Schrader v David Broach t/as David Broach Building Services

Case •

[2023] NSWDC 97

•

14 April 2023

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Schrader v David Broach t/as David Broach Building Services [2023] NSWDC 97
Hearing dates: 30 January – 3 February, 6 – 7, 15, 17 February 2023
Date of orders: 14 April 2023
Decision date: 14 April 2023
Jurisdiction:Civil
Before: J Smith SC DCJ
Decision:

(1)   The Statement of Claim be dismissed with costs

(2)   The Cross-Claim be dismissed with costs

Catchwords:

BUILDING AND CONSTRUCTION — Australian Consumer Law – unconscionability – misleading and deceptive conduct – defective work – budget report – unpaid invoices – quantum merit

CONTRACT – cost-plus contract – breach of contract – implied terms – good faith – consequence of breach – damages ­– whether termination by acceptance of repudiation

Legislation Cited:

Australian Consumer Law ss 4, 18, 21, 22, 29

Home Building Act 1989 (NSW) ss 18B, 18F

Cases Cited:

ACCC v 4WD Systems Pty Ltd [2003] FCA 850; 59 IPR 435

ACCC v Allphones Retail Pty Ltd (No. 2) [2009] FCA 17; 253 ALR 324

ACCC v Lux Distributors Pty Ltd [2013] FCAFC 90; ATPR ¶42-447

Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570

Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130; 278 FCR 450

BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] UKPCHCA 1; 180 CLR 266

Campbell v Campbell [2015] NSWSC 784

Doepel & Associates Architects Pty Ltd v Hodgkinson [2008] WASCA 262

Foran v Wight [1989] HCA 51; 168 CLR 385

Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560

Howard v Pickford Tool Co [1951] 1 KB 417

Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313; [2001] ANZ ConvR 513

Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25

KKL Investments Pty Ltd v Daikyo (North Queensland) Pty Ltd [1995] QCA 25

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; 233 CLR 115

Kronenberg v Bridge [2014] TASFC 10; 26 Tas R 359

Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) [1995] FCA 451

Mann v Patterson Constructions Pty Ltd [2019] HCA 32; 267 CLR 560

Morris v Leaney [2022] NSWCA 257

North East Equity Pty Ltd v Proud Nominees Pty Ltd [2012] FCAFC 1; 285 ALR 217

Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21; 136 CLR 444

Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50; 236 FCR 199

Perri v Coolangatta Investments Pty Ltd [1982] HCA 29; 149 CLR 537

Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; 157 CLR 17

Roberts v Goodwin Street Developments Pty Ltd [2023] NSWCA 5

Shevill v Builders Licensing Board [1982] HCA 47; 149 CLR 620

Société Générale v Geys [2013] 1 AC 523

Stubbings v Jams 2 Pty Ltd [2022] HCA 6; 96 ALJR 271

Williams, William v Williams, William [2023] NSWDC 10

Woods v Woods [2000] NSWSC 851

Texts Cited:

Mason K, Carter J, Tolhurst G, Mason and Carter’s Restitution Law in Australia (4th Edition, 2021, LexisNexis)

Seddon N, Bigwood R, Cheshire and Fifoot’s Law of Contract (12th Ed, Aust Ed, 2023)

Category:Principal judgment
Parties: Matthew Schrader (First Plaintiff and Cross Defendant)
Jacqueline Schrader (Second Plaintiff and Cross Defendant)
David Broach (Defendant and Cross Claimant)
Representation:

Counsel:
C Stomo (Plaintiffs and Cross Defendants)
M Fraser (Defendant and Cross Claimant)

Solicitors:
Kedron Legal (Plaintiffs and Cross Defendants)
Williamson Lawyers (Defendant and Cross Claimant)
File Number(s): 2021/00144195
Publication restriction: None

Judgment

Introduction

  1. The plaintiffs, Matthew and Jacqueline Schrader, are husband-and-wife who have lived at their home in Kareela since about 2000. In December 2019 they entered into a building agreement with the defendant, David Broach, for building works on their home that included the excavation of the lower ground floor, the construction of a rumpus room, wine cellar, storeroom, internal stairs and bathroom as well as the removal and rebuilding of an upstairs balcony and external stairs.

  2. The building contract was in the form commonly known as a cost-plus contract and included in it an estimate of the costs of the building work which was stated to be $300,000.

  3. The building work commenced on 29 January 2020. In August 2020 the plaintiffs asked the defendant for an update as to the likely further cost to complete the work. In response, the defendant sent the plaintiffs a detailed budget for further work estimating that a further $352,000 was required to complete the work.

  4. At this time, the plaintiffs had failed to pay a number of invoices sent to them by the defendant for work undertaken by him. On 15 September 2020, by reason of that failure, the defendant sent the plaintiffs a notice of suspension of works under the contract. No further building work has been undertaken on site.

  5. The parties engaged in discussions in an attempt to settle the disputes between them but these were unsuccessful.

  6. In May 2021, the plaintiffs commenced these proceedings. They claim damages from the defendant on a number of bases. It will be necessary in due course to examine these bases with some care, however, for present purposes, they may be summarised as a claim that the defendant misrepresented the likely cost of the building works, acted in breach of his duty of good faith, and acted unconscionably. They further claim that some of the work undertaken by the defendant was defective. They claim, by way of damages, the amount which it will take to rectify the defective work and to complete the works required under the contract less an allowance of the value of the works already completed.

  7. The defendant cross-claims for money owing for work done under the contract or, alternatively, a reasonable remuneration by way of restitution for work done for the benefit of the plaintiffs.

  8. The plaintiffs’ claim must be dismissed, principally because, even though the defendant did breach a number of terms of the contract, he neither misrepresented the cost of the building nor acted contrary to good faith or unconscionably and, in any event, the plaintiffs have not suffered any loss as a consequence of his action as pleaded. The cross-claim must be dismissed because the defendant failed to claim for amounts in the manner prescribed by the contract and was, in any event, paid for the work that was outside the scope of the work under the contract.

  9. The plaintiffs’ pleadings are not straightforward and lack a number of important particulars. For that reason, they take some time to understand. The task of analysing the pleadings is generally important and even more so when, without that analysis, there is a real risk that the case will be decided on the basis of issues that do not arise on the pleadings.

  10. The critical role that pleadings play in civil proceedings was recently examined by President Ward in Roberts v Goodwin Street Developments Pty Ltd [2023] NSWCA 5 at [67]-[73]. It is pertinent to set out here the following passage in her Honour’s reasons:

[67]   The central role of pleadings was authoritatively expressed by the High Court in Banque Commerciale SA., in liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 (Banque Commerciale). At 286-7 Mason CJ and Gaudron J said (omitting citations) that:

The function of pleadings is to state with sufficient clarity the case that must be met. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.

[68]   Brennan J, as his Honour then was, at 288 expressed the principle in the following terms (omitting citations):

When the pleadings bring the parties to the issue, the court’s function is to determine that issue and to grant relief founded on the pleadings unless the parties are allowed to alter the issues at the trial without amendment of the pleadings (as to which, see the observations in London Passenger Transport Board v Moscrop. The rule is clearly laid down in the judgment of this Court in Dare v Pulham:

Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings.

[69]   Procedural fairness requires that any relief granted is to be confined to that properly pleaded (see Banque Commerciale at 286-287; see also Gould & Birbeck & Bacon v Mount Oxide Mines (1916) 22 CLR 490; [1916] HCA 81 at 517 per Issacs and Rich JJ). Likewise in Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 at 664 it was said that “the relief which may be granted to a party must be founded on the pleadings”.

[70]   Ipp JA noted in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206 (at [424]) that the rule that, in general, relief is confined to that available on the pleadings secures a party’s right to a basic requirement of procedural fairness; and that, apart from cases where the parties choose to disregard the pleadings and to fight the case on additional issues chosen at the trial, the relief that may be granted to a party must be founded on the pleadings.

  1. This was not a case in which the parties effectively conducted the proceedings outside the scope of the pleadings: see Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25 at [38]-[39] (Leeming JA, Kirk JA and Griffiths AJA agreeing). For that reason, the claims of each of the parties fall to be decided on the basis of the pleadings, such as they are.

  2. Upon my analysis of the pleadings, I consider that the best way to approach the issues raised in them is to deal with the issues in four parts: the first part dealing with those issues arising from the facts up to and including the entry into the contract; the second part dealing with the issues arising from the facts that occurred from that point up to February 2021, when the defendant had suspended work and then returned to take some of his equipment; the third part dealing with the claim for defective works and the fourth dealing with the cross-claim for unpaid invoices. There is some overlap between each of these parts; however, the purpose of this approach is to attempt to deal with the issues that arise between the parties on the pleadings within a logical framework and so to afford them procedural fairness.

  3. I will first set out a brief chronology of events, focussing on the lead up to the contract, but dealing with the whole dispute. In doing so, I will highlight any relevant factual matters that are in dispute and then resolve those disputes later in the reasons. These facts will be supplemented where necessary when I come to deal with each of the issues.

Chronology

  1. In or about late 2015 the plaintiffs began exploring their options of increasing the amount of space in their home to accommodate their family. One of the options considered by them was to renovate the house. They made an enquiry with a design company, JMH Living Design, the principal building designer of which was Mr John Hatch. Mr Hatch went to the property to discuss the situation with the plaintiffs.

  2. Mr Hatch then prepared some concept plans for renovation of the house including an additional living space, bathroom and wine cellar under the existing house. In or about February 2016 Mr Hatch provided the plaintiffs with preliminary plans to give them an idea of what the alterations and additions to the house would look like once complete.

  3. The plaintiffs took their time to consider these plans and their other options. Finally, in May 2017 Mr Schrader called Mr Hatch to find out what the construction of the building shown his plans might cost. In his affidavit he said that he told Mr Hatch that he had a budget of approximately $300,000. After this telephone call Mr Hatch approached the defendant to ask for an estimate of what the construction of the building shown in his plans might cost.

  4. The defendant sent Mr Hatch a preliminary estimate indicating an estimated cost of works of $351,106.59. Mr Hatch sent the defendant’s preliminary estimate to the plaintiffs by email on or about 19 May 2017.

  5. On or about 20 June 2017 Mr Hatch sent the plaintiffs a further email attaching a revised preliminary estimate from the defendant in the amount of $298,507.29. After considering these estimates the plaintiffs decided to proceed with the next stage of the project.

  6. In July 2017 the plaintiffs engaged Mr Hatch to prepare and lodge a development consent application with the local council. The application was prepared in January 2018 and lodged shortly thereafter. Those plans were subsequently revised and, on 19 June 2018 the local council granted development approval in respect of those revised plans.

  7. Mr Hatch was then engaged to obtain a construction certificate for the project. To this end, a structural engineering firm, Steve Whelan & associates pty limited, was engaged to prepare the structural drawings. These drawings were provided on or about 15 August 2018 and revised on 25 March 2019. On or about 27 February 2019 a geotechnical report was obtained in relation to the required excavation into the rock bed as required by condition 10 of the development approval.

  8. The next step in the process was to engage a builder to undertake the required works. To this end, Mr Hatch sent relevant documentation to the defendant on or about 8 April 2019. The plaintiffs had a conversation with the defendant at their house on or about 15 May 2019. There is some dispute about what was said during the conversation.

  9. The plaintiffs say that Mr Schrader told the defendant that they had a budget of $300,000 and asked him whether he was sure whether he could do the job for that amount. Mr Schrader says that there was then the following exchange:

Defendant:   The works can be done for the price I have given. I have some concerns with the excavation costs however as we can [scil: can’t] see what is on the surface, but we don’t know what will find underneath.

Mr Schrader:   So the main thing that will change the price is the excavation costs?

Defendant:   Yes. The excavation and whether you want to upgrade any materials or fixtures and fittings.

Mr Schrader:   So the rest of the works is known quantities?

Defendant:   Yes. They are pretty straightforward. The only area of concern is the excavation

  1. In cross-examination, Mr Schrader added that the defendant said that the “girls in the office will keep track of it for you” and that they would send a spreadsheet every couple of weeks and that they would let the plaintiffs know “if we go over.”

  2. In her affidavit, Mrs Schrader says that she said to the defendant that they did not want to go too far over their budget as it was all they could really afford. She also said that the defendant replied that they need not worry that:

“The girls in the office will prepare weekly spreadsheets so we can keep track of everything. The only real concern is the excavation costs which we won’t know until we start digging, as we don’t know what is underneath the surface. Otherwise it is a pretty straightforward job.”

  1. In his evidence the defendant doesn’t give his own version of that meeting, but denies that he was given a budget at that time or that he said that the works could be done for the price that he had given. He also denies that Mrs Schrader said that the plaintiff did not want to go over their budget or that he said anything about supplying a spreadsheet every couple of weeks.

  2. The plaintiffs say that after this conversation they began to seriously consider their options and explored their options again to see the best course of action for them including looking at other homes to see if they could move house, engaging other builders to provide quotation and beginning to arrange finance to see what they could borrow to carry out the works.

  3. Mr Hatch subsequently gave the plaintiffs the names of two alternative builders and Mr Schrader approached each of them for a quotation. Both of these builders came to inspect the site and to discuss the matter with the plaintiffs. The first of them, Mr Wienholt, provided a building estimate on 24 August 2019 for a price of $467,696 (including GST). On or about 29 September 2019 the second of these builders, 360 construction projects provided a quotation in the amount of $511,686.08 (excluding GST). Neither was willing to do the work on a fixed costs basis; they would only do it under a cost-plus contract.

  4. On 7 August 2019 the defendant sent an email to the plaintiffs advising them of the cost of the home warranty insurance for alterations and additions. The email advised that the project costs were noted as $250,000. Mr Schrader, who received the email, did not query that amount. It is notable, however, that Mr Schrader was sent the draft development application by email from Mr Hatch dated 21 December 2017. Mr Hatch explained at that time that that figure was an estimated cost and was for determination of council fees only.

  5. On or about 20 September 2018 the plaintiffs received from JMH living design a partly completed application form in respect of the construction certificate and were asked to sign the front page. This document, too, had an estimated cost of work as $250,000.

  6. On about 1 October 2019 the plaintiffs applied to Credit Union Australia Ltd (‘CUA’) (as it then was) for finance in relation to the project. CUA subsequently asked the plaintiffs to provide it with a confirmation of a building estimate from the builders and Mr Schrader asked the defendant for a quotation for the works for that purpose.

  7. Much was made during the course of evidence about the difference between a quotation and an estimate in connection with construction work. Ultimately, the nomenclature used at any particular time by any particular person is not decisive of any issue in the proceedings. What is important is whether what was represented was misleading or deceptive and, if so, whether it was productive of any loss or damage to the plaintiffs. For that reason, my use of the word “quotation” or “estimate” at this stage of my reasons should not be taken to indicate any view that I have on that issue.

  8. On 8 October 2019 the defendant emailed Mr Schrader a quotation of $300,000 (including GST) for the works. Mr Schrader replied by email saying that their finance application was being processed and that they would know the budget soon. He also said that he would be happy to go through that with the defendant and figure out what can be achieved for that budget.

  9. On 9 October 2019 Mr Schrader says that he telephoned the defendant and spoke to him about the quotation he had just received. While the evidence is consistent that there was a conversation around about this time, there is a conflict about who was involved and what was said.

  10. In his first affidavit Mr Schrader said that the following conversation occurred:

Mr Schrader:   … I have received two other quotes from builders that John Hatch has worked with as well. Both these quotes came in well above what you came in at. How can you be so much cheaper than these guys?

Defendant:   I have all the tools and things I need to do the job. I don’t rent stuff like the other guys and charge you for them like they do. I have everything from my years of building. I also shop around for supply of materials, and I get things from the western suburbs which is cheaper than local. It helps me keep my costs down.

Mr Schrader:   So based on what we have discussed, the main thing that could cost more is the excavation?

Defendant:   Yes mate.

Mr Schrader:   This is my main concern, that the excavation costs could blow out.

Defendant:   Okay. I will arrange for the excavator to come out and inspect the site.

  1. In his affidavit, the defendant denies this version of the meeting. He says that he met both of the plaintiffs in the kitchen in their home to go over the costs. He says that he said:

“This job is impossible to quote due to the excavation. Everything else I can normally quantify once I am out of the ground. I own most of my own equipment for work and we can save costs there.”

  1. He said that he would arrange for Steve Britton, the excavator, to come to site to have a look and that, for $300,000 they could try get the excavation done, the shell done, the doors and windows and balconies. His evidence was that Mr Schrader assured him that he would help and that he replied that “the more you put in, the more you save.”

  2. On 14 October 2019 the plaintiffs’ mortgage broker emailed the plaintiffs saying that CUA had asked that “as the builder will not provide a fixed priced build contract” would they be able to provide a detailed “Progressive Draw/Payment Schedule” to outline when and what amounts would be required throughout the construction.

  3. On 18 October 2019 the defendant attended the plaintiffs’ house with an excavation contractor, Mr Britton. Again there is some dispute about the conversation that took place during this visit.

  4. In his first affidavit Mr Schrader said that the following exchange took place:

Mr Schrader:   David, my main concern is the excavation costs blowing out as the costs are already near our budget limit.

Defendant:   It’s all good. This is why I brought the excavator here so we can look at it in detail.

Mr Schrader:   After the inspection with the excavator, do you need to requote the works?

Defendant:   There is no need to requote. I am all over this. I will sharpen my pencil where I can for you, however the excavation costs will be what they are.

Mr Schrader:   Are you able to give me an estimate of the costs of excavation?

Defendant:   No. We cannot determine what the costs are at the moment we won’t know until [we] start excavating.

Mr Schrader:   Okay.

  1. In his first affidavit the defendant said that during this meeting Mr Britton did not give him a price for the job and when the defendant asked him for an estimate he said “I don’t know. It’s not an easy one to estimate.” Later in his affidavit the defendant says that he denies that either he or Mr Schrader said anything about re-quoting.

  2. In his affidavit Mr Britton said that, during this site visit he was unable to give the defendant a price but that he said “this is a really big job. The amount of unknowns is huge. Getting the material out is a major job.” Both he and the defendant said that they discussed the question of access to the site during that visit.

  3. On 23 October 2019 Mr Schrader telephoned the defendant to ask about the payment summary requested by CUA. This is another contentious conversation. Mr Schrader says ([60]) the following exchange occurred:

Mr Schrader:   Hi David how are you going with the payment schedule. I’m just confirming that the payment schedule covers everything in the quote like the render, eaves and gutters, pergola, garage door and other stuff?

Defendant:   Don’t worry, leave it with me. I will work it out and email it to you. Remember we can’t do a fixed price because of the excavation.

Mr Schrader:   Yes. We have discussed this before.

  1. In his affidavit however, ([159]), the defendant denies that conversation and says that, rather, Mr Schrader said “can I have a payment schedule please?”.

  2. On 29 October 2019 the defendant emailed a payment schedule to Mr Schrader.

  3. The following day Mr Schrader sent a few emails to the defendant sending him the geotechnical report and engineering plan. The two subsequently had a conversation in which Mr Schrader says that he asked the defendant whether he was sure whether he did not need to requote the works and that the defendant replied “no, it’s all good”. The defendant denies that Mr Schrader asked whether he needed to requote the work.

  4. The plaintiffs’ loan was formally approved on 31 October 2019 in the amount of $300,000.

  5. On 13 December 2019 the defendant attended the plaintiffs’ house so that the contracts could be executed. The parties had a conversation about the contract at that time, the details of which are in dispute.

  6. In his first affidavit (at [68]), Mr Schrader says that the following exchange took place:

Defendant:   Hi Matthew and Jacqueline. Here is a copy of the contract for you to sign. As previously discussed, because of the excavation, it has to be a cost-plus contract. If we did not have the unknown excavation, we could do a fixed price contract.

Mr Schrader:   We have previously discussed that the excavation is the main reason why we can’t do fixed price, but as you have said before, everything else is pretty much known.

Defendant:   Yes we have discussed all this before.

Mr Schrader:   Okay. We would have considered moving if it was going to be substantially more than $300,000.

Mrs Schrader:   We can’t really afford to go over our budget. That is all we have.

Mr Schrader:   So you will be keeping track of excavation costs and let us know throughout the job?

Defendant:   Don’t worry. You’ll be out the back having a read on the balcony before you know it. The girls in the office will keep track of everything for you.

Mr Schrader:   Can we take some time to consider everything and get back to you to sign it.

Defendant:   No problem.

  1. Mr Schrader further says that the defendant took the contract with him and did not leave them with a copy.

  2. Mrs Schrader’s version was as follows:

Defendant:   Hi Matthew and Jacqueline. I have the contract here for you to sign. We are using the standard cost-plus contract because as previously discussed we don’t know the cost of the excavation, so we can’t use a fixed price contract.

Mr Schrader:   Yes. We have been through that before. The excavation costs are unknown but everything else is pretty well known.

Mrs Schrader:   We don’t want to go over our budget. It is all that we have.

Mr Schrader:   So you will be keeping track of everything?

Defendant:   Yes. The girls in the office will keep track of it all for you.

  1. Mrs Schrader, too, says that the defendant took the contract away with him.

  2. In his affidavit, at [45] and [142]-[143], the defendant says that at this meeting Mr Schrader again said that he would work on the site to reduce costs, said that he always told the plaintiff that the contract would be cost-plus and denied that Mr Schrader said that they would have considered moving if the cost is going to be substantially more than $300,000.

  3. The contracts were not executed on that day and the defendant returned to the property on 23 December 2019. Mr Schrader signed the contract in the presence of the defendant on that day. Although Mrs Schrader did not sign the contract there is no issue between the parties that Mr Schrader had authority to sign the contract on behalf of both of them or indeed that he had the authority to engage in communications on behalf of both throughout the relevant time.

  4. Although it will be necessary to examine the contract in greater detail later in these reasons it is pertinent at this point to note the following aspects of the contract. First, the principal obligation on the owner was to pay the build of the cost of the works plus the fee payable under the contract at the times and in the manner required by the contract: clause 2. The costs referred to in that clause are set out in Part A of Schedule 1 to the Contract and the fees payable in Part B of Schedule 1. Part A of Schedule 1 included the cost for the individual builder ($75 per hour) as well as stipulating that other agreed rates were set out in Schedule 2(a). Schedule 2(a) set out the rates that were payable in respect of various workers by reference to their role such as Foreman, Carpenter and labourer et cetera.

  5. Secondly, it was expressly acknowledged in clause 3 by the owner that the total cost of the works was not known or ascertainable as at the date of the contract and it was acknowledged that the owner had read and understood the warning as to cost-plus contracts appearing at the front of the contract: clause 3 (iii). That warning included a reference to the estimated cost of works and fees inclusive of GST as $300,000 but also included a warning that “any figure nominated or stated below is only an estimate and is provided specifically subject to the terms of clause 30”.

  6. Thirdly, clause 1(b) in the conditions of contract required the builder to “regularly provide to the owner a written report on the cost of the works” which was to be known as the budget report. Part E of Schedule 1 required that report to be provided on the 30th day of each calendar month. The budget report was required to include a number of matters including a summary of work being performed and still to be performed, and a revised estimated total cost of works.

  7. Fourthly, the contract also made provision for the period of 168 days as the period within which the builder was to carry out the construction but made no provision for any delay costs: see clause 10(c).

  8. Fifthly, there was a provision for delays and extensions of time (clause 11), payment (clause 17), and suspension of work by the builder (clause 19).

  9. On 24 December 2019 the defendant sent a tax invoice for the deposit in the sum of $30,000. Mr Schrader forwarded that to CUA and the amount was paid to the defendant.

  10. The works commenced on site on 27 January 2020 and the demolition of the rear balcony commenced.

  11. The plaintiffs took a keen interest in the progress of the building work. Each of them kept a separate diary detailing the work that they saw being done on the site. Mr Schrader took over 800 photographs of the site during the course of the works. He explained that he took notes so that he had a record of the work that he could show to other people and that he had kept similar records in respect of all of the other work that they had done to the house over the time that they had owned it.

  12. Commencement of the work coincided with the commencement of the worldwide pandemic of Covid-19. I propose to deal later in these reasons with the works carried out and the conduct of each of the parties during the course of that work. For present purposes it is sufficient to note a few pertinent facts.

  13. As a consequence of the government response to that pandemic both of the plaintiffs spent the vast majority of the time in the house. That is not to say that they were unoccupied at that time: Mr Schrader continued his employment but did so from home and Mrs Schrader was busy looking after their twin children including undertaking what was no doubt the very difficult task of their home schooling.

  14. On 3 February 2020 the excavation works commenced. Most of that work was carried out by the contractor Mr Simmons, who had earlier looked at the site prior to the entry into the contract.

  15. On 12 March the defendant wrote to Mr Schrader saying that there had been changes in the measurement to the downstairs bathroom, wine cellar and stairs and asked when he would be available for a site meeting to resolve the issue. There was a site meeting the following day between the defendant, Mr Schrader and Mr Hatch.

  16. During that site meeting the defendant explained that there was an issue with the brick footing near the stairwell which would be difficult and costly to remove. He said that in order to achieve the designed dimensions of the stairwell it would have to be removed. He also explained that the excavation of the cellar floor was taking longer than expected and that they would stop excavating and amend the levels which would save some costs.

  17. Mr Schrader said that he was not happy with that course but when Mr Hatch prepared some revised designs to meet the suggested amendments he accepted them.

  18. On 12 April 2020 the defendant sent Mr Schrader a copy of the revised engineering plans. On 5 May 2020 the defendants had Mr Schrader and "updated spreadsheet" which he said reflected the cost impact of the excavation and drainage. In his first affidavit Mr Schrader said (at [88]) that he did not understand the content of the cost spreadsheets contained in that email and that they were not further discussed between him and the defendant.

  19. On 6 May 2020 the defendant emailed Mr Schrader sending him variations to engineering and architectural plans for his approval. The defendant explained that they included an upturn to the concrete slab to assist with the capture of water for adequate drainage, the change from an external ground floor terrace from pavers to concrete slab and supporting the brick piers to rock foundation as well as changes to structural steel work supporting rear wall and rear balcony slab. He also included notes from a site meeting that had taken place earlier on that day between himself and the engineers Steve Whelan and Reza Pakfetrat.

  20. Mr Schrader says in his first affidavit (at [93]) that the changes mentioned in the email were consistent with the changes previously discussed with the defendant and that he understood that they were going to discuss the items in greater detail in a face-to-face meeting. He does not explain why he understood that was to be the case.

  21. The following day the defendant emailed Mr Schrader again saying that it would be good to catch up to go over the variations referred to the previous day in the meeting with the engineers in order to “supply a budget report”. Mr Schrader replied that he would be available after 3 PM that day. The defendant’s evidence is that there was a meeting in which it was discussed that the plaintiffs were lucky that there had been a lot of rain because that had revealed problems caused by water. Further, that had the construction occurred in a dry period, the problems would not have been evident and had the plans been built according to their original design there would have been water penetration problems.

  22. The defendant says that he said to Mr Schrader “obviously the budget is blown.” And that Mr Schrader replied “It’s okay Dave, I’ve got more money. Let’s keep going.” Mr Schrader says that this meeting never occurred.

  23. On 21 July 2020 Mr Schrader sent the defendant an email in response to an email from him chasing payment on the latest invoice. In his email Mr Schrader said that the four invoices were ready to process but he wanted to discuss them with the defendant to understand where they were with “actuals v payments”. The email continued:

“We would like to try and estimate what it will cost to finish the remainder of the work so we can make any critical decisions about it.

I have attached a prioritisation/specification Excel spreadsheet we talked about earlier-it’s reasonably complete except for light fittings.”

  1. The attached spreadsheet is not in the plaintiffs’ evidence but it is in the defendant’s evidence.

  2. Mr Schrader does not include the defendant’s response to his email in his affidavit. In that response, the defendant says that the actual payments to date were contained in the spreadsheet which was emailed that day and asks for payment on the invoices. He says it is available by phone anytime the following day.

  3. On 12 August 2020 Mr Schrader sent a text message to the defendant asking him if he could meet up the following day and stating, “we’re trying to do some budgeting so looking to get a handle on how much we will need to get the reno through to completion.”

  4. The defendant replied that he was unable to meet the following day because he would be finalising the budget and forwarding it as soon as possible.

  5. On 16 August 2020 the defendant sent Mr Schrader a bill of quantities with an estimate to finish the works. In this email he said that there would be a reduction in the formwork cost for the veranda area as the work was well underway and that no allowance had been made for PC (prime cost) items. The estimate in the attachment to the email was $329,585.97.

  6. On 17 August 2020 the defendant had a meeting with both the plaintiffs in their kitchen. The parties have a vastly different recollection of what was said at that meeting. In his first affidavit the defendant said Mr Schrader said: “we can get the slab poured, and that is all we have the money to do” and that he replied “that’s good. I’ll keep the job moving.”

  7. In his first affidavit Mr Schrader said that the following conversation took place:

“Mr Schrader:    David, I have received the spreadsheet that you sent yesterday although I’ve only look through it briefly.

Defendant:    I put that spreadsheet together last week and it is up-to-date.

Mrs Schrader:   We need to understand how much it is going to cost to complete this job. We need certainty around the remaining costs.

Mr Schrader:   We are also not happy with the current billing and invoicing situation as it does not match up with the progress of the job. It is important now that we get an accurate cost to complete the works. There has been savings along the way with the situation under the stairs which were not happy about, and also the height in the wine cellar.

Defendant:   Look. I will finish off the balcony and put up a temporary handrail to make it safe for the kids. I will also remove the timber wedges in the sliding doors so that we could open them up for some ventilation. I know refinancing will be required and I will give you time to arrange this.

Mr Schrader:   What do you mean by that? I need to go through the latest spreadsheet and understand its contents as we had only received it last night.

Defendant:   Have a look through the spreadsheet, and I will finish off the balcony. We can talk further in the coming days.”

  1. On the following day the defendant ordered the steel reinforcement for the slab for the upstairs patio and that steel was delivered shortly afterwards. The defendant, or his employees, then built the formwork for that slab and installed the reinforcing steel.

  2. On 21 August 2020 Mr Schrader emailed the defendant thanking him for sending through the spreadsheet “as discussed on Monday” saying that he had said he needed time to review it. In this email he indicated that he had reviewed it and had a couple of questions. In essence, he wanted to know whether the estimate of $362,544.54 in the spreadsheet sent to him was over and above the $300,000 estimate in the contract or was that $300,000 estimate to be subtracted from the new estimate. By email on 24 August 2020 the defendant confirmed that it was the first of these, namely that there would be an additional amount of $362,544.54 required in order to complete the work.

  3. By this time the plaintiffs had been seeking legal advice and had organised to see a lawyer on 4 September 2020.

  4. On 7 September 2020 the defendant prepared a notice of suspension of works under clause 24 of the contract. In his affidavit he said that he did not send that notice immediately because Mr Schrader had given him assurances that he would be paid. He sent the notice by email on 15 September 2020.

  5. On 17 September 2020 the plaintiffs’ solicitors wrote to the defendant giving notice of a number of issues said to have been in dispute in accordance with clause 24(b) of the contract.

  6. By letter dated 20 October 2020 the defendant’s solicitors responded to the notice of dispute.

  7. In December 2020 the parties met in order to discuss resolution of the issues between them however were unable to come to any agreement.

  8. These proceedings were commenced by way of statement of claim (‘SOC’) filed on 21 May 2021. The works were, and continue to be, in the same state that they were in (subject to some deterioration owing to weather) when the notices of suspension was given on 15 September 2020.

Part 1:   The claims based on the period leading up to the formation of the contract

Identification of the claims

  1. The plaintiffs make two claims based on what is described in the SOC as the “Contract Representations”. Each claim is based upon the Australian Consumer Law (‘ACL’). The plaintiffs claim that the “contract representations” were made in breach of sections 18 and 29 of the ACL. Before dealing with those claims, is necessary to deal with [55] of the SOC.

  2. That paragraph reads:

The plaintiff relying on the Contract Representations, entered into the Contract to their detriment as pleaded above and in breach of section 18, 21 and 29 of the ACL to which the plaintiff’s claim loss and damage.

  1. Leaving aside the references to sections 18 and 29 of the ACL and the infelicitous grammar, this paragraph makes no sense. The reference to section 21 of the ACL is to unconscionable conduct within the meaning of that section. However, the unconscionable conduct actually pleaded in the SOC (see paragraphs 45 to 48) refers to the carrying out of the building works and not to the contract representations. On that basis, the case based on unconscionable conduct relates to conduct that occurred after the entry into the contract and cannot logically be based upon the entry into the contract.

The Contract Representations

  1. It is necessary at this point to set out in some detail the precise conduct relied upon by the plaintiffs in their claims under the ACL.

  2. The SOC pleads that the Contract Representations were made by the defendant orally and in writing, that is, that they were express. The term “Contract Representations” is pleaded, at SOC [13], to be a collective term for a number of other representations. In other words taken together, those other representations constituted the Contract Representations relied upon by the plaintiffs in their claims under the ACL. Each of the other representations is, in turn, given its own description which is set out below.

  3. Those other representations are claimed, at SOC [13], to be:

  1. The defendant understood the plaintiff’s budget was $300,000: budget representation;

  2. A quotation which appeared to be based on Cordell’s Building Estimates in the sum of $298,507.29 and that the quotation provided was true and correct and a very close and accurate estimate of the total cost of the Building Works with the only real unknown being the actual cost of the excavation which should be close to the estimated amount of approximately $60,000: estimate representation;

  3. The Building Works were known quantities (except for the excavation costs) and the defendant was capable of bringing in the cost of the Building Works within the plaintiff’s budget of $300,000 subject only to excavation the costs which were the only real unknown cost contained in the Quotation: fixed cost representation;

  4. Estimated the excavation costs at approximately $60,000 and that the costs of the excavation would not blow out, as the excavator came to site to properly determine the excavation costs: excavation representation;

  5. That the defendant could not enter into fixed price contract because the defendant was not able to determine the excavation costs with certainty but that did the defendant was otherwise certain of the remaining balance of the estimated cost is been known costs in the sum of $300,000 which amount included excavation costs of approximately $60,000: costs plus representation; and

  6. Prepared a contract with a represented price estimate of $300,000: price representation.

  1. This appears to be a definition of the scope of the term Contract Representations. However, in spite of this, on one view, the SOC appears to include further representations made prior to the entry into contract: Spreadsheet Representation, Tools Representation, and Suppliers Representation: see SOC [14].

  2. The better view of SOC [14], however, is that its purpose is solely to give better particulars of the time and place of the representations identified in SOC [13] as being the constituent elements of the Contract Representations. That is because there is no allegation that any of the additional representations referred to in SOC [14] were in contravention of any provision of the ACL. Indeed, the other parts of the SOC suggest that the plaintiffs assert the correctness of those representations: see SOC [19] particulars, and SOC [50](b).

The statutory provisions

  1. Section 18 of the ACL provides that “a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.”

  2. Section 29(1)(a)(i) of the ACL relevantly provides that “a person must not, in trade or commerce, in connection with the supply or possible supply of goods or services… make a false or misleading representation with respect to the price of goods or services.”

  3. Although the response to each of these claims in the amended defence was a blanket denial, there is no issue that, if, and to the extent that, they were made, the Contract Representations were both in “trade or commerce” and “in connection with the supply or possible supply of goods or services”. The real issue between the parties is whether the open Contract Representations, as pleaded, were made and, if so whether they were misleading or deceptive or likely to mislead or deceive.

  4. To the extent that the Contract Representations related to future matters, Section 4(1) of the ACL applies. That section provides:

If:

(a)   a person makes a representation with respect to any future matter (including the doing of, or refusing to do, any act): and

(b)   the person does not have reasonable grounds for making the representation;

the representation is taken, for the purposes of this Schedule, to be misleading.

  1. Section 4(2) imposes an evidentiary onus on the representor to adduce some evidence that there were reasonable grounds for making the representation, although the mere fact of adducing that evidence does not establish that there were reasonable grounds and, further, the fact that there were reasonable grounds does not prevent the representations from being misleading or deceptive. However, once the evidentiary onus is met, it remains the plaintiffs’ onus to prove that there were no reasonable grounds for the representation: North East Equity Pty Ltd v Proud Nominees Pty Ltd [2012] FCAFC 1; 285 ALR 217 at [28]-[30].

The relevant principles

  1. The relevant principles concerning the relevant aspects of these provisions are relatively well-settled and were not in dispute between the parties. They were summarised by the Full Court of the Federal Court in Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130; 278 FCR 450 at [22] ff. That summary included the following (omitting references to authorities):

  1. While section 18 prohibits conduct that is misleading or deceptive or likely to mislead or deceive and section 29 prohibits the making of a false or misleading representation they are similar in nature.

  2. The central question concerning the statutory prohibition of misleading or deceptive conduct (and closely related prohibitions) in the ACL is whether the impugned conduct, viewed as a whole, has a sufficient tendency to lead a person exposed to the conduct into error (that is, to form an erroneous assumption or conclusion about some fact or matter).

  3. The following principles relate to that central question:

  1. conduct is likely to mislead or deceive if there is a real or not remote chance or possibility of it doing so;

  2. it is not necessary to prove an intention to mislead or deceive;

  3. it is unnecessary to prove that the conduct in question actually deceived or misled anyone. The question whether conduct is misleading or deceptive is objective and the court must determine the question for itself;

  4. it is not sufficient if the conduct merely causes confusion.

Resolution of the factual issues leading up to the contract

Approach to fact-finding

  1. The approach to fact-finding in civil cases was thoroughly examined recently by His Honour Andronos SC DCJ in Williams, William v Williams, William [2023] NSWDC 10 at [34]-[40]. The most relevant aspect of that examination involved the unreliability of human memory: see, for example, the passages quoted from Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 at [15]; and Campbell v Campbell [2015] NSWSC 784 at [73].

  2. The plaintiffs’ case relies, to a large extent, on their affidavit evidence as to what was said in conversations that took place several years ago. That fact alone raises difficulties, not in terms of honesty, but in respect of reliability. Further, even on the plaintiffs’ own evidence, the conversations were capable of bearing different meanings depending on nuance and emphasis, the appreciation of which not only must have diminished over time, but were very susceptible of bias, not only at the time of the conversation, but also during the preparation of the affidavits as well as during the course of oral evidence. [1]

    1. See the comments by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) [1995] FCA 451 per Sackar J in Campbell v Campbell at [76].

  3. The unreliability of human recollection is one of the reasons for which demeanour ordinarily carries little weight in the assessment of a witness’ evidence. However, it is often instructive to watch how a witness gives evidence as it gives some indication, along with what evidence is given, of the character of that witness. This is often revealed very subtly as the evidence progresses and cannot be appreciated from reading the transcript.

  4. Each of the plaintiffs presented as being very confident of their recollection of certain words being spoken. I have no doubt that they truly believed that what they were saying was right. Mr Schrader, in particular, held strong views about the facts and was very keen to give his version, regardless of what question he was asked. Mrs Schrader, too, held firm views, but initially was more nervous than her husband, and overall more anxious. They both presented as being very proud of their achievements, their home and family and keenly interested in every detail of those matters. Those characteristics bear some weight in my analysis of the evidence and determination of whether I am satisfied on the balance of probabilities of the facts that they rely on in their case.

  5. Mr Broach was less confident in his answers, but I disagree with the plaintiffs’ submission that he was evasive and untruthful. Overall, he impressed me as making every effort to give truthful answers.

The contentious facts

  1. The critical facts in issue are the conversations relied upon by the plaintiffs as inducing them to enter into the building contract and are referred to compendiously as the Contract Representations. [2]

15 May 2019

2. SOC [13].

  1. I am not satisfied that the conversation that took place between the plaintiffs and the defendant on 15 May 2019 was at all as pleaded or as deposed to by the plaintiffs other than in general terms. This conversation took place well over a year before the plaintiffs swore their first affidavits and the affidavits differ from both the pleaded case and the evidence given by Mr Schrader in cross-examination. There were no notes taken of the conversation or any other relatively contemporaneous record of what was said. In addition, Mr Schrader says in his affidavit that, after this conversation, they kept considering all of their options, including obtaining other quotes, applying for finance and looking for other properties to move into. That does not sit comfortably with the certainty of pricing from the defendant that they each present from the conversation in May 2019. In addition, there are other matters concerning a number of the particular topics broached in the conversation.

  2. First, Mr Schrader’s evidence that they told the defendant that they had a budget of $300,000 does not fit with the objective or uncontested evidence. When Mr Wienholt visited them 2 months later in August to discuss the possible costs of doing the building work, they did not tell him that they were working to a budget. Further, as late as October 2019 the plaintiffs were telling the defendant that they would only know their budget once their loan application had been approved. That makes sense because, until they knew how much they could spend, they would have little idea of how much they were willing to spend.

  3. Secondly, I am satisfied that the parties discussed the cost of excavation as the main issue in determining the costs of the project. However, the pleaded case is that this was said to be the “only” matter which might lead the costs to be above $300,000. That pleading is not supported on any version of events. The difference between something being a main concern and the only concern or only real concern might simply be a matter of emphasis or nuance. The real risk here is that the plaintiffs’ recollection has been affected by the importance of the excavation once the works actually took place and I am not satisfied that their recollection, other than as to a general discussion about the difficulty of assessing the costs of excavation is reliable.

  4. In this respect, I note that, at one point in cross-examination, Mr Schrader said that the “only variable we ever discussed was excavation.” This was one of a number of examples of the strengths of Mr Schrader’s conviction that he was right and that his memory was accurate. However, it conflicts with his own affidavit evidence and undermines his general reliability. Another instance of a shift in his evidence concerned his wife’s diary. At first he said that he didn’t look at her diary at all; however, he later said, with equal confidence: “I haven’t read the entire diary. I’ve gone through it. Generally speaking, we did check that the hours of the workers on site were accurate.”

  5. Thirdly, on the other hand, it is plausible that the defendant talked about the “girls” sending spreadsheets to the plaintiffs so that they could keep track of costs. That seems to have been a regular part of the office work undertaken in the defendant’s office. Michelle Neudegg’s evidence was that she had been employed to do that work since 2012.

9 October 2019

  1. I find that the essence of the conversation on 9 October 2019 was as set out in Mr Schrader’s first affidavit. [3] The Schraders had just lodged an application for a loan and had received 2 quotes from other builders that were considerably higher than the figure given by the defendant. In other words, the project was advancing to the point where a decision would have to be made about whether to proceed and, if so, which builder to use. In that context, it makes sense that the plaintiffs would want to test the difference between the quotes and to see whether to accept the lowest. Similarly, it makes sense that he would express his main concern, namely the excavation, and that the defendant would try to assuage that concern by organising an excavator to have a look at the site.

18 October 2019

3. See 32 above.

  1. On 18 October 2019 the defendant brought Steve Britton, an excavation contractor, to site to ask him to comment on the proposed excavation. The evidence relating to the pertinent conversations that took place during that meeting are set out above. [4] I do not accept Mr Schrader’s version of this conversation.

    4. See 37 and following above.

  2. First, the defendant had explained to Mr Schrader little over a week before that he would bring the excavator along because of the unknown factor of the costs of excavation. In that context it does not make sense that Mr Schrader would need to, or in fact did, explain to the defendant again his main concern were the excavation costs blowing out. Secondly, Mr Britton said in his evidence that he was unable to give the defendant a price during his site visit because of the nature of the proposed excavation and the site. He was not tested on that evidence and I accept it. This means that, even after having an expert excavator assessed the site, neither the defendant nor Mr Schrader had any further information about the likely scope of the excavation costs other than that, as Mr Britton explained, that it was a major job. In that context it makes no sense that Mr Schrader would ask whether the defendant would need to requote his job.

  3. In any event, Mr Schrader’s evidence does not support the representation that was said to have been made by the defendant on 18 October 2019 and which is identified in the SOC as the “excavation representation”.

  4. Paragraph 13(d) of the SOC says that the excavation representation was made by the defendant when he: “estimated the excavation costs at approximately $60,000 and that the cost of the excavation would not blow out as the excavator came to site to properly determine the excavation costs.”

23 October 2019

  1. There is no issue that there was a conversation by telephone between Mr Schrader and the defendant on this day in which Mr Schrader asked for a payment schedule as requested of him by CUA. Mr Schrader’s evidence is, as set out above, [5] that he asked that the defendant include a number of particular details in the schedule and confirm the reason that there would not be a cost-plus contract. I find it highly unlikely that that extra conversation occurred. First, for reasons I have already given, Mr Schrader’s memory of such a conversation is very unlikely to be reliable. Secondly, he was asked by his mortgage broker some two weeks earlier for the payment schedule and, although it does not appear in the evidence, it is likely that he would already have asked the defendant for the payment schedule. In those circumstances it is very unlikely that he would say, again, what was required in it, particularly in light of his own evidence that he was not an expert in the building industry and expected the experts he engaged to give him advice as to what to do.

30 October 2019

5. See 41.

  1. As noted above, [6] Mr Schrader said that he asked the defendant on 30 October 2019 whether he needed to requote the work and that the defendant said that he did not. I am not satisfied that this conversation occurred in the terms deposed to by Mr Schrader. He had already raised a similar issue with the defendant a little over two weeks earlier on 9 October 2019 and had just received from him a payment schedule that was consistent with an earlier estimate given by the defendant. Further, as I have said, nothing was raised in the site visit with the excavation contractor that could have assisted in any further determination of the price of the excavation works and so could have made necessary or relevant a re-quotation of the entire job. There is nothing in the objective evidence that would support the acceptance of Mr Schrader’s version.

    6. See 44.

  2. In any event this paragraph in Mr Schrader’s evidence does not support the pleading. At paragraph 14(f) of the SOC it is asserted that on 30 October 2019 the defendant orally made the “estimate representation” to Mr Schrader. The “estimate representation” is set out at [13](b) and includes a statement that the only real unknown in the costing was the actual cost of the excavation which “should be close to the estimated amount of approximately $60,000”.

13 December 2019

  1. The defendant came to the plaintiff’s house on 13 December 2019 for the execution of the contract. The evidence relating to the conversations that were said to have taken place during that meeting is set out above. [7] I find that the plaintiffs’ version of the conversation is entirely self-serving and unreliable. Mr Schrader at least, if not both the plaintiffs, had known for months that the only contract on offer was a cost-plus contract and, even on their own version of events, they knew that there were many unknowns within the costs estimates that had been provided to them by the defendant. While it may be that the main one of those unknowns was the cost of excavation, there was simply no logical reason for them to raise this again with the defendant at this stage.

    7. See 47 and following.

  1. Regardless of whether the contract has been terminated, the contract provided for the means by which the defendant was to be remunerated for work done under it. It follows that, if the defendant’s quantum meruit claim does extent to that work, it is not available. [19]

    19. Mason K, Carter J, Tolhurst G, Mason and Carter’s Restitution Law in Australia (4th Edition, 2021, LexisNexis) at [913]; Mann v Patterson Constructions Pty Ltd [2019] HCA 32; 267 CLR 560 at [14].

  2. There is a further critical difficulty with the quantum meruit claim in respect of the variations. That is that the defendant has not proved that he was not paid for them. First, no effort was made in the proceedings to identify with any precision the work that was actually the subject of the only invoices that were unpaid. Secondly, the variations identified in Mr Capaldi’s first report refer to work that appears to have been done before August 2020 when the first set of unpaid invoices were sent to the plaintiffs. On that basis, the defendant has received payment for these variations. Those payments were in accordance with the rates set out in the contract. Those were the rates relied on by the defendant as being a reasonable basis on which to assess the value of the work done by him. For that additional reason the quantum meruit claim must fail.

  3. The cross-claim will be dismissed.

Orders

  1. The Statement of Claim be dismissed with costs.

  2. The Cross-Claim be dismissed with costs.

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Endnotes

Decision last updated: 14 April 2023

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