’s final submissions point to evidence that supports a finding that the completion date was earlier in November 2014. (Incidentally, it was common ground that any completion date would need to be relative to when the job could start, namely once the roof trusses had been erected, as opposed to a predetermined completion date.)
• 11. Stoddart’s final submissions identify the above inconsistency and suggest that as the November date had not been pleaded it is not open to the Court to find that it was a term of the agreement.
• 12. There are at least two difficulties with that contention. Any breach may have been ongoing, and merely because the breach was established before the pleaded date, that does not, of itself, mean that the breach on the pleaded date is not established by that same evidence and relevant findings cannot be made. In this case, Platinum’s evidence was that Stoddart never completed the flashings for the roofs, and therefore the breach was ongoing in nature.
• 13. Secondly, the relevant term of the agreement was not pleaded. Rather Platinum pleaded that Stoddart breached the agreement on a specific day in specific circumstances.
• 14. In any event, the evidence about when the trusses were completed and any term within the agreement about when the roofing should be completed was not as precise as submitted by Platinum, and my consequential findings of fact effectively resolves the above perceived inconsistency.
Marking of the claim as ‘liquidated’
• 15. Stoddart complained in its final submission that the Originating Claim was a liquidated claim, but ultimately the claim was not in the nature of a liquidated claim. That is, it was not a claim where the sum was known by the parties before the litigation commenced. I note that notwithstanding the Originating Claim being labelled as a liquidated claim, it is in substance an unliquidated claim for damages arising from a breach of contract and damages in tort. I also note that in June 2016, Platinum filed and served an affidavit, which was relied upon at hearing, which presented evidence consistent with that approach.
• 16. My attention was not drawn to, nor could I identify, any prejudice to Stoddart arising from the marking of the Originating Claim erroneously as a liquidated claim.
When did the agreement require the roofing to be completed?
• 17. Mr Jabal and Mr McNeil, on behalf of Platinum, and Mr Jonathon Marsh, on behalf of Stoddart, negotiated the agreement over a number of conversations with some terms reduced to writing within a quotation. The quotation invited Platinum to accept the offer by signing the document. The document was signed on behalf of Platinum in July 2014. Unfortunately, the document did not describe when the work was to commence or be completed. The only evidence of the negotiations was provided by Mr Jabal and Mr McNeil. Mr Marsh was not called by either party. Mr Cooper, who replaced Mr Marsh in late 2014, was not privy to those negotiations.
• 18. Mr McNeil’s unchallenged evidence was that while he did not negotiate the price, he did participate in negotiations in relation to design changes to minimise the roofing cost and the scheduling of the work. He described the usual process that the roofer would be telephoned as the frames were being erected and that would give the roofer two weeks notice before the trusses would be in place and the roofers would be expected to commence fitting the roofing.
• 19. Mr Jabal’s unchallenged evidence was that during the negotiations he was told that Stoddart would commence work, with 10 tradesmen on site, as soon as the site was ready for the roofing and the work would take no longer than a week to be completed.
• 20. There was no evidence casting doubt on the plausibility of the described work sequence or the completion of the work within that suggested timeframe.
• 21. I accept the above evidence and, accordingly, find that the agreement included the terms that the work would commence once the trusses had been installed and would be completed within the order of a week.
Did Stoddart complete the roofing?
• 22. Mr Jabal and Mr McNeil testified that while Stoddart installed the roof sheeting, the flashing was not completed. (The flashing involves a range of sheet metal pieces that are placed over the top of the roof sheeting to cover any gaps between the edges of that sheeting and adjacent structures. It is sometimes sealed. Its purpose is to cover such gaps and prevent water ingress into the building.) Conversely, Mr Cooper testified that Stoddart fully completed the agreed works, including the installation of any necessary flashing.
• 23. I found the evidence of Mr McNeil compelling. He was clear and measured, and volunteered any limitations about his memory. He was internally consistent, including when cross examined. As the foreman, licensed builder and qualified carpenter employed full time at the site to manage and oversee the build, he was in the advantageous position of being able to observe and understand the progress of the build. He was also no longer employed by Platinum and the least partisan of the witnesses.
• 24. I assessed Mr Jabal’s evidence as reliable. While he was not able to recall all details and did not display the same depth of knowledge or understanding of the build process as Mr McNeil, he presented as consistent and responsive without any prevarication.
• 25. I have strong reservations about Mr Cooper’s evidence. His affidavit is replete with argument, including, claiming categorically that there was never any agreement between the parties as to how quickly the work would be completed, in circumstances where Stoddart did not employ him at the time the parties were negotiating the agreement. Further and at best, his affidavit is confusing. At worst it is internally inconsistent. Mr Cooper makes reference to not receiving invoices, but then lists invoices. He suggests the remedial work undertaken by other roofers could not fall within the scope of Stoddart’s work, because Stoddart had already completed that work. He goes on to suggest that work, the work that Stoddart had completed, was work excluded in the quote, does not appear to relate to the incomplete work and may be additional work. When giving evidence, Mr Cooper prevaricated and was, at times, evasive and not responsive to questions. Mr Cooper remains employed by Stoddart and was responsible for arranging the completion of the work on behalf of Stoddart.
• 26. In his affidavit Mr Cooper testified that the roofing works had been completed before 20 February 2015. However, the emails in evidence from Mr Cooper to Platinum indicate otherwise.
• 27. For these reasons, I have strong reservations about the evidence of Mr Cooper, and where there is a difference, I strongly prefer the evidence of Mr McNeil.
• 28. Accordingly, I find that Stoddart did not complete the work, by failing to install all the flashing necessary to stop the ingress of rainwater into the building.
Did Stoddart breach the agreement?
• 29. There was dispute about when the roof trusses were installed. The build involved 14 units divided evenly between two separate buildings, with one building having single story units and the other having double storey units.
• 30. Mr McNeil testified that in October or November 2014 the trusses for the single storey units were ready for the roofing and that in November, when Mr Marsh left Stoddart and was replaced by Mr Cooper, the roof sheeting was installed on those units, without the flashing being fully completed. He also testified that during his first meeting with Mr Cooper, the second story units were ready for the roofing to be installed, and informed Mr Cooper of the same.
• 31. Mr McNeil volunteered that he was uncertain about the precise dates of the above events, but unequivocally linked those dates to Mr Cooper’s starting date at Stoddart. Mr Cooper confirmed that he commenced at Stoddart in November 2014.
• 32. Mr Jabal was unable to recall when the roof trusses were installed, but gave precise evidence that on 12 January 2015 he observed that, amongst other things, the flashing was not completely installed.
• 33. Mr Cooper’s evidence about when the trusses were in place is difficult to follow and incomplete. His evidence appears to be that upon his arrival in November the trusses on the single story units were in the process of being fitted but were not complete, and the trusses on the two story units were not in place. He testified the trusses could be fitted within a day. He also said that as at mid December, the trusses for the single storey units had been fitted, but not those for double story units. Mr Cooper also made references to the roofing not being able to be installed due to work being required to be done by other contractors. He did not indicate when the trusses for either the single or double storey units were complete and ready for the installation of the roofs. Nor did he indicate when the agreed work was fully completed.
• 34. For the reasons indicated above, I strongly prefer the evidence of Mr McNeil and find that the trusses for all units were installed and ready for roofing when Mr Cooper first attended the site in November 2014.
• 35. As the agreement was for the installation of roofing, including all necessary flashing, within the order of a week once the trusses had been installed, and the trusses had been installed for both sets of units by November 2014, and at 12 January 2015 the flashing had not been installed; I find that as at 12 January 2015 Stoddart was in breached of the agreement by not completing the installation of the flashing.
Was the water damage caused by Stoddart’s breach?
• 36. As indicated above, it is common ground that after 12 January 2015 and before the damage was recorded between 8 and 28 April 2015 it rained.
• 37. Causation is in issue. The onus of proving this causation rests on Platinum: Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164. In relation to each of the four damaged units, Mr McNeil provided clear personal observations and credible explanations about how the rain water entered the building and caused the observed damage. In short, in each case flashing was missing that allowed rain water to enter between the roof sheeting and other parts of the building, including between the walls of adjoining units, causing water to pool above ceilings, between neighbouring walls and run down internal walls. Those explanations were easy to follow and inherently plausible.
• 38. There were no photographs of the missing flashing tendered by Platinum. Stoddart submitted that a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference should be drawn that any such photographs would not have assisted Platinum. That inference traditionally applies to witnesses who are not called at a hearing, but who could be expected to give evidence on a material issue. I was not directed to any authority in support of an extension of the concept to photographs. I also note there was no evidence that such photographs were in existence. I also query whether a mirror inference could be made against Stoddart based on the same logic. Accordingly, I do not draw the inference suggested.
• 39. Mr Cooper’s evidence that a water pipe had been pierced was nothing more than speculation. His conjecture was made in the absence of even the most cursory of examinations or inquiries to determine the truth of his theory. Mr Cooper’s evidence that an unsealed screw, which secured an air conditioner, had compromised the roof conflicts with Mr McNeil’s evidence that such units had not been fitted at that stage. He also testified that when he inspected the flashing only one flashing, out of approximately 300, was missing. For the reasons described above I prefer the evidence of Mr McNeil and reject that evidence of Mr Cooper.
• 40. Accordingly, I find that the damage to the four units was caused by Stoddart’s breach.
• 41. I am also satisfied that there is no exclusion of this damage due to remoteness, as the water damage followed naturally from the breach and or was loss of a kind that should have been within the contemplation of Stoddart when the agreement was made: Hadley v Baxendale (1854) 9 Ex 341 at 354.
Was further work by another roofer necessary?
• 42. It was common ground that flashing was part of the agreed work and necessary to complete the roofing and prevent water ingress into the building. The evidence of Mr Jabal and Mr McNeil was that after the damage was detected, Mr Cooper was contacted immediately and requested to arrange for tradesman to fix the problem as soon as possible. After waiting some time without Stoddart fixing the problem, Mr Jabal engaged Select Building Services to complete the work. I infer from the evidence that the urgency to complete the job arose, at least in part, due to concerns about further rain and consequential damage. Mr Jabal explained the damage within the units could not be repaired until the roofs were fixed. Further, there had already been substantial delay in completing the work prior to the damage being detected. Commissioning this work amounted to Platinum taking appropriate action to mitigate any further loss.
• 43. Accordingly, I find that further work by another roofer was necessary due to Stoddart’s breach, in order to complete the work and prevent further damage to the units.
What damages flow from the breach?
• 44. Platinum ultimately sought the following damages:
i.(a) $6,667.10 – to complete the work,
i.(b) $3,910.00 – to repair the damage, and
ii.(c) $10,683.92 – for time lost on the site.
Completing the work
• 45. The cost of completing the work is quantified within an invoice from Select Building Services. Both Mr Jabal and Mr McNeil testified that that work was done. Mr Cooper appears to have conceded the work described within the invoice fell within the work agreed to be done by Stoddart.
• 46. The Statement of Claim only claimed $6,000 for the completion of the outstanding work. However, the above invoice was served on Stoddart as part of Mr Jabal’s affidavit in June 2016, some eight months before the hearing. In those circumstances, I am satisfied that Stoddart was aware of the issue generally, aware of the amount ultimately claimed some eight months before the hearing, and therefore provided Stoddart with the opportunity to meet Platinum’s case in that regard.
• 47. I accept the quantification of $6,667.10.
Repairing the damage
• 48. The anticipated cost of repairing the damaged four units is quantified within a list prepared by Mr McNeil. Those costs included the material and labour costs for the removal and replacement of the damaged building components and totalled $3,910.00. Mr Cooper accepted, based upon his experience within the building industry, the estimates in relation to the repair to the units. No evidence was led to the contrary. Accordingly, I accept that quantification of costs for the repair to the units at $3,910.00.
Time lost
• 49. The quantification for time lost is more difficult. Platinum appears to have taken into account the wage costs of Mr McNeil, a labourer and an office worker when making submissions about the quantum of this damages component. However, it remains unclear how the final figure was arrived at. The evidence of the various wages is incomplete, including only net values. The evidence of the 10 day delay in the project is only a conclusion expressed by Mr Jabal, without any explanation of the associated basis and reasoning, contrary to the principles described in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; [2001] NSWLR 705.
• 50. There is also an issue of double dipping. The evidence of Mr McNeil was that he personally removed the damaged materials. There is no evidence about what work the labourer did. If that work related to the claim, then presumably it related to the repair of the units. However, the full repair cost for the units is covered in the amount assessed above to repair the damage. There should not be an additional amount for the same purpose.
• 51. Finally, this aspect of damages was not pleaded. The nature, purpose and consequences of pleadings were described in Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279. Pleadings are not an end in themselves. Their purpose is to define the dispute, allowing the parties to be joined on the issues and, in doing so, provide the respondent with a proper opportunity to meet the case of the applicant. That final point is a fundamental requirement of natural justice. Consequently, relief should ordinarily be confined to what is available on the pleadings. The exception to that is where the parties have deliberately chosen a different basis for the determination of the matter. In such cases the requirements of natural justice would be met. That deliberate departure from the pleadings may be inferred from the way the hearing was conducted.
• 52. In the instant case the only relevant pleading in the Statement of Claim was that Platinum ‘continues to suffer loss and damages as a result of [Stoddart’s] breaches, full particulars of which will be provided at the hearing’. The defence denied that pleading. In June 2016, the affidavit of Mr Jabal was served and contained damage lists for each of the four units, which included substantial figures for ‘days of time lost’. That document did not disclose any basis for the calculations. Not surprisingly, it was not addressed in the affidavits subsequently prepared by Stoddart.
• 53. It was only at hearing that the basis of those calculations were discussed. That was the first time there was reference to the wages. As described above, the precise basis for Platinum’s calculation within its final submission remained elusive.
• 54. In any event, Stoddart has not been given a proper opportunity to meet Platinum’s case with respect to this component of the claim. Again not surprisingly, Stoddart ultimately submit that the component was not pleaded and is therefore not available. With respect, I adopt that submission.
• 55. Had the component been available and based on the available evidence, I would not have included any amount for the labourer as there was no evidence as to what that labourer did and his or her involvement may be better reflected in the estimate for the repair of the units already accounted for. For similar reasons I would not have included a proportion of Mr McNeil’s wages for the period, as during that same period Mr McNeil removed damaged items from the units. Based on the project being delayed for a net period of 10 working days, that is two weeks, and including both weeks for the office worker, at $920 per week and only one week for Mr McNeil, at $1,200 per week discounted due to his involvement for say one week removing the damaged material, I would have quantify this component of the damages at $3,040.00. However, for the above reasons I do not award any damages for time lost.
What was the final contract price and any outstanding balance?
• 56. An amended quotation evidences an amended contract price of $200,657.05, with a possible further $3,840.00 for ‘roof rails’. There was no evidence whether temporary roof rails had been used by Stoddart. While these figures were drawn to Mr Jabal’s attention during cross examination and he acknowledged their existence, no evidence was elicited from Mr Jabal about their accuracy or applicability. (I also note that the amended quotation contained a hand written notation at the base of the page consistent with any additional price for the roof rail being reduced to $2054.00.) Mr Jabal’s brother, on behalf of Platinum, signed the amended quotation and no issue was taken during the hearing about the authenticity of that document.
• 57. Accordingly I find that the final contract price included the amount of $200,657.05. I am unable to make any finding about whether or not the contract price also included an additional amount for roof rails, whatever that additional price may have been.
• 58. It was common ground that Platinum had paid Stoddart the amount of $193,807.35. Therefore, I find the balance of the agreed price that remains outstanding is $6,849.70.
• 59. I note for the sake of completeness that Mr Jabal accepted during cross examination that an amount was ‘still owed’, ‘you owe’ and ‘still outstanding’. That issue was not further explored in sufficient detail to delineate whether Mr Jabal was merely agreeing that he had been invoiced the amount and had not paid the same, or whether he was conceding the ultimate question that Platinum owed a debt to Stoddart of a particular amount.
What are the net damages?
• 60. In a claim for breach of contract, any assessment of damages must compare the position the claimant is in, to the position the claimant would have been in had the agreement been performed without a breach: Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1992) 174 CLR 64. Had the agreement been performed without breach, Platinum would not have suffered the above damages, but would also have paid the full price. Therefore, any outstanding balance of the agreed price must be discounted from the above assessed damages.
• 61. Accordingly, I assess the net damages as:
to complete the work $6,667.10
to repair the damage $3,910.00
less, the balance of the agreed price $6,849.70
Net damages $3,727.40
Interest up to judgment
• 62. The claim sought interest up to judgment. The invoice in relation to completing the work was dated 30 June 2015 and required either immediate payment or payment within 30 days. There was no evidence about which category applied to Platinum or when Platinum paid the invoice. In those circumstances I find that payment was due on 30 July 2015 and interest should be applied from then.
• 63. In relation to the work to repair the units, there was no clear evidence when that work was carried out. Mr Jabal did testify that the roof needed to be repaired before the damage was repaired. I infer from the evidence of Mr Jabal, that the work was performed at best speed following the completion of the roof. I therefore find that interest should also be payable from 30 July 2015.
• 64. Taking into account the outstanding balance of the agreed price, which offsets the damages, I find that interest up to judgment should be paid on $3,727.40 from 30 July 2015. That interest is calculated in the table below in accordance with rule 1619 of the Court Procedures Rules 2006:
| Item | Period | Days | Rate | Amount |
| 1 | 30 July 2015 – 31 December 2015 | 155 | 6.00% | $94.97 |
| 2 | 1 January 2016 - 30 June 2016 | 182 | 6.00% | $111.52 |
| 3 | 1 July 2016 – 31 December 2016 | 184 | 5.75% | $108.04 |
| 4 | 1 January 2017 – 24 May 2017 | 144 | 5.50% | $80.88 |
| Total | $395.41 |
Did Stoddart owe Platinum a duty of care in the circumstances?
• 65. The claim also included a claim in tort based on breaches of duties said to arise due to the relationship between the parties. The duties pleaded were functionally identical to the contract terms said to have been breached, with identical claimed damages. In this matter little would turn on the difference in damages available in contract and tort. Accordingly, any successful claim in tort would yield similar results to those in contract described above.
• 66. Stoddart submitted that concurrent and overlapping duties in tort are not available. Platinum submitted that the agreement did not seek to displace any general duty of care that would otherwise exist between the parties.
• 67. It was common ground that Platinum employed Mr McNeil to oversee the work performed at the site on a fulltime basis. Mr McNeil was a qualified builder and tradesman himself. I infer that Platinum, through Mr McNeil, was in a position to know whether or not Stoddart was completing the roofing properly. Consistent with this, emails are in evidence that confirm that Platinum were aware of the progress of the roofing.
• 68. It is therefore difficult to accept that Platinum, while reliant upon Stoddart to install the roofs, was also reliant upon Stoddart to perform that work properly. Additionally, there is simply no evidence to establish that Platinum could not have protected itself against the economic loss. Therefore, while I accept that common law duties of care and contractual duties may on occasions coexist, in this case it has not been established that Platinum was vulnerable, in the sense described in BrookfieldMultiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36; (2014) 254 CLR 185, and I consequently find there was no duty of care owed by Stoddart to Platinum in relation to the completion of the roofing work by a particular date.
• 69. For completeness I observe that Platinum’s submissions attempted to distinguish Brookfield from the instant case. The factual differences identified were correct. However, Brookfield nevertheless remains an authority for the consideration of the concepts of proximity, reliance and vulnerability when considering the question of duty of care associated with economic loss.
Was the outstanding amount due and payable?
• 70. There is no direct evidence about when payments under the agreement were to become due and payable. This is of some relevance as the work was not completed, and that fact invites questions about implied terms of payment and whether the contract could be characterised as an entire contract, where the payment is only enforceable upon the complete performance of the agreement by Stoddart, or whether the contract could be severable.
• 71. However, there is no utility in addressing those questions. It is clear that a significant proportion of the price has been paid, and that an amount of the work was left incomplete. There is no evidence about the quantum of the work done or left incomplete (based on the prices within the agreement as opposed to those of a subsequent contractor), and therefore no way of assessing whether any of the work that was done has been left unpaid.
• 72. For these reasons I am not able to find the outstanding amount was due and payable and therefore Stoddart’s counter claim must fail. In any event and as described above, the unpaid balance reduces the quantum of damages assessed in favour of Platinum and renders the counterclaim superfluous.
Conclusion
• 73. For the above reasons I will award Platinum the damages identified above with pre-judgment interest, and will not award Stoddart its counterclaim.
Orders
• 74. I make the following orders:
1.Judgment to be entered for the Plaintiff in the sum of $3,757.40, for the claim and $395.41 for interest up to judgement.
2.The usual order as to interest, as described at rule 1622 of the Court Procedures Rules 2006.
3.Judgment to be entered for the Defendant to the counterclaim.
• 75. I will hear the parties as to costs.
| I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston Associate: Taden Kelliher Date: 24 May 2017 |
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