Scott Construction and Development Pty Ltd v Marchese Investments Pty Ltd - [2002] WADC 102

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SCOTT CONSTRUCTION & DEVELOPMENT PTY LTD -v- MARCHESE INVESTMENTS PTY LTD [2002] WADC 102

CORAM: NISBET DCJ

HEARD: 25-27 FEBRUARY 2002

DELIVERED : 30 MAY 2002

FILE NO/S: CIV 3277 of 2000

BETWEEN: SCOTT CONSTRUCTION & DEVELOPMENT PTY LTD
Plaintiff
AND
MARCHESE INVESTMENTS PTY LTD
Defendant

Catchwords:

Contract - Residential sub-division - Roads, drainage and other works - Interpretation of - Practical completion - Calculation of date of - Completion - Date of - Interpretation of terms - Damages for breach - Liquidated damages

Legislation:

Nil

Result:

Plaintiff's claim allowed at $79,185
Defendant's claim for set-off dismissed
Defendant's counterclaim allowed at $525
Judgment for plaintiff for $91,416 inclusive of interest

Representation:

Counsel:

Plaintiff: Mr P G McGowan
Defendant: Mr P E Harris

Solicitors:

Plaintiff: Metaxas & Vernon
Defendant: Chris Martin & Associates

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Water Authority of Western Australia v AIL Holdings Pty Ltd (No 2) (1992) 10 WAR 233

NISBET DCJ: The plaintiff is a contractor carrying out civil engineering works and the defendant a builder and developer. In March 2000 the plaintiff entered into a contract in writing with the defendant to carry out the construction of earthworks, roads, drainage, sewerage, water supply and underground power for the sub‑division of land owned by the defendant at Lots 5 and 6, Erindale Road, Balcatta. The general conditions of contract were those provided by Australian Standard 2124 ‑ 1992 "General Conditions of Contract".
Broadly the scheme of the contract was that upon completion of the work in stages the plaintiff would render accounts to the superintendent of the works, a firm of consulting civil engineers (Parker Consultants WA Pty Ltd) and upon the superintendent certifying the progress claims for payment and issuing a certificate in that regard, the defendant would become liable to pay the amount stated on the certificate.
The works were commenced, progress claims were made by the plaintiff and certified by the superintendent and paid by the defendant. It is in respect of the fifth and sixth certificates issued by the superintendent of the works that the parties come to court.
The plaintiff pleads that it rendered invoices on 30 October 2000 and 6 November 2000 for the total amounts of $127,648 and $119,602.87 respectively (both inclusive of GST). The plaintiff further pleads that on about 14 November 2000 the defendant paid $54,545 in respect of the invoice dated 30 October 2000. Paradoxically, however, the plaintiff went on to plead that the invoice dated 6 November 2000 included $73,093 unpaid on the invoice dated 30 October 2000. How this could be was never explained to me. In any event the plaintiff went on to plead by par 6 of its statement of claim that by Contract Progress Payment Certificate No 6 issued by the superintendent on 23 November 2000 the superintendent certified that the total value of the works at that date was $888,809.16. The total amount paid by the defendant to the plaintiff by 18 January 2001, the date of filing of the statement of claim, was $755,700.50 in consequence of which the plaintiff pleaded that the defendant was indebted to it in the sum of $133,108.66.
The contract provided for a retention of a fixed percentage of the value of the works in the contract "… up to the limit of the percentages, if any, stated in the Annexure of so much of the value of the respective items stated in the Annexure as is included in the calculation for payment" (cl 42.3 – Exhibit D1, p 157). Whilst this was not explained during the course of submissions it appears that by cl 5.7 of the contract, upon the issue of a certificate of practical completion by the superintendent, the amount fixed for retention reduces to a percentage stated in the Annexure and at p 45 of Exhibit D1 it can be seen that this is 2.5 per cent, the amount accepted by the parties during the course of the trial. 2½ per cent of $888,809.16 being the amount certified for by the superintendent on Contract Progress Payment Certificate No 6 dated 23 November 2000 equates to the sum of $22,220.23.
In respect of this sum the plaintiff pleaded that:
"3.On or about 10 February 2000 the plaintiff by Scott and the defendant by Marchese verbally agreed that there would be no deduction from the plaintiffs (sic) entitlements for a retention fund notwithstanding the contrary term in the General Conditions of Contract."
The defendant denied any such agreement. In my opinion this part of the controversy between the parties may be shortly disposed of. I accept that the plaintiff and the defendant through their respective officers, Mr Trevor Scott for the plaintiff and Mr Antonino Marchese for the defendant did discuss the possibility of there being no retention pursuant to the contract before it was entered into. I accept Mr Scott's evidence that he proposed that in lieu of there being a provision for retention under the contract that there would be a bank guarantee. Correspondence in evidence as part of Exhibit D1 supports this view. See particularly p 2, and accordingly I have some reservations about the evidence of Mr Marchese that he has no recollection of any discussion about there being no retention or a bank guarantee. In any event however the plaintiff has failed to persuade me that there was a concluded agreement that there would be no retention and his own actions are strongly suggestive of there being no concluded agreement between the parties to this effect. Firstly, the plaintiff executed a contract which provided for retention. Secondly, the plaintiff rendered invoices which made specific provision for retention precisely in accordance with the terms of the contract – see, for example, Exhibit D1 at 199 and 236. Thirdly, the plaintiff made no attempt to pursue the question of the bank guarantee and accordingly it follows that insofar as the plaintiff's claim includes retention it must fail because the relevant provisions of the contract in respect to final payment – cl 42.7 and following, have not been complied with. This then leaves the balance of the plaintiff's claim in dispute. In this regard, after the writ had been issued the defendant paid to the plaintiff the further sum of $31,703.43 under cover of a letter from the defendant's solicitors to the plaintiff's solicitors dated 26 February 2001 which included an affidavit sworn by Mr Marchese in which he purported to show how the defendant calculated the amount due. The affidavit was sworn in opposition to the plaintiff's claim for summary judgment.
By its amended defence and counterclaim, the defendant, after admitting the contract, pleaded that the works the subject of the contract were to be completed by a date called "the date for practical completion" and that the date on which the works were actually completed was called in the contract "the date of practical completion". The defendant further pleaded that the superintendent could extend the date for practical completion in the circumstances set out in cl 35.5 of the general conditions of contract but that in any event if the date of practical completion was after the date for practical completion the plaintiff was to pay the defendant liquidated damages at the rate of $1,000 per day for each day beyond the date for practical completion. The defendant further pleaded that the last date fixed by the superintendent for practical completion of the works was 31 August 2000 but the date of practical completion was 26 October 2000, alternatively a date to be determined by me, which the defendant then pleaded was in fact 26 October 2000, in which case the defendant claimed to be entitled to set off against the plaintiff's claim the sum of $56,000.
The defendant then went on to plead that whereas the contract originally included provision for the construction of certain footpaths these were deleted from the works by agreement between the plaintiff and the defendant but that subsequently, in October 2000 the parties agreed that the plaintiff would construct footpaths at the same rate as provided for in the contract save that there were to be no footpaths constructed in front of Lots 95, 96, 97 and 98. The defendant then pleaded that in breach of what it called the "footpath agreement" the plaintiff constructed footpaths but additionally put them in front of Lots 95, 96, 97 and 98 contrary to the agreement and went on to say in par 9 of the amended defence and counterclaim: "… and claims the cost of construction of these footpaths from the defendant in these proceedings."
There is then a curious plea by the defendant in pars 10 and 11 of its amended defence and counterclaim which I will set out in full:
"10.Save that the Defendant admits the payments made to the Plaintiff the Defendant does not admit paragraphs 4 and 5 of the Statement of Claim and says: —
(a)If the Superintendent purported to certify for the footpaths he did so not knowing of the variation to the scope of the Works set out in paragraph 6 of this Defence; and
(b)the effect of any such certificate was not to override clause 42.3 of the General Conditions of Contract; and
(c)the issue of such a certificate did not deprive the Defendant of the right to dispute whether the amount certified was due and payable under clause 42.1 nor correction of the certificate under clause 42.2 of the General Conditions of Contract.
11.The Defendant denies paragraph 6 of the Statement of Claim and says that if the certificate is competent (which is denied) it is a certificate for $42,493.97."
During the course of the plaintiff's opening of the case counsel for the defendant abandoned the plea in par 11 of the amended defence and counterclaim.
Accordingly, it seems to me that the plaintiff is entitled to judgment on its claim as follows:
Claim$133,108.66
Less paid 26 February 2001 $31,703.43
Balance$101,405.23
Less retention $22,220.23
Balance$79,185.00
Subject to my findings in respect of the defendant's claimed set‑off of $56,000, the plaintiff will be entitled to judgment in this sum.
There are three other issues remaining on the pleadings they being the claimed cost of the provision of footpaths in the sub‑division for which the defendant says the plaintiff was not entitled to charge and being in the sum of $2,065. Next the defendant pleaded that a screen wall located on the northern boundary of the land was constructed in a defective manner and in consideration of the plaintiff agreeing to provide fill at no cost to the defendant to certain blocks within the sub‑division the defendant waived its right under the contract to object to the work in respect of the screen wall when it had been included in a payment certificate issued by the superintendent. The defendant then pleaded that contrary to that agreement the plaintiff did not provide the fill, alternatively only provided a small portion of the fill and refused to supply the balance and thereby repudiated the Compromise Agreement (as it was called in the amended defence and counterclaim). The defendant then valued the cost of additional fill paid to "J Calautti $2,709.55".
As can be seen, of the plaintiff's claim the sum of $18,410.45 is not disputed by the defendant and yet it still has not been paid, which in my opinion reflects badly upon the defendant's credibility. I will now deal with the remaining issues.

Set-off – liquidated damages

The defendant's claimed set‑off for liquidated damages arises under cl 35.6 of the contract which reads as follows:
"If the Contract fails to reach Practical Completion by the Date for Practical Completion, the Contractor shall be indebted to the Principal for liquidated damages at the rate stated in the Annexure for every day after the Date for Practical Completion to and including the Date of Practical Completion or the date that the Contract is terminated under Clause 44, whichever first occurs."
Each of the date for practical completion and the date of practical completion are defined in the interpretation clause of the contract, cl 2 as follows:
" 'Date for Practical Completion' means —
(a)Where the annexure provides for a Date for Practical Completion, the date;
(b)where the Annexure provides a period of time for Practical Completion, the last day of the period,
but if any extension of time for Practical Completion is granted by the superintendent or allowed in any arbitration or litigation, it means the date resulting therefrom;
'Date of Practical Completion' means —
(a)The date certified by the Superintendent in a Certificate of Practical Completion issued pursuant to clause 42.5, to be the date upon which Practical Completion was reached; or
(b)where another date is determined in any arbitration or litigation as the date upon which Practical Completion was reached, that other date;"
Annexure A to the contract provided that the date for practical completion in accordance with cl 35.2 was to be "14 weeks after Date of Acceptance of Tender". That date was never proved in evidence by either party probably because strictly, it did not need to be because the superintendent of the works had by a document dated 19 February 2001 extended time on account of delays arising from the late delivery of electrical power cables to the site by Western Power. The extension of time was for 12 weeks and three days in consequence of which the superintendent extended the date for practical completion to 31 August 2000. I accept the evidence of Mr Scott for the plaintiff that he was not on site on 31 August 2000 and that he had completed all of the works that he was obliged to undertake pursuant to the contract by that date. The defendant, as noted, pleaded and maintained in evidence that practical completion was not effected until 26 October 2000 because of delays occasioned by the plaintiff. He attempted to have the superintendent agree with him in this regard and correspondence forming part of Exhibit D1 which was never the subject of submission or argument or indeed commentary in the evidence in the trial before me but which is nevertheless comprised in the exhibit makes interesting reading in this regard. In Exhibit D1 there is a letter from the superintendent to the defendant dated 12 February 2001. It is at pp 262 and 263 of the exhibit. Under the heading "Delays in Completion" the superintendent wrote:
"As discussed on a recent occasion, and raised again by you in the subject phone call, I cannot agree that the contractor can be held responsible for 56 days delay between 31 August and 26 October as you claim. I point out that I am unable to determine the extent of any delay, not only because this office was unaware of your original verbal agreement/understandings with the contractor, but because both yours and the contractor's versions of them are now found to differ markedly.
At issue are matters regarding placement of additional fill in lieu of demolishing a number of brick screen wall panels, and whether or not you verbally directed the contractor to commence construction of footpaths on 11 October 2000.
On the surface, there does not appear to be any grounds for holding the contractor responsible for the delay. I concede that matters included in verbal arrangements could affect such a conclusion, but I am unable to make any judgement based on them, unless you and the contractor can agree what those arrangements were, or they are subjected to verification by legal means.
No extensions of time have been sought or granted in respect of these matters, and neither has either party served a notice of dispute under the contract. However the general conditions of contract AS2124 enables the superintendent to grant extensions of time, whether sought or not, at any time after the issue of the final certificate following completion of the defects liability period. Accordingly I intend continuing my silence on the matter for the moment."
It is to be noted that the superintendent has not certified the date of practical completion.
Mr Marchese has said that in June or July he told Mr Scott that the defendant wanted to "pull the footpaths out of the contract" so that they could be done later, after the land had been built on, presumably by the purchasers of the sub‑divided lots, however the City of Stirling directed that the footpaths be laid. Mr Marchese's evidence on this was a little unclear however that was the general intent of his evidence as I apprehended it (refer t/s 134 – 135).
In any event the real point to be discerned here is that the defendant is attempting to set off against the plaintiff's claim liquidated damages of $56,000 for delays from 1 September 2000 to 26 October 2000 when the defendant knew that it was a requirement of the City of Stirling that either the footpaths be constructed or, as I understood Mr Marchese's evidence, that the defendant had to enter into a contract with the City of Stirling for the City to construct the footpaths. Mr Marchese's evidence in this regard was that he misunderstood the pricing structure of the footpath component in the original contract (t/s 135) and that's why he removed the footpath component from the contract. Subsequently when he went to obtain other prices for the construction of the footpaths he found only minimal difference between the plaintiff's price under the contract and other quotes. Next, Mr Marchese said, he learned from the City of Stirling that it had changed its policy in respect of the construction of footpaths in residential sub‑divisions to enable prospective developers to enter into a bond for the construction of the footpaths on behalf of the City at a later date, the shorthand description of which procedure is called 'bonding the footpaths'. As is evident from the exhibits, Council's policy in this regard did not become operational until 6 September 2000 or thereabouts. Mr Marchese testified that he discussed this option with Mr Scott on site at which time Mr Scott told him that he could build the footpaths for him in two weeks, a cheaper option than lodging a bond of between $33,000 and $35,000 with the City of Stirling (t/s 135). Mr Marchese said in effect that he agreed with Mr Scott and instructed him to commence work. Asked when precisely the footpaths were started and completed Mr Marchese couldn't say (t/s 135) which is surprising having regard to the fact that Mr Marchese was claiming that the defendant could not sell any of these lots until it had what it called a "clearance" from the City of Stirling, and one of the City of Stirling's requirements for this "clearance" was completion of the footpaths. In this regard Mr Marchese was referring to an internal memorandum from the works division of the City of Stirling to its planning division dated 19 October 2000 which appears in Exhibit D1 at 224.
In relation to this aspect of the matter, however, I accept the evidence of Mr Scott for the plaintiff and entertain no doubt about it at all. Mr Scott testified that the discussion between he and Mr Marchese took place on 11 October on site when Mr Marchese asked him if the plaintiff would construct the footpaths to the sub‑division. Mr Scott said that he could and that he would provided that the "contract rates" applied, to which Mr Marchese responded "When can you start?". Mr Scott then telephoned his footpaths sub‑contractor and cleared with him to start work the next day, 12 October, and the works were finished on 23 October 2000. Mr Scott testified that he raised invoices for the footpaths at the same rates as per the contract and that he constructed the footpaths in accordance with the drawings and specifications in the contract.
In essence, in my opinion, this agreement constituted an agreed variation to the contract in consequence of which the date for practical completion should have been extended. I find it quite extraordinary that the defendant could claim liquidated damages past 31 August 2000 for the non‑completion of works by the plaintiff when, at the earliest on his testimony he did not ask the plaintiff to perform work said to be delaying completion of the project until at least a fortnight after that date, but as I have found more likely to have been six weeks later. It is difficult not to describe it as unconscionable.

Nevertheless the defendant also attributed delays in the project to the balance of the items at p 224 of Exhibit D1 laying the blame for all of them on the plaintiff. In his evidence Mr Marchese said in relation to these items that he did not see the diesel stains on Santa Rosa; the ponding was where water accumulated in a couple of places; a small amount of brick paving was too high; the area of bituminous concrete missing was "maybe 150 mm round" (t/s 127); some kerbing had been damaged by traffic movement; a traffic island had to be removed and some road markings re‑marked where a median strip had been moved.
With the exception of the completion of the footpaths the list of works which the City of Stirling required to be undertaken before it would grant a "clearance" to the defendant are trifling matters of maintenance, even if they were the plaintiff's responsibility which certainly in relation to Exhibit 9 is not the case, as Mr Marchese was obliged to concede and as is made clear by Exhibit P8, the facsimile from the superintendent to the plaintiff dated 3 October 2000. This shows that the responsibility for signage was that of the Main Roads Department and not the plaintiff. I also observe that I accept Mr Scott's evidence that the brick paving and a couple of the other works in the maintenance list had originally been completed by him by 31 August. However, works undertaken afterwards by Western Power and the Metropolitan Water Authority required remedial work to be undertaken by the plaintiff.
Accordingly, in my opinion insofar as the City of Stirling's requirements as detailed in both Exhibits P8 and at p 224 of Exhibit D1 are concerned, in order to determine whether they were evidence of the plaintiff's failure to complete the works on time as maintained by the defendant, such that it is entitled to set‑off against the plaintiff's claim an amount of liquidated damages in accordance with the contract, as I have already found, the major reason for the delay in completing the works was the late construction of the footpaths, the entire blame for which rests fairly and squarely upon the defendant. When the plaintiff was in effect invited to reinstate construction of the footpaths as part of the contract it did so as expeditiously as was possible. Of the other nine matters in the City's list, one at least was the responsibility of the Main Roads Department and not the plaintiff. The others were all trifling matters of maintenance in my opinion.
This brings me to the role of the City of Stirling in the assessment of the date of practical completion. In the Annexure to the General Conditions of Contract under the heading "Completion of the Works" par 1.302 (at p 50 of Exhibit D1) this appears:
"The Contractor shall execute the work under the Contract to the stage of Practical Completion, but excluding from the Defects Liability Period any period between actual practical completion and the Date of Acceptance of the Works by the relevant Local Authority and/or the Water Corporation of Western Australia as may be appropriate, by the date stated in Annexure B hereto, or within the extended time determined by the superintendent pursuant to cl 35.5 of the general conditions of contract, whichever is the later."
In my opinion this is an acknowledgement of a situation that a contractor may well have performed the contract in its terms but by reason of the requirements of the relevant local government authority, acceptance of the works by that local government authority can take place later, without prejudice to the contractor.
During the course of the hearing there was considerable argument as to whether practical completion could be equated to acceptance by the local government authority. The defendant's argument was that practical completion was only achieved in a contract for works to a residential sub‑division when the works were accepted by the relevant local government authority on the basis that a contractor must know that a developer, in developing a residential sub‑division wishes to have land available for sale as residential lots which cannot occur without acceptance or "clearance" by the relevant local government authority. In my opinion this cannot be the case. Absent an express provision in the contract for the performance of the works, a contractor is not to know whether a developer intends to hold the land until market conditions are to his liking or otherwise. Practical completion may only be determined by reference to the contract and the superintendent of the works certifies when practical completion in accordance with the contract is reached. Practical completion is defined in the contract as follows:
" 'Practical Completion' is that stage in the execution of the work under the Contract when —
(a)The Works are complete except for minor omissions and minor defects —
(i)which do not prevent the Works from being reasonably capable of being used for their intended purpose;
(ii)which the Superintendent determines the Contractor has reasonable grounds for not promptly rectifying; and
(iii)rectification of which will not prejudice the convenient use of the Works; and
(b)those tests which are required by the Contract to be carried out and passed before the Works reach Practical Completion have been carried out and passed; and
(c)documents and other information required under the Contract which, in the opinion of the Superintendent, are essential for the use, operation and maintenance of the Works have been supplied;"
In this case the works were the construction of earthworks, roads, drainage, sewerage, water supply and underground power for the sub‑division of Lots 5 and 6, Erindale Road, Balcatta. Accordingly the superintendent's focus will be on whether the earthworks have been carried out in accordance with the engineering specifications, whether the roads have been built in accordance with the engineer's specifications and are reasonably fit for use as roads. The superintendent will see whether the drainage drains the land as intended, whether the sewerage works as intended and whether water has been supplied and underground power installed all in accordance with the contract. The superintendent will not be concerned to see whether the land can be sold as individual lots. What if the plan of sub‑division had not received final approval? What if certificates of title were not available? The question is whether the works were complete except for minor omissions and minor defects which do not prevent them from being reasonably capable of being used for their intended purpose. In this case I have no hesitation in finding that the works were reasonably capable of being used for their intended purpose and that the items in the City of Stirling's list were trifling. The defendant's claim for a set‑off will be refused, and both the date for and the date of practical completion extended to 23 October 2000.

Footpaths Lots 95, 96, 97 and 98

The position in relation to this aspect of the defendant's counterclaim is that according to Mr Marchese, when he asked the plaintiff if it would construct the footpaths he asked Mr Scott not to construct footpaths in front of Lots 95, 96, 97 and 98 because, he said, he was going to build houses on these lots. Ultimately, however, as I understand the evidence, he sold Lot 98 before he built houses and so this counterclaim only relates to Lots 95, 96 and 97. The defendant's counterclaim is that the plaintiff, in breach of this instruction, went ahead and built the footpaths and charged for them, when it should not have.
Mr Scott for the plaintiff says that the position was that when he was asked if the plaintiff would construct the footpaths he agreed to do so at contract rates. As I have already observed this transaction is more correctly to be regarded as a variation to the contract than a separate contract to be considered apart from the main contract. In any event Mr Scott says that having agreed to construct the footpaths and after work had begun Mr Marchese for the defendant instructed him not to put footpaths in front of three blocks only, namely 95, 96 and 97, but he went ahead and built them because he understood that was the instruction of the City of Stirling. Correspondence in relation to this matter is to be found in Exhibit D1 at pp 259 and 260. In par 2 of the plaintiff's facsimile to the superintendent of 27 December 2000 at p 260 of Exhibit D1, the reference to kerb is an accidental slip, the intended reference being to footpaths, because it is the paragraph that corresponds with the like numbered paragraph in the previous facsimile from the superintendent to the plaintiff. As I have already found, the City of Stirling had no part to play in the direction or supervision of these works and it was for the supervisor to direct the performance or non‑performance of the works as the case may be and not the City of Stirling. Accordingly, what the plaintiff should have done was to have insisted upon a variation from the defendant supported by the superintendent and then a direction from the superintendent not to construct the footpaths with a resultant credit and all of the consequential blame for any delays or problems occasioned thereby between the defendant and the City of Stirling laid to rest at the feet of the defendant. In the circumstances, however, the plaintiff should not have ignored the agreement it had made with the defendant not to construct footpaths in front of these three lots and accordingly it was not entitled to charge for them. Mr Scott calculated the amount the defendant had been charged for those three lots at $524 and I accept his calculation (in the main). The amount claimed by the defendant is grossly excessive. The footpaths in question were 1.5 metres wide, the contract rate for which was $35 per lineal metre and at 5 metres per driveway the total which would have been charged by the plaintiff to the defendant in breach of their agreement was $525 and I will allow the counterclaim in this sum.

Claim for fill

The defendant counterclaims the sum of $2,709.55 for additional fill to certain blocks within the sub‑divided land. The defendant pleads that the counterclaim arose in circumstances where Mr Marchese had noted a defect in a screen wall at a boundary of the subdivision and, drawing this to Mr Scott's attention, he agreed not to require Mr Scott to correct the defect in the boundary wall if the plaintiff would provide some extra fill to certain of the lots within the sub‑division. Mr Marchese said in evidence that because the plaintiff did not adhere to its part of the bargain in this regard he was obliged to obtain extra fill from Mr Calautti, which he did at the price of $2,709.55. In support of the counterclaim the Calautti invoice was produced as part of Exhibit D1 at p 255. The invoice demonstrates, and Mr Marchese admitted in cross‑examination, that this invoice related to the provision of sand for the concrete slabs for the houses that were to be built on Lots 96, 97 and 98. The invoice specifically charges out for the compaction in addition to the sand. In any event I accept the denials of Mr Scott of the agreement alleged by the defendant in its counterclaim and by Mr Marchese in evidence. I accept Mr Scott's evidence that what the position was in truth was that Mr Marchese for the defendant did not like the finished levels of land of the sub‑division near where it abutted a boundary wall complaining that the footings were exposed at the finished level. I accept Mr Scott's evidence that the finished levels were in accordance with the engineer's design and specifications and that when Mr Marchese asked him to change the levels of the land he objected and raised the matter with the superintendent who instructed him to finish the levels as required by Mr Marchese, which he then did. The plaintiff's counterclaim in this regard must fail.

Summary

In summary I find for the plaintiff. It is entitled to judgment in the sum of $79,185 as I reject the defendant's claim of set‑off. As to the counterclaim the defendant is entitled to judgment on the counterclaim in the sum of $525 which I set‑off against the plaintiff's claim so that in the end result there will be judgment for the plaintiff in the sum of $78,660.
The plaintiff pleaded that the contract provided for interest on unpaid money due under the contract at the rate of 10 per cent per annum. The contract does so provide and the plaintiff is entitled to interest on $110,883.43 from 23 November 2000 to 26 February 2001, and on $78,660 from 27 February 2001 until judgment. On the first amount, interest at 10 per cent per annum is $30.38 per day. For 95 days the amount if $2,886.10. On the judgment sum interest at 10 per cent per annum is $21.55 per day. For 458 days, the amount is $9,869.90, hence judgment and interest is $91,416.
I will hear the parties as to costs.