Rapuano (Trading as Raps Electrical) v Karydis-Frisan and Frisan

[2011] SADC 122

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

RAPUANO (TRADING AS RAPS ELECTRICAL) v KARYDIS-FRISAN AND FRISAN

[2011] SADC 122

Judgment of His Honour Judge Stretton

16 August 2011

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION - RECOVERY ON QUANTUM MERUIT - IN GENERAL

Quantum meruit claim for unpaid electrical work performed by the plaintiff for the defendants in the course of the construction of new residential premises over 14 months.  The plaintiff claimed the defendants required him to work in an inefficient evolving way due to the nature of their instructions.  The defendants denied this.  There was also substantial dispute concerning the hours and materials claimed by the plaintiff and his quality of work.  The plaintiff was not registered for GST but claimed it from the defendants.

Held: Neither the plaintiff or defendants were satisfactory witnesses.  However, based primarily on independent evidence an assessment can be made of the plaintiff’s hours, his subcontractor’s hours and materials used.  Based on independant evidence the plaintiff and his subcontractor worked efficiently when on site.  Accordingly, the value of the work can be reliably assessed.  The plaintiff is entitled to the value of his work based on an assessment of his proven hours, together with the cost of proven subcontractor hours and proven materials plus 15%.  The plaintiff established 80% of his claimed hours, 90% of his subcontractor's hours, and 90% of his materials.

The value of the plaintiff's work will include a component for GST if the plaintiff is liable to pay GST.  He is so liable if he reaches the annual $75,000 registration threshold.  It was not proven that the plaintiff reached that threshold in the relevant periods and accordingly no allowance is made for GST.

A New Tax System (Goods and Services Tax) Act 1999 s 7.1, s 9.5, s 9.10, s 9.40, s 23.15, s 63.25, s 188.10.; Building Work Contracts Act 1995 s 29, referred to.
Pavey & Matthews Pty Ltd v Paul (1987) 61 ALR 151; Renard Constructions (ME) Pty Ltd v Minister for Public Works (Renard) (1992) 26 NSWLR 234; Iezzi Constructions [1995] 2 Qd R 350; Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221; Sopov & Anor v Kane Contructions Pty Ltd (1981) 24 BLR 94; Pantland Hick v Raymond & Reid [1893] AC 22, considered.

RAPUANO (TRADING AS RAPS ELECTRICAL) v KARYDIS-FRISAN AND FRISAN
[2011] SADC 122

Introduction

1. The plaintiff is an electrician who undertook electrical work for the defendants on a home they were building at Mellor Avenue, Lockleys.  The plaintiff rendered three accounts for work done between 13 September 2007 and 7 November 2008.  The defendants paid the first invoice, part of the second invoice and none of the third. 

2. The plaintiff claims he is entitled to a reasonable amount for the work done and the materials provided to the defendants in the course of the work reflected in the second and third invoice.

3. He suggests that at an industry-accepted hourly charge for himself and his associate together with materials he supplied, he is owed $83,473.00

4. In the alternative he claims the invoiced sum of $64,300.00.  This represents the hours claimed worked at his invoiced hourly rate of $60 per hour plus GST for himself and $50 per hour plus GST for his associate.

5. Finally, in the alternative, should neither of those claims be accepted he claims payment at the rate of $50.00 per hour that both parties agree was discussed at the outset of the parties’ contact. 

6. There is no dispute that the defendants requested that the plaintiff perform electrical work, and that the plaintiff performed electrical work. 

7. The defendants say they requested but did not get a quote from the plaintiff, that the plaintiff has overcharged them and did not efficiently perform the work he did do, and that the value of the work he did perform was far less than claimed.

8. All parties agree there was no contract to perform this work, and that the plaintiff is accordingly entitled to the reasonable value of his work. There is substantial dispute about the nature of the discussions at the outset, whether a quote was requested, the hours invoiced by the plaintiff, the quantity and cost of materials provided by the plaintiff and a significant resulting dispute about the overall value of the work done.  The defendants also dispute the plaintiff’s entitlement to charge GST, and accordingly whether that is a component of the value of the work done.

   Quantum meruit claim

9. The parties agree that the plaintiff is entitled to claim the value of his work on the basis of quantum meruit.

10. Quantum meruit is a claim to recover a sum of money for work performed.[1] It is reasonable recompense for work done under a contract, or purported contract, in the absence of any other contractual remedy.[2]

    [1] Pavey & Matthews Pty Ltd v Paul (1987) 61 ALR 151.

    [2] Renard Constructions (ME) Pty Ltd v Minister for Public Works (Renard) (1992) 26 NSWLR 234.

11. The usual measure of recovery on a quantum meruit claim is for the reasonable value of services, that is, so much money as the plaintiff reasonably deserves to have.[3] For a quantum meruit claim to be made three elements need to be established;

    ·a person must have been enriched through a “benefit”;

    ·this “benefit” must have been gained at the expense of the contractor; and

    ·it would be unjust, in the circumstances, to allow the employer to retain the benefit without paying for it.

    [3] Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221, 263-4.

12. Once the three elements of quantum meruit are established, as long as the work was completed and a benefit has been gained by the employer at the expense of the contractor, a claim can be made out.

13. A claim to recover a sum can be reasonably measured by the market value of the services.[4] The applicable market price is what prevailed at the date the services were requested and accepted.[5] Furthermore, a contract price is not a ceiling on the amount recoverable but may provide a guide.[6]

    [4] Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221, Byrne J at 263.

    [5] (No. 2) [2009]

    [6] Renard (1992) 26 NSWLR 234, 278.Renard(1992) 26 NSWLR 234 at 278; Iezzi Constructions [1995] 2 Qd R 350 at 357 362 and 370; Brenner v First Artists’ Management Pty Ltd[1993] 2 VR 221 at 263; Pavey & Matthews (1987) 162 CLR 221 at 252.

14. The plaintiff’s claim for quantum meruit is based on the value of the work actually done.

15. As will ultimately be seen, fundamental to this question is how the work proceeded and a very significant component of that is how the defendants gave instructions to the plaintiff.  In short, the plaintiff says that the defendants never had an electrical plan, gave him instructions as he went along, changed and expanded the electrical work over time, and required him to work in a way that meant the job required much longer than usual.  The defendants deny much of this, saying that they gave clear instructions in advance of any work being done and that there were no variations to speak of.

16. In Sopov & Anor v Kane Constructions Pty Ltd[7] the Victorian Court of Appeal said:

    ‘[It] is irrelevant whether or not the work fell outside the original contractual scope. All that matters is that the performance of the work has conferred a benefit on the owner, for the reasonable value of which the builder should be remunerated.’

    [7] [2009] VSCA 141 at para 43.

17. If ‘variations had been carried out – and there was no dispute here that it had been – the only question is the fair and reasonable value of the work.’[8] If the variations then caused a delay:

    [T]he claimant of quantum meruit must show that the works were completed within a reasonable time. What constitutes a reasonable time is a question of fact to be considered by reference to the circumstances which existed at the time the contractual services were performed but excluding the circumstances which were under the control of the party performing the services.’[9]

    [8] Sopov & Anor v Kane Constructions Pty Ltd [2009] VSCA 141.

    [9] British Steel Corporation v Cleveland Bridge & Engineering Co Ltd (1981) 24 BLR 94 at 123 (Goff J), applying Pantland Hick v Raymond & Reid [1893] AC 22.

18. In short, if the defendants required the plaintiff to do the work in a certain way, for example work that exceeded the initial scope and variations occasioning delay not caused by the plaintiff, then the defendants got the benefit of that work performed in that way, and an assessment of the work done in the defendants’ preferred way can and should be made.

19. Given that the plaintiff claims it was required to work in such a way, yet that is flatly denied by the defendants, it is necessary to analyse the evidence in some detail.

    The Plaintiff’s evidence

20. The plaintiff gave evidence that he is a 36 year old electrician of eight years experience, holding an unrestricted license to operate as an electrical contractor.  After some employed work as an electrician he started his own business in 2006 under the business name of ‘RAPS Electrical’.  He said his wife assists with the paperwork of the business, more so from mid 2007 onwards.  He started advertising in The Messenger Newspaper.  He said the first defendant Ms Karydis-Frisan called him to discuss electrical work for a new house that she and her husband were building.  The plaintiff said he would ring back in a week.  He said he subsequently met her at her townhouse.  At that meeting he also met her husband, the second defendant Mr Frisan.  The plaintiff said he saw plans of the house in question at that meeting, but was not given the plans at that stage.  The plans did not include any electrical layout.  Large floor plans and elevation plans of the property at Mellor Avenue, Lockleys were tendered as P3[10]. 

    [10] Transcript p.182.

21. The plaintiff said that at that meeting he indicated he needed to know more about the electrical work if he was to continue.  He recalled that towards the end of the meeting there was discussion about what he charged and he said that he charged $50.00 per hour at that time.  He said he was not registered for GST but would be in the near future.  He said there was no discussion about the total cost, but that the first defendant said she would look at the plan and fill in the electrical requirements, but he said that did not happen.  The plaintiff said he wasn’t told anything about the time frame for the construction or for his work, and he got the impression at that time that the work had not started.

22. The plaintiff said he next heard from the defendants about two months after the meeting, about a week before the concrete was to be poured.  He said he attended and installed conduit to the foundations and mesh on 13 September 2009. 

23. The plaintiff said he kept job-sheets for each day he worked which he would fill in on the day or the day after[11].  The plaintiff said he had been through every such job sheet for this job for the purposes of the trial, and that he filled in every job sheet on the day or the next day[12].  The plaintiff said, for example, that he filled out the job sheet for his first day’s work being 13 September 2007 on that day[13].  He also had a note book, or diary, that he would fill in.  The job-sheet would also contain materials used and that would be filled out on the day as well.  He said that by the time work commenced he was charging $60.00 per hour.

    [11]   Transcript p.186.

    [12]   Transcript p.187.  Those documents were initially indentified as the bundle discovered and contained at p.132 and following in a Notice to Admit bundle.  There were later tendered as D2.  They are also contained in a bundle of tender documents P1.

    [13]   Transcript p.187 and 189.

24. The plaintiff said he initially did the work himself but he secured the assistance of an assistant Mr Curry, who attended for the first time on 22 April 2008.  He charged Mr Curry out at $50.00 per hour. 

25. The plaintiff said that all materials used on the job were noted in his job-sheets.  He provided materials invoices that he said reflected the materials he obtained from his wholesaler.  He said some of the items in those invoices were for other jobs, but he cross-checked and only included items for this job on the job-sheets.  He said the job-sheet was only a brief description of the work that was done on a particular day. 

26. The plaintiff said he was given a document entitled “Electrical Needs” by the first defendant at around November or December 2007[14], but that he essentially did not use that document, rather he worked from the plans and instructions given to him by the defendants.  The plans he worked from were eight sheets which were photocopies of the floor plan.  He said he marked the defendants’ instructions as to where lights and switches were to go on those plans.  He said the first defendant gave him those instructions as he went through the job.  He said he also marked the floor plans so as to record where everything was[15].  That would then assist when he came to “second fix” work, that is the later fitting of fixtures such as lights, switches and power points to the cabling that had been installed during the earlier “first fix”.

    [14]   Transcript p.197. The "Electrical Needs" document was marked for Identification P4 at p.199, and tendered at p.225.

    [15]   Transcript p.201-202.

27. The plaintiff said that this job was unusual in that he never got an electrical plan or any specifications.  He said the majority of the scope of the work was conveyed to him on site by receiving instructions from the first defendant[16].

    [16] Transcript p.203.

28. The plaintiff indicated that after the initial day’s work on 13 September 2007 installing conduits in the foundations, he was called back on 15 November to drill holes in more boxes but didn’t know whether he would be doing more work after that, or the whole job[17].

    [17] Transcript p.203.

29. The plaintiff gave evidence with reference to his job sheets that he was called back and given instructions from time to time to perform the work reflected in those sheets.  He gave evidence that he didn’t always know in advance what he was to do, but he would meet the first defendant on site and go through the proposed work with her, getting instructions. Sometimes he could do the work immediately, other times he had to come back and do it later[18]. 

    [18] Transcript p.207.

30. The work sheets indicate that the plaintiff attended sporadically between 15 November 2007 and 18 March 2008. 

31. There were two days in April and a block of some five days work at the end of May 2008 together with another substantial block of work in June 2008, which the plaintiff described as the primary work for the “first fix”.  The plaintiff said that the house was double brick, making the job more difficult and time consuming[19]. 

    [19] Transcript p.209.

32. The plaintiff said he supplied all the materials at this stage from his wholesaler by the name of Middendorp, located on Magill Road[20].  He said he would charge for his time in selecting and collecting those materials.  On the other hand, when it came to the “second fix”, the defendants supplied things like switches, lights and visible fittings from their supplier P&R Electrical, but he had to collect some of those.  He said that he collated a 10 page “Parts List’” so the second defendant could order these “second fix” items.  He said he did that at the request of the defendants towards the end of the project, and didn’t charge for that time[21].

    [20] Transcript p.211.

    [21] Transcript p.212.

33. The plaintiff said the first defendant often changed things on the job, coming onto the site and interrupting him, and changing items perhaps two or three times per week[22]. 

    [22] Transcript p.214-215.

34. He said he was not asked to provide regular invoices nor could he have provided a calculation of anticipated times or materials costs without an electrical design[23].  He said there was no discussion of Mr Curry’s charge-out rate. However when the first defendant emailed him he rang her back and told her that the rate was $50.00 per hour for Mr Curry[24].

    [23] Transcript p.216.

    [24] See email of Vol 1 of P1, p.19, and see Transcript p.216.

35. The plaintiff said that by 31 July 2008 the “first fix” was pretty much completed and 27 August 2008 was the start of the “second fix”[25].

    [25] Transcript p.218.

36. The plaintiff explained how Mr Curry had become involved.  He said he had worked with Mr Curry as an electrician during his previous job for ERS Sharp on the same type of work, and that Mr Curry was excellent.  The plaintiff said he brought Mr Curry in due to the size of the job[26]. 

    [26] Transcript p.220-221.

37. The plaintiff said he would take half an hour lunch and that would be reflected in the job-sheet.  He said he would round his job-sheet to the nearest half hour.

38. The plaintiff said there were no complaints at any time during the course of the job.  The plaintiff said he met with the first defendant several times per week and could discuss the job for half an hour to two hours.  He said she never asked him the cost consequences of her requests for changes.

39. The plaintiff tendered his 8 A3 photocopies of the plan with his notations in red ink to indicate the work he had done.  That was tendered as P5. 

40. The plaintiff said there were some difficulties with the “second fix” work commenced on 27 August 2008.  Essentially he said that aspects of the building work expected to be done at that stage had not been completed, and this impeded him with his “second fix” work[27]. 

    [27] Transcript p.231.

41. The plaintiff said that the defendants were away around September 2008 but he was given a key to access the site and he continued working.  Mr Curry was usually there at 7.30am and there would be no one else there at that time.  Mr Curry would not start until he got there, unless he was late whereupon Mr Curry would start at 7.30am.  The plaintiff said he charged for work on site and also for shopping time.  He said he charged for paperwork, drawings and creating the parts list, probably spending a couple of nights on the parts list[28].  The plaintiff’s evidence at page 235 that he charged for some of the time taken drawing up the parts list was not entirely consistent with his evidence at page 212 where he said he did not charge for the time spent doing that. 

    [28] Transcript p.235.

42. The plaintiff said he would record his hours in his note book and then carry them over to his job-sheet, but sometimes enter them directly on the job sheet.  He said he threw those notebooks away when they were full[29].

    [29] Transcript p.236.

43. The plaintiff then gave a detailed description of the work he did in each room.  He said that when he left the job for what turned out to be the last time, he hadn’t finished the work.  He said that the defendants then requested a quote.    The plaintiff said he then gave them a quote for the remaining work, dated 24 November 2008.  He said he was not allowed back on site.

44. The plaintiff gave evidence that the job had not been able to be performed efficiently for a number of reasons.  He said he had not been asked to give a quote prior to the job, he had to take instructions and do work on a day to day basis, and there had been numerous changes.  He said this was a very unusual way to have to work, and was inefficient and time-consuming[30].

    [30] Transcript p.248.

45. The plaintiff sent three invoices to the defendants.  The first dated 8 February 2008[31] totalled $6,845.00 for labour and materials, and was paid in full.  There was no GST charged per that invoice.  No claim is made concerning that work or that invoice.   

    [31] Page 251 of P1.

1. The second invoice dated 29 October 2008 was for $49,150.00 plus GST, totalling $54,065.00[32], but this was not paid in full.  It is agreed that the defendants paid $5,000.00 on or about 6 November 2008, leaving a balance of $49,065.00 inclusive of GST.  The plaintiff sent a third invoice dated 18 November 2008 for work done between 9 September 2008 and 6 November 2008 for a total of $15,235.00 including GST[33], which has not been paid.

   [32] Page 253-259 of P1.

   [33] Page 260-264 of P1.

2. The plaintiff therefore claims that $64,300 remains unpaid.  This figure includes GST.

3. The plaintiff said that late in the job, around September 2008, the first defendant had asked him to render a further invoice to which he replied he would work on it and then he produced the second invoice[34].  He said after giving that to the second defendant there was a discussion about when he would be back to finish the job, and he said to the second defendant that he needed the invoice paid[35].  He said she told him she would pay it once she got an itemised list of labour and materials, which he then supplied.  The plaintiff said the defendants had never indicated they were unhappy about not having received an invoice.

   [34] Transcript p.253.

   [35]   Transcript p.253.

4. The plaintiff said that at around the time he received the email of 9 November 2008[36], the first defendant had the second invoice.  The plaintiff said the first defendant rang and asked for an itemised list.

   [36]   Page 19 of P1.

5. The plaintiff said the first defendant had asked him on site what his rate was, and he had said $60.00 plus GST.  He said that her reaction to that was okay.  He said the first defendant asked how much more time was required for the job.  The plaintiff said he told her how long. 

6. He agreed that at that stage the existing electrical board was getting cramped.  He gave evidence that this was because of the additional circuits that were being added, even though the board was one of the largest domestic boards available[37].

   [37]   Transcript p.258.

7. The plaintiff said he provided the quote requested to complete the job[38].   That quote was dated 24 November 2008.  The plaintiff said he then got a letter from the defendants on about 25 November 2008, and that was the first time he knew the quote was not accepted[39].

   [38]   Page 9 of P1.

   [39]   Transcript p.259-260.

8. The plaintiff said he had a phone call from Peter Lister, from the Office of the Technical Regulator, who asked to catch up with him.  The plaintiff initially said he thought that he met Mr Lister on site after he had been terminated, or possibly just before he got the letter from the defendants of 25 November 2008.  The plaintiff said Mr Lister told him about some items that needed to be rectified, which he acknowledged.  He said he was prepared to complete those items and instructed his lawyer to write a letter making that offer and asking for a date and time to do the work[40].  Notwithstanding that offer, the plaintiff said he was never allowed to go back on site.  His access to the property was cancelled by the defendants’ letter on 25 November 2008, so he said he never went back.  The plaintiff said he had done some remedial work when he attended on site with the technical regulator, which he was then able to conclude was actually 20 November 2008 with reference to his completed certificate of compliance in relation to that work[41].

   [40]   Page 20 of P1, Transcript p.264.

   [41]   Page 26 of P1, Transcript p.265.

9. The plaintiff said that prior to the termination of the job his relations with the defendants were very good[42].

   [42]   Transcript p.266.

   Cross-examination of the plaintiff

10. The plaintiff was cross-examined extensively.  It was suggested to the plaintiff that the quantum meruit claim for $83,000.00, per paragraph 83 of his statement of claim for the value of the work done was excessive.  Counsel put to the plaintiff that when you add the $11,000.00 or so already paid and the $6,200.00 the defendants had been quoted to finish the job and other items, that the plaintiff was quantifying the whole job[43] as being worth $110,000.00 and that was excessive.  The plaintiff did not agree with the propositions put to him to that effect throughout cross-examination.

    [43]   Including the first invoice, which had been paid in full.

11. The plaintiff said he could not recall when he became registered for GST, but it would not have been when he sent his first invoice in February 2008, as GST was crossed out on that document, so it must have been at some time after that[44].

    [44]   Transcript pp.255-287.

12. The plaintiff said the piecemeal nature of the job substantially accounted for the increased cost of the job.  He said that in a lump sum contract you know what you are doing, you can plan and be organised, and you have a clear “first and second fix”.  The plaintiff said in this case things were changed, there were delays, and the work was here and there.  He said there were interruptions and other difficulties such as expected work by other trades not being completed at the time of the “first fix”.  He gave the example of the roof not being finished[45]. 

    [45]   Transcript pp.297-301.

13. The plaintiff said he paid Mr Curry a daily rate of $250.00 in cash as a sub contractor, and less than that for less than a full day.  He said he didn’t claim Mr Curry as an expense, or account for GST concerning Mr Curry.  He said he kept no records or accounts concerning Mr Curry or what he was paid[46].

    [46]   Transcript pp.303-304.

14. Counsel for the defendants put that the plaintiff’s claim for some 930 hours plus of work, which when added to the work still to do, was excessive.  The plaintiff replied that if he had been given a full scope at the outset, perhaps 600 to 700 hours would have been his estimate[47]. 

    [47]   Transcript pp.305-309.

15. He said he had done a number of houses and usually there was a quote, which he priced up for the job.  The plaintiff indicated he did a five bedroom house at another location for an owner which totalled $70,000.00 to $80,000.00 for electrical work and said he has had no disputes with other clients[48].

    [48] Transcript p.312.

16. Counsel for the defendants then cross-examined the plaintiff extensively over his work sheets, in particular about the hours that the plaintiff claimed he had attended the defendants’ job.

17. The plaintiff said that on his first day on the job, that is 13 September 2008, he recalled starting at 7.00am as it had been dark when he got there just before 7.00am.  Then counsel put to him that the official sunrise was 6.19am that day.  In response the plaintiff agreed his evidence in chief and in cross-examination that it was dark when he arrived was wrong[49].  Counsel for the defendants also pointed to the fact that sunset that day was 6.06pm, and suggested that the plaintiff could therefore not have been working to 7.30pm as his 13 September 2007 timesheet indicated.  In response to that the plaintiff said he was indeed there but packing up in the darkness.  He denied leaving at about 5.00pm as suggested by defence counsel.  The record of sunrise-sunset times for Adelaide during September 2007, including the sunrise and sunset times put to the plaintiff, was tendered as D1.  The plaintiff addressed a phone call on his mobile phone with the defendant identified as 7.05am on 13 September 2007 from the discovered phone records, saying he couldn’t recall if that was him on the phone to the defendants saying he was “on my way”.

    [49] Transcript p.313-314.

18. Defence counsel then put a number of job sheets to the plaintiff, suggesting that discovered phone records established that he was not at the job when he said he was. 

19. These job-sheets included a job sheet dated 24 January 2008, wherein the plaintiff said he was on site from 1.00-5.00pm installing conduits, whereas a phone call at 3.06pm on that day indicated that he was at Hectorville, a long way from the site.  The plaintiff conceded there was no job related reason why he was at Hectorville and could not remember why he was there[50]. 

    [50] Transcript p.323.

20. In response to questioning the plaintiff conceded that the sheet may be wrong and he may not have been there from 1.00-5.00pm, particularly because the four hours claimed seemed excessive for the job description in that work-sheet[51].

    [51] Transcript p.326.

21. It was put to the plaintiff that in reality he did not fill in “these job sheets” on the day at all, but filled them in later all at the same time.  He denied that, saying that while he didn’t fill all of them in on the day he did the majority of them when he got home, or on the next day[52].

    [52] Transcript p.324.

22. The job-sheet dated 9 April 2008 indicating him on site from 2.30pm to 4.30pm was compared to a 4.16pm phone call from Bonython Park.  In response the plaintiff said he would have been getting materials from Magill.  When it was put that there was no materials invoice for that day, he said he may have rounded his finishing time[53].  The plaintiff said he filled in the 9 April job sheet at the time or around the time[54].

    [53] Transcript pp.331-332.

    [54] Transcript p.331.

23. In relation to the job-sheet for 22 May 2008, claiming 7.30am to 5.30pm on site, phone records indicated a call from North Park in Prospect, some 10-15 minutes from the job, at 5.05pm.  The plaintiff responded that possibly he had a minimal lunch break that day and that could explain the sheet.  That is not an entirely convincing response, as the times for lunch were generally deducted from the hours mentioned on the sheets[55].

    [55] Transcript pp.333-335.

24. In relation to the job-sheet for 26 May 2008, recording the plaintiff on site from 7.30am to 4.00pm, phone records indicate he was in North Adelaide at 7.35am.  The plaintiff responded he may have been on his way from collecting materials from Magill, passing through North Adelaide to the job.  In response defence counsel put records indicating the plaintiff was at his supplier on 24 May and 27 May 2008, but not on that day.  In response the plaintiff said various things including that he may have been organising but not buying materials that day.  That same day a phone call was made at 4.00pm from Marden, some distance from the job.  In response the plaintiff said he could have been involved with materials or paperwork, noting things on diagrams or job sheets relating to the job, which he factored in[56].

    [56] Transcript pp.335-339.

25. In relation to the job-sheet for 22 April 2008, indicating the plaintiff was at work from 7.30am to 12.30pm, phone records showed a 12.35pm call from Magill, to which the plaintiff responded it could reflect his rounding to the nearest half hour, or it may reflect that he got to the job slightly early[57].

    [57] Transcript pp.339-340.

26. In relation to the job-sheet for 13 June 2008, indicating his presence on site from 7.30am to 5.00pm, phone records indicated he was in Norwood at 7.46am.  Despite the absence of a materials invoice, the plaintiff said he was probably doing something related to the job, whether it be organising materials at the wholesaler or ordering material, such as special sockets and the like[58].

    [58] Transcript pp.340-342.

27. The plaintiff’s job-sheet for 25 June 2008 indicates he was on site from 7.30am to 5.00pm, whereas phone records show he was at Adelaide University at 8.00am.  In response the plaintiff said he could have been organising for the job[59]. 

    [59] Transcript pp.342-343.

28. The plaintiff was taken to his job-sheet for 16 July 2008, indicating he was on site from 7.30am to 5.00pm.  Counsel for the defendants put that the phone records indicated that he was in the Adelaide CBD from at least 4.34pm and subsequently.  This meant the plaintiff probably would have had to have left the site by perhaps 4.15pm.  In response, the plaintiff said he might have been organising paperwork and the like[60].

    [60] Transcript pp.346-347.

29. The plaintiff was taken to his job-sheet for 22 July 2008, which indicated that he was on site from 7.30am to 5.00pm, whereas a phone call placed him at least 15 minutes from the site at 4.29pm.  In response the plaintiff said;

    “Same scenario, started earlier that day, my lunch breaks, organizing stuff, paperwork and allowance was made in that time[61]”.

    [61] Transcript p.350.

30. Prima facie however, the materials put to the plaintiff tend to indicate that on each of those last mentioned two occasions he had left the site at least some 45 minutes earlier than indicated in the tendered job sheets.

31. On the plaintiff’s job-sheet for 23 July 2008, he indicated being on site from 7.30am, whereas a phone call indicates he was in the CBD at 7.30am. The plaintiff responded that he would have been on his way to the job[62], perhaps only 10 to 15 minutes away from the work location.

    [62] Transcript pp.351-352.

32. In relation to the plaintiff’s 24 July 2008 job-sheet, the sheet indicates he was on site from 7.30am to 5.30pm whereas phone records indicate he was in Hindmarsh at 4.38pm.  In response the plaintiff said he may among other things have been in Hindmarsh organising stuff for the job[63].

    [63] Transcript p.352.

33. In relation to the plaintiff’s 31 July 2008 time-sheet indicating he was on site between 11.00am and 5.00pm, phone records established he was in the CBD at 9.38am, 11.04am and 12.03pm.  In response to further cross-examination on this topic, the plaintiff said he did not remember if he had a job in the city that day, but maybe he finished later and put time down to accommodate that.  In this instance the phone records tend to indicate that the plaintiff was plainly not on site for the initial portion of time claimed, and that the sheet is incorrect by at least an hour[64].

    [64] Transcript pp.352-355.

34. In relation to the plaintiff’s job-sheet for 9 September 2008 indicating he was on site from 10.00am to 3.00pm, there are a number of phone calls from Ridgehaven between 9.01am and 11.26am, which the plaintiff agreed was a long way away from the work site, on the other side of Modbury.  Phone records indicate he was in the region of the work site at 1.50pm but a phone call indicates that at 2.49pm he was in North Adelaide.  These records tend to indicate that the plaintiff could not have been on this job or doing work relating to it for at least the first two hours claimed in the work sheet and that he left the site before his claimed end-time.[65].

    [65] Transcript pp.356-358.

35. In relation to the plaintiff’s job-sheet for 17 September 2008 indicating that he was on site from 8.00am to 3.00pm, phone records indicate he was in Norwood at 8.11am and the CBD at 8.21am.  In response the plaintiff indicated that he may have been on his way to the wholesaler at that time.  Counsel for the defendants indicated that the last relevant Middendorp invoice was dated 22 August 2008, i.e. that he was not at his supplier that day, which the plaintiff then accepted[66].

    [66] Transcript pp.358-359.

36. In relation to the plaintiff’s job-sheet dated 3 October 2008, indicating he was on site from 7.30am to 4.30pm, phone records show he was in Prospect at 4.27pm.  In response the plaintiff said he would have left at about 4.15pm and he would have probably rounded the time to the nearest half hour.

37. In relation to the plaintiff’s job-sheet of 30 October 2008 indicating he was on site from 7.30am to 4.00pm, phone records indicated that he was in the CBD at 7.29am.  In response the plaintiff said he was probably on his way to the site[67].

    [67] Transcript p.361.

38. In relation to the plaintiff’s job-sheet of 6 November 2008 indicating he was on site from 7.30am to 4.30pm, the plaintiff was shown phone records indicating he was in Ovingham by 3.56pm indicating he could not have been on site as claimed.  In response the plaintiff said he may have made allowances for an early starting time or lunch, and the like[68].

    [68] Transcript pp.361-362.

39. The plaintiff’s evidence in general was that he deducted any time claimed for lunch from the indicated time span to give a resulting hourly claim.  This would indicate that ordinarily the start-finish time should be taken as accurate, the number of reduced hours claimed reflecting the lunch break.

40. In all, the matters raised and put to the plaintiff I find indicate errors or exaggeration on a number of occasions in relation to the hours claimed on the timesheets.  The timesheets for 24 January 2008, 22 May 2008, 26 May 2008, 25 June 2008, 16 July 2008, 22 July 2008, 24 July 2008, 31 July 2008, 9 September 2008 and 6 November 2008 I do find indicate material inaccuracy in the times indicated on site by the job-sheets.  The other matters identified may possibly do so, but were more marginal. 

41. I found the plaintiff’s explanations about lunch and start times unconvincing.  However it is plain from the sheets themselves that he did round times to the nearest half hour.  This occurs on all his sheets.  Overall, my provisional view was that there were a number of material exaggerations, whether conscious or unconscious in the times claimed on the timesheets established by the phone records.  On a few of the occasions, as identified above, the sheets significantly overstated the hours without in my view any credible explanation to this court.

42. The plaintiff was asked about other aspects of his work practices.  The plaintiff denied allegations that he would take an hour for lunch, and said that he would take perhaps 10 minutes for morning break and no afternoon break[69].

    [69] Transcript p.363.

43. The plaintiff was taken to the initial meeting with the defendants on 23 July 2007.  The plaintiff conceded that while he had said in his Statement of Claim that there was no discussion concerning his charge out rate, he now conceded that was wrong[70].  He agreed that he now recalled that he was asked what his charge out rate was at that time.  He agreed he knew the defendants were owner builders[71].

    [70] Transcript p.366.

    [71] Transcript p.367.

44. He agreed there was a discussion about GST which he had previously denied[72].  He agreed that paragraph 16 of his Statement of Claim was wrong when it said his first invoice was inclusive of GST, as he had not been registered for GST at that time[73].  The plaintiff said it took about 15 minutes to assemble a down-light, but was able to do so in 1 ½ minutes when handed one in the witness box[74].

    [72] Transcript p.367.

    [73] Transcript pp.368-369.

    [74] Transcript pp.372-374.

45. The plaintiff repeated that he was shown plans on 23 July 2007 but not given any to keep.  He said he did not need any plans at that stage, as he was not yet contracted to do the job. 

46. He gave evidence that the higher of the hourly rates claimed in his statement of claim were an average in the industry, although he charged at the lower end of the scale. 

47. It was put to the plaintiff that he filled out all of his job sheets at the same time.  He denied that, saying that each one was filled out separately[75].

    [75] Transcript p.374.

48. The plaintiff was then cross-examined in some detail about the Middendorp invoices which were tendered as part of P1. The plaintiff explained they were invoices which contained items used in this job.  He said that he was not claiming all the items in those invoices as some indeed related to other jobs. He said that the invoices contained other items than for the defendants’ job, some for his stock and some tools.  The plaintiff said the amount of material used on a particular job is in the job sheet for that job, it is not the amount in the Middendorp invoice.

49. The plaintiff indicated he would generally mark up the price charged for materials to the defendants. He said he would generally double the price for smaller items but there would be a lesser mark up for more expensive items[76]. The plaintiff was cross-examined about the amount of cable and other materials required to complete work on parts of the house.  In relation to a number of quantities of conduit cable and sockets the plaintiff agreed he had charged the defendants between 50% and 100% mark-up over his cost price[77].

    [76] Transcript p.386.

    [77] Transcript pp.385-392.

1. The plaintiff gave evidence that considerable quantities of materials had to be used.  He said you need to make allowances with quantities, so as to ‘be better safe than sorry’. The plaintiff was asked about the work done on his first day at the site, 13 September 2007. It was put to him that he claimed for excessive cable and he gave explanations for the amount claimed.  He said there could be wastage, but some could be left onsite for installation within the cavity of the brickwork.  The plaintiff said he only charged for what he actually used.

2. The plaintiff denied any allegation that he was taking materials off the site back and forwards to other jobs[78].

   [78] Transcript pp.406-407.

3. When it came to the “second fix” he agreed that the defendants provided some of the materials.  In relation to “second fix”, he said they would go around and count power points and light fittings and so on, to determine what was required. However this was much harder with cabling[79].  He said that had been much harder to predict.  The plaintiff said he didn’t recall any discussion about a $200 limit on his expenditure.  He said there was definitely no conversation whereby he was required to seek consent for the purchase of items of greater value[80]. 

   [79] Transcript p.409.

   [80] Transcript p.411.

4. The plaintiff was taken to the “Electrical Needs” document, the document created by the first defendant.  It was put to him that that document was clear as to what the defendants wanted.  He said that is not the way the job proceeded.  He said he would go room by room with the first defendant and she would indicate what they would want.  He observed that the “Electrical Needs” document was not complete and contained question marks.  He said the right thing to do in such circumstances is to go through what is required room by room.  He said there were many changes[81].

   [81] Transcript p.414 and elsewhere.

5. The plaintiff denied an allegation that he used or took excess cabling so that he or his father could make money by recycling it for scrap[82].

   [82] Transcript p.419.

6. The plaintiff was then provided a detailed list of items that had been compiled by the plaintiff.  That was tendered as P7[83].  With reference to that list and his A3 sheets he then identified a series of what he described as changes to the various areas of the house. 

   [83] Transcript p.436.

7. In relation to the garage he said there was an additional number of items in terms of switching, sensors, the number of fluoro lights, changed two-way switching and extra power and power points[84].

   [84] Transcript pp.436-438.

8. Similarly, in the case of the theatre room, the plaintiff listed a number of items he described as changes.  He said there was a request that the switching for the down lights be separated into differently powered rows with dimmers added to each row, that there be provision for a number of high powered appliances, strip lighting above cabinets and power, provision for a ceiling projector, wall screen, dishwasher and bar fridge[85].

   [85] Transcript p.438-442.

9. In relation to the adjacent toilet, the plaintiff said that the defendant added a hand dryer and a sensor for the lighting[86].

   [86] Transcript p.442-443.

10. In relation to the adjacent laundry, he said the lighting changed and a change was made to the exhaust fan position which was necessitated when the first defendant said she wanted a sky light.  Also power was put in for the ironing board, a timer on the exhaust fan, and an additional switch for the outside lights[87].

    [87] Transcript p.443-446.

11. The plaintiff then gave evidence as to how these changes generally came about.  He said he walked through the house at first fix and was told what was required in relation to each room, and then he would do that work.  He said that later more would be added so that he would also have to do that work.  It was pointed out to the plaintiff that some of the items he initially described as changes were on the defendant’s “Electrical Needs” document.  He responded he still went through each room with the defendants.

12. He said all the changes were required after he had done the first fix, and as directed by the owner on site.  Later in re-examination the plaintiff described the changes in the remaining rooms, indicating a number of items in every other part of the house.  The plaintiff said that a number of these changes required dedicated circuits and after all the changes had been requested and implemented the switchboard was ultimately too small for all the additional items that the defendants had required.  He said he would do work, then the owner would come back and require more to be done.

13. The plaintiff was taken to more of his job sheets. 

14. The plaintiff was taken to his job sheet of 15 November 2007.  That job sheet claims five hours for the two hour period 3.00pm to 5.00pm.  The plaintiff agreed that that could not be right[88]. 

    [88] Transcript p.451.

15. The plaintiff was cross-examined extensively about what he did on that day and on subsequent occasions represented by the tendered job sheets.  The plaintiff agreed that on several of those occasions the second defendant also worked, for example on 18 March 2008.

16. The plaintiff was cross-examined about his work on 3 October 2008 and 3 November 2008 in relation to the switchboard.  He agreed he had originally specified the switchboard but that in the end the board became too small for the job.  He said that he did spend quite some time trying to fit all the circuits into the box, and in hindsight he agreed it would have been better to have a bigger box.  The plaintiff said that situation came about because of the large number of additional circuits that were required due to the changes required by the defendants[89].  In the end all seemed to agree that the switchboard was ultimately too small for the job.  The plaintiff argues this supports his case that the job was varied and significantly expanded as it went along.  The defendants argue that it shows the plaintiff was not competent or efficient.

    [89] Transcript p.458.

17. The plaintiff was then cross-examined extensively on the contents of the first defendant’s affidavit.  Much of that affidavit was later put before me by agreement.  It dealt with much of the background to the matter.  In response the plaintiff reiterated his evidence on the topics raised and denied the contrary allegations that were put to him.  He said that at the initial meeting he did not recall any discussion about any other electrician, and that there was no confirmation for some time after that he would be doing the work.  He said he did not know about the concreting prior to being notified to go there and do the conduits.  The plaintiff said that there was no discussion about the rate he would charge at, but he did say that he charged at $50 per hour at that time and was not registered for GST.  He did not recall any discussion about whether his rate was high or fair.

18. The plaintiff denied that he was asked for regular invoices or that he told the defendants that at any stage he would send a quote to them.

19. The plaintiff said that when he attended on 13 September 2007 to begin work, he was shown the plan that day but was not given the “Electrical Needs” document until after that, around November/December 2007.  The plaintiff conceded that the second defendant assisted on occasions.  He said he never refused to use P&R Electrical and that he was not questioned about materials and the progress of the job, nor any other jobs he might have nor any family issues.

20. The plaintiff denied that the second defendant always got there before him and left after him. He denied a series of allegations contained in paragraphs 215-226[90] of the first defendant’s affidavit that he was inexperienced, disorganised, on his mobile a lot, was laid back, slow, took lots of breaks or was talking about other things all the time.

    [90] There were two passages in the affidavit numbered 215 due to typographical error.  I refer to the second bracket of paragraphs commencing with 215 in the affidavit.

21. In response to the second defendant’s affidavit insofar as it concerned Mr Curry, he said that mostly Mr Curry would wait for him to arrive and would commence in any event if the plaintiff was there late.  He said Mr Curry did not regularly take smoke, coffee and rest breaks as well as lunch.  He agreed he did not advise of Mr Curry’s cost until the final stages.  He said he never acted dishonestly nor did he take absences when he could have been working nor did he do any unnecessary work.

22. The plaintiff agreed he did have other jobs, but said that he did not charge the defendants for that time, or for any material used on other jobs.  The plaintiff said that the first defendant wasn’t a difficult client, nor did he recall her threatening to refuse him access to the site if he didn’t provide more prompt invoices.

23. In relation to the adjacent fan and down light depicted in a photo at page 474 of P1, he said he did not install the ceiling fan but left wire in the roof for the fan.  It was put that the positioning of those items was a problem.  He said whether you have a problem depends on the type of fan you use. 

24. The plaintiff generally denied all suggestions of not working efficiently, wrongful utilisation of materials, and any lack of application.

25. In re-examination the plaintiff described changes to the remaining rooms that had not been initially covered in examination in chief.  It was agreed that the plaintiff be recalled for further cross-examination on the topic. 

26. The plaintiff described those changes in more detail.  In relation to those changes the plaintiff was taken to the “Electrical Needs” document, and in many but not all instances there was at least some reference in the “Electrical Needs” document to some of the items that the plaintiff described as changes.  In response the plaintiff said that he did not use the “Electrical Needs” document as a basis for the initial work.  Rather, he said that his work was based on what the defendants had told him and he marked on his plan, and what they had told him as he had walked around the respective areas of the house.

    Provisional assessment of the plaintiff’s evidence

27. The plaintiff gave his initial evidence over several days in a calm, ostensibly rational and straightforward way.  He answered all the questions about the job and his work in a straightforward way.  I initially formed a provisionally positive view of his demeanour and manner of giving evidence.  As already mentioned I was however not completely satisfied with his evidence concerning the timesheets.  In my view, he consciously or unconsciously did round the times out, and on a number of occasions, as I find established by the phone records, notwithstanding his explanations to the contrary he was not on site working on the job, nor working on the job off site when his job sheets indicated he was. There were several occasions when he could not have been on site as claimed, and where there was no other apparent materials or organisation related reason why he would have been off site yet working on this job.

    Further evidence concerning GST and ABN registration and the plaintiff’s credibility

28. Much later in the case the plaintiff was recalled in relation to two issues that the defendant wished to explore.  It was suggested on the basis of investigations carried out by the defendants and ultimately not disputed that the plaintiff had never been registered for GST.  Also, it was put and not disputed that the ABN that appears on the pro forma daily Job Sheets dated between 13 September 2007 and 7 November 2008 was created as a result of GST registration on or around 3 May 2008.

29. These two issues had relevance in two ways. 

30. Firstly, if the plaintiff was not liable for GST, then he is not entitled to claim it from the defendants.  The plaintiff has claimed $4,915 GST in his 29 October 2008 invoice[91] and $1,385 GST in his 18 November 2008 invoice, totalling $6,300 GST.  Registration is not however determinative of liability.  Ultimately the following agreed legal position was taken by the parties on that issue.

    [91] Page 253-259 of P1.

31. In short, section 7.1 of A New Tax System (Goods and Services Tax) Act 1999 (“the GST Act”) provides that GST is payable on taxable supplies, the supplier of such services being liable to pay such tax per section 9.40. Per section 9.5 and 9.10 of the GST Act a person supplying services is required to be registered if they carry on a business, and remit GST so long as they have a GST turnover threshold as defined in section 188.10. It is agreed between counsel that the plaintiff is liable to pay GST in any given year if his “registration turnover threshold” as defined by the GST Act, in particular sections 23.15 and 63.25 and the 1999 regulations under the GST Act, is in excess of $75,000[92]. 

    [92] P13, “Agreed Counsel’s position on Application of GST law”.

32. In short, it is agreed that no matter whether the plaintiff was registered for GST or not, if his annual turnover exceeded $75,000 then he was liable to pay GST, and if it did not then he was not liable to pay GST.

33. Secondly, as the ABN number would not have been in existence until generated upon registration on or after 3 May 2008, the pro forma job sheets containing that number could not have been in existence prior to that time.  Yet around 12 such job sheets had been tendered by the plaintiff seemingly on the basis that they had been filled out on the approximately 12 occasions the plaintiff had attended and performed electrical work between 13 September 2007 and prior to 3 May 2008.  If that was the case, it had potentially serious ramifications for the accuracy and reliability of the plaintiff’s record of claimed work, and potentially very serious ramifications for the credibility of the plaintiff, as the plain thrust of his evidence in chief and cross-examination was that the job sheets were filled out at the time the work described in them occurred, either at the job or when the plaintiff got home that night or perhaps the next day[93].

    [93] Transcript pp186-187, 189, 235-236, and in particular p324.

34. The plaintiff was recalled to give further evidence on these topics. 

35. Whilst the topic of whether the plaintiff was registered for and liable to pay GST, and consequently whether the value of his work recoverable from the defendants includes an allowance of GST is in one sense a discrete issue, in the bigger picture the issue is also potentially very relevant to the plaintiff’s overall credibility.  Hence whilst GST is a discrete issue, because of its relevance to overall credibility, I deal with it now.

36. The plaintiff said that he agreed that he did not register for GST in his own name but that a trust company that he was associated with did register for GST.  He said that he understood from his accountant that at some stage in the 2007-2008 financial year he did reach the $75,000 threshold rendering him obliged to register and also rendering him liable to pay GST[94].  The plaintiff said that his gross billings for the 2007-2008 financial year were “About $85, 90 roughly”[95].

    [94] Transcript p.1484-1487.

    [95] Transcript p.1485.

37. The plaintiff’s evidence in relation to his gross billings for the 2008-2009 financial year was similarly general.  He said:

    QWhat were the gross billings for that year, roughly, in your name.

    AAbout $100,110,120, I don’t know exactly.

    QBut it would definitely be more than 90.

    AIt was around- yeah, over a hundred, I think, yeah.

38. The plaintiff said that his company and his family trust had paid any GST, and that it was all worked out by his accountant as a result of the way his accountant had set up the structure[96].

    [96]   Transcript pp.1487-1489

39. No evidence was called from the plaintiff’s accountant, nor were any financial records tendered.  Whilst evidence from the plaintiff was certainly to the effect that he billed 85 or 90 thousand dollars in the 2007-2008 tax year, it is I find quite unclear whether that was all in his own name.  It is plain that the ABN registration of someone happened part way through the tax year, on 3 May 2008.  The plaintiff’s evidence is that the company and/or family trust paid GST upon the registration of the ABN.  On balance it is likely therefore that the company as the trustee for the family trust became registered at that time. However, there is no reference to the company or the trust on any of the invoices in this matter, although the invoices do contain the newly-registered ABN number.  It is not clear what proportion of the year’s billings in other matters were before or after 3 May 2008, the date when the company as trustee for the family trust obtained its ABN on registration for GST.  I suppose there is some likelihood that the billings prior to that date, whatever they were, were the plaintiff’s personal billings for services rendered by him.  His one pre-May 2007 invoice in this case was for only $6,845.00, although that invoice was not in anyone’s name[97]. 

    [97]   See page 251-2 of P1.

40. There is also no evidence what his billings in other matters were between 3 May 2007 and the end of the 2007-2008 tax year.  There is some likelihood that his jobs and billings post 3 May 2008 were in the name of the company and family trust who are of course no part of these proceedings.  On the other hand, the two invoices of the subject quantum meruit claim are in the name of “Raps Electrical” albeit with the addition of the new ABN number, and the plaintiff in this matter is simply the plaintiff in person “trading as RAPS Electrical”. 

41. It is clear that the plaintiff brings this action for the electrical work he and his sub contractor did, which he billed using the trading name “RAPS Electrical”.  If he the plaintiff was personally liable for GST then he is entitled to recover it from the defendants.  If not, then he is not.

42. I find that it is impossible to be satisfied that the plaintiff’s own billings for the year 2007-2008 prior to 3 May 2008 or for the whole tax year were at or above the $75,000 threshold. The plaintiff’s evidence on this topic was vague, based on the hearsay of what his accountant had told him and his income for the tax year was also entirely dependant on what structure the accountant set up upon GST Registration part way through the tax year.  No financial records were tendered, nor was there any explanation from the accountant.  One might think that the plaintiff’s tax returns could easily have been provided. 

43. On that basis in my view the evidence is not sufficient to find that the plaintiff had reached the $75,000 registration turnover threshold rendering him personally liable for GST during the 2007-2008 tax year.  In particular, I do not find the plaintiff’s assertion that was the case persuasive in the absence of easily obtainable taxation records.

44. In relation to the 2008-2009 tax year the evidence is in an equally unsatisfactory state.  There is simply the plaintiff’s claim that his billings were “About 100, 110, 120, I don’t know exactly” and it is unclear whether that evidence is his own estimate or whether it is based on what his accountant told him.  Again, none of the financial records were provided although one might have thought they would be readily available per his accountant and tax returns for the relevant year. 

45. I make some further observations on this topic.  Whilst the two invoices in question are in the name “RAPS Electrical” and the plaintiff has pled that he did the work personally under that trading name, the ABN number of the company and family trust with which the plaintiff was associated was on the invoices dated 6 and 29 October 2008[98].  There is no clear evidence as to what the legal relationship was between the plaintiff and the company and family trust at the time the company and family trust were seemingly putting their ABN on the invoicing the defendant was delivering to the defendants for the work the plaintiff and Mr Curry were personally doing for the defendants.  It is, for example, not even completely clear whether the plaintiff or on the other hand the company or the trust were then purporting to provide the services to the defendants.  Certainly the plaintiff was doing the work at the request of the defendants.  On the other hand the company and trust had the ABN and were consequently purporting to be liable to file GST returns and pay GST.  The plaintiff discovered no GST records and stated it had none, and the plaintiff said that the company and trust paid whatever GST he was liable for.  The plaintiff has also not called any evidence to establish that GST has ever been paid, whereas such evidence should easily be available per copies of GST returns or financial records of actual payment.

    [98] Pages 253-264 of P1.

1. In all there are so many uncertainties and so much lack of clarity, and in the absence of any of the financial records or even the GST returns which might easily cast light on the issue, I am also unable to find established on the balance of probabilities that the plaintiff reached the registration turnover threshold and hence had any personal liability for GST during the 2008-2009 tax year.

2. As to credit, I was not satisfied with the vagueness and uncertainty of the plaintiff’s answers on this topic, and I also find that it is unlikely that the plaintiff would know as little about the financial structure, detail and income of his own business as he said he did.

3. In relation to the second issue, of how the first 12 job sheets could have been created before the ABN number they bore came into existence, the plaintiff also gave further evidence.

4. In short, when recalled the plaintiff told the court that he had filled out other job sheets at the time of the work reflected in the first 12 job sheets tendered, and transferred that information to the new job sheets that were tendered in this trial.  He said he did that when he got his new ABN number and formatted a newly designed job sheet[99].  He said he performed this transfer at “sort of the same time”.  It was observed by the defendants’ counsel and put to the plaintiff that 4 different colour pens were variously used on those 12 sheets so as to give the false impression they were drawn up at different times.  The plaintiff denied that.  The plaintiff then said that he might have done it over a couple of nights.  He said he transferred the information from his old job sheets to his new ones “because I had a new structure and a new ABN”[100].

   [99]   Transcript page 1490.

   [100] Transcript page 1491.

5. These responses were quite unconvincing.  There would be little reason to transfer all the old job sheet information onto new job sheets where, as here, the job sheets performed no role apart from being an internal record of work done, particularly so when most of the work reflected in those first 12 sheets had already been invoiced and paid without reference to GST, per the plaintiff’s first invoice dated 8 February 2008[101].  Secondly, if the plaintiff for some reason had a genuine reason to transfer the information from 12 old sheets to 12 new sheets, it is likely he would have done it all over the space of a few minutes to update his records, rather than in different colours for different invoices over several sittings.

   [101] Page 251 of P1.

6. It was then put to the plaintiff that his new evidence revealed that his earlier evidence that all the job sheets were filled out at the time of the work done in them was false.  The plaintiff admitted that his earlier evidence at page 187 was accurately recorded, but said that he hadn’t meant that the job sheets he was referring to in this trial were the actual ones he filled out at the time[102].  He repeated this in response to other passages of evidence he had given that appeared to specifically deny filling in any of the job sheets in this trial at a later time[103].  When the plaintiff was asked why he had not told the court about the old job sheets and transferring the information from them to new job sheets when it had been put to him that the tendered job sheets had been filled in at a later time, he responded “Just I didn’t understand the question to be like that”[104]. 

   [102] Transcript p. 1495.

   [103] Transcript p. 1496, referring to page 324.

   [104] Transcript p. 1497.

7. The plaintiff was taken to his earlier evidence at pages 330-331 where he had told the court that he filled in the job sheet relating to 9 April 2008 at or around that time.  The plaintiff responded that that was not what he meant[105].  There was further cross-examination and responses along similar lines.

   [105] Transcript p. 150.

8. Ultimately the plaintiff’s evidence in this topic seriously affected his credibility.  His earlier evidence was plainly to the effect that the tendered job sheets were filled out by him at or around the time the work was done, and that was plainly not possible in light of the ABN number printed on the first 12 job sheets.  His response and explanations when he was recalled simply did not adequately explain his earlier evidence.  This casts serious doubt over the accuracy of the job sheets as a reliable record of the work done, and the honesty and credibility of the plaintiff’s evidence in this matter.

9. Overall the plaintiff was not a convincing witness.

   The first defendant’s evidence

10. Ms Karydis-Frisan gave oral evidence supplemented by affidavit.  Objection was taken to a portion of Ms Karydis-Frisan’s affidavit.  In response to that objection it was explained that Ms Karydis-Frisan had drawn up the affidavit herself as a recollection of the whole matter, rather than a settled document focused on issues in the case.

11. It was therefore agreed that certain objected portions be excised, but that I otherwise have regard to it[106].

    [106] Transcript pp 823-4, 827 and 957.

12. I will paraphrase the effect of the affidavit.

13. The first defendant said that she now lived at the premises in Mellor Avenue Lockleys, is married to the second defendant and has two children aged 7 and 14.  She has been a solicitor for some six years, although not in construction law.  She currently performs home duties and manages the defendants’ rental properties. 

14. In 2006, the defendants decided to build a house at the Lockleys address.  The second defendant wound down his tiling business with a view to working on the project.  He would visit the site daily as the defendants lived just down the road.  The first defendant’s role was the administrator and account payer, and both defendants monitored the project.

15. The first defendant said they were owner-builders, employing a number of sub-contractors over time.  She said they advised all sub-contractors that they were directly involved in the project and wanted to keep costs down by providing as much of the labour and materials as possible.  She said from time to time, some sub-contractors advised that they preferred to work with certain materials, advised them of the costs, and she authorised payment, however this was said to be rare.  On occasions some sub-contractors were asked by the defendants to stop working and leave the site, although most disputes were resolved without “resorting to this severe and unpleasant action”.  She said there had been changes to sub-contractors on the project due to poor performance and personal reasons.

16. In relation to electrical works, she said that she arranged an account with P&R Electrical of Holbrooks Road Underdale, which was only 600 metres away, and were offered a free delivery service.

17. The first defendant said that their first electrical sub-contractor was a Mr Arhontis of Powerstate Electrical, whom they met in May 2007 to detail the project.  After various discussions they retained Mr Arhontis.  The first defendant said that by mid July 2007, despite repeated requests, Mr Arhontis had not provided them with a quote, and after difficulties in contacting Mr Arhontis they decided to contact the plaintiff to discuss their project with him.

18. In early August 2007 Mr Arhontis installed temporary power and made electrical provision for the cellar, but did not provide a quote or commit to the project at that time.  At a later time he provided a quote but did not confirm commitment to the project.

19. The first defendant said she phoned the plaintiff on 18 July 2007 and arranged to meet at the defendants’ former home in Garden Terrace, Underdale on 23 July 2007.

20. The first defendant says that she spoke to the plaintiff on the morning of 23 July 2007 to tell him when the foundations might be poured.  The first defendant then described the 23 July 2007 meeting with the plaintiff in more detail, which she said lasted for around 2 1/2 hours.  She said she outlined the purpose of the meeting, gave the plaintiff a set of plans, told the plaintiff they were acting as owner-builders and aimed to keep the costs down by providing labour and materials through the second defendant, and discussed what tasks the second defendant could perform.  The first defendant said that she had negotiated lower than trade prices with P&R Electrical, and said that the plaintiff had no objection to that so long as that from time to time he may need to put in some extra materials at short notice and would use his own supplies.  The first defendant said that she said it was okay to do so long as it did not exceed a couple of hundred dollars or so.  She said anything greater would need authorisation.  Further discussions occurred about roles and the previous electrician.

21. The first defendant said she asked for a quote and the plaintiff said he did not see a problem in supplying that, but he would have to hear about the project and consider their plans further.  The first defendant said that she explained the scope of electrical works and detailed their requirements as best as she could during the meeting.  She said she described in quite some detail the project requirements.

22. The first defendant said she asked about his charge out rate and that the plaintiff replied that he would charge an hourly rate.  He said his hourly rate was $50 without GST, because he was not registered.  The first defendant said that the second defendant suggested his rate was a little high, but the plaintiff said there were potential delays and unknowns so his rates were fair. 

23. The first defendant said that the plaintiff agreed to provide progress payment invoices.  She said that the plaintiff was referred to plans and made many notes during the meeting, after which the plaintiff assured them of his commitment to the project and that he would send through a quote in a couple of weeks.

24. The first defendant said she spoke with the plaintiff next on 29 August 2007, at which time he apologised for not getting back to them with a quote but said he was available to undertake the job.  She said there was a discussion about providing a list of materials, which the plaintiff did not seem keen on, and that the plaintiff advised the following day it was too hard to get the list to her. He said that he would get the materials on this occasion given the short notice, and that he would look after them on price.  She said the plaintiff told her he would provide a quote within a week.

25. The first defendant said that on 6 September 2007 she decided to produce an “Electrical Needs” document, attempting to capture the essence of their electrical needs as discussed with the plaintiff at the initial meeting.  She said she called the plaintiff on 11 September as a follow up.  She said she called again on 12 September 2007 and expressed frustration at going into a job with no idea of his costs for labour and materials. She said that the plaintiff told her not to worry and confirmed his hourly rate of $50 per hour.

26. The first defendant said that the plaintiff was advised on 12 September that he was needed for an early start the next day.  The following morning she called the plaintiff who said he was on his way.  She said she saw the plaintiff on site installing conduits, then she attended at 4pm and chatted with the plaintiff after he finished work for the day.  She believes “that this would have been the likely day that I handed the document to Frank”, meaning the “Electrical Needs” document.  The first defendant said she was talking to the plaintiff and was surprised at discussion by the plaintiff about the position of the main box and sub-boards and said she thought the plaintiff was not really certain himself about the number or position of these boards.

27. The first defendant said that over November and December 2007 she regularly requested progress invoices, and was very patient with the plaintiff.

28. In her affidavit the first defendant went on to comment on the plaintiff’s work patterns, stating that she observed him arriving after her husband and leaving before him, working all over the site with no particular order, in a zigzag fashion with no obvious method. She said he was not methodical or organised.  She concluded that the plaintiff was inexperienced and performing the work on an adhoc basis. 

29. She further suggested that he was on his mobile phone a lot and had regular smoke, tea and lunch breaks.  She said he carried materials on and off the site, did not push himself, was laid back, worked at a slow pace, and spent a lot of time looking at the work he had to do as if he did not know how to do it.

30. The first defendant then commented on the arrival of a plaintiff’s helper on site.  She knew him only by his first name.  For ease of reference I will refer to him as Mr Curry.  She said that she observed the plaintiff spending most of his time talking about other things, appearing distracted, and joking.  She said when she first saw this mature male person working on the site in April 2008, she was introduced to him by the plaintiff by his first name.  She said the plaintiff said that he was helping him out.  She said that the plaintiff said this person was a fully qualified electrician who he used to work with.  The first defendant said that this person would arrive at the site but not commence work until the plaintiff arrived.  She also said that she observed Mr Curry taking smoke, coffee, and rest breaks on top of lunch break, and that he would complain about his legs, with the plaintiff saying “No he is fine, he is just getting old, you know how it is”.

31. The first defendant said that the plaintiff never advised them of his helper’s cost to them during the works, nor of the rate that the plaintiff ultimately charged them.

32. The first defendant, in her affidavit, alleged that the plaintiff acted dishonestly and tried to conceal the costs to them of his helper, because she said that the plaintiff told her that the helper was his responsibility and was helping him out.  She said if she’d got an invoice with that person on it she could have raised it with the plaintiff at the time.  She said she remonstrated with the plaintiff when she received the second invoice in October 2008.  She said she was very unsatisfied with the plaintiff’s invoices, job sheets, and claimed hours, and she was also unsatisfied with the claimed materials.

33. The first defendant gave examples of her lack of satisfaction over these issues.  I mention some examples.  She said that the plaintiff’s account says that he supplied and fitted a data board hub-box but that the data and telephone cables had been left loose and that the box was supplied and installed by Security Works.  The first defendant denied asking for the two telephone cables the plaintiff installed as shown in his account.  The first defendant says they only required “up to two” dishwashers whereas the plaintiff has claimed work for provisioning for three dishwashers.

34. The first defendant says that although the plaintiff has claimed for installing three Foxtel installations, they only ever said they required one, but that the plaintiff convinced her to put a second one in due to the size of the house. 

35. The first defendant said she spoke to the plaintiff about wastage and excess materials but that he said he did not know what she was talking about.  She said she asked the plaintiff where all the excess cable or off cuts had gone, because they were no longer to be found on site. She said that he had no answer for her and looked guilty.

36. The first defendant said she had concerns about safety and requested the Office of the Technical Regulator inspect the work. 

37. She claimed that “Frank abandoned the job and left us to pick up the pieces”, with the requirement that they needed to do additional work to make things right.

38. The first defendant’s affidavit then addressed the plaintiff’s invoices.  The first invoice was dated 8 February 2008, which the first defendant paid.  She said that she queried the breakdown of labour and materials as this was not specified, and that they were surprised at the amount of the invoice.  She said she did not receive the detailed material invoices until December 2008.  She said she asked the plaintiff to explain his work description of drilling wall boxes when he didn’t place any, but that she was never given one.  Notwithstanding this they decided to proceed with the plaintiff, but said that they required the plaintiff provide a quote as soon as possible, and regular progress invoices.

39. The first defendant said that in September 2008 she told the plaintiff that if he could not provide an invoice she would refuse him access to the site and to pay him at all, but that she got “a battery of excuses”, and that he said he needed at least three days to prepare an account.  She said they received the second invoice in late October, were shocked at the amount of it, however made a “good faith” payment of $5,000 on the proviso that he provided more detail.  She said in early November they received the third invoice from the plaintiff.

40. The first defendant said per her affidavit that they had paid a Mr Kourtesis $880 to re-wire the sub-board. 

41. The first defendant said that had the plaintiff properly designed the fans in the family room, dining room, bedroom two and retreat two, her family would not be faced with the “unbearable situation of strobing lights when the fans are turned on”, due to the plaintiff’s poor light design.  As a result she said, they removed the down lights.

42. The affidavit goes on to say that they had to bring in Security Works to supply and complete the installation of the data box and attend to the connection of the data and telephone cables at a cost of $931.70.  The first defendant said that in light of the plaintiff abandoning their job, and the OTR inspection and report, they retained Tyrone’s Electrical to test and inspect the electrical works for compliance at a cost of $1,683.00.

43. The first defendant said that she organised to purchase the two electrical distribution boards, circuits, switches and incidentals from P&R Electrical at the plaintiff’s direction, assuming he knew what he was doing.  She said the board was purchased well before the circuits, and she suggested that the box be exchanged.  She said the plaintiff spent many days trying to fix the wiring, and that she and her husband were concerned.

44. The first defendant’s affidavit says that on 17 October 2008 they contacted OCBA and were directed to the Office of Technical Regulator (OTR), who on 17 November 2008 said they would send an inspector.

45. The first defendant went on to say that she also purchased the garage sub-board on December 2007 on the advice of the plaintiff, although it was not used until after June 2008, and again that the plaintiff insisted on using it.  She said the OTR suggested they buy a second sub-board, which they did.

46. The first defendant then discussed the bonding of the pool, and said that the plaintiff had never raised an issue with them about it.  A subsequent report by Mr Lister showed that bonding had not been completed.

47. The first defendant then said that after discussing the plaintiff’s October 2008 account his attitude to them changed.  She said here was little eye contact and he seemed more focused on his work.  The first defendant said his last day on site was 7 November 2008.

48. The first defendant also gave oral evidence.  She commenced by describing the event when the plaintiff’s expert attended their property to inspect shortly before trial.  She said he attended at 9.00am with the plaintiff.  The first defendant made a point of saying that she organised a security guard to be present at all times, although it was not apparent from anything in this case why that was necessary.

49. The first defendant then commented on aspects of the plaintiff’s work.  She indicated that there are three blank points with no power in them noted in the evidence of the expert Mr Forster.  She said they were excess to requirements and plates over them were installed by another electrician[107]. 

    [107] Transcript p.803.

1. I mention in passing that the CMS report was based on the somewhat limited documents I find it was given.  It may also be observed that while the first CMS report ostensibly says “no deductions have been made to the Estimate of Value for any incomplete works” that is not the case.  A close analysis of the CMS report indicates that it purports to have valued what the plaintiff did assuming the documents it got reflected completed works, rather than valued a hypothetically completed project.  There are many examples of this, such as where an item in the CMS report clearly contemplated that further work was required.  For example it describes installation of cabling only that anticipates further work and subsequent completion.  See for example the entries for the pool area at page 11 of the report which documents a number of “cabling only” items that anticipate later connection of other items, or identify items completed by others that are ascribed a nil cost/value in terms of the plaintiff’s work such as “Install only heat lamps (installed by others)”.  Accordingly, on close analysis the CMS valuation appears to exclude at least some quantity of unfinished work or work completed by others.

2. The effect of Mr Dovey’s evidence is that a number of items were indeed not completed as at the time of his inspection. 

3. I do not find that his evidence is any evidence of faulty or substandard work, indeed the general effect of his oral evidence is that the standard of work was good[171].  Further, although the overall evidential matrix is not completely clear, the items identified by Tyrone Electrical Services as needing rectification or completion have not by and large been valued by CMS.  An example of this is the pool earth bonding, referred to in both the Tyrone “Rectification” and “Completion of Works” lists but not mentioned at all in the CMS valuation[172].

   [171] The primary exception is the positioning of the down lights with respect to the position of the fans.  Whether that was a fault depends on whether long or short bladed fans were to be installed.

   [172] See "Pool area" at page 15 of CMS report at page 450 of P1.

   Analysis of expert witnesses

4. I was impressed with both Mr Crouch and Mr Forster as witnesses.  In my view they were both well qualified to express the opinions that they did, and in the final analysis there was a lot of agreement between them.  The primary differences in their conclusions as to the reasonableness of the plaintiff’s claimed charges and what the reasonable value of the work was, stemmed from the different assumptions each made about whether the project could have been competitively tendered and if it could have been, could the work have proceeded on the basis of a clear electrical plan and an efficiently managed work program, properly coordinated in conjunction with other trades, without any changes or variations.

5. In essence, although Mr Crouch was of the view that in the residential sector electrical drawings are not always documented, and did not ultimately agree that the plaintiff’s charges could have been reasonable, I conclude from his evidence that much would depend on the difficult-to-quantify variables I have identified.

6. In the end I conclude that, from the expert evidence, had the job been fully identified by way of detailed electrical plan and instructions at the outset and put out to competitive tender, a price could have been achieved at roughly the amount assessed by Cost Management Partners in their second report, having added the items they initially missed, as identified by Mr Forster in his report.

7. Then, had the work proceeded efficiently and as anticipated without any changes or variations, the electrical work could have been done, charged and paid for, for that estimated sum.

8. I also accept on the basis of both experts’ evidence that if there was insufficient material for this job to be priced and accordingly a competitive quoting process could not be embarked upon, leaving an electrician to be retained without competitive pricing pressure, for a job then to proceed in the way claimed by the plaintiff in a piecemeal and relatively inefficient way with rolling instructions given over time, which such instructions changed in relation to most aspects of the house, then the price for the electrical work as estimated could easily escalate substantially, and even double as Mr Forster stated.

9. In relation to the hourly rate charged by the plaintiff, I find that given the plaintiff was a self-employed contractor working from home and his van, the rate of $50 per hour suggested by Mr Crouch and accepted by Mr Forster as being within a reasonable range, is the appropriate value of the plaintiff’s own hourly work.

10. The resolution of this matter turns greatly on how the job was managed by the defendants. If it was managed exactly as the plaintiff suggests, then the expert evidence is that his charges were, in effect, reasonable[173].  On the contrary, if the defendants’ evidence that everything concerning the job was clear from the outset, that instructions in relation to each room were given only once, that there were no changes or variations, and that they managed the job efficiently and coordinated perfectly with other trades is the case, then the plaintiff’s charges are plainly unreasonable.

    [173] Insofar as there is conflict between the experts concerning this question I prefer the evidence of Mr Forster, who more closely considered the plaintiff's instructions as to how the plaintiff says he was required to work.

    Discussion

11. I closely assessed the evidence given by the plaintiff and the defendants in this case, and formed provisional views as the case proceeded.  I have reconsidered these views in light of all the evidence in the case.  In the final analysis I do not conclude that either the plaintiff or the defendants were credible or reliable witnesses.

12. The plaintiff’s evidence was initially straightforward, but his explanations for the apparent inconsistencies between his claimed hours and his phone records were unconvincing.  His evidence purporting to explain his earlier evidence that his first 12 job sheets were filled out at the same time of the work, when at that time the ABN on the job sheets had not been created, was not credible.  The whole thrust of his initial evidence was that they had all been filled out at or around the time of the claimed work, and his subsequent explanations that in fact there were earlier job sheets which he had used to transcribe information onto the tendered job sheets after the ABN was generated were not credible explanations of his earlier evidence.  The plaintiff’s evidence was also contradicted in several significant respects by his assistant on the job, Mr Curry.  I found Mr Curry to be an honest and straightforward witness whose evidence I accept.  Mr Curry said he would leave the work site at 4.00 or perhaps 4.15pm, whereas the plaintiff claimed his attendance on most days to the hours of 4.30pm, 5pm or 5.30pm.  Further, Mr Curry said he was paid $200 a day by the plaintiff whereas the plaintiff says he paid Mr Curry $250 cash per day.  In each respect I accept what Mr Curry said and reject the contrary version given by the plaintiff.  I also find the plaintiff’s evidence that he kept no records, financial or otherwise of what he paid Mr Curry not credible.  I refer to without repeating the other aspects of concern about the plaintiff’s evidence mentioned earlier in these reasons.

13. I was also very unimpressed with the defendants’ evidence.  They both gave evidence in a shrill and aggressive manner, with the second defendant abusing the plaintiff seemingly at almost every opportunity throughout his evidence.  Often their answers were non-responsive.  The personal animus they displayed in the witness box reflected a lack of objectivity that in my view seriously affected their reliability.  There are many examples of this, and was even reflected in their behaviour prior to trial.  The first defendant made a point of emphasising in her evidence that she retained a security guard to escort the plaintiff and his expert on an inspection of their house, when there was not the slightest evidence to suggest that such a measure was necessary.

14. Both defendants criticised nearly every aspect of what the plaintiff did and how he approached the whole job, yet continued to retain him for over a year.  Although there were emails sent on other topics, there was not a single written or email complaint about the work that the defendants now complain was being so badly done, until after the receipt of the plaintiff’s disputed 29 October 2008 invoice.  Although the defendants claim they were constantly requesting a quote, there is not a single note or email concerning such a request prior to November 2008.  The first written complaint made by the defendants was a detailed letter dated 25 November 2007.  That letter makes no complaint about earlier failure to provide quotes from the outset of the project.  The plaintiff was accused of deliberately delaying the job, when there is no evidence to suggest he did so.  I refer to without repeating the other aspects of concern about the defendants’ evidence mentioned earlier in these reasons.

15. Regrettably I cannot conclude that either the plaintiff or the defendants were credible or reliable witnesses.

16. I found all the other witness in the case credible and reliable.  Each gave their evidence in a straightforward, matter of fact way, without any apparent bias for or against any party.  Where the evidence of any of these witnesses conflicts with the evidence of the plaintiff or the defendants, I prefer the evidence of the witnesses.

17. In particular, I accept the evidence of Mr Curry concerning his hours and what he was paid.  Where the plaintiff’s timesheets indicate Mr Curry worked beyond the hours of 4pm or perhaps 4.15pm, I reject the timesheets.    I also accept that Mr Curry was paid $200 per full day, rather than the $250 asserted by the plaintiff.  This equated to $25 per hour for an eight hour day.  I find that on balance it is likely that Mr Curry was also paid $25 an hour for the hours he worked when the hours amounted to less than an eight hour day.

18. I find that the plaintiff’s work was of competent and professional quality.  I do so on the basis of Mr Curry’s evidence to that effect, together with the observations of Mr Lister and Mr Dovey to that effect.  I find that when the plaintiff and Mr Curry were on site they worked professionally and efficiently.  I make that finding on the basis of Mr Curry’s evidence to that effect. 

19. I find that the evidence that rectification and other work was still required, essentially reflects that the job was uncompleted at the time the defendants terminated the plaintiff per their letter of 25 November 2008. 

20. Whilst the evidence on the topic is not as clear as it could be, in particular it is quite unclear what electrical work was done after the plaintiff left the job prior to the experts’ assessment of the work, I find that the experts assessed the work primarily done by the plaintiff.   It is likely that at least some small amount of work was done after the plaintiff left and before the experts assessed it but the evidence is not sufficient to find exactly how much was done in that time.  I can place no reliance on the first defendant’s evidence about this issue.

21. I find that the quote the defendants obtained to complete the work was comparable to the quote the plaintiff gave to complete the work.  The relationship between the various quotes the defendants obtained to complete, rectify, or do discussed work and the degree to which they overlapped, and whether and how much any of the work therein was valued by the experts, was in the final analysis I find unclear.  This was compounded in that none of those matters was adequately put to the plaintiff. 

22. This aspect of the case has influenced the court’s choice of how the quantum meruit claim is most fairly assessed.  I will return to this issue shortly. 

23. The most difficult factual aspect of the case is the issue of how the instructions for the project were given by the defendants to the plaintiff. 

24. The defendants claim that whilst they did not provide an electrical plan, and they did not create their “Electrical Needs” document until after building had started and some electrical work had been done, and they did change some things and add some things subsequent to creating that document, nonetheless everything was clearly specified to the plaintiff prior to the commencement of work on any particular area of the house.  They argue therefore that he could have and should have performed the work efficiently and at the cost estimated by their expert CMS.  Therefore, they argue that’s what the job is worth subject to various adjustments they claim, including for rectification and unfinished work.  They claim that either the plaintiff did the work in much less time than he claims as the job sheets are wrong and overstated, or he worked inefficiently and badly and took much more time than was needed, or both.  In each case they argue he has charged for much more material than actually used, and has marked up materials and Mr Curry much more than is reasonable, particularly in light of the provisions of the Building Work Contractors Act, which per section 29 and regulation 17 set a limit of 15% mark-up for domestic building work contracts, although they concede there was no actual contract in this case.

25. The plaintiff claims that is not how the job proceeded at all.  He says that there was no electrical plan, he was never asked for a quote, he was rung at short notice to attend, he had to spend long hours on site and on the phone with the defendants working through what they wanted, they kept changing and adding to the job, that work performed by other contractors was badly co-ordinated making his work harder, and that made it impossible for him to work efficiently and caused much more time to be taken to accommodate the way the defendants ran the job.  In short, he said the job was a rolling job, with the electrical requirements evolving, changing and expanding over time, requiring extended periods of discussion on the phone and on site, and a far less efficient progression of work.

26. Given that all parties lack credibility, resolving this issue presents an unusual challenge. 

27. It is nearly impossible to assess exactly where the truth lies on all the individual conflicts of evidence between the plaintiff and the defendants where there is no independent evidence to indicate the true situation.  Accordingly, it is impossible to conclude with any degree of confidence from the parties’ evidence alone the nature of the instructions given for the electrical work in question.

28. It would be necessary to substantially resolve that conflict to then be able to find which of the different set of assumptions that underpin the different experts’ opinions as to the value of the work are correct.  Only if that could confidently be done, would the resulting expert report based on accurate assumptions be a reliable basis to assess the value of the work.

29. This aspect of the case has also influenced the court’s choice of how the quantum meruit claim is most fairly assessed.

30. I find that a more reliable method of assessing the value of the plaintiff’s work is to proceed to assess it by arriving at an estimate of the quality of work, time spent and materials used by the plaintiff.  There is much more independent evidence available relevant to each aspect of that assessment than there is to resolve the conflict between the parties as to how instructions were given by the defendants to the plaintiff necessary to then resolve the differences between the two experts reports and consequently use them as a basis for value.  Hence proceeding in that way is likely to be a more reliable method of assessing value.

    Findings

31. Taking into account the independent evidence I do accept; in particular the location of the plaintiff as revealed by his phone records indicating exaggeration of hours, the plaintiff’s exaggeration of Mr Curry’s hours as revealed by Mr Curry, the adverse conclusions I formed as a result of my findings concerning the composition of the first 12 job sheets, the inconsistency between the plaintiff’s evidence and daylight hours concerning his 13 September 2007 attendance, and the other matters concerning his credibility earlier discussed I find that the plaintiff exaggerated both his and Mr Curry’s hours throughout the job.

32. I find, on the combined basis of Mr Curry, Ms Lister’s and Mr Dovey’s evidence that when the plaintiff and Mr Curry were actually on site they worked as efficiently as their instructions allowed and performed good quality electrical work.  I find that Mr Curry by and large worked a full day on most days where a full day is claimed on the job sheets, starting on time, but left at approximately 4pm on each of those full days rather than at the later times shown on the job sheets.

33. In assessing the exaggeration of hours by the plaintiff, in light of all the factors mentioned, I can only adopt a broad bush approach.  Doing the best I can, I find proven on the balance of probabilities that the plaintiff was working on this job for 80% of the hours claimed per the time sheets.  Adopting the same broad bush approach, I find proven on the balance of probabilities that Mr Curry was working on this job for 90% of the hours the plaintiff claimed per time sheets.

34. In terms of materials, after closely considering all the evidence, including that of the experts, again adopting a broad bush approach I conclude that the plaintiff likely took the same approach to materials as he did to charging Mr Curry’s hours, and that on balance the plaintiff has proven that 90% of the claimed materials supplied were supplied.  Whilst Mr Curry said he did not see excess materials used, he could not see or assess the quantities claimed in the job sheets, or therefore give an opinion as to their accuracy.

35. I find that this job could not proceed as efficiently as envisaged by the defendants’ expert.  It is clear that the first defendant was primarily managing the project, and that she was a relatively unqualified owner builder.  It is also clear that no electrical plan was ever produced or given to the plaintiff.  It is clear from Mr Curry’s evidence, who I accept as honest and accurate, that long discussions regularly occurred on site between the plaintiff and the first defendant which I find would not have been necessary if everything was clear well before work started.  Mr Curry gave evidence the job was continually changing[174].  It is also clear from the phone records that very considerable phone discussions occurred between the plaintiff and the defendant which again would not have been necessary if everything was clear from the outset.  In part for those reasons, and on the totality if the evidence, I find that the plaintiff was required to spend longer on the job than expected by virtue of the way instructions were conveyed to him.  Based on the evidence of Mr Forster.  I find that the electrical work required for the plaintiff’s house was considerably more extensive than for a standard luxury house.

    [174] Transcript p.695.

36. The work done reflected in the first (paid) invoice is not part of the plaintiff’s quantum meruit claim.  The plaintiff’s claim is therefore limited to the value of the work reflected in invoices 2 and 3.

37. Although it may not apply in cases where there is no contract I find that the Building Work Contractors Act does in fact reflect a reasonable benchmark for subcontractor and materials “mark ups”.

38. Drawing all this together, I find proven on the balance of probabilities that;

    1The plaintiff worked 80% of the hours claimed in the job sheets for invoices dated 29 October 2008 and 18 November 2008.

    2Mr Curry worked 90% of the hours claimed in the job sheets for invoices dated 29 October 2008 and 18 November 2008.

    390% of the materials in the 2 invoices claimed supplied by the plaintiff were supplied.

    4Instructions were given by the defendants in a piecemeal, evolving way which required the plaintiff to work in a considerably less efficient and organised way than he otherwise would have.

    5When they were onsite the plaintiff and Mr Curry worked in as efficient and effective way as they could, given the way they were instructed by the defendants.

    6Based on the evidence of the expert witnesses and the published Rawlinsons’ rate for small domestic building work of $50 per hour was the reasonable value of the plaintiff’s work.

    7Mr Curry was paid $25 per hour for the work he did.

    8Based on what I find is a reasonable benchmark set by the Building Work Contractors Act for building contracts, accepting that there was no actual contract struck between the parties, I find the reasonable value of the materials provided by the plaintiff to the defendant, and for the subcontract work by Mr Curry provided by the plaintiff to the defendants, was the cost of those materials and subcontract labour, plus 15%.

    9The plaintiff has not proven on the balance of probabilities that he is personally liable to pay GST in relation to the work performed.  Accordingly the value of the plaintiff’s work does not include a component for GST.

    10The plaintiff’s work was not faulty and by and large did not require remediation.  Rather, the job was unfinished.  The plaintiff was unable to complete the work due to the termination of his instructions and banning from site.

    11The power box did require expansion to a larger or two boxes, but this was as a result of the expanding nature of the job as it proceeded and was as such occasioned by the defendants variations and no adjustment should therefore be made to the value of the work on that account.

1. As I have concluded that the plaintiff and his assistant did work as efficiently and effectively as they could when they were in attendance, the reasonable value of the work performed by the plaintiff for the defendants is accordingly most accurately reflected by calculating the hours I find proven, at what I find was a reasonable hourly rate for the plaintiff, plus the actual cost of the materials and subcontracted labour with a 15% mark up.  This amount accurately reflects the value of the uncompleted job at the time that the defendants elected to terminate the plaintiff and not accept his quote to complete the job.

   Conclusion

2. I quantify the value of the plaintiff’s work as follows:

   1      Labour

3. 80% of the Plaintiff’s claimed 449.5 hours @ $50 p/h = $17,980.

4. 90% of Mr Curry’s claimed 422 hours @ 25 p/h + 15% = $10,919.

   2      Materials

5. The cost price of 90% of the materials claimed supplied + 15%  mark-up

   3      Less

6. $5,000 paid.

7. I will hear counsel as to the cost price of 90% of the materials listed as used per the plaintiff’s itemised invoices of 6 November 2008 and 18 November 2008 plus 15%, and as to costs.