Shire of Murray v Shabel Pty Ltd - [2000] WADC 188

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SHIRE OF MURRAY -v- SHABEL PTY LTD [2000] WADC 188

CORAM: GROVES DCJ

HEARD: 11-12 JULY 2000

DELIVERED : Delivered Extemporaneously on 12 JULY 2000 typed from tape and edited by Trial Judge.

FILE NO/S: CIV 912 of 1998

BETWEEN: SHIRE OF MURRAY
Plaintiff
AND
SHABEL PTY LTD
Defendant

Catchwords:

Contracts - Supply of gravel at agreed rates - No appearance by defendant at trial - Turns on own facts.

Legislation:

Rules of the Supreme Court, O 8, r 7 and O 34, r2.

Result:

Judgment for the plaintiff in the sum of $95,626.00 together with interest pursuant to s 32 Supreme Court Act 1935.

Representation:

Counsel:

Plaintiff: Mr G Owen
Defendant: No appearance

Solicitors:

Plaintiff: McLeod & Co
Defendant: No appearance

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

Nil

Case(s) also cited:

Nil

GROVES DCJ: In this action the Shire of Murray (the plaintiff) sues Shabel Pty Ltd (the defendant) for the sum of $95,626 being in respect of gravel supplied by the plaintiff to the defendant.

Background

The action was commenced by a writ filed on 20 March 1998. An appearance was entered by solicitors on behalf of the defendant on 27 March 1998. A defence set-off and counterclaim was filed on behalf of the defendant on 17 April 1998. The plaintiff's defence to set-off and counterclaim was filed on 4 May 1998.
The action proceeded in the normal way so far as interlocutory matters are concerned through to entry for trial which occurred on 10 December 1999. On 22 February 2000 an order for a listing conference was made and subsequently on 8 May at a callover before the Principal Registrar, this action was listed for trial for 4 days commencing on 11 July 2000. Through the interlocutory stages the defendant was represented by solicitors on the record and by counsel at the callover.
On or about 26 May 2000, an application was filed by the defendant's solicitors pursuant to O 8, r 7 of the Rules of the Supreme Court, seeking leave to withdraw as solicitors on the record for the defendant. In support of that application, there was filed an affidavit sworn by Robert Guerrini on 26 May 2000, he being a solicitor employed by the defendant's solicitors. As an annexure to that affidavit, there is a form of authority titled "Authority and Instruction to Cease Acting" which states:
"We, the directors of Shabel Pty Ltd, authorise and instruct Camillo D'Angelo and Co to now cease acting on behalf of Shabel Pty Ltd in the District Court action being number 912 of 1998 against the Shire of Murray and to be removed from the court record as solicitors of Shabel Pty Ltd."
That authority is dated 19 May 2000 and is signed by John Hayward and Sue Hayward they being directors of Shabel Pty Ltd. On 6 June 2000 an order was made by this Court giving the solicitors leave to withdraw as solicitors on the record and in accordance with O 8, r 7(1)(b) the solicitors filed a Certificate stating that the orders made on 6 June 2000 had been served on the plaintiff and on the defendants, both by prepaid post on 26 June 2000.
The action came on for trial before me on the morning of 11 July 2000 and there was no appearance by or on behalf of the defendant. The directors of the defendant were called by name at approximately 11 am and there was no response. I raised with counsel for the plaintiff whether or not the defendant and its directors had notice that in fact the trial of this action had been set down to commence on 11 July 2000.
I granted the plaintiff's counsel an adjournment to make inquiries to ascertain whether or not the directors of the defendant were aware that the trial was fixed to commence that day. Upon resumption, at approximately 12.15 pm, Mr Geoffrey Owen, counsel for the plaintiff, who made inquiries, went into the witness box and under oath told me that he had spoken by telephone to Mr Robert Guerrini, the solicitor at Camillo D'Angelo who had previously had the conduct of the matter. Mr Owen conveyed to me the content of that telephone conversation and so far as is relevant, Mr Guerrini confirmed to Mr Owen that on 15 May 2000, a facsimile was sent to Mr Hayward to the effect:
"The matter is listed for trial on 11, 12, 13 and 14 July 2000."
Mr Owen also told me that Mr Guerrini had had a telephone conversation with Mr Hayward approximately 4 or 5 weeks ago when Mr Guerrini had said that he did not "want a Judge twiddling his thumbs for 4 days,". Furthermore Mr Guerrini stated that on Thursday last, 6 July, he had received a telephone call from an officer of this Court inquiring as to whether or not the trial was proceeding. Mr Guerrini had spoken with Mr Hayward on that day and requested him to let that court officer know what he intended doing.
Furthermore, Mr Guerrini had expressed concern to Mr Hayward that he should do something and in respect of both that conversation and the earlier conversation 4 or 5 weeks ago which Mr Guerrini had had with Mr Hayward, he was satisfied that those conversations were in the context and in the knowledge that Mr Hayward was aware that in fact the trial was listed to commence on 11 July 2000.
It is against that background that I then had regard to O 34, r 2 of the Rules of the Supreme Court which provides:
"If when a trial is called on one party does not appear the Judge may proceed with the trial of the action or of any counterclaim in the absence of that party."
I accordingly allowed the trial to proceed insofar as the claim of the plaintiff is concerned and in the absence of the defendant. As much as may need to be said is that I was satisfied that the defendant was aware of the trial dates which had been fixed and for reasons unknown to the Court chose not to attend the trial. In the circumstances it was not appropriate that the trial of the plaintiff's claim should be delayed and so it is that the trial of the plaintiff's action proceeded in the absence of the defendant or counsel on behalf of the defendant.
I indicated to plaintiff's counsel at that time that so far as the defendant's counterclaim was concerned that was not a matter which could proceed in the absence of the defendant and that was a matter which would have to be adjourned or stood over to another date if in fact the defendant intends to pursue the counterclaim.

The pleadings

The plaintiff is a body corporate pursuant to the Local Government Act 1995 and by virtue thereof is entitled to sue in its own name as it does. The defendant is a duly incorporated company. At all material times it had its registered office at 190 Beaufort Street, Perth in the State of Western Australia and at all material times traded under the business name of Urban Earthmoving. That much, at least, was admitted by the defendant in its defence to the action.
It is the plaintiff's claim that between the period August 1997 and December 1997 the plaintiff and the defendant entered into an agreement pursuant to which the plaintiff agreed to sell to the defendant (a) 5500 cubic metres of gravel at a price of $8.47 per cubic metre; (b) further supplies of crushed gravel at a price of $12 per cubic metre; and (c) uncrushed gravel at a price of $3 per cubic metre. The agreement, it is pleaded, is said to be partly oral, partly in writing and partly constituted by the conduct of the parties
Paragraph 5 of the statement of claim particularises the quantities of gravel supplied by the plaintiff to the defendant as being:
(a)5500 cubic metres of crushed gravel at a
price of $8.47 per cubic metre, total $46,585
(b)a further 3886.75 - cubic metres of
crushed gravel at $12 per cubic metre, total $46,041
(c)1000 cubic metres of uncrushed gravel
at $3 per cubic metre, total $ 3,000
Sum total$95,626
The plaintiff initially rendered an invoice to the defendant in the sum of $97,906 which the defendant refused or neglected to pay but the plaintiff subsequently adjusted that amount to the sum of $95,626 following confirmation by the plaintiff's records as to the amount of gravel supplied. In its prayer for relief the plaintiff claims the sum of $95,626 being the amount claimed to be owed to it by the defendant under the agreement and also claims interest pursuant to section 32 of the Supreme Court Act 1935.
By its defence the defendant in paragraph 3 pleads that between August 1997 and October 1997 Peter Jacobs on behalf of the defendant agreed with Norm Griffiths on behalf of the plaintiff for the plaintiff to supply to the defendant approximately 12,000 tonnes of crushed gravel at a price of $8.47 per cubic metre (the agreement) to be used for the construction of a runway and associated taxiways at Murrayfield Aerodrome at Jandakot, Western Australia for the Royal Aero Club of WA Inc. It is further pleaded that the agreement was partly oral and partly in writing. Particulars are given as to discussions which took place on various dates and facsimile transmissions which were exchanged and to which I will refer further in dealing with the evidence.
Further in paragraph 5 it was pleaded that it was an express term of the agreement, inter alia, that the gravel would be (a) fit for the purpose to be used at the site; (b) supplied free from debris; (c) supplied in a timely and expeditious manner at the rate of 1000 tonnes per day from on or about 28 October 1997; (d) supplied with a sieve size of not more than approximately 37.5 millimetres. In paragraph 6 of the defence the defendant says that in the alternative those matters may be implied terms. At paragraph 7 of the defence the defendant pleads:
"The maximum dry density (MDD) of crushed gravel is approximately 2.3."
In paragraph 8:
"The total gravel supplied by the defendant was approximately 13,708 tonnes (divided by 2.3 MDD) = 5960 cubic metres."
The defendant's pleading then proceeds by way of set‑off and counterclaim and so far as is relevant to the defence, the defendant pleads in paragraph 11 that the plaintiff breached the agreement in that (a) the gravel supplied contained debris including sticks, steel and deleterious material; (b) the gravel supplied did not have a uniform sieve size of approximately 37.5 millimetres; (c) the gravel was supplied over a period of 29 days between on or about 11 November 1997 and on or about 9 December 1997.
The pleading then goes on to refer to the contract entered into between the defendant and the Royal Aero Club of Western Australia and various terms of that contract and alleges there was an overrun so far as the construction period is concerned, and as a consequence the defendant suffered stand‑down costs for machinery and additional costs for labour and equipment which it contends in the counterclaim, and I am paraphrasing, was as a consequence of the failure of the plaintiff to supply gravel in accordance with the agreement; that is, as a consequence of the plaintiff having breached the agreement as referred to in paragraph 11 of the defence and counterclaim.
The plaintiff filed a defence to the set‑off and counterclaim on 4 May 1998 and denied the allegations made by the defendant as to the breach of agreement as pleaded in paragraph 11 of the set-off and counterclaim.

The evidence

The plaintiff in support of its claim has led evidence from four witnesses who were closely associated with the contract and the supply of gravel by the plaintiff to the defendant.
Mr Norman Francis Griffiths is the executive manager, engineering of the Shire of Murray. On 11 August 1997 he received a facsimile from Peter Jacobs of the defendant in the following terms:
"Subject: Gravel Supply
Require 10,000-12,000 tonnes to road specifications. Time frame, 2 to 3 months - mid‑November? Cartage - we supply trucks and we can load if required. Location Lake Road North Dandalup nr cnr Hopelands. It would be appreciated if your Shire would help us out in respect of the above material ‑.could you please reply as soon as practical? Thank you. Regards."
Upon inquiry made by telephone by Mr Griffiths to Mr Jacobs he asked for what purpose the gravel was required and whether or not the purpose was within the Shire of Murray. To the first of those inquiries Mr Jacobs apparently did not indicate for what purpose or project the gravel was required and it does not appear as though it was indicated to him whether or not the project was within the Shire of Murray.
Nevertheless, by facsimile dated 13 August 1997 Mr Griffiths responded to the inquiry. His facsimile indicated that the shire had a gravel source in Scarfe Road which was known as the Boyd Road Pit at North Dandalup. His facsimile went on to say:
"We produce an excellent crushed gravel suitable for sealed pavement works and are prepared to make this available for appropriate works within the Shire of Murray. The price would be $8.47 per cubic metre on the ground at the gravel pit. Timing of supply would need to be coordinated with the crushing of supplies for council's own works and this would need to be further discussed."
Mr Griffiths provided to the defendant copies of test certificates prepared by Materials Consultants Pty Ltd in respect of gravel which had been stockpiled at the Boyd Road pit in the previous season. That is apparent from not only the evidence of Mr Griffiths but also in the further facsimile received by Mr Griffiths from Peter Jacobs on 18 September 1997. In that facsimile Mr Jacobs says:
"Norm, Further to our discussions I confirm that Urban Earthmoving has been awarded the contract at Murrayfield airstrip. We also confirm that the engineer acting for the Royal Aero Club Mr Ian McKay of Enesor Pty Ltd has accepted your gravel product from Boyd's rd Pit, as suitable. The following pages are test results from your pit that he has found to be acceptable: We would appreciate access to material around early November and we accept your offered price of $8.47 per M³ on the ground as tendered in your letter 13/8/97: Could you please advise as to your production schedule and we must also arrange terms of payment acceptable to all concerned."
Annexed to that facsimile were, as I have said, test certificates of Materials Consultants and also an extract from the defendants tender document to the Royal Aero Club dealing with Material properties and sieve size and percentage by mass passing through the sieve.
So to that stage the inquiry was in the context of 10,000 to 12,000 tonne and that equates in approximate terms to a measured level of some 5500 cubic metres, and I will touch on how that is arrived at in a moment. That might be described as being the first agreement for the supply of that quantity of gravel at that price.
It was also Mr Griffiths' evidence that not only did he supply the reports regarding the quality of gravel to the defendant, which were in respect of the previous crushings in January of 1997, but also in the course of a telephone call with Mr Jacobs in mid-September he made the point that Mr Jacobs should satisfy himself that the gravel was suitable for the purpose for which it was required by the defendant.
Mr Griffiths' evidence also was that the gravel when compacted would go to about 2.5 tonnes per cubic metre but of course in a stockpile situation where the material is looser then it would weigh less and as a rule of thumb he gave the figure of being approximately 1.5 tonne per cubic metre. It appears, and it was confirmed by the following witness, that 10,000 to 12,000 tonnes, say 11,000 tonnes at 2 tonnes per cubic metre (using the median average) equates to 5500 cubic metres.
Mr Michael Robert Leslie Littleton was the director of technical services for the plaintiff and also a civil engineer. He commenced employment with the plaintiff in about October of 1997 and so came into this project anew, as it were. He was aware that the Boyd Road gravel pit had been the source of gravel for the shire's road construction projects. It was his evidence that there was an existing stockpile of approximately 1810 cubic metres which had been carried over from the previous season and it was from this stockpile that the first truckloads were taken by Boral Transport to the Murrayfield project. Otherwise crushing for this contract commenced around 6 November 1997.
It was the procedure also that the stockpiles were surveyed so as to make proper calculations as to the volume of material which was being transported and I will come to that in the evidence of a later witness. During this time the plaintiff received two facsimiles from the defendant complaining about the quality of the gravel being supplied. The first is a facsimile dated 20 November 1997 where Mr D.J. Hayward, manager of the defendant, commented:
"We wish to bring to your attention that the crushing contractor is not picking wood or sticks out of the gravel. My employees have seen them standing there whilst logs go past into the crusher head and come out the other end. Our engineers will not pass this product on site as it is contaminated."
Then a further facsimile dated 30 November 1997 from Mrs S. Hayward to the plaintiff was to this effect:
"Gravel specifications from Boyd Road gravel pit are not coming up to specification. We need your URGENT attention to this matter first thing Monday morning. Please contact John Hayward or Glen Silver -"
and it gave their telephone numbers.
In response to those concerns Mr Littleton arranged for two shire employees to go out, inspect and check the gravel which was being supplied. They were Mr King and Mr Van Rensburg. After their inspection they reported back that there were no problems with the product which was being supplied.
Otherwise, it seems that there was no other complaint from the defendant as to the quality of the material or whether or not it matched the samples which they had had the benefit of seeing the materials testing certificates mentioned previously. By about 20 November, the initial quantity of some 5500 cubic metres had been supplied and Mr Jacobs of the defendant approached Mr Littleton about sourcing further gravel from the Boyd Road pit.
Mr Littleton felt that the price of $8.47 which had been previously quoted was too low and he calculated a rate of $12 per cubic metre for such further material which the defendant may require. Approximately 2 days later, on 22 November, Mr Littleton quoted to Mr Jacobs the rate of $12 per cubic metre for further crushed gravel to be removed. Further supplies of gravel were taken by the defendant and I take that as acceptance of the rate quoted for the additional gravel.
Furthermore, there was a quantity of overburden stockpiled in the gravel pit which the defendant wished to access and there was some discussion about that. It was Mr Littleton's evidence that following his discussion with Mr Jacobs confirming the amount of $12 per cubic metre he subsequently had a discussion with Mr Hayward on 8 December when Mr Hayward queried the rate of $12 per cubic metre for the further gravel.
At that meeting, Mr Littleton advised Mr Hayward that the rate of $3 per cubic metre would be charged for the overburden. Again, that rate seemingly was accepted by the defendant in that overburden was trucked from the quarry then to the Murrayfield airport and in the end result 1000 cubic metres of that material was taken. Otherwise, it was Mr Littleton's evidence that there was no complaint from Mr Hayward about the rate which was being charged for the additional materials over and above the original contract amount.
In a letter of 10 December 1997 from the plaintiff to the defendant, it is relevant to note that it was confirmed to the defendant the rates for crushed gravel as being the first 5500 cubic metres, $8.47 per cubic metre, all crushed gravel thereafter, $12 per cubic metre, and the letter goes on to say:
"These prices were negotiated verbally with Peter Jacobs whilst he was in charge of this project. I will set the fee at $3 per cubic metre for the uncrushed gravel that you are presently carting."
The letter further goes on to say:
"Quantities to date show in excess of 9500 cubic metres loose supplied to the Murrayfield project. This represents some 4000 cubic metres over and above the original agreement."
And then further on:
"You have suggested at our meeting on 8 December 1997 that the gravel does not meet specification. It is my understanding that you are mixing uncrushed, untested gravel with that supplied. Officers have informed you that this is not recommended. If this gravel is not acceptable to your firm, this must be verified by 4.00 p.m. on Thursday 11 December. If I do not receive a response from your firm by this date, I will accept that your firm is accepting the gravel and will invoice you for the remaining quantities taken. If you are not prepared to accept the gravel, I will have staff on site to remove the material on Friday 12 December.
In the meantime, I am invoicing you for the first 5,500m³. I request that $46,585 be lodged at the Shire Office within ten (10) days of receipt of this letter."

The letter then goes on to detail the quantities of the stockpiles which had been surveyed and taken by the defendant. Insofar as Mr Littleton's letter refers to the complaint that the gravel does not meet specification, it was the case that his response was based upon the information conveyed to him by the two shire officers, Mr King and Mr Van Rensburg who investigated the complaints earlier made by facsimiles from the defendant to the plaintiff.
By facsimile of the same date, 10 December 1997, the defendant responded:
"Please forward your invoice to Urban Earthmoving for the first 5500 cubic metres at $8.47 a cubic metre as this was the negotiated price between Mr Peter Jacobs and Mr Norm Griffiths, the then engineer of the Shire of Murray."
That facsimile is signed by John Hayward, manager of the defendant. Relevantly, no issue or complaint was raised in reply insofar as the charges for additional crushed gravel or overburden was concerned or the complaints so far as the gravel not meeting specification is concerned. It would be reasonable to expect that had there been complaint in respect of those matters, that would have been raised at the same time as the response requesting the invoice to be forwarded.
By letter sent by facsimile on 22 December 1997, Mr Littleton noted that he had not received any response from the defendant regarding the quality of the gravel supplied and he concluded that the gravel was acceptable to the defendant and was proposing to invoice the defendant for the remainder of the gravel taken, namely 4026.75 cubic metres at $12 and 1000 cubic metres at $3.
It was also noted that payment for the first 5500 cubic metres had been due on 20 December, as outlined in his previous correspondence. That had not been paid by 22 December, and he requested payment of the further sum of $51,321 for the additional gravel supplied, that amount to be paid by 5 January 1998.
That facsimile brought a response from the defendant of the same date, 22 December 1997, as follows:
"We acknowledge your facsimile transmission received 22 December 1997 and we also acknowledge your letter received on 12 December 1997. Our office will be closed for business from 3 pm today until 12 January 1998. Yours faithfully."
Again no issue was raised as to the gravel not meeting specification or as to the charges for the additional material supplied or indeed the quantity of the material supplied, as had been calculated by the plaintiff. I also note that there was no indication in that facsimile insofar as payment for any of the gravel was concerned.
Subsequently on 13 January 1998, the defendant wrote to the plaintiff advising:
"We are withholding payment pending receipt of a report from Materials Consultants and a qualified legal opinion from our solicitors. When these are to hand and we have examined the information we will communicate further."
The plaintiff sent its invoice to the defendant dated 21 January 1998 in the sum of $97,906 being for the total quantity of the gravel supplied. On 25 February 1998, an amended invoice was forwarded by the plaintiff to the defendant in the amount of $95,626 which is in fact the amount now claimed by the plaintiff in its statement of claim. The fact is that no payment has been received by the plaintiff from the defendant in respect of any of the gravel supplied and so it was that the plaintiff was compelled to commence these proceedings by issue of the writ on 20 March 1998.
Mr Dudley Van Rensburg is an engineering technical officer employed by the plaintiff and his field of expertise is topographical surveying. It was his job to survey the stockpiles of gravel which were built up at the gravel pit and his calculations of the amounts form the basis of the calculations for the charges which the plaintiff has levied for the supply of material from the gravel pit.
He also gave evidence of the occasion when he went to check if there was any organic material in the stockpiles and he found that there was no problem so far as the material was concerned. I have no reason to doubt his calculations or to call them into question and I accept his calculations which have been made so far as the quantities supplied.
In that context it is relevant to recall that the supply of the material was on the basis of "per cubic metre on the ground at the gravel pit" and it was for the purpose of calculating the charge that Mr Van Rensburg surveyed the stockpiles. That is the only method of calculation appropriate so far as the contract as formulated is concerned, it being the case, as was the evidence, that there was no weighbridge whereby the weight of each load of gravel could be weighed and a more precise calculation be made as to the volume of material supplied.
It was Mr Van Rensberg's evidence that in reality it was likely that in fact the quantity of the material supplied exceeded his calculations when all things were taken into consideration.
Evidence was given by Mr Nial William Stock, the manager for transport of Boral Transport who were engaged by the defendant to move the gravel between the Boyd Road gravel pit and the Murrayfield airport. The first loads were carted on 11 November 1997 and the last loads on 9 December 1997.
In all 594 loads of gravel were carted. It was his evidence also that generally the trucks would carry about 18 cubic metres per load and that quantity, when multiplied by 594, gives an estimate of 10,692 cubic metres of material supplied overall.
For the record, it is worth noting the various estimates made as to the quantity supplied. It was Mr Littleton's evidence that the total amount carted was in the order of 10,336 cubic metres and that was arrived at on the basis that there was in the original stockpile 1810 cubic metres, that there was a further quantity of gravel crushed by Quarry Park, the contractor employed to crush the gravel, and which was confirmed by correspondence from Quarry Park, of 7526.75 cubic metres and that the overburden taken was in the order of 1000 cubic metres and that gives a total of 10,336 cubic metres.
It was Mr Van Rensburg's estimate that there was 6075 cubic metres in the 10 stockpiles which were created, 1810 cubic metres from the pre‑existing stockpile, overburden of 1000 cubic metres, and from stockpiles 9 and 11, 844.25 cubic metres. The latter amount was an estimate as agreed as between the quarry operator and the defendant as being an estimate of the volume taken and which was the subject of stockpiles 9 and 11.
On Mr Van Rensburg's calculation an amount of 9738.25 cubic metres was arrived at. It was his evidence that the materials in the stockpiles were compacted because of vehicles moving over and therefore compacting the heaps and therefore that figure needed to be adjusted upwards by 10 per cent to allow for that compacting which would then give a figure, on his estimates, of 10,611.25 cubic metres.
It can be seen, therefore, that whilst there is no exact measurement, the variance between the three manners of calculation are within close proximity of each other.

The defence

Although there was no cross‑examination of the plaintiff's witnesses, given that there was no appearance on behalf of the defendant, I have referred to and have regard to the defence which was filed, firstly insofar as paragraphs 7 and 8 are concerned, where the defendant suggests that the total gravel supplied by the defendant was approximately 5960 cubic metres.
Upon the basis of the evidence which has been put before the Court I do not accept that that figure can be correct either as to the tonnage, namely 13,780 tonnes, nor the method of calculation to arrive at a cubic metreage, that is by dividing the tonnage by the maximum dry density of crushed gravel. The evidence of Mr Littleton was that the maximum dry density is of the compacted material and is calculated by way of laboratory testing, and that is not an appropriate method or manner to calculate the overall quantity supplied.
In any event it was not envisaged that the calculation of the amount supplied would be arrived at in that way. The contract, as I find it to be, was clearly on the basis of, "per cubic metre on the ground at the gravel pit," so I do not accept the defendant's contention as conveyed in its defence as to the quantity of gravel supplied.
Furthermore, as to paragraph 11 of the defence and the set‑off there is no evidence before me which would suggest that the plaintiff has breached the agreement as alleged. The evidence is quite the opposite insofar as the allegation that gravel contained debris including sticks, steel and deleterious material. In that context I have referred to the evidence of Mr Van Rensburg and Mr Littleton and the inspection which was undertaken by Mr King and by Mr Van Rensburg.
So far as the alleged breach in that the plaintiff's gravel supply did not have a uniform sieve size of approximately 37.5 millimetres, there is no evidence before me that that was the case and therefore there is nothing which supports that allegation.
Thirdly, as to the claim that the gravel was to be supplied in a timely and expeditious manner at the rate of 1000 tonnes per day from about 28 October 1997, I do not accept the defendant's contention that that was a term of the agreement, and in fact is contrary to the documentary evidence which was tendered and also the evidence of the witnesses.
There was no evidence that it was to be at the rate of 1000 tonnes per day and in fact in the initial communication from the defendant to the plaintiff the time frame indicated was "mid‑November". The defendant's facsimile of 18 September 1997 refers to "access to material around early November". There is nothing to suggest that delivery was to be sooner than that or that there was a set rate of delivery as contended by the defendant. Therefore there is no evidence on which I could make any finding which supports those matters raised by the defendant in its defence or set‑off.

Conclusion

In all the circumstances therefore, and having heard the evidence which I have detailed, I am satisfied that there was an agreement made as between the plaintiff and the defendant as the plaintiff contends, firstly as to the supply of 5500 cubic metres of crushed gravel at the rate of $8.47 per cubic metre. There was a further agreement made that the plaintiff would supply an additional quantity of crushed gravel to the defendant at the price of $12 per cubic metre, and additionally there was also agreement that so far as uncrushed gravel or overburden material, which the defendant took from the Boyd Road pit, would be charged at the rate of $3 per cubic metre supplied by the plaintiff to the defendant.
In all the circumstances, therefore, I am satisfied to the requisite standard that the plaintiff has made out its case so far as its claim is concerned, and I will invite the plaintiff's counsel to move for judgment in the amount claimed and interest.