Salmon v Jarrold
[2007] WADC 85
•24 MAY 2007
SALMON -v- JARROLD [2007] WADC 85
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 85 | |
| Case No: | CIV:2594/2005 | 20, 21, 23 FEBRUARY, AND 18 MAY 2007 | |
| Coram: | MAZZA DCJ | 24/05/07 | |
| PERTH | |||
| 36 | Judgment Part: | 1 of 1 | |
| Result: | Damages awarded to the plaintiff | ||
| PDF Version |
| Parties: | JOHN SALMON SCOTT JARROLD |
Catchwords: | Contracts Implied terms Whether implied terms breached Damages which result from alleged breaches Turns on own facts |
Legislation: | Nil |
Case References: | Cooper v Australian Electric Co Ltd (1922) 25 WALR 66 Hawkins v Clayton (1988) 164 CLR 539 at 573 Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SCOTT JARROLD
Defendant
Catchwords:
Contracts - Implied terms - Whether implied terms breached - Damages which result from alleged breaches - Turns on own facts
Legislation:
Nil
Result:
Damages awarded to the plaintiff
(Page 2)
Representation:
Counsel:
Plaintiff : Mr T G Darge
Defendant : In Person
Solicitors:
Plaintiff : SRB Legal
Defendant : Not applicable
Case(s) referred to in judgment(s):
Cooper v Australian Electric Co Ltd (1922) 25 WALR 66
Hawkins v Clayton (1988) 164 CLR 539 at 573
(Page 3)
1 MAZZA DCJ:
Introduction
2 The plaintiff is a medical practitioner who has a passion for aviation. In or about late 1999, he purchased a kit aircraft called a Europa Motorglider ("the aircraft"). Because of his professional commitments, he did not have the time to put the kit together. After making some enquiries, the plaintiff approached the defendant who had worked, in the past, as an aircraftsman and leading aircraftsman in the RAAF and asked him to build the aircraft. The defendant told the plaintiff that he had never built a kit aircraft before, but the defendant expressed no reservations about his ability to do so. In or about late 1999 or very early 2000, the plaintiff and the defendant entered into an oral contract by which the defendant agreed to build the plaintiff's aircraft. As the pleadings show, the parties expressly agreed the following terms:
(a) the defendant would construct the aircraft to the stage where it was ready to fly;
(b) the plaintiff would pay the defendant $20 per hour for work done in constructing the aircraft;
(c) the defendant would keep a written record of the number of hours actually worked in constructing the aircraft; and
(d) the plaintiff would pay the defendant fortnightly for work done in constructing the aircraft.
3 Although the manufacturer had suggested that the aircraft could be constructed in between 600-1,000 hours, both the plaintiff and the defendant thought this estimate was optimistic, but neither of them knew precisely how long it would take to build. As the plaintiff put it:
"We were well aware that the self-kit planes take a very variable length of time (to build)."
4 Consequently, there was no express agreement as to the number of hours the defendant would work to build the aircraft to a point where it was ready to fly. Further, no express agreement was reached between the parties as to the precise nature of the work for which the defendant was to be remunerated.
5 Construction of the aircraft began in early 2000. The plaintiff visited the defendant's work shed in Sawyers Valley every fortnight, where the
(Page 4)
- defendant presented him with an invoice which the plaintiff always promptly paid, apparently without query.
6 By July or August 2004, the aircraft was still not completed. The extent to which it was completed is in dispute. At this time, the defendant suffered a series of strokes and it was mutually agreed by the plaintiff and the defendant to end their contract and have someone else finish the construction. By that time, the plaintiff had paid the defendant $102,278.25 for his work. Taking into account the cost of tools and GST, the parties agree that this represented a total of 4,272 hours of work.
7 The plaintiff employed Edward Lesley (Ric) Stephen, an aircraft builder who had prior experience in building kit aircraft to finish the job. The plaintiff's aircraft was taken to Mr Stephen's hangar at Jandakot where he inspected it. Mr Stephen formed the view that the aircraft was only one-third complete and that the defendant's workmanship was poor. The plaintiff had Mr Stephen remedy the alleged defects and complete construction of the aircraft. In the end, the plaintiff has paid Mr Stephen $106,354 to perform these works.
8 At some point while the aircraft was being built by the defendant, the plaintiff purchased a Jabiru brand aircraft motor which was kept in the defendant's work shed. The motor was eventually delivered to Mr Stephen. He sent it away for modification and was informed that the cylinders had corroded. As a result, the cylinders had to be rebored at a cost of $3,616. Because of this, the plaintiff alleges that the motor's working life has been reduced from three years to two years and the plaintiff says that he will have to purchase a replacement motor sooner than he ought.
The plaintiff's claims
9 The plaintiff claims that the defendant worked an unreasonable number of hours between January 2000 and July/August 2004. Mr Darge, counsel for the plaintiff, made it clear that the plaintiff was not alleging that the defendant did not work 4,272 hours, rather, that total number of hours was unreasonable. The plaintiff claims that he is entitled to a part refund of the moneys that he paid to the defendant.
10 The plaintiff also seeks from the defendant damages in the sum of $106,354 being the total sum paid to Mr Stephen for the rectification of the allegedly defective work and the costs to complete construction of the aircraft.
(Page 5)
11 The plaintiff also claims $3,616 being the cost to rebore the Jabiru motor and $6,300 for the reduced operating life of the motor.
The defendant's position
12 The defendant, who acted on his own behalf at the trial, denies that he is liable to the plaintiff in any sum whatsoever.
13 The defendant denies that he worked an unreasonable number of hours building the aircraft. The defendant alleges that all his work was necessary to ensure the safe construction of the aircraft. The defendant alleged that the plaintiff required him to inquire into the feasibility of some 30 variations to the standard manufacturer's construction manual and to perform some of those variations. The process involved approximately 1,814 hours of work in addition to the work ordinarily required to build the aircraft. The plaintiff accepts that he did ask the defendant to look into and make some variations but the number of hours that the defendant worked was unreasonable.
14 The defendant denies the allegation that his workmanship was poor and says that the plaintiff is not entitled to any damages under this heading. He further denies any obligation to pay for Mr Stephen's work to complete the construction of the aircraft.
15 Finally, in respect of the motor, the defendant denies that the motor was corroded or if it was corroded it was due to his neglect and he also denies that he is responsible for any reduction in the operating life of the motor.
Issues to be decided
16 In order to decide the outcome of this case I must determine the following issues.
(1) Has the plaintiff established that the oral agreement entered into between the plaintiff and defendant included implied conditions that the work should be performed to a reasonable standard in a reasonable number of hours.
(2) If the plaintiff establishes the implied conditions he alleges, did the defendant breach those implied conditions.
(3) Has the plaintiff proved that the defendant was responsible for the corrosion of the Jabiru motor.
(Page 6)
- (4) If the plaintiff's case succeeds on any aspect, has he proved the damages he seeks.
Issue 1 – The Implied Terms
17 I have already set out the contractual terms which are not in dispute. In addition to these terms, the plaintiff alleges that two further terms should be implied into the contract. These alleged terms are expressed by the plaintiff in his amended statement of claim as follows:
(1) The defendant would exercise reasonable care and skill in constructing the aircraft; and
(2) The defendant would only be entitled to be paid for work reasonably spent in constructing the aircraft.
18 As to the first alleged implied term, at trial the defendant accepted that such a term should be implied into the contract. Accordingly, I find that the parties were subject to that term. The defendant continued to deny the existence of the second alleged implied term. In the end, I do not think the defendant had any real opposition to the implication of a term entitling him to be paid only for work reasonably spent on the aircraft. Rather, his concern was as to the meaning of the phrase "work reasonably spent in constructing the aircraft" and the scope of the works for which he was reasonably able to charge.
19 The plaintiff's case was that the defendant was only entitled to be paid for work done in the actual construction of the aircraft, that is for "hands on" time spent in the workshop. The plaintiff's position was that time taken by the defendant to research the construction or consider how the work was to be executed ("thinking time" is how the plaintiff's counsel expressed it in his closing submissions) was not chargeable by the defendant to him.
20 The defendant's case was that the expression entailed more than hands on time spent in the workshop and extended to time spent in workshop preparation, making jigs, internet research, deliveries, discussions with the plaintiff, and telephone calls in response to discussions he had with the plaintiff. The expression also included work done researching the feasibility of the modifications to the aircraft proposed by the plaintiff.
21 As to the existence of an implied term entitling the defendant to be paid only for work reasonably spent on the aircraft, I am of the opinion
(Page 7)
- that a term to this effect should be implied into the oral contract between the plaintiff and the defendant.
22 The law with respect to implied terms in an oral contract is well known and not in doubt. A term will be implied if it is "necessary for the reasonable effect of operation of a contract of that nature in the circumstances of the case": Hawkins v Clayton (1988) 164 CLR 539 at 573.
23 It was common cause that neither party knew when they entered into the contract, how many hours it would actually take to build the aircraft. Accordingly, neither party wanted to lock himself into a contract providing that the aircraft would be built in a fixed time for a fixed sum. But it is inconceivable that the plaintiff should be liable to pay for all work performed by the defendant even if that work was unnecessary or excessive. There must be, in my view, some proper limitation to the defendant's entitlement to remuneration in order for the contract to operate reasonably and effectively. But how should this implied term be expressed? To put it another way, what works performed by the defendant was he entitled to be paid for?
24 I have no difficulty with the words proposed by the plaintiff, that is, "work reasonably spent in constructing the aircraft" but in my opinion those words have a broader scope than just time spent on hands on activities in the workshop.
25 The defendant testified (and he was not seriously challenged on these points) that the Europa construction manual was not as clear as it might have been and that it was necessary to conduct research via the internet or in other ways to actually put the kit together. Research was also required in order to decide whether the modifications proposed by the plaintiff were feasible and if they were feasible, how they might be built. Sometimes it was necessary for the defendant to pick up materials from places around the Perth metropolitan area. In my opinion it was reasonable for the defendant to charge for all these tasks, as well as, discussions with the plaintiff, workshop preparation and the actual construction of the aircraft. In my view, all these works come within the expression "construct the aircraft".
26 I wish to make it clear that I consider that the expression is wide enough to embrace time spent by the defendant during the construction of the aircraft, investigating the feasibility of modifications suggested to him by the plaintiff, whether they were built on to the aircraft or not.
(Page 8)
27 I am aware that the plaintiff's evidence was that he clearly recalled that he and the defendant agreed terms which specifically provided that the defendant would only receive remuneration for hands on time spent in the workshop (T 24). The defendant's evidence was not to that effect. His recollection was that he would be paid for time spent on the aircraft (T 96). In my view both witnesses throughout their testimony were honest, but I have real doubts of the accuracy of their recollections as to what was actually said by the two men back in late 1999 or very early 2000, some 7 years ago. Neither man made a note of their agreement or confirmed the agreement in writing. It was an informal agreement based on good-will. I think both men have reconstructed their recollection of what was agreed with the benefit of hindsight. In my opinion the plaintiff and the defendant never spelt out the precise scope of works for which the defendant was to be remunerated.
Issue 2 – Were the implied terms breached
A. Did the defendant breach the implied term to exercise reasonable care and skill in constructing the aircraft?
28 Neither the plaintiff nor the defendant addressed the issue of what was entailed in the words "reasonable care and skill". In my opinion the words mean no more than that the defendant was required to construct the aircraft in a workmanlike manner: Cooper v Australian Electric Co Ltd (1922) 25 WALR 66. Did the defendant work to this standard?
29 Mr Stephen gave expert evidence for the plaintiff on this issue. His expertise and opinions were challenged by the defendant.
30 As to Mr Stephen's expertise, although he has no formal qualifications, he has been building aircraft since 1994 on a full-time basis. He has built 12 or 13 aircraft and rebuilt five more aircraft. Most of the aircraft he has built have been composite aircraft, that is, made of the same type of material as the Europa.
31 He said that the construction of composite aircraft employed the same technique.
32 Prior to working on the plaintiff's aircraft he had done some work on another Europa, but the plaintiff's aircraft was the first he had done major work on. Having said this, Mr Stephen said the other aircraft he had built were more technically difficult than the plaintiff's Europa.
33 I am of the opinion that Mr Stephen has sufficient experience and knowledge to give expert evidence in this case as to the work that was
(Page 9)
- done on the aircraft by the defendant, its quality and the time it should reasonably have taken to perform.
34 My opinion is based on his experience as an aircraft builder and his knowledge of composite aircraft. I do not think that his limited experience with Europa aircraft disqualifies him to give expert evidence in this case. I say this because the Europa is a less complex aircraft to build than the other composite aircraft he has constructed. The Europa is a relatively simple craft to build and is, in my view, well within Mr Stephen's expertise.
35 Mr Stephen described a number of defects in the aircraft's construction. He said that he would have "binned" the aircraft and started again: T 71. He said that he informed the plaintiff of this but the plaintiff asked him to remedy the defects and complete the construction of the aircraft.
36 Mr Stephen set out the alleged defects in the defendant's workmanship in an undated and very brief written report provided to the plaintiff some time after September 2004: Exhibit 2. The nature of these alleged defects was expanded upon in his evidence before me. They were as follows:
(1) The two halves of the aircraft fuselage had not been adequately bonded together.
(2) The fuselage had multiple dents on it from resting on blocks, rather than in slings.
(3) Automotive body filler had been applied to the fuselage, rather than aircraft body filler.
(4) The instrument panel had not been properly fixed to the aircraft firewall and could be pulled away easily.
(5) The instrument mount panel was roughly and poorly cut and did not properly fit.
(6) The engine cowl was poorly fitted with mismatching fasteners.
(7) The keel post tensioning wires and rudder cabling were improperly constructed and incomplete.
(8) The engine mounts and fittings were incomplete.
(9) The engine and instrument wiring was incomplete.
(Page 10)
- (10) The finishing of the fuselage surfaces and tail plane assembly was minimal and what was done was unsatisfactory.
(11) The wing panels had been poorly fitted and bonded.
(12) The control surfaces of the wings were incomplete, poorly finished and mis-fitting.
37 The defendant denied that any of the work he performed was defective.
38 Although Mr Stephen identified 12 alleged defects in the defendant's work, it was clear from the evidence that the most serious of these, having regard to the safety of the aircraft, were 1, 3, 6, 7, 11 and 12.
39 As to 1, Mr Stephen's evidence was that the fuselage came in two pieces that fitted one upon the other, along a seam that overlapped approximately 1 inch. This seam, he said, must be sanded and then fully bonded with adhesive so that when the two halves are joined adhesive squeezes out and has to be wiped off. If the work has been properly performed, according to Mr Stephen, scratches from the sanding and traces of glue should be evident in the area on or about the seam.
40 Mr Stephen said that the fuselage halves had only been 50 per cent to 60 per cent bonded and that there was no evidence of "squeeze out" or of sanding. He said there was a lot of "porosity" in the glue. This, according to him, seriously weakened the strength of the aircraft.
41 Mr Kevin Pownall, an enthusiastic aviator who had built a Europa aircraft of his own, saw the plaintiff's aircraft at Mr Stephen's hangar and inspected the seam. He said that he saw light visible through the seam and that the glue "was only half-filling the space that it should": T 88.
42 The defendant said that he glued the fuselage together in accordance with the manufacturer's manual. He said that there was no evidence of adhesive because he had carefully wiped it off and that there was no scratching because when he sanded the surfaces he did so in a way which did not scratch the body of the aircraft. He said that he had not seen light through the seam.
43 The defendant called Mr David McCandless. By consent part of his evidence was in the form of a written statement. He said that he saw the defendant prepare the fuselage for joining and that he saw the defendant sand the join. However, he did not see the defendant apply the glue to the seam, nor did he see the two halves of the fuselage put together.
(Page 11)
44 I prefer the evidence of Mr Stephen and Mr Pownall on this issue. I find that the two halves of the fuselage were not properly glued. I am inclined to this view because both Mr Stephen and Mr Pownall saw that the glue filled only about half the space it ought to have. I was particularly impressed by the evidence of Mr Pownall in this respect. Mr Pownall was not allied to either side of this dispute and it was clear from his evidence that what he saw was noteworthy to him as a builder of a Europa kit aircraft. I am also influenced by Mr Stephen's experience in constructing composite aircraft. The defendant was admirably frank when he said that he was inexperienced in constructing such aircraft. In my view, the defendant honestly believed that the work he had done was up to the required workmanlike standard but, unfortunately, it was not. I accept Mr Stephen's evidence that it was necessary for the aircraft to have its necessary strength for the two halves of the fuselage be glued in such a way that there were no gaps in the adhesive along the entire length of the seam.
45 As to 3, Mr Stephen's evidence was that dents in the fuselage had been filled with a heavy automotive filler colloquially called "bog". This filler tended to take on water and would crack when exposed to the sun. In his opinions the dents should have been filled with a specialist aircraft filler.
46 The defendant disputed that he had used bog. He said that he used a specialist aircraft filler under the brand name, Super Fil. Mr McCandless said that he had seen the defendant use this filler on the plaintiff's aircraft. Mr McCandless's tin of Super Fil was tendered on the basis of his evidence that he and the defendant bought that brand of filler at the same time. The tin itself states that the contents are very lightweight and are suitable for aircraft, marine and automotive use.
47 Mr Stephen was not asked in cross-examination whether the filler he saw on the plaintiff's aircraft was Super Fil or something like it. Accordingly, I gave leave for the plaintiff to recall Mr Stephen to give evidence on this point. Mr Stephen said that he thought the filler which had been used was bog, unsuitable for use on an aircraft.
48 On this issue I prefer the evidence of the defendant and Mr McCandless. I accept Mr McCandless's evidence that he watched the defendant use Super Fil. In my opinion Mr Stephen erred when he said that the filler he saw used on the aircraft was bog.
(Page 12)
49 As to 6, Mr Stephen said that he found that the engine cowl had been poorly fitted. He said that it did not come to within half an inch of fitting. Further, the screws and fasteners used to position the cowl were different sizes and that the screws were fixed at an angle. The defendant said that he fitted a Jabiru engine mount kit which was defective. He said that the plaintiff supplied him with the kit. The implication of his evidence was that he fitted the engine mount kit as best he could from materials supplied by the plaintiff and the cowl was fitted properly.
50 I accept Mr Stephen's evidence that the cowl was poorly fitted. The half inch gap described by him is inconsistent with a proper fit. I think he is unlikely to have made an error in this regard. I find that the cowl was poorly fitted by the defendant and not fitted to a workmanlike standard.
51 As to 7, Mr Stephen said that he observed that the keel post tensioning wires and rudder cabling was loose. Mr Stephen explained that the aircraft has a rod which extends down the centre of the fuselage that connects to the aircraft tail. In addition, cables run from the cockpit to the rudder. Mr Stephen explained that the rod is kept in place by wires which, on the plaintiff's aircraft, Mr Stephen thought were too loose. He also thought that the rudder cables were too loose. The defendant said that the keel post tensioning wires and the rudder cables had been installed in accordance with the manufacturer's manual and that it was clear that the instructions in the manual were defective. Mr McCandless confirmed this. Mr Stephen remedied the keel post tension wire problem by using a turn buckle. Both the defendant and Mr McCandless thought this was a good way of solving the problem.
52 I accept that the keel post tensioning wires and the rudder cables were loose but, based on the evidence of the defendant and Mr McCandless, which I accept, those defects were not the fault of the defendant. Rather, the fault lay in the manufacturer's manual. I am not satisfied that this defect was the fault of the defendant.
53 As to 11, there was no oral evidence to help explain the problem briefly identified in the report. There is simply insufficient evidence to make any finding about the defendant's workmanship on this point. As to 12, the control surface of the wing is called the aileron. There is an aileron on the trailing surface of each wing. Each aileron moves up and down in order to control the aircraft's movement. Mr Stephen said that the ailerons had not been properly fitted. Having said this, he made the point that the ailerons had been fitted in accordance with the manufacturer's instructions but those instructions were incomplete. In
(Page 13)
- these circumstances I do not think that the defendant can be held accountable for this defect.
54 I will now deal briefly with defects 2, 4, 5, 8, 9 and 10.
55 As to 2, I accept that there were dents in the aircraft fuselage. It seems to me that these dents were move likely caused in transit prior to the kit's delivery to either the plaintiff or the defendant. In any event the dents were cosmetic and of no real consequence.
56 As to 4, Mr Stephen's' evidence was that the bonding of the instrument panel to the firewall was poor because the surfaces had not been properly sanded prior to being bonded. The defendant's explanation was that he had only started this part of the work, he described what he had done as a "form up" which I understood to mean an attempt to see how the instrument panel fitted before bonding it. I accept the defendant's evidence in this regard. Accordingly, it is understandable that the instrument panel was easy to remove from the firewall. I do not find this work to be defective.
57 As to 5, I accept Mr Stephen's evidence that the instrument mount panel was roughly and poorly cut with asymmetrical holes and edges.
58 As to 8 and 9, these are not so much defects as items which have not been completed or had only just begun. As to the engine mounts, Mr Stephen regarded them as acceptable.
59 As to 10, the main point put forward on behalf of the plaintiff is that the fuselage and tail plane assembly had car filler used on them. As I have found with respect to defect 3 earlier in this judgment, I am not convinced that the defendant used automotive filler.
B. Did the defendant breach the implied term to charge a reasonable amount for his work?
60 It is agreed that the plaintiff paid the defendant a total of $102,278.25 for his work. After deducting tool costs and GST this sum reflects 4,272 hours of work.
61 The plaintiff's submission was not that the defendant had not actually worked 4,272 hours on the aircraft, rather that number of hours was grossly in excess of what was reasonable given the state of completion of the aircraft.
(Page 14)
62 The defendant's submission was that in all of the circumstances and in particular taking into account the modifications which the plaintiff asked for, the number of hours he worked was reasonable.
63 The parties' positions raise three issues for me to resolve, first, how long would it have taken to build the aircraft? Second, how complete was the aircraft when it was handed over to Mr Stephen? Third, how long should the defendant have taken with the modifications?
64 As I noted in the introduction to this judgment, the Europa aircraft is designed to be built by a layperson. The manufacturer estimates that such a person will build the aircraft in between 600 to 1,000 hours. The parties agreed that this was overly optimistic.
65 By consent I was provided with Exhibit 5. This is a schedule apparently taken from an internet web site which logs the number of hours Europa builders around the world have taken to build their aircraft. The schedule was lengthy and there are hundreds of entries. The schedule was provided to give me a guide as to how long it ought to take to build a Europa aircraft. There is a wide variation of the number of hours each person took to build their aircraft, but the majority completed construction between 2,000 and 4,000 hours. While the schedule has been of some assistance to me, I readily acknowledge the inherent limitations of such information.
66 Although Mr Stephen had not himself built a Europa before completing construction of the plaintiff's aircraft, based on his experience of building other similar sorts of aircraft, his opinion was that a reasonably competent layman would take about 3,000 to 3,500 hours to complete construction of the plaintiff's aircraft. He said that as a person with experience it would not have taken him this long.
67 Mr Pownall told me that it took him 3,500 hours to build his Europa. Mr McCandless said that it had taken him beyond 2,000 hours to half complete his Europa which was an XS, a model somewhat different to the plaintiff's.
68 Gathering all these strands together, in my opinion a reasonably competent layman (and the defendant was at least this) would have taken somewhere in the order of 3,500 hours to build a Europa aircraft of the sort purchased by the plaintiff. I have been most influenced in coming to this opinion by the evidence of Mr Stephen. While I acknowledge that he has not built a Europa, he has built aircraft like the Europa. In my view, his opinion is both admissible and reliable. The evidence contained in
(Page 15)
- Exhibit 5 and Mr Pownall's evidence adds some weight to Mr Stephen's testimony. My finding with respect to the number of hours it should take to build a Europa like the plaintiff's does not take into account any modifications. I will address this point shortly.
69 I now turn to the question of how complete was the aircraft when it was first delivered to Mr Stephen. The evidence as to this varied considerably. Mr Stephen's opinion was that it was one-third complete, Mr Pownall said it was about half complete and the defendant said it was three-quarters complete.
70 I accept Mr Stephen's estimate. He undertook a careful inspection of the aircraft when it first came to him and, of course, he had to finish its construction. He was therefore well able to judge the state of completion of the aircraft. Further, because of his greater experience in the construction of aircraft including other composite aircraft, I prefer his opinion over that of the defendant, who had no such experience, and Mr Pownall, who did not profess any expertise on this point.
71 This leads me to the issue of the modifications. The defendant alleged that at various times during the life of the contract, the plaintiff wanted a total of 30 modifications to the standard Europa kit. The plaintiff concedes that he discussed nearly all of the alleged modifications with the defendant. Not all of them were ultimately built, although many were. The plaintiff alleges that the amount of time the defendant spent on each alleged modification was unreasonable, that is, the defendant spent more time on the particular modifications than was reasonably necessary. Further, and in any event, the plaintiff alleged that some of the work was defective.
72 According to the defendant, the modifications took him a total of 1,814 hours while the plaintiff's case is that the modifications should have taken somewhere between 87 and 114 hours. Plainly, there is a very great discrepancy between the parties on this issue.
73 Before I embark into an analysis of each and every one of the 30 alleged modifications, I must observe that I would have been greatly assisted by the production of a Scott Schedule to deal with the modifications and the competing cases in relation to them. At trial, Mr Darge, the plaintiff's counsel, produced a schedule of modifications, which although not a Scott Schedule, was, to some extent, helpful.
74 I must also observe that the onus of establishing that the hours worked on a particular modification were unreasonable lies with the
(Page 16)
- plaintiff given that the plaintiff is the party alleging that the defendant breached the implied term, that he was only entitled to be paid for work reasonably spent in constructing the aircraft. It must not be overlooked that as to each alleged modification the plaintiff does not dispute that the defendant worked the number of hours he claims. It has not been alleged that the defendant fabricated or exaggerated the hours he claims he spent on each modification. The issue is whether those hours were reasonable.
75 It seems that each alleged modification required the defendant to perform a number of tasks. For example, (and speaking very generally) each modification involved discussion with the plaintiff and others, research, preparation and execution. No attempt was made to inform me of the time devoted to these tasks. Although I received into evidence some of the defendant's diaries, they were of no real help and were, in any event, incomplete. In the end, the task of deciding whether the amount of work performed in respect of each alleged variation was difficult. The discrepancy in almost all the items was very wide and the evidence was such that I was unable, save in a few cases, to make some other judgment about what was a reasonable number of hours. By "other" I mean a judgment other than those submitted by the parties.
Modification 1- Jabiru engine firewall
76 Jabiru is a Queensland company that manufactures engines that can be used on aircraft such as the Europa. It was the motor chosen by the plaintiff for his aircraft. In addition, the plaintiff purchased an engine firewall kit from Jabiru which both he and the defendant agreed was defective and had to go back to the factory twice. The plaintiff agreed that the defendant had to take the engine on and off its mount twice as a result of its defective nature and that this involved $500 worth of time. At $20 an hour this sum amounts to 25 hours of labour.
77 The defendant in his evidence gave a relatively detailed explanation of the work that was required to fit the firewall. He said that it was not just a matter of fitting the firewall but he had to redesign it to fit the Europa. Further, he had to deal with an exhaust system problem which he said was caused by the firewall kit supplied by Jabiru. In all the defendant said that he worked for 250 hours on this modification. Mr Stephen, in his evidence, was asked how long it would have taken to repair the engine mounts on the Jabiru engine. I did not understand this task as encompassing all the work the defendant performed with respect to the firewall. He estimated that this would have taken about 45 hours.
(Page 17)
78 It was not clear to me that Mr Stephen was fully aware of the difficulties involved in fitting the Jabiru firewall, nor was he aware of the extent of the work which, I accept, the plaintiff undertook with respect to this modification.
79 Although 250 hours work seems to be a lot for this one modification, the plaintiff has not discharged the onus of proving that the time spent on this modification was excessive.
Modification 2 – The Engine Information Monitoring System
80 The plaintiff purchased a digital engine monitoring system which he wanted installed from the outset as opposed to clock-faced gauges which had often been installed in aircraft in the past which were supplied in the Europa kit.
81 The defendant said that he had to speak to the manufacturer in America and that he had to ensure that the sensors in the aircraft engine were compatible with the monitoring system. He said all of this took "extra time".
82 Mr Stephen said that all that needed to be done was for a hole to be cut in the instrument panel fascia and then the system was bolted on to that fascia. He said that involved probably 20 minutes work.
83 It seemed inconceivable to me that the work described by the defendant would take, as he claimed, 150 hours. I think it is reasonable to credit the plaintiff with doing 1 hours' work.
Modification 3 – The Ballistic Parachute
84 The plaintiff said that he discovered on the internet that a Europa builder in the United Kingdom had created an emergency system for the aircraft where a parachute shoots out of the fuselage of the aircraft on a small rocket and brings the whole aircraft (including the pilot) safely to the ground. The plaintiff agreed that he spent some hours discussing the feasibility of the Ballistic parachute with the defendant. The plaintiff agreed that he asked the defendant to look into various aspects of this proposed modification.
85 The defendant said that the plaintiff supplied him with a book of drawings and asked him the length of time it would take to perform the modification and the cost. The defendant said he spent a lot of time working out the numerous further modifications which he said would be
(Page 18)
- necessitated by the Ballistic parachute. In the end both he and the plaintiff agreed that it was too expensive to do.
86 The defendant estimated that he spent over 200 hours on this proposed modification while the plaintiff estimated that perhaps 5 hours was spent on it.
87 In my opinion it was unreasonable for the defendant to spend 200 hours on this proposed modification. The defendant himself agreed that installing the modification would have been very difficult given the amount of weight the aircraft was capable of bearing and was costly. In my opinion a reasonable person in the defendant's position would not have embarked upon such a large amount of work without fully informing the plaintiff as to the amount of work that was required and without receiving explicit instructions from the plaintiff to proceed.
88 I find that 200 hours or more of work on this modification was unreasonable in all of the circumstances. I think that 5 hours work was reasonable in the circumstances.
Modification 4 – The Cabin Ventilation System
89 The plaintiff wanted the ventilation system of the aircraft modified so that there were face-vents in the dashboard.
90 In order to do this the defendant said that he had to make a fibreglass box, presumably into which the face-vents were fitted. In addition, he fitted a duct in the engine cowl and then he installed an inside duct to a cockpit. He said he also installed a fan to supply cool air into the cockpit of the aircraft when it was stationary.
91 Mr Stephen was aware of the defendant's work and estimated that it would have taken 5 or 6 hours of the defendant's ability to install. The defendant said that it took 80 hours.
92 In my opinion, given the nature of the works described by the defendant, I cannot accept that it was reasonable for those works to take 80 hours. The works seemed to me to be simple and I accept the evidence of Mr Stephen as to a reasonable time for making this modification.
Modification 5 – The Windows
93 The plaintiff wanted to install a large removable window in the cockpit. He said that this proposed modification was the subject of
(Page 19)
- "prolonged discussions". He said that in the end it was technically too difficult to achieve and no work was performed in relation to it.
94 The effect of the defendant's evidence was that the plaintiff was keen to have an open cockpit using sliding windows. But in the end it was too difficult to achieve. However, before a decision was made not to proceed with this modification, he made "a couple of smaller models".
95 The defendant estimated that he spent 100 hours on this proposed modification. The plaintiff's estimate as to what was reasonable in the circumstances is 5 hours work.
96 I do not think that it was reasonable for the defendant to spend 100 hours on this proposed modification and in particular I do not think it was reasonable for the defendant to have made models of the proposed modification without explicit permission from the plaintiff. In my opinion it was reasonable for the defendant to charge for 5 hours for this item being the time that the plaintiff estimated he spent in discussion with the defendant.
Modification 6 – Motor Glider Wings
97 The plaintiff wanted wings installed on the aircraft that were longer than the standard wings. The plaintiff said that the wings were bigger and more complex than the standard wings.
98 The defendant said that this posed a number of difficulties for him as he did not have the actual wings for a period of over 12 months. The difficulties this presented him with included how to construct the site where the wings would connect to the fuselage and how to ensure that the wings sat properly on the aircraft. The defendant said that he had got to a point in the construction of the aircraft where he needed to install the wings, but he was unable to do so because they had not arrived. This meant that he had to do a lot of research to see how he might progress with the construction of the aircraft knowing that he would at a later point in time have to fix the wings. He said that the plaintiff was well aware of the time this took. Neither the plaintiff nor Mr Stephen gave any evidence which helped shed light on the number of hours this modification would reasonably have taken to perform. However, the plaintiff's evidence was that in his view at the time the wings arrived the building of the fuselage was not at the point where the wings had to be connected.
99 Although 190 hours seems a long time to perform this modification, I accept that the installation of the wings was complex and was made more
(Page 20)
- difficult by the delay in their delivery. I am not convinced that the defendant's estimate as to the amount of time he worked on this modification was unreasonable.
Modification 7 – The Fuel System
100 By way of background, Mr Pownall's Europa aircraft had experienced a forced landing due to a blockage in the fuel system. Understandably, neither the plaintiff nor the defendant wanted a repetition of this incident. As a result the fuel system in the plaintiff's aircraft was modified.
101 The evidence as to what was entailed in this modification was confusing. The plaintiff said that the fuel system was modified by installing a twin filter system so that if one filter blocked, another would work. The defendant said, with respect to this modification, that he was authorised by the plaintiff to make a removable sealable access point to the fuel tank to enable the tank to be cleaned out and for a fuel probe to be installed in the tank. It emerged later in evidence that modification 14, in which the defendant made fuel drain access points, was part of the modification of the fuel system.
102 It seems to me that the fuel system modification was made up of four parts being the fitting of the dual filter system, the making of the removable access panel, the installation of a fuel probe and the making of the fuel drain access points.
103 Mr Stephen's evidence on this point was to the effect that after Mr Pownalls' forced landing he installed a modified fuel delivery system which took him 20 hours of work. Mr Stephen was not asked what was involved in the modified fuel system he installed on Mr Pownalls' aircraft. Mr Stephen was not asked how long the modifications referred to by the plaintiff or the defendant would reasonably have taken to perform.
104 I accept that the defendant performed the modifications I have described. The defendant has said that he performed 180 hours of work on the fuel system as opposed to the plaintiff's estimate of 20 hours which was derived from Mr Stephen's evidence. As I have already said, Mr Stephen's evidence was unhelpful in relation to this modification. In the end I am not convinced that the amount of work the defendant performed on this modification was unreasonable.
(Page 21)
Modification 8 – The Installation of the Radio and Stereo System
105 It is common ground that the plaintiff wanted a radio and stereo system in his aircraft. The defendant said that a hole had to be cut for the sound system and that the speakers had to be specially housed.
106 The defendant said that he had to be careful where the speakers were placed in the aircraft because they are magnetic and may affect the aircraft navigation system. Mr Stephen said that when he examined the aircraft the radio and CD player were not there and although the holes had been cut, no wiring was present. He said that the wiring was the time consuming part in installing the stereo system.
107 The defendant claims that he worked 80 hours to install the stereo system, whereas Mr Stephen estimated that, based on what he saw, 1 hour's work was reasonable.
108 As to this modification I accept the evidence of Mr Stephen. Given that no stereo system had been installed and no wiring was present, I cannot see how it was reasonable for the defendant to spend 80 hours making the necessary holes and working out where the speakers would be positioned.
Modification 9 – The Main Wheel
109 The standard wheel provided in the Europa kit was a 2 ply golf buggy wheel. Both the plaintiff and the defendant recognised that a more durable wheel was desirable. The defendant said that he had to undertake telephone inquiries with a supplier in the United States of America on the subject and eventually an 8 ply aircraft tyre was purchased. The defendant has claimed that he spent 20 hours making such inquiries and fitting the new wheel.
110 Mr Stephen thought that the fitting of the new wheel should take no more than 1 hour.
111 While I accept that the defendant was entitled to be remunerated for the time he spent making telephone calls with the supplier in the United States of America as well as for fitting the new wheel, 20 hours on this task seems to me an excessive amount of time and is unreasonable. On the other hand, the plaintiff's estimate of 1 hour is insufficient. In the circumstances an amount of 5 hours would, I think, be a reasonable amount of time to have spent researching the modification and fitting the new tyre.
(Page 22)
Modification 10 – The Fibreglass Firewall
112 The defendant said that the standard firewall on a Europa aircraft is made of stainless steel. In order to lighten the aircraft he made inquiries about lighter materials and experimented with ceramic cloth. This was ultimately rejected in favour of fibreglass. I accept that the defendant made a fibreglass firewall. The defendant claimed that 60 hours work was spent in total on this modification.
113 The plaintiff in his evidence conceded that the defendant had identified a lighter and better firewall material. Mr Stephen said that it should have taken 2 to 3 hours to install the fibreglass firewall. However, Mr Stephen was unaware of the full extent of the work the defendant had done.
114 Having regard to the work the defendant performed on this modification, I do not think that the 60 hours he claims is unreasonable.
Modification 11 – The Rudder Control Cables
115 The rudder control cables extend from foot pedals on the floor of the cockpit to the rudder at the end of the aircraft. According to the manufacturer's manual, the control cables run through the opening in the bottom of the aircraft into which the main wheel retracts. According to the defendant, this had caused problems amongst some Europa owners because the cables had snagged inside the wheel well.
116 The defendant said that he spoke to the plaintiff about this. The defendant recommended, and the plaintiff agreed, that the rudder cables should run inside the hull away from the area into which the main wheel retracts.
117 Mr Stephen noted that when he inspected the aircraft the rudder control cables were inside the aircraft's hull. He was of the view that this was a "retrograde step". He said that the cables would occupy unnecessary cabin space. Either way, Mr Stephen was of the view it would take no more time to install the rudder control cables through the hull than through the wheel well. In his view the work should have taken "probably an hour".
(Page 23)
118 The defendant claimed that he had spent 120 hours on the rudder control cables, but in cross-examination the following curious exchange took place:
"But you can't assist the court in how long it [the installation of the rudder control cables] would take?---No, of course I can't because I haven't done it.
Do you accept that it is nowhere near the 120 hours that you have indicated this has taken?---Once again, I can't comment because I don't know."
119 In light of this exchange it is impossible for me to accept that 120 hours of work went into this modification. Even if it had, in light of Mr Stephen's evidence, I do not accept that 120 hours was a reasonable number of hours to have worked on this modification. I will allow the defendant 1 hours' work for this modification.
Modification 12 – The Cockpit Dashboard
120 This issue has already been dealt with earlier in this judgment in connection with the plaintiff's allegation that this was not fitted properly. The fitting of the dashboard is not in truth a modification, but was part and parcel of the construction of the aircraft in accordance with the manufacturer's manual. In other words, it is not a modification and cannot be claimed by the defendant as such.
Modification 13 – Stall Warning System
121 The plaintiff obtained from a company in the USA a special stall warning system. The system involved fixing a small floating aerofoil under the wing on a short pylon and connecting it to a dashboard readout that measures the angle of the floating aerofoil. The plaintiff said that it was designed to be "an easy fit kit".
122 The defendant's evidence was that the pylon on which the aerofoil was fitted caused turbulence over the wings which in turn causes them to move up and down. He described this phenomenon as "very undesirable". The defendant said a lot of time was spent talking to people and working out where the pylon should be positioned. The defendant did not say in his evidence that he had actually installed the system.
123 Mr Stephen did not see any evidence of the stall warning system and had to purchase it afresh.
(Page 24)
124 The defendant claims that he worked 30 hours on this modification. The plaintiff's position is that 1 hour is reasonable. On the evidence before me, it is difficult to see how 30 hours work could reasonably have been spent on this modification. The system seems uncomplicated and simple and while the position of the pylon had to be carefully selected, 30 hours is an unreasonable amount of time to spend on this modification. I will allow the defendant 1 hour for this modification.
Modification 14 – Fuel Drain Access Points
125 Based on the defendant's own evidence, this was part and parcel of the work which he did on modification 7 relating to the fuel system. Accordingly, it should not have been claimed as a separate modification.
Modification 15 – Wing Inspection Points
126 The defendant said that he fabricated from a very strong clear plastic called Lexsan wing inspection points which allowed the plaintiff to inspect inside the wing without removing the wing panel.
127 Mr Stephen said there were four such panels which he later removed.
128 The defendant claims that he spent 10 hours installing the wing inspection points while Mr Stephen said that he would have taken half an hour per panel making a total of 2 hours.
129 I do not think that the 10 hours claimed by the defendant is unreasonable. Mr Stephen readily agreed that by virtue of his greater experience in dealing with composite aircraft he was able to perform work quicker than someone like the defendant. I do not think that the time the defendant spent on this modification was unreasonable.
Modification 16 – The Leather Interior
130 The plaintiff's evidence was that he wanted some leatherwork installed in the aircraft's interior and that he discussed this with the defendant. He said that the defendant put him in contact with a specialist interior maker whom he thought would perform the leatherwork. The plaintiff said that the only piece of leatherwork that was actually made was for the central tunnel between the two seats.
131 The defendant said that so far as the leatherwork was concerned consideration had to be given to where and whether it could be glued. He also said that he worked with a motor trimmer but in the end he made "the whole lot".
(Page 25)
132 In my opinion, some fairly basic work was done with respect to the design of the leather interior and I accept that the defendant fabricated some leather. The defendant claims that he spent 10 hours on the leather interior of the aircraft and I do not think that that amount of time was unreasonable having regard to the discussions he had with the plaintiff and the motor trimmer and the work that he did.
Modification 17 – The Roof Console
133 The plaintiff said that he authorised the defendant to make an aluminium console covered with leather to fit along the little strip of ceiling between the cockpit seats.
134 The defendant said that he made the roof console from lightweight aluminium that was covered in leather. Mr Stephen said that the cover was too heavy and that he binned it. The defendant rejected the suggestion that the cover was too heavy.
135 The defendant claims that he took 20 hours to manufacture and fit the roof console while the plaintiff claims that 2 hours was reasonable. It has been very difficult for me to judge this modification given that the defendant did not inform me of what work was involved and why the modification took 20 hours. On the other hand, the plaintiff did not provide any evidence as to why 2 hours was a reasonable length of time to manufacture and fit the roof console. In the end the plaintiff has not demonstrated that the time taken by the defendant to carry out this modification was unreasonable.
Modification 18 – Strobe Wiring
136 The plaintiff said under cross-examination that strobe wiring was placed by the defendant through the wings so that later on lighting could be installed if necessary. The defendant said that the amount he spent on this modification was 10 hours. The plaintiff's case is that it would have taken 6 minutes. In fact the evidence of Mr Stephen was that it would have taken 10 minutes. He said that the way to proceed was to install a tube in the wing through which the strobe wire could be pulled.
137 Although I think 10 minutes is a very quick time to have performed this work, I am of the view based on the simplicity of the task that the amount of time the defendant took on this modification was unreasonable. I will allow the defendant 1 hours' work.
(Page 26)
Modification 19 – Control Handles
138 The plaintiff ordered from a supplier in the USA non-standard wooden control handles. These had to be fitted by the defendant on to the control stick which required, the plaintiff thought, some modification to the handle. The defendant said that the control handles that were supplied in the kit were too small for the joystick. The defendant said that he had made especially reduced sections for the handle to fit on, but this proposal was abandoned in favour of the handle which the plaintiff purchased from overseas.
139 Mr Stephen said that reducing the sections would have taken him 20 or 30 minutes, but he did not give evidence as to the fitting of the handle obtained by the plaintiff.
140 I am not convinced that the defendant's claim that he spent 10 hours on this modification is unreasonable.
Modification 20 – Extra Seat Mounts
141 The plaintiff said that he had a discussion with the defendant to see if extra anchor points could be fitted on to the aircraft for a child seat. The plaintiff said that this subject was discussed with the defendant for no more than an hour.
142 The defendant said that Europa recommended against installing a child seat. Nevertheless, the defendant said that he carried out "actual work" on this modification. He has claimed that he worked 8 hours on it.
143 Apart from the 1 hour in discussion with the plaintiff, I do not think the 8 hours claimed by the defendant is reasonable. This is because the obvious first step was to find out from the manufacturer whether the aircraft was capable of taking a child seat. Had this been done, no actual work would have been required. In my opinion it was unreasonable for the defendant to embark on actual work without having first made inquiries from Europa. I will allow 1 hour for this work.
Modification 21 – Quick Release Wing Pins
144 The only real evidence given about this modification came from the defendant who said that he had to drive from his residence in Sawyers Valley to Perth to obtain them and once he had them he had to make small modifications to them. I do not think that the 4 hours spent on this modification is unreasonable.
(Page 27)
Modification 22 – Retractable Stabiliser Wheels
145 At the end of each wing is a small outrigger wheel which is used to support the wing when the aircraft is on the ground. Usually the wheels are fixed but the plaintiff said he discussed with the defendant ways of making them retract after take-off in order to reduce drag. The modification was not in fact built because, as the plaintiff explained it, it became "a bit too hard, time consuming, costly and delaying of the main project so we didn't do it". The plaintiff said that it was "just inconceivable" that 90 hours was spent on the project. He said that there was possibly 4 or 5 hours of discussion on the proposed modification.
146 The defendant said that he did some reinforcing inside the wings to accommodate an actuator which, as I understood it, was the device that enabled the wheels to retract. He said that he spent "lots of time" measuring and working out angles and what would happen in the event that the actuator failed. The defendant says that he spent 90 hours on this proposed modification. The plaintiff's case is that it is unreasonable for the defendant to have done any work on the item.
147 I accept that the defendant had to engage in discussions with the plaintiff and research the proposal. I do not think it was unreasonable for him to reinforce the wings to accommodate an actuator. However, 90 hours appears to me to be an excessive amount of work which in all the circumstances was unreasonable. I am only prepared to allow the defendant 5 hours work for this modification. I would have allowed the defendant more time for reinforcing the wings but there was no evidence as to how long this took.
Modification 23 – The Battery System
148 The plaintiff said in his evidence that he wanted to investigate the feasibility of modifying the aircraft to carry a second battery in order to conserve the main battery. He described the proposed modification as "relatively simple" requiring the extra battery to go somewhere in the fuselage and be plumbed into the electrics.
149 The defendant said that the proposed modification was quite involved because the plaintiff had talked about solar recharging panels. He said that he spent quite a few hours driving around Perth working out charge rates (presumably he was referring to electric charges and not monetary ones) and where the battery could be placed so that it did not affect the aircraft's overall weight and balance. The defendant states that he spent 100 hours on this proposed modification. The plaintiff claims
(Page 28)
- that 4 hours is reasonable. In my opinion for the defendant to spend 100 hours work on this proposed modification was grossly excessive and unreasonable given what the defendant said he did in relation to it. I accept the plaintiff's evidence that the matter was relatively simple and I am of the opinion that 4 hours work was reasonable in respect of this modification.
Modification 24 – Special Wiring
150 It was accepted by both the plaintiff and the defendant that the cables used in an aircraft electrical system are made from special aircraft wire which is coated so that it does not give off fumes when it is heated. Although this wire was readily available to Mr Stephen, the defendant spent time sourcing and obtaining it. In all he claimed 5 hours for this work which, given that he lived in Sawyers Valley, is not in my opinion unreasonable.
Modification 25 – The Cracked Window
151 The plaintiff said, and it was not disputed by the defendant, that one of the windows provided by Europa in its kit was cracked. The plaintiff and the defendant discussed a proposal made by the defendant to make a mould from which to manufacture a replacement window. It was agreed that the plaintiff would not be charged for the manufacture of the mould because the defendant thought that he might be able to use it to manufacture windows for other Europa owners. The plaintiff agreed to pay for the defendant's time to make a window for his aircraft from the mould.
152 The defendant produced a window for the plaintiff but the window did not match those made in the Europa factory. The defendant said that he warned the plaintiff of this possibility, but the plaintiff said in cross-examination that he was not anticipating such an unsuitable product. Eventually Mr McCandless came to the rescue and provided the plaintiff with a window from his kit.
153 The defendant claims that he performed 10 hours work to fabricate the replacement window. I accept that he did, but the product that he produced was so unsatisfactory that the plaintiff should not have to pay for it.
(Page 29)
Modification 26 – The Engine Throttle
154 The Europa kit did not come with an engine throttle so the defendant was asked to manufacture one. He said that he did so. He said that it was "quite an involved process".
155 The plaintiff made no mention of the throttle but Mr Stephen did. Mr Stephen said that he found part of the throttle in the aircraft when it was handed over to him. He made no comment about this throttle but he manufactured another which took him 2 hours.
156 I am prepared to accept that the throttle was for the defendant somewhat involved, although, for an experienced person like Mr Stephen it would not be as difficult. In the end, I do not think that the time taken by the defendant, 12 hours, was unreasonable.
Modification 27 – Wooden Handles
157 The plaintiff wanted wooden handles in and around the aircraft to match the wooden control handle. The handles were made from teak and the defendant said that he spent time finding the wood and then manufacturing and fitting them. The defendant claimed that he spent 6 hours on this modification and I readily accept that he did. In my opinion this amount of work was plainly reasonable.
Modification 28 – Braided Fuel Hose
158 It was common ground between Mr Stephen and the defendant that the manufacturer's neoprene fuel hoses were undesirable and that aircraft braided hose should be fitted to the fuel system. The defendant claimed that he spent 6 hours installing the braided hose while Mr Stephen said that it would have taken him 2 hours 40 minutes. Mr Stephen said that the end fittings had been cut too short and as a consequence they leaked which required him to redo the fittings.
159 I accept Mr Stephen's evidence. While the amount of work the defendant did installing the braided hose was reasonable, his workmanship was not. In these circumstances the defendant is not entitled to remuneration for this work.
Modification 29 – The Door Latch System
160 The cockpit door is latched using a rod. The plaintiff had no recollection of discussing a modification to this system with the defendant but he did not discount that there had been some discussion on the topic.
(Page 30)
161 The defendant said that he had a discussion with the plaintiff alerting him to cases where the factory-supplied rod had bent in some cases resulting in people being stuck inside the aircraft. The defendant said that he made a heavy gauge stainless steel rod in order to prevent this from happening. The defendant claims that this process of fabricating and installing a heavy gauge stainless steel rod took 12 hours.
162 Mr Stephen did not have any difficulty with the door latch system on the aircraft.
163 I find that the 12 hours the defendant worked on the door latch system was reasonable.
Modification 30 – The Aircraft Aerial
164 It was common ground that a copper strand aircraft antenna was attached to the plaintiff's aircraft. The defendant explained that in addition to the copper aerial strip, wires have to be run through the fuselage and at the time that the plaintiff supplied him with the aerial the fuselage had already been joined. The defendant said he had to crawl in and out of the fuselage and place grommets through its ribs so that it did not affect other cabling. The defendant has claimed 6 hours work for this modification.
165 Mr Stephen said that to manufacture and fit the copper aerial would take 2 hours, but nothing was said about the time it would take to run the cabling through the fuselage. In my opinion the defendant's estimate of 6 hours for this modification is reasonable.
166 Before I complete my analysis of this issue as to the hours the defendant worked I have given serious consideration to the argument that the plaintiff should recover nothing from the defendant as far as the unreasonable number of hours he worked is concerned because the plaintiff inspected the aircraft on a fortnightly basis, and paid all the defendant's invoices. The defendant's argument is that the plaintiff knew what work the defendant had done and willingly paid for it. It is therefore unfair for the plaintiff to now say the amount of work the defendant did was unreasonable.
167 In the end, I have rejected this argument. The relationship between the parties was informal and based on good-will. Although the plaintiff was a keen aviator, I do not think that he knew how much work was involved in building the aircraft. He trusted the judgment and skill of the defendant and did not develop an appreciation that the building of the
(Page 31)
- aircraft was taking too long until, at the earliest, according to his evidence 2004. Although there were a lot of discussions between the plaintiff and the defendant over the period 2000-2004, there is no evidence that the men discussed in any great detail the time being taken to construct the aircraft and the modifications. I do not think that the plaintiff was content for the defendant to spend an unreasonable amount of time on the construction of the aircraft.
168 My impression of the defendant is that he honestly believed, and still believes, that all the work he did was necessary to safely build the aircraft. I think the defendant was a sincere witness who wanted to do a good job, but unfortunately he became too immersed in the project and saw potential problems where there were none.
Issue 3 - Claim with respect to the allegedly corroded Jabiru engine
169 In my opinion the evidence with respect to this claim was quite unsatisfactory.
170 The plaintiff said, and I accept, that he purchased the Jabiru engine after the defendant had begun building the aircraft. It emerged in re-examination that the plaintiff anticipated that the aircraft would be completed in one or two years and that he bought the engine perhaps a year prior to the time he anticipated it would be completed. Given that construction commenced in early 2000, I infer that the plaintiff thought that the aircraft would be completed in early 2002 and that he purchased the Jabiru engine in or about early 2001.
171 It appears that the motor remained in the defendant's workshop until the latter part of 2004 when it was delivered to Mr Stephen. In his evidence Mr Stephen said that the engine was sent to Jabiru for a modification and that while the engine was there, someone at Jabiru told him that the cylinder lining had corroded. Consequently, the cylinders had to be re-bored and re-ringed. Plainly what Mr Stephen had been told by someone at Jabiru is hearsay.
172 Mr Stephen gave evidence that this kind of corrosion occurs when an engine is left to sit, but can be prevented if the cylinders are oiled and turned over a regular interval. He said that the effect of re-boring the cylinders was the cost of the re-boring and a shortening of the life of the motor. When asked to what degree the motor's life was shortened, he answered "It's impossible to say", but proceeded to give hearsay information that it would reduce the engine's life by 1,000 hours.
(Page 32)
173 The defendant gave no evidence with respect to the condition of the engine, although Mr McCandless in his statement said that he saw the defendant pour oil into each spark plug hole and turn the engine over on one occasion. His statement contains hearsay from someone he spoke to at the Jabiru factory.
174 Once I put aside the hearsay evidence in connection with this claim, there is no admissible evidence establishing that the engine's cylinders were corroded or that the life of the engine has been reduced as a result of any corrosion.
175 In my opinion, this claim has not been proved. Accordingly, the plaintiff is not entitled to any damages in relation to it.
Issue 4 - Damages
176 I have found that the defendant breached both of the implied conditions alleged by the plaintiff. What damage, if any, flows from these breaches? With respect to Mr Darge, his submissions with respect to damages were, to say the least, optimistic. Further, there were miscalculations in the submissions. Mr Darge submitted that the evidence established that the defendant should have taken 3,000 hours to complete the aircraft and that at $20 per hour the defendant should have charged the plaintiff $60,000 (erroneously calculated at $66,000 in the written submissions). Adding the agreed tool costs of $7,650, the defendant was entitled to receive $67,650 exclusive of GST. Mr Darge submitted that the defendant ought to pay the difference between the amount that the plaintiff had paid the defendant, $102,278.25 and $67,650 which according to the figures given to me by Mr Darge amounts to $34,628, although the sum is erroneously calculated in the outline of submissions as $28,628.25.
177 This calculation is contradictory to the plaintiff's submission that the defendant completed only one-third of the construction of the aircraft. Mr Darge explained that the submissions in the written outline were an alternative approach to the assessment of damages and that he was not abandoning this position.
178 Mr Darge went on to submit in his written submissions that the plaintiff was entitled to receive a further sum of $106,354 being reimbursement of the sum charged by Mr Stephen for making good the defendant's defective work and completing construction of the aircraft. Mr Darge submitted that the plaintiff was entitled to this sum because:
(Page 33)
- "Having allowed the defendant the entire reasonable costs for construction of the aircraft it is therefore appropriate that he bear the entire rectification cost to the aircraft, notwithstanding that it includes some completion costs."
179 With respect to Mr Darge, this submission is misconceived. In the first place I do not believe that it is correct to allow the defendant the entire costs for construction of the aircraft when he did not complete the aircraft. Second, even if I made that allowance, it does not logically follow that the defendant should bear the entire rectification cost to the aircraft. The plaintiff has never alleged that there was a total failure of consideration.
180 In relation to breach of the implied term that the defendant would exercise reasonable care and skill in constructing the aircraft, the plaintiff is entitled to damages for making good the defendant's defective work.
181 Unfortunately for the plaintiff, no evidence was presented to me as to the costs of remedying the defendant's defective workmanship. The evidence before me is that $106,354 was paid to Mr Stephen for his remedial work and for completing the aircraft's construction. No evidence was produced which informed me of the cost of remedying each alleged item of defective work, nor was there evidence of the precise cost of completion. I was not provided with any of Mr Stephen's invoices or time sheets.
182 I have found that only three out of the 12 alleged defects were in fact defects, but as to the cost of remedying two of these defects I am none the wiser. However, Mr Stephen gave evidence, which I accept, that remedying the engine cowl defect took 45 hours work. He said that he charged at the rate of $44 per hour inclusive of GST. Accordingly, I have calculated the cost of remedying this defect to be $1,980. Apart from this sum, the plaintiff has not proved his damage as to the other items of defective work.
183 I am not prepared to uphold the plaintiff's claim that the defendant should pay for Mr Stephen to complete the construction of the aircraft. The contract between the parties came to an end by mutual agreement following the defendant's strokes. At this point the plaintiff took the aircraft away from the defendant and delivered it to Mr Stephen for completion. In these circumstances, the defendant cannot be held liable for the cost of completion.
(Page 34)
184 Even if I am wrong about this, the plaintiff has not proved his damage. I repeat, I was not provided with sufficient evidence by the plaintiff as to the cost to complete the construction of the aircraft. Mr Stephen's evidence on this point was vague and imprecise. He said at T 79-80:
"As I mentioned earlier, it would have been probably quicker to build a new airplane than to build the one we did so it probably took us as long as building one from the start. Which I think we probably spent about two, 2,500 hours on it, I don't know, John might be able to give you those figures better because he paid the bills."
185 In my opinion this evidence was insufficient to make any finding as to the cost to complete the construction of the aircraft.
186 I now turn to assess damages for the breach of the implied term that the defendant would only be paid for work reasonably spent in constructing the aircraft. I have found that the aircraft was one-third complete when it was delivered to Mr Stephen. I have also found that a reasonable completion time for the aircraft was 3,500 hours. Accordingly, the plaintiff was entitled to be paid for 1,166.5 hours work being one-third of 3,500 hours at $20 per hour, being a total of $23,330.
187 I have already made findings as to the work the defendant put in towards the modifications. Those findings are summarised in the following table.
Modification No | Description | Hours | Amount |
1 |
| 250 |
|
2 |
| 1 |
|
3 |
| 5 |
|
4 |
| 6 |
|
5 |
| 5 |
|
6 |
| 190 |
|
7 |
| 180 |
|
8 |
| 1 |
|
Modification No | Description | Hours | Amount |
(Page 35)
9 |
| 5 |
|
10 |
| 60 |
|
11 |
| 1 |
|
12 |
| 0 |
|
13 |
| 1 |
|
14 |
| 0 |
|
15 |
| 10 |
|
16 |
| 10 |
|
17 |
| 20 |
|
18 |
| 1 |
|
19 |
| 10 |
|
20 |
| 1 |
|
21 |
| 4 |
|
22 |
| 5 |
|
23 |
| 4 |
|
24 |
| 5 |
|
25 |
| 0 |
|
26 |
| 12 |
|
27 |
| 6 |
|
28 |
| 0 |
|
29 |
| 12 |
|
30 |
| 6 |
|
Total | 811 |
|
(Page 36)
188 In my opinion the defendant was reasonably entitled to receive the sum of $39,550 being for 1,166.5 hours of work on the principal construction of the aircraft and $16,220 for the modifications. The plaintiff was also entitled to receive the tool allowance of $7,650. In total, excluding GST he was entitled to $47,200. Adding GST, he was entitled to receive $51,920 from the plaintiff. In total he received from the plaintiff $102,278.25. Accordingly, the defendant must now pay back to the plaintiff $50,358.25.
Conclusion
189 Returning to the issues posed by me at the beginning of this judgment, I have decided:
1. The plaintiff has satisfied me that the oral agreement entered into between him and the defendant included the implied conditions he alleged.
2. I find that the defendant breached those implied conditions.
3. The plaintiff has not proved that the defendant was responsible for the corrosion of the Jabiru motor.
4. The plaintiff has proved an entitlement to damages for remedial work in the sum of $1,980 and for breach of the implied term to be paid for work reasonably spent in constructing the aircraft in the sum of $50,358.25.
190 In total, the defendant is obliged to pay the plaintiff damages in the sum of $52,338.25. I will hear the parties further with respect to interest and costs.
0
1
1