Site Demolition Pty Limited v Kang

[2023] NSWDC 487

District Court

New South Wales

Medium Neutral Citation:

Site Demolition Pty Limited v Kang [2023] NSWDC 487

Hearing dates:

17, 18 and 20 October 2023

Date of orders:

17 November 2023

Decision date:

17 November 2023

Jurisdiction:

Civil

Before:

Acting Judge I Coleman SC

Decision:

(1) Judgment for the Plaintiff.

(2) The parties are to bring in Short Minutes of Order, in 14 days, reflecting the agreed mathematical calculation of damages, inclusive of GST and interest.

(3) The Cross-Claim is dismissed.

(4) The Plaintiff’s legal representatives to have access to the sealed envelope containing the Defendant’s current residential address.

(5) The Defendant/Cross-Claimant is to pay the Plaintiff’s/Cross-Defendant’s costs as agreed or assessed on the ordinary basis, with liberty to vary this order subject to order (7) below.

(6) Matter relisted on 11 December 2023 for entry of judgment and any costs application.

(7) Any party wish to bring a costs application to vary order (5) above (“costs applicant”) is to file and serve written submissions on costs by 4.00pm 29 November 2023, and to email a copy of any such submissions to my Associate.

(8) The costs respondent is to file and serve written submissions in reply by 4.00pm 6 December 2023.

(9) Exhibits retained for 28 days.

(10) Liberty to restore.

Catchwords:

CONTRACT- where plaintiff contracts with defendant to remove and dispose of asbestos contaminated material (ACM) on defendant’s property- whether 168.68 tonnes of material removed from defendant’s property was ACM- whether plaintiff entitled to recover cost of other minor works pursuant to parties’ contract – no disputed issue of contractual interpretation

Legislation Cited:

Australian Consumer Law

Evidence Act 1995 (NSW), s 79

Fair Trading Act 1987 (NSW), Part 3

Protection of the Environment Operations (Waste) Regulation 2014 (NSW), cl 77

Protection of Environment Operations Act 2014 (NSW)

Work Health and Safety Act 2011 (NSW), s 274

Work Health and Safety Regulation 2017 (NSW), rr 459, 460, 529

Cases Cited:

Blacktown City Council v Hocking [2008] NSWCA 144

Dasreef Pty Limited v Hawchar [2011] HCA 21

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

HG v The Queen (1999) 197 CLR 414

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Valevski v The Queen (2002) 76 ALJR 402

Watson v Foxman (1995) 45 NSWLR 315

Texts Cited:

National Environment Protection (Assessment of Site Contamination) Measure 1999 (Cth), Schs B1 and B2

SafeWork Australia, “Code of Practice, How to Safely Remove Asbestos” (NSW Government, August 2019)

Category:

Principal judgment

Parties:

Plaintiff: Site Demolition Pty Limited ACN 155 806 947
Defendant: Ze Kang

Representation:

Counsel:
Plaintiff: Mr M A Collins
Defendant: Mr R A Parsons

Solicitors:
Plaintiff: RJI Legal
Defendant: Lyon Lawyers

File Number(s):

2022/182505

Publication restriction:

None

Judgment

1. By Amended Statement of Claim filed 28 March 2023 the Plaintiff, Site Demolition Pty Limited ACN 155 806 947, sought a verdict and judgment against the Defendant, Ze Kang, in the sum of $176,798.60, plus interest and costs.

2. On 30 May 2023 the Defendant filed an Amended Defence to the Plaintiff’s claim disputing that the Plaintiff was entitled to recover any verdict and judgment.

3. It is convenient to refer to the pleadings and particulars of the Plaintiff’s claim and the Defendant’s response with respect to each of those matters in order to clearly identify the issues in the proceedings.

4. The Plaintiff alleged that “The Defendant accepted an amended quotation (Quotation) provided by the Plaintiff dated 29 March 2022 for the demolition of a residence and granny flat situated at 115 West Street, South Hurstville for a price of $28,000 plus GST.” The Defendant admitted the Plaintiff’s allegations.

5. The Plaintiff identified (ASOC [2]) that the Quotation identified contingencies that would:

“cause the otherwise fixed price of the demolition to increase, including:

(a) an additional charge of $1,100 plus GST for the removal of 3 trees at the front of the property if they had not been removed by the Defendant prior to work commencing.”

6. The Defendant admitted that allegation, but denied that the Plaintiff had removed any trees, and was thus not entitled to succeed with this claim. During the hearing, the Plaintiff accepted that it could not succeed with that claim. It requires no further consideration.

7. The Plaintiff alleged (ASOC [2(b)]) that “additional charges would apply for disconnection of gas and electricity supplies to the property, which did not arise”. The Defendant admitted those allegations. Nothing further needs to be said about that part of the Plaintiff’s claim.

8. The Plaintiff alleged (ASOC [2(c)]) that the Quotation included “an additional charge of $1,800 plus GST that applied to relocating a water meter embedded in the front fence”. The Defendant admitted that allegation but denied (Amended Defence [7]) that the Plaintiff had done the work, and was thus not entitled to recover that sum.

9. The Plaintiff alleged (ASOC [2(d)]) that “an additional charge of $750 that would apply for the prevent (sic) of sediment escaping from the property onto the roadway and into the stormwater system” was part of the identified contingencies in the Quotation. The Defendant admitted that allegation (Amended Defence [7]) but disputed that the Plaintiff had done the work, and was thus not entitled to succeed with that claim.

10. The Plaintiff alleged (ASOC [2(e)]) that “additional fees that would apply if tip charges increased during the removal of the residence that ended up being another $4,800 plus GST” were part of the contingencies pursuant to the Quotation. The Defendant admitted that allegation and conceded (Defence [7]) that the Plaintiff was entitled to recover that sum.

11. The Plaintiff alleged (ASOC [2(f)]) that “additional fees that would apply if asbestos were discovered on site additional to what was obvious at the time of the Quotation, that ended up being $2,800” was a contingency identified in the Quotation. The Defendant admitted the Plaintiff’s allegation and admitted the Plaintiff’s claim. Implicit in that admission was acceptance that GST was payable on that sum as per the Plaintiff’s email to the Defendant of 27 April 2022.

12. The Plaintiff alleged (ASOC [2A]) that “during the demolition of the residence, asbestos was discovered attached to concrete slabs”. The Defendant admitted that allegation.

13. The Plaintiff alleged (ASOC [2B]) that “the asbestos attached to concrete slabs was concealed and the price for its removal was not included in the Quotation”. The Defendant admitted that allegation.

14. The Plaintiff alleged (ASOC [2C]) that:

“the Plaintiff offered to remove the asbestos attached to concrete slabs.

Particulars

Email from the Plaintiff on 9 May 2022.”

15. The Defendant said (Amended Defendant [2(c)]) that he “admits that he received an email from the Plaintiff on 9 May 2022 which addressed the concrete slabs and asbestos said to be attached to them and otherwise does not admit the matters alleged”.

16. The Plaintiff alleged (ASOC [2D]) that the Defendant:

“accepted the Plaintiff’s offer to remove asbestos attached to concrete slabs for a price of $4,400 plus GST.

Particulars

Email sent by the Defendant to the Plaintiff at 10.19 a.m. on 10 May 2022.”

17. The Defendant admitted (Amended Defence [2(d)]) “that he accepted an offer from the Plaintiff to remove asbestos for a price of $4,400 plus GST but does not admit that this was limited to asbestos attached to concrete slabs. The Defendant admits receipt from the Plaintiff of an email and time stamped 10 May 2022 at 10.19 a.m.”

18. The Defendant did not dispute that the Plaintiff was entitled to the sum of $4,400 (Amended Defence [7]) but, as his Counsel reiterated in closing submissions, asserted that such sum was subsumed by any amount to which the Plaintiff established an entitlement pursuant to other provisions of its claim with respect to removal of asbestos contaminated material (ACM).

19. The Plaintiff alleged (ASOC [2E]) that it “removed the asbestos attached to concrete slabs”. The Defendant admitted (Amended Defence [2(e)]) that the Plaintiff “removed some material said to be asbestos which was or had been attached to the concrete slabs, but does not admit that all such material was removed”.

20. The Plaintiff alleged (ASOC [3]) that:

“during the demolition of the residence asbestos contaminated soil was discovered under the concrete slab of the granny flat.

Particulars

Email sent by the Plaintiff to the Defendant at 2.31 p.m. on 10 May 2022”

21. The Defendant did not admit those allegations (Amended Defence [3]).

22. The Plaintiff alleged (ASOC [4]) that:

“the removal of the asbestos contaminated soil was not demolition work but the Defendant requested that the Plaintiff undertake the work and the Defendant accepted the Plaintiff’s further quote of $700 per tonne plus GST for the removal and safe disposal of any asbestos contaminated soil found at the property.

Particulars

Emails from the Defendant to the Plaintiff at 11.02 a.m. on 11 May 2022 and at 2.42 p.m. on 12 May 2022”

23. The Defendant stated (Amended Defence [4]) that he:

“4.1 does not admit that the removal of soil was not demolition work and says that he agreed to a rate of $700 per tonne plus GST for the removal and safe disposal of soil, the removal of which was required as a result of asbestos contamination of the soil; and

4.2 otherwise does not admit the matters alleged.”

24. The Plaintiff alleged (ASOC [5]) that it then “removed and disposed of 168.68 tonnes of the asbestos contaminated soil at a total additional cost of $118,076 plus GST before being instructed by the Defendant to stop work at the site”. The Plaintiff particularised the dates and quantities of eight loads of material which it caused to be disposed of at two waste disposal centres. Although, at Amended Defence [5] the Defendant initially did not admit any of the Plaintiff’s allegations, during the course of the hearing it was conceded that the quantities of material removed and disposed of by the Plaintiff were as the Plaintiff alleged, and that the quantities and dates on which that occurred were as the Plaintiff alleged.

25. The Defendant did not “admit that the volume or weight of soil pleaded was required to be removed as a result of contamination with asbestos”. Particularly in view of the matters admitted by the Defendant’s pleading, and the admission during the hearing with respect to the removal and disposal of 168.68 tonnes of material, the critical disputed issue of fact with respect to the largest component of the Plaintiff’s claim was whether the Plaintiff proved on the balance of probabilities that the 168.68 tonnes of removed material was contaminated with asbestos.

26. The Plaintiff alleged (ASOC [6]) that “on 16 May 2022 the Plaintiff rendered its invoice for the work performed prior to the stop work order in a total amount of $177,798.60 less $1,000 for a deposit paid by the Defendant prior to the commencement of the demolition work, and the Defendant responded by refusing to pay any part of the said invoice”. The Defendant said (Amended Defence [6]) that he:

“6.1 admits that the Plaintiff issued to the Defendant an invoice in the total amount of $177,798.60 and that, as at the date hereof, the Defendant has not paid that invoice but for the deposit of $1,000 paid prior to the commencement of the demolition work; and

6.2 otherwise does not admit the matters alleged.”

27. The Defendant said (Amended Defence [7]) in response to the Plaintiff’s claim generally that he did not “dispute that the Plaintiff was entitled to the amounts set out below on account of the demolition of the buildings on site and removal of waste, subject to the setoff of the Defendant’s cross-claims against the Plaintiff”. The items and amounts admitted by the Defendant were:

- Demolition $28,000, plus GST (see [4] above);

- A fixed rate increase on top of the quote to allow tip fee increases $4,800, plus GST (see [10] above);

- Discovery of asbestos sheeting $2,800, plus GST (see [11] above);

- Lump sum amount for the removal of asbestos waste $4,400, plus GST (see [17]-[18] above);

- Minus deposit paid $1,000;

Total $39,000, plus GST.

28. The Defendant sought to set-off the sum of $39,512.70 against the sum of $39,000 pursuant to his Cross-Claim filed on 30 May 2023. By his Cross-Claim of 30 May 2023, the Defendant sought damages in the sum of $39,512.70. The Defendant/Cross-Claimant alleged that the Plaintiff/Cross-Defendant’s failure to perform the contract between the parties in accordance with the terms of the Quotation caused the Defendant/Cross-Claimant to be unable to proceed with a contract he had entered into with a builder for the construction of a residence on his South Hurstville property. As a result of the Defendant’s inability to proceed, the builder forfeited a deposit which the Defendant had paid in the sum of $39,512.70.

29. On 6 June 2023 the Plaintiff/Cross-Defendant filed a Defence to the Cross-Claim seeking its dismissal.

30. It was properly conceded by Counsel for the Defendant/Cross-Claimant that the evidence upon which the Defendant/Cross-Claimant relied could not establish a causal link between anything done or not done by the Plaintiff/Cross-Defendant and the loss incurred by the Defendant/Cross-Claimant when the builder forfeited his deposit. It is unnecessary in the circumstances to again refer to the Cross-Claim, other than, in the orders made at the conclusion of these reasons, to dismiss it.

31. The Plaintiff filed a schedule of issues which, during the course of the hearing, were refined in the light of the evidence. Ultimately, the critical issues requiring determination are whether Mr Chad Ishak, an employee of the Plaintiff who was responsible for the Plaintiff carrying out work on the Defendant’s premises, was qualified to express opinions as to whether ACM was discovered on the premises during the course of demolition work pursuant to the Quotation and to what extent, if he was qualified to do so, Mr Ishak satisfied himself that all of the 168.68 tonnes of material removed from the Defendant’s property was ACM. Although the issues can be concisely stated, as will be seen, resolving neither issue is necessarily simple nor straightforward.

32. At all relevant times the Plaintiff carried on business as a demolition contractor. Chad Ishak was at all relevant times an employee of the company, the shares in which are owned by Mr Ishak’s parents. It is not in issue that, at all relevant times, Mr Ishak was responsible for the conduct of work being undertaken by the Plaintiff at the Defendant’s property. Mrs Ishak, Mr Ishak’s mother, played no part in that work. Conversely, all matters of administration arising during the course of dealings between the Plaintiff and the Defendant were conducted by Mrs Ishak on behalf of the Plaintiff.

33. It is not in issue that, at all material times, Mr Chad Ishak was qualified to “remove non-friable asbestos” pursuant to a Certificate issued by an approved training organisation on 13 September 2016 pursuant to National Code CPCCDE3014A. Mr Ishak was also qualified to “supervise asbestos removal” pursuant to a Certificate issued by the same registered training organisation on 23 September 2016 pursuant to National Code CPCCBC4051A. It was not in issue that Mr Ishak’s qualifications enabled the Plaintiff to lawfully remove and dispose of ACM.

Material Facts

34. Other than events which occurred on the Defendant’s property, there is no dispute, or scope for dispute, with respect to the facts and circumstances of this case.

35. On 8 August 2019 the Plaintiff issued a Quotation (Quotation) to the Defendant for demolition work on his property. The relevant parts of the Quotation were identified earlier in these reasons.

36. On 16 August 2019 the Plaintiff provided an updated Quotation to the Defendant for demolition work at his property. On 21 August 2019 the Defendant signed the 16 August 2019 Quotation from the Plaintiff and paid a $1,000 deposit pursuant to it.

37. On 27 January 2022 the Defendant obtained Development Consent for his property. On 29 March 2022 the Plaintiff issued a further Quotation to the Defendant for demolition work on his property. On 14 April 2022 the Defendant signed the Plaintiff’s Quotation of 29 March 2022.

38. On 27 April 2022 Mrs Ishak on behalf of the Plaintiff emailed the Defendant’s representative stating:

“Please see photos of the concealed asbestos sheeting directly under the iron roof of your granny flat as this was concealed it was an unexpected find and was not allowed for in your quote. For the safe removal and disposal of the second skin being asbestos as [sic] extra charge of $2,800 plus GST will apply.”

39. As noted earlier, that sum is conceded to be payable by the Defendant.

40. On 5 May 2022 the Plaintiff emailed the Defendant, enquiring as to what he wished to have done with the water meter which it asserted needed to be moved to provide access to the demolition site as required by the contract. On the same day the Defendant sent an email to the Plaintiff asking it to move the water meter for him. The Defendant disputes that the Plaintiff should be paid the $1,800 plus GST with respect to the removal of the water meter.

41. On 9 May 2022 Mrs Ishak on behalf of the Plaintiff emailed the Defendant’s representative stating:

“Please see photos in this email from your site with the contaminated area of the residence. This is an extra charge as it was concealed. Option 1. Please note: to load all the material dispose of it as contaminated waste and be charged at $700 plus GST per tonne. Approx tonnes unknown. Option 2. Site demolition being the preferred demolisher will separate the contaminated material from the clean material and emu pick through the material and bag the asbestos to save you the client the extra costs. Separating the contaminated material from clean material by hand, by authorised personnel for correct removal from the site a lump sum charge of $4,400 plus GST for the contamination for the above. Please note, it is not always possible to determine the exact amount that will be found as this is generally found as work progresses. We will begin to remove it safely and the cheapest option (option 2) whilst we await your response. If we find anymore concealed asbestos, we will contact you via email and advise of the clean up procedure if required.”

42. Later that day, the Defendant replied to the Plaintiff’s email, stating “Please go ahead with option 2 regarding the concealed asbestos and hope that that would be the last of the asbestos you found there”. The $4,400 plus GST is conceded to be payable by the Defendant, albeit he disputes that it is additional to any other monies which may be found to be payable to the Plaintiff and asserts that any sum so found should subsume this amount.

43. Later again on 10 May 2022 the Mrs Ishak emailed the Defendant and stated:

“Please note due to the amount of contamination and areas of contamination on the site, we will need to proceed with option 1. Option 1. Please note: to load all the material and dispose of it as contaminated waste and be charge [sic] at $700 plus GST per tonne. We will do our best to minimise the amount of tonnes.”

44. Shortly thereafter, on the same day, the Defendant emailed Mrs Ishak asking “How many days do you have to finish?” Mrs Ishak responded by email “It will be done by tomorrow with option 1 clean up”.

45. On 11 May 2022 at 9.03 a.m. Mrs Ishak emailed the Defendant and said “Please note the supervisor is currently on site and is happy to explain the situation regarding the water meter and contaminated waste with you. Are you able to go to site and see the extent?” A few minutes later the Defendant emailed Mrs Ishak and said “I don’t have time to go to the scene today do it as you think it is safe to do it thanks”.

46. At 10.58 a.m. on 11 May 2022 Mrs Ishak emailed the Defendant and said “Please see the email below with photos of the asbestos contaminated waste that we will be removing from your site, as advised we will be removing this today at $700 plus GST per tonne”. The photos to which Mrs Ishak referred were taken by Mr Chad Ishak on 10 and 11 May.

44. At 11.02 a.m. on 11 May 2022 the Defendant emailed Mrs Ishak and said “Please go ahead. There will be 2 trucks of how many tonnes in total so that I can have a rough idea?”. The email chain included an email from Chad Ishak, who had been on site and said “As can be seen in the photos the extent of the asbestos contamination is likely 2 truckloads we welcome the owner to come and have a look at the extent as we will be carting it out today”.

45. At 11.12 a.m. on 11 May 2022 Mrs Ishak emailed the Defendant and said “One truckload is approximately 20 tonnes, we will do our absolute best to minimise it as much as possible, however, at this stage, you are looking at 2 truckloads, as the extent of the contamination is quite a lot”.

46. On 12 May 2022 at 9.48 a.m. Mrs Ishak again emailed the Defendant and said:

“As discussed we are looking at disposing over 80 to 90 tonnes of contaminated soil from the above residence. Please note we will do our very best to try and minimise it however it’s extremely difficult and can only be removed as contaminated waste at $700 a tonne plus GST. I appreciate you asking me to proceed with the works via my telephone conversation however I would like to receive it via email as well so please advise that you understand and will accept the charges at your earliest convenience to avoid any further delays”.

50. At 2.42 p.m. on 12 May 2022 the Defendant emailed Mrs Ishak and said “As per our phone conversation earlier, please go ahead. I do appreciate it if you can minimise the tipping”.

51. At the time of the Defendant’s email approximately 60 tonnes of material had been removed and disposed of at an approved tipping facility. Subsequently approximately 100 tonnes of further material was removed from the Defendant’s property and disposed of at tipping facilities which were licensed to receive ACM.

52. On 13 May 2022 Mrs Ishak emailed the Defendant and the Defendant’s builder and said “Site demolition have removed over 120 tonne of soil from the existing site and would like to know if you would like Site Demolition to import clean fill into the site to replace the contaminated fill that has been removed”. The Defendant did not respond to that email.

53. On 16 May 2022, the last of eight loads of material having been removed and disposed of, the Plaintiff invoiced the Defendant for the costs of such removal and disposal.

54. By solicitors’ letter of 19 May 2022 the Defendant asserted that the sum of $4,400 was intended as a lump sum for the removal of “all the asbestos and since it was later agreed to calculated on a per tonne basis, this amount is not acceptable”. The Defendant’s solicitor’s letter stated that he did not accept that 86.46 tonnes disposed of at Brandown’s tip at Cecil Park contained asbestos, as that facility did not accept asbestos. Attached to the Defendant’s Affidavit in these proceedings was a photograph which he said he took at the gates of that facility. A sign appearing on the photograph suggests that “asbestos – fibro” was not accepted at the tip. At the hearing it was accepted that Brandown’s tip did in fact accept ACM.

55. The Plaintiff relied upon an Affidavit of Mrs Rhonda Ishak of 14 September 2022 to which were exhibited 85 pages of documents. The Defendant relied upon an Affidavit sworn by him on 26 October 2022. Mrs Ishak swore a further Affidavit on 3 November 2022. Chad Ishak swore an Affidavit on 30 May 2023. The Defendant swore a further Affidavit on 11 October 2023. Chad Ishak swore a further Affidavit on 13 October 2023. The Defendant swore a further Affidavit on 16 October 2023.

56. The Court had an expert report of Justin Thompson-Laing of 13 October 2023 (Plaintiff’s expert) and an expert report from Mr Jonathan Simnett of 10 October 2023 (Defendant’s expert).

57. The Court also had before it Schedules B1 and B2 to the National Environment Protection (Assessment of Site Contamination) Measure 1999 (Cth) (NEPM).

58. The Court received in evidence large colour copies of the photographs referred to by Mr Chad Ishak in his evidence and a memory stick containing the video to which he referred in his affidavit evidence.

Regulation of removal and disposal of asbestos contaminated materials (ACM)

59. Australian Standard – The demolition of structures (AS2601) provides [1.6.1] with respect to “hazardous substances” that:

“A competent person shall determine the presence of hazardous substances or conditions in the structure, and all parts of the site, which may be hazardous to the health of the site personnel or the public if disturbed by the stripping or demolition. The nature of each hazard shall be recorded and both the record and proposed method on controlling the hazard shall be recorded in a Hazardous Substances Management Plan and included in the contract documentation. The Hazardous Substances Management Plan shall include, but not be limited, location and quantity of each substance, the method in which that substance is to be controlled or removed, the methods of monitoring exposure limits, and the handling, storage and disposal procedures to an approved landfill or approved storage area”.

60. The Standard records [1.6.2] that “hazardous substances, including asbestos, shall be removed only by competent persons”.

61. The Australian Standard provides [3.3.1] that “removal of hazardous substances shall be carried out only by competent persons, or competent and registered persons if so required prior to the start of any demolition or stripping work”.

62. The Standard provides [3.3.2] that “removal of asbestos or materials containing asbestos fibre shall be in accordance with the NOHSC (WorkSafe Australia) Code of Practice for the safe removal of asbestos”.

63. The “How to Safely Remove Asbestos – Code of Practice” (the Code) issued by SafeWork Australia is an approved Code of Practice pursuant to s 274 of the Work Health and Safety Act 2011 (NSW) (WHS Act).

64. The Work Health and Safety Regulation 2017 (NSW) (WHS Regulation) require that a person or entity undertaking asbestos removal hold either a Class A or Class B licence, the Class of licence being dependent on the type and quantity of asbestos, asbestos containing material (ACM) or asbestos containing dust (ACD) that is being removed at a workplace. A Class A licence authorises its holder to remove any amount or quantity of asbestos or ACM, including:

- any amount of friable asbestos or ACM

- any amount of ACD

- any amount of non-friable asbestos or ACM.

65. A Class B licence entitles its holder to remove:

- any amount of non-friable asbestos or ACM

- any amount of ACD associated with the removal of non-friable asbestos or ACM.

66. No licence is required for the removal of up to 10 cubic metres of non-friable asbestos or ACM:

- ACD that is

associated with the removal of less than 10 metres square of non-friable asbestos or ACM

not associated with the removal of friable or non-friable asbestos and is only a minor contamination.

67. The “Health monitoring duties” prescribed by the WHS Regulations are set out in the Code. As will be seen, the evidence suggests that the Plaintiff failed to comply with a number of those requirements.

68. WHS Regulation 459 provides that an asbestos removalist supervisor “must be present or readily available” during the course of asbestos removal work and, WHS Regulation 529 provides that, if asbestos removal work requires a Class B licence, a named asbestos removal supervisor is required to be “readily available to a worker whenever they are carrying out the work”, which requirement is suggested to be satisfied if the supervisor, if not on site, is able to be on site within 20 minutes of a phone call requesting such attendance.

69. The Code requires “certification and training” with respect to licensed asbestos removalists. WHS Regulation 460 is concerned with the training of asbestos removalists. The Regulation recognises “training and education for the specific units of competency for both Class A and Class B asbestos removal work as well as asbestos removal supervisor certification. The Class B removal unit of competency must be completed before the Class A removal unit of competency”.

70. At all relevant times Mr Ishak held a Class B asbestos removal licence, having obtained qualifications with respect to the removal of non-friable asbestos and the supervision of asbestos removal in September 2016. As those qualifications were achieved pursuant to the National Code, it can be accepted that Mr Ishak satisfied examiners of those competencies. He can be regarded as “competent” within the regulatory scheme governing identification, removal and disposal of non-friable asbestos.

71. The Plaintiff, through Chad Ishak, has at all relevant times held a Class B licence. Neither the Plaintiff nor anyone on its behalf has at any relevant time held a Class A licence. The Defendant did not, by pleading or otherwise, suggest that any asbestos removed by the Plaintiff was friable, and thus required a Class A licence holder for its lawful removal, or that, if any such asbestos was removed, the Plaintiff not holding a Class A licence precluded it from enforcing its contract with the Defendant. Although different classes of licence are required to undertake a variety of tasks with respect to ACM, such as testing, and the Code provides for different levels of air monitoring and recording with respect to the different classes of ACM, the methods of identification, removal and disposal of ACM are generally the same, with some exceptions, such as the “dry method” for removal of friable and non-friable ACM.

72. The Code provides [7.1] for “removing asbestos contaminated soil”. The code defines “asbestos contaminated soil” as comprising “non-attached pieces of asbestos cement products and other material containing asbestos uncovered in soil during other work activities”. The Code suggests that, when discovered, a risk assessment by a licensed asbestos assessor or “competent person” should determine the most appropriate control measures and remediation strategies.

73. The Code relevantly provides that removal of asbestos from contaminated soil will require a Class B licensed asbestos removalist if more than 10 square metres of non-friable asbestos is to be removed. A Class A licensed asbestos removalist is required for the removal of any friable asbestos. The Code provides a non-inclusive list of “control measures” which may be employed.

74. The glossary to the Code (Appendix A) defines “asbestos removal work” as “working involving the removal of asbestos or ACM, or Class A asbestos removal work or Class B asbestos removal work as outlined in Part 8.10 of the WHS Regulations”.

75. The glossary relevantly defines “competent person” as “a person who has acquired through training, qualification or experience, the knowledge and skills to carry out the task”.

76. The Code defines “friable asbestos” as “material that is in a powder form or that can be crumbled, pulverised or reduced by a powder by hand pressure when dry, and contains asbestos”. The Code defines “non-friable asbestos” as “material containing asbestos that is not friable asbestos, including material containing asbestos fibres reinforced with a bonding compound”.

77. Mr Ishak’s identification of ACM on the Defendant’s property as non-friable asbestos, which the Plaintiff was thus licensed to remove, was expressed by him as having been in reliance upon the descriptions of friable and non-friable asbestos appearing in the Code.

78. The “Asbestos removal control plan contents” Appendix B to the Code identified various tasks in the case of friable and non-friable ACM by reference to “buildings and structures” and “plant and equipment”. The former is relevant for present purposes.

79. The material distinctions between friable and non-friable ACM are concerned with the details of air monitoring, the details of required enclosures, buildings, structures used to enclose the removal area and the details of the independent licensed asbestos assessor or competent person engaged to conduct air monitoring. More onerous requirements attach to the removal and disposal of friable than non-friable ACM.

80. “Managing asbestos in or on soil”, a guide produced by the NSW Government in 2014, is directed specifically to the removal of Class A and Class B asbestos “fibro” in or on soils. Clause 5, which is concerned with “assessing and managing “non-friable” asbestos (fibro) in or on soils provides that “where fragments of non-friable asbestos (e.g. fibro cement) are identified on the soil surface, then the fragments may be removed by hand picking, tilling or screening (applying suitable work health and safety practices).” It suggests that “a grid pattern should be applied to ensure a structured and systematic approach to assessment and removal”. The guide further provides that “Upon completion, no visible asbestos fragments should be present on the surface. Where practicable, the top 10 centimetres of wetted soil should be gently raked to expose any residual asbestos fragments. The collected material should be securely wrapped in plastic sheeting and taken to an appropriate landfill.”

81. The guide provides that “soil sampling for the detection of asbestos fibres released from fragments of non-friable asbestos such as fibro is not required where the non-friable asbestos product is in good condition – i.e. it is not weathered or damaged and is unlikely to release fibres unless carelessly handled”. Mr Ishak’s evidence is that the asbestos removed from the Defendant’s property was observed by him to meet that description.

82. The Code [7] specifically provides that “asbestos materials buried at depth in soil” being a depth of greater than .5 metres below the soil surface. Additional requirements apply in those circumstances. It is not suggested that the ACM which the Plaintiff removed in this case fell within that category.

83. Clause 77 of the Protection of the Environment Operations (Waste) Regulation 2014 (NSW) defines “bonded asbestos material” as “any material (other than friable asbestos material) that contains asbestos”. The Regulation defines “friable asbestos material” as “any material that contains asbestos and is in the form of a powder or can be crumbled, pulverised or reduced to powder by hand pressure when dry”.

84. Schedule B1 to the National Environment Protection (Assessment of Site Contamination) Measure 1999 (Cth) (NEPM) provides (clause 4.3) that “a competent person in the context of asbestos and the NEPM is a person who has acquired through training, qualification or experience, the knowledge and skills to identify, investigate and assess asbestos in the context of an environmental site assessment. This includes identifying the potential for asbestos contamination from site history information”.

85. Clause 4.5 of NEPM is concerned with the “occurrence of asbestos contamination in soil” and records:

“Bonded ACM is the most common form asbestos site contamination across Australia, arising from:

- inadequate removal and disposal practices during demolition of buildings containing asbestos products

- widespread dumping of asbestos products and asbestos containing fill on vacant land and development sites

- commonly occurring in historical fill containing unsorted demolition materials.

If identified early, i.e. prior to significant soil disturbance or earth movements, dumping and inadequate demolition practices usually only results in surface (or near surface) distribution of bonded ACM fragments.

Mining, manufacture or distribution of asbestos products may result in sites being contaminated by friable asbestos including free fibres. Severe weathering or damage (including by vehicle movements) to bonded ACM may also result in the formation of friable asbestos (comprising fibrous asbestos (FA) and asbestos fines (AF)).”

86. The NEPM makes clear that “non-bonded/friable asbestos” includes fibrous asbestos (FA) and asbestos fines (AF). Bonded ACM is defined as comprising “asbestos containing material which is in sound condition, although possibly broken or fragmented, and where the asbestos is bound in a matrix such as cement or resin” and is “restricted to material that cannot pass a 7 millimetre by 7 millimetre sieve”. Such sieve size is stated to be “selected because it approximates the thickness of common asbestos cement sheeting and for fragments to be smaller than this would imply a high degree of damage and hence potential for fibre release”.

87. The NEPM defines fibrous asbestos as comprising “friable asbestos material and includes severely weathered cement sheet, insulation products and woven asbestos material” being material “that is in a degraded condition such that it can be broken or crumbled by hand pressure”, being material that is “typically unbonded or was previously bonded and is now significantly degraded (crumbling)”. Asbestos fines are defined to include “free fibres, small fibre bundles and also small fragments of bonded ACM that pass through a 7 millimetre by 7 millimetre sieve”. The NEPM notes that for bonded ACM fragments to pass through a 7 millimetre by 7 millimetre sieve “implies a substantial degree of damage which increases the potential for fibre release”.

88. The NEPM records, at 4.6, with respect to “asbestos soil contamination and health risk” that “asbestos only poses a risk to human health when asbestos fibres are made airborne and inhaled. If asbestos is bound in a matrix such as cement or resin, it is not readily made airborne except through substantial physical damage”. The NEPM further records that “the assessment and management of asbestos contamination should take into account the condition of the asbestos materials and the potential for damage and resulting release of asbestos fibres”. It further records that “bonded ACM in sound condition represents a low human health risk” and that it is “an inappropriate response to declare a site a human health risk on the basis of the presence of bonded ACM alone. However, if the bonded material is damaged or crumbling (that is, it has become friable), it may represent a significant human health risk if disturbed and fibres are made airborne.”

89. With respect to “health screening levels for asbestos in soil” (4.8), the NEPM provides that there are “various acceptable means to provide confidence that the soil surface is free of visible asbestos including, but not limited to, multidirectional raking of soil to about 10 centimetre depth and hand picking of asbestos fragments or covering with a durable hard cover. The requirement for the soil surface to be free of visible asbestos applies to both assessment and remediation phases”.

90. Table 7 (4.8) of the NEPM records the health screening levels for asbestos contamination in soil. With respect to bonded ACM in residential soil “with garden/accessible soil” including “children’s daycare centres, preschools and primary schools” the level is .01%. For residential “with minimal opportunities for soil access” including “dwellings with fully and permanently paved yard space such as high rise buildings and apartments” the screening level is .04%. the highest screening level, 0.5%, applies to commercial or industrial sites.

91. NEPM records (4.9) that a detailed site investigation (DSI) is not necessary “where there is a high degree of confidence that the asbestos contamination is confined to bonded ACM and superficial soil, i.e. the site history can be established with confidence and this clearly indicates that there is no reason to suspect buried asbestos materials and the site inspection confirms that any bonded ACM is in sound condition and only present on the surface/near surface of the site. In these circumstances the assessment can proceed directly to remediation (removal of bonded ACM fragments and ensuring that the soil surface is free of visible asbestos) and validation.” The Plaintiff contends that Mr Ishak formed the requisite “high degree of confidence”, and was justified in doing so.

92. The NEPM further records (4.10) that “bonded ACM is the most common and most readily quantifiable form of asbestos soil contamination due to its ease of visual detection.” NEPM further records that assessment of bonded ACM is the “recommended measure for total asbestos contamination where FA and AF (derived from bonded ACM only) are not likely to be significant as established by the PSI including the site inspection (as a guide, this may be taken to be where FA and AF are likely to make up less than 10% of the total amount of asbestos present)”.

86. The NEPM contains a number of case studies, the first of which (page 35) concerns a “low density residential site (individual house site) where poor demolition practices have resulted in fragments of bonded ACM being scattered over discrete area(s) of the site surface” in which case a DSI is not necessary “provided that the contamination is only at surface/near surface and the bonded ACM is in good condition (non-friable)”. The case study suggests a “site walkover” to determine whether the ACM is friable or non-friable and recommends either “raking and hand picking or raking”.

87. Schedule B2 to the NEPM (11.2.3.1) records that “bonded ACM fragments are often present as surface deposits on sites due to poor demolition and building practices. Whilst isolated fragments in good condition across the surface of a site are usually of low concern, surface material may present an exposure risk to airborne fibres over time from deterioration of the bonding compound through corrosive weathering, abrasion or crushing by vehicle traffic and other activities”. The NEPM further states that “bonded ACM may be able to be easily broken by hand force and be more readily crumbled when water saturated or corroded. In a partially crumbled state, bonded ACM may be of greater concern, particularly if it is exposed at the surface and susceptible to abrasion during land use”.

88. Consistent with other regulatory instruments, codes and guides, the NEPM states that “bonded ACM that can be easily crushed by hand should be considered friable and assessed for management actions accordingly”. It further records that a DSI is not necessary where it is assessed that ACM contains non-friable asbestos. The NEPM states (11.3) that “unnecessary investigation should be avoided, for example, investigation for bonded ACM is not recommended below the proposed deepest excavation level during construction or likely maximum depth of the disturbance for the proposed/current land use”.

89. Table 7 is concerned with “Sampling methods for evaluating asbestos contamination” and describes “tilling (mechanical turning over of soil) with manual collection” as being suitable for “bonded ACM only” where contamination is to “about 30 centimetres depth”.

Expert Evidence

97. Each party relied upon expert evidence. The experts did not significantly disagree. Sensibly in the Court’s view, the experts were not required for cross-examination on their reports. As the Plaintiff’s case was ultimately agitated, and resisted by the Defendant, and with no disrespect to the experts, their reports assume only limited significance in the determination of the proceedings.

98. The Plaintiff’s expert, Justin Thompson-Laing, did a series of test pit inspections at the Defendant’s premises. By reference to the NEMP provisions to which reference has earlier been made, Mr Thompson-Laing recorded (7) that for bonded ACM the health screening level for the Defendant’s property was .01% whilst for FA and AF it was .001%.

99. Mr Thompson-Laing set out in table form (8.2) the results of his subsurface inspections. The area of the Defendant’s property in which the test sites were located comprised approximately one-eighth of the land area, being the area from which the Plaintiff did not remove material, having been excluded from the site after 16 May 2022. His hypothesis was that the levels of asbestos detected in the test pits was indicative of the likely nature and level of asbestos contamination in the parts of the Defendant’s property from which the Plaintiff removed and disposed of material. In only 2 of 8 pits was FA or AF discovered, the highest concentration of which was .002%.

100. Mr Thompson-Laing expressed his opinion (9) that based on the observations of the below ground site conditions and findings “the asbestos identified as being present within the Inspection Area can be managed as bonded (non-friable) asbestos”. That was based on four matters, being:

“- bonded ACM was identified in all 8 test pits excavated;

- friable asbestos (FA and AF) was found in only 2 of the 8 samples analysed for FA/AF;

- the identification of friable asbestos was limited only to 2 isolated locations;

- the friable asbestos detected appeared to be derived from bonded ACM only and is not likely to be significant (i.e. less than 10% of the total amount of asbestos present).”

101. Mr Thompson-Laing recorded that “within the scope and limitations made for the purpose of the investigation, it is the opinion of the consultant that the findings of the investigation identified contamination within the fill material at the inspection area that represents a potential risk to human health with respect to the site use”. In accordance with the provisions of the NEPM, Mr Thompson-Laing suggested remediation practices.

102. The Defendant’s expert, Mr Simnett, did not disagree with anything recorded in Mr Thompson-Laing’s report. Mr Simnett concluded (5) that he had “seen no evidence of Mr Chad Ishak being trained or qualified in the Standard CPCCBC5014A”. Mr Chad Ishak’s certifications with respect to asbestos refer to CPCCBC4051A. Whether that is the same Standard as the Standard to which Mr Simnett referred is unclear but, no part of the determination of these proceedings turns on whether Mr Ishak was licensed to remove non-friable asbestos as he, and thus the Plaintiff, were.

103. Mr Simnett suggested that Mr Ishak “acted in a role that according to the Code of Practice managing asbestos in or on soils March 2014 requires independence from his role as the supervisor asbestos removal and/or demolition works”. That opinion was based on the Code of Practice Managing Soils, section 10.

104. The Code requires that the assessment of asbestos in soil “should only be conducted by a competent person who has acquired through training, qualification or experience, the knowledge and skills to identify, investigate and assess asbestos and to develop appropriate risk management strategies”. It is only when “friable asbestos is present” that there is a “legal requirement that only a WorkCover licensed asbestos assessor may undertake air monitoring and risk assessments, and issue clearance certificates for removal work”.

105. Mr Ishak’s opinion was that the ACM which was conceded to have been present on the Defendant’s property contained bonded rather than friable asbestos and that, as such, independent assessment was not required.

106. Mr Simnett also recorded that he had seen no evidence that the Plaintiff at the time of the subject works obtained from an independent, competent person or licensed asbestos assessor soils sampling and NATO reporting. Mr Simnett considered that that was required for the purpose of producing reports required by the NEPM and the Protection of Environment Operations Act 2014 (NSW) and Protection of Environment Operations (Waste) Regulation 2014 (NSW). Neither Mr Simnett nor the Defendant suggested that non-compliance with these regulations rendered the Plaintiff’s contract with the Defendant unlawful or unenforceable.

107. Mr Simnett further recorded having seen “no evidence that Site Demolition Pty Limited adequately assessed and managed risks on site during each stage of the works especially during the soils removal works. They did not assess whether the subject soils were ACM by way of soils sampling and NATO report. This was necessary for a number of reasons including that higher levels of control were required in the management of friable ACM”. The Plaintiff did not allege that it had done such tests, and maintained that, as no friable asbestos was discovered, they did not need to be done.

108. Under the heading “Compliance” Mr Simnett set out seven matters in respect of which he had “seen no evidence” of compliance by the Plaintiff with various regulatory instruments. Whether the Plaintiff failed to comply with any regulatory requirement assumes only limited significance in the determination of these proceedings. Neither by his pleaded Defence nor otherwise has the Defendant ever disputed that the Plaintiff was legally entitled to remove and dispose of non-friable ACM. Neither by his pleading nor otherwise has the Defendant ever suggested that any failure to comply with any regulatory provision, guideline or code rendered its contract with him unenforceable. Nothing to which the Court has been referred is suggested to have that effect.

109. The reliance which the Defendant placed on asserted regulatory non-compliances was explained by his Counsel as supporting the Defendant’s contention that Mr Ishak had not in fact undertaken the inspection of material on site which entitled it to recover the cost of disposal of almost 170 tonnes of ACM.

110. Mr Thompson-Liang’s evidence provides support for the Plaintiff’s case, primarily because of the matters recorded at [100] and [101] of these reasons. Mr Simnett’s evidence creates no obstacle to the acceptance of Mr Thompson-Liang’s conclusions.

The Plaintiff’s Evidence

111. In view of the way the hearing proceeded, the critical witness in the Plaintiff’s case is Mr Chad Ishak. Mr Ishak’s mother, Mrs Rhonda Ishak, could give no relevant evidence about what occurred on the Defendant’s premises. The Defendant does not suggest that he ever attended the premises whilst the Plaintiff was undertaking work pursuant to its contract with him. Other than following a truck leaving the property on one occasion, the Defendant did not see anything done by the Plaintiff pursuant to its contract with the Defendant.

112. The Defendant has not, by his Amended Defence or otherwise, disputed the terms of the contract asserted by the Plaintiff in its Amended Statement of Claim. Nor has the Defendant pleaded or asserted an equitable defence to the Plaintiff’s claim, or any claim with respect to deceptive, misleading or unconscionable conduct pursuant to the provisions of Part 3, Fair Trading Act 1987 (NSW), which incorporates those provisions of the Australian Consumer Law into the laws of New South Wales.

113. As the submissions of Counsel for the parties confirm, the critical issues for determination are whether Mr Ishak was qualified to express the opinions he did as to the type of asbestos which was present on the Defendant’s property, or the likely percentage of asbestos which was in the soil which the Plaintiff caused to be removed and disposed of. It was conceded, properly, by the Defendant that there was asbestos in or on the Defendant’s premises which fell within the terms of the contract between the Plaintiff and the Defendant. Unsurprisingly in the circumstances, the Defendant’s Counsel could not suggest what proportion of the material which was removed and disposed of contained, or was likely to have contained, ACM.

114. Mr Ishak’s relevant Affidavit was sworn on 30 May 2023.

115. Mr Ishak was closely cross-examined. Mr Ishak impressed as an honest witness. He did not seek to embellish his affidavit evidence. Mr Ishak responded appropriately and directly to questions asked of him. He made concessions where concessions were appropriate. At no time did Mr Ishak endeavour to rationalise or otherwise deflect questions put to him in cross-examination. As will be seen, acceptance of Mr Ishak’s evidence does not turn materially on the Court’s favourable impression of his demeanour (Fox v Percy (2003) 214 CLR 118 at 129; [2003] HCA 22 at [29]). Although there is no evidence that Mr Ishak is a shareholder in the Plaintiff, as it is his parents’ company, he has an obvious interest in the Plaintiff succeeding with its claim. In assessing the reliability of Mr Ishak’s evidence, the Court looks to contemporaneous documents or records where they are available (Watson v Foxman (1995) 45 NSWLR 315).

116. Mr Ishak relied on the documents comprising Exhibit CI-1. Most of the documents have been referred to earlier. Mr Ishak also relied on Exhibit CI-2 which he said, accurately, “contained some short video records and photographs all taken by me” at the Defendant’s premises as the demolition and asbestos clean up and removal that is the subject of the proceedings continued.

117. At paragraph 39 of his Affidavit Mr Ishak identified each of the photos or videos to which he referred earlier in his affidavit. Under the heading “What is depicted” Mr Ishak provided his commentary with respect to what the various photos and videos revealed. The Court has looked at each of the photos, large colour copies of which were made available during the hearing. The Court has also viewed the videos.

118. The Court is mindful of the use which can permissibly be made of visual evidence of the kind relied on by the Plaintiff. In Blacktown City Council v Hocking [2008] NSWCA 144 at [167], Tobias JA said that:

“169 It should be noted that the use by a trial judge of photographs is nothing new. They can, as the authorities to which I have referred confirm, be descriptive of what a witness says he or she saw, being a representation of the witness’ knowledge and observations. But they should not be used by a judge to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural: Schmidt v Schmidt [1969] QWN 3 at 6; Beaton v McDivitt (1985) 13 NSWLR 134 at 142.”

119. His Honour added (at [170]):

“170 Thus in United States Shipping Board v The Ship St Albans [1931] AC 632 Lord Merrivale, in delivering the advice of the Judicial Committee of the Privy Council, observed (at 642) that the use of photographic evidence must be the subject of “careful delineation” particularly as a means of proof of matters of fact. This is not to say that photographs can have no probative value of themselves even in the absence of an oral description of what is depicted; only that care must be taken to ensure that they are not used as the sole source from which a primary fact is to be inferred where that fact is not revealed on the face of the photographs such as the condition of a structure at a time significantly removed from that when the photographs were taken.”

120. Mr Ishak was not challenged in cross-examination with respect to the dates on which the photos and videos were taken, they being 10, 11, 12, 13, 16, 23 and 25 May 2022. Nor was Mr Ishak cross-examined on what the photos and the videos were asserted to reveal. Mr Ishak’s photos depict asbestos fragments which accord with the definition of non-friable asbestos which appears in the regulatory instruments, codes and guidelines to which the Court has earlier referred. The photos support Mr Ishak’s claim that the asbestos removed from the Defendant’s property was non-friable, which he was “competent” to remove.

121. Although the photographs do not reveal the likely proportion of asbestos in any load of material removed from the Defendant’s premises, having regard to the relatively low level of asbestos required in material for it to be classified as ACM, the photographs provide support for Mr Ishak’s evidence that there was a very significant amount of bonded asbestos on the Defendant’s property. Unless Mr Ishak removed such material, and there is no suggestion that he did, the photographs are also significant in that they do not reveal asbestos on the Defendant’s property which appears to fit the description of friable asbestos whether as AF or FA.

122. The timing of the photos is not insignificant, nor is the fact that they were expeditiously provided to the Defendant. It is also significant that the Defendant was invited to attend and inspect and/or have an expert attend and inspect his property when the concealed asbestos was discovered but did not do so. Nor did he question the quantities of assertedly ACM which were being removed until more than 160 tonnes had been removed, and the Plaintiff invoiced him for the cost of removal in accordance with the parties’ agreement.

123. The foregoing findings do not mean that Mr Ishak’s evidence is automatically entitled to be accepted, but it does mean that, unless, either by lack of qualifications or experience, or because, although qualified to do so, Mr Ishak did not competently supervise the removal of ACM from the Defendant’s premises, resulting in uncontaminated material being removed and charged at the higher rate which was inferentially applicable to ACM, the obstacles to success of the Plaintiff’s claim are reduced. As there is no evidence contradicting Mr Ishak’s evidence, the issue is whether his evidence is accepted on the balance of probabilities.

124. Mr Ishak deposed (at paragraph 2) to his supervision of demolition work on the Defendant’s property, which required demolition and removal of a house, garage and granny flat, driveway and paving. Mr Ishak stated that “utilising my asbestos qualifications discussed below, I also supervised the removal of asbestos contaminated material from the site, and its safe disposal at proper asbestos disposal facilities”. Mr Ishak was qualified and “competent” to remove non-friable asbestos and to supervise its removal by other employees of the Plaintiff. Apart from his formal qualifications, Mr Ishak deposed (at paragraph 3) to having had “9 years of experience in demolition, and in that time I estimate that I have worked on approximately 600 sites that have required the removal and safe disposal of asbestos contamination”. Those allegations were not challenged.

125. Mr Ishak referred (at paragraphs 4-6) to a number of regulatory instruments. Those are the same regulatory instruments, standards, guides or codes to which each of the experts referred. Mr Ishak reiterated (at paragraph 7) that the “removal and safe disposal of the asbestos contaminated waste found on (the Defendant’s) site was conducted under my direct supervision in accordance with the standards and procedures described” in the Code of Practice with respect to safe removal of asbestos to which he had referred at paragraph 5 of his Affidavit.

126. Mr Ishak further stated (at paragraph 8) that “each load removed from the Defendant’s site” comprising the 168.68 tonnes of ACM disposed of at Brandown’s and Bingo’s waste disposal facilities “was asbestos contaminated, and could not have been legally or safely disposed of (at) any less expensive facility used for receiving non-contamined [sic] material”.

127. The Defendant does not suggest, in his Amended Defence or otherwise, that the rate charged by the Plaintiff, at $700 per tonne plus GST, for removal and disposal of ACM had not been agreed to by him or that it was excessive.

128. Mr Ishak deposed (at paragraph 12) to the commencement of work on the Defendant’s premises on 4 May 2022 and (at paragraph 13) to the opinion he formed as work progressed that the premises appeared to be “heavily contaminated with asbestos waste”. Mr Ishak stated (at paragraph 15) that as demolition continued “on 12 May 2022 I identified significant asbestos contamination on the site and I progressively discovered more asbestos contamination under the demolished structures and under the removed paving as the demolition and clean up continued”.

129. Mr Ishak further stated (at paragraph 16) that “with the structures and paving removed, tests were conducted using an excavator to further disturb the surface of the site and expose material at the surface and below the surface in the former locations of the house and granny flat, as well as the paving”. He said (at paragraph 17) that work was undertaken “to determine the extent of the asbestos contamination and to show it to the Defendant in order to obtain his instructions to remove and dispose of the contamination, and in order to obtain his approval to pay $700 plus GST per tonne for that contaminated material removal”. As recorded earlier, it is not in doubt that the Defendant’s approval to do the work and pay the rate per tonne specified by the Plaintiff was agreed to.

130. Mr Ishak referred (at paragraph 18) to the estimate of 80 to 90 tonnes of ACM requiring removal being based on “just one-half of the property being contaminated with asbestos” which “estimate was enlarged” when work progressed to the other half of the property and further asbestos was discovered. In oral evidence Mr Ishak said that although the volume of material removed appeared large it was significantly less than would be likely to be excavated and removed in order to build a typical backyard swimming pool. Mr Ishak was not cross-examined to suggest he was wrong in saying that.

120. Mr Ishak referred (at paragraph 28) to the process by which ACM was dealt with after it was “gradually exposed, with an excavator delving into the soil and shaking out contaminated material to show it was found, and to assess just how much material might need to be removed for disposal”. Mr Ishak stated, correctly there is no question, that the contaminated material had to be “lawfully disposed of”. He referred to the email exchange which the Court has earlier recorded.

121. It is significant that Mr Ishak expeditiously provided the photographs and videos he took at the Defendant’s premises to the Defendant before proceeding with the work which was undertaken subsequent to the contract between the parties of 12 May 2022. Mr Ishak stated (at paragraph 33), uncontroversially, that the Defendant was provided with the photographs, which clearly revealed the presence and likely extent of previously undiscovered asbestos on the Defendant’s premises prior to accepting the Plaintiff’s offer to remove the material and the cost of doing so. Not insignificantly, as the emails of 13 May 2022 confirm, when the quantity excavated was said to have approximated 120 tonnes, the Defendant did not challenge either that figure or its reasonableness.

122. Mr Ishak was criticised for not having set out in his oral evidence that he personally inspected each and every bucketload of material which was excavated on the Defendant’s site and subsequently disposed of in order to satisfy himself that it contained ACM. The Court does not accept that criticism of Mr Ishak’s evidence. What he said in his Affidavit clearly conveyed that he, as the responsible person on the site, satisfied himself, both before the material was removed from the ground, and when it was in the bucket, whether stockpiled before trucking to disposal facilities or transferred from the bucket on the excavator directly into the truck, that was being removed was in fact ACM.

123. Although the Defendant by his Affidavit (at paragraph 18) appeared to suggest a truck was “less than half full of soil”, in his brief cross-examination, the Defendant conceded, appropriately, that he could not see what level of material was in the truck. The Defendant was clearly sceptical in May 2022 about the disposal of alleged ACM at the Brandown tip by reason of a sign which he saw on the gates to that facility. At the hearing it was not in issue that the Brandown facility was able to lawfully receive ACM.

Was Mr Ishak qualified to determine that the material discovered on the Defendant’s premises was asbestos?

135. Section 79(1) of the Evidence Act 1995 (NSW) provides that:

“If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”

136. Mr Ishak’s opinions with respect to the nature and quantity of ACM found on and removed from the Defendant’s premises were assertedly in reliance upon the specialised knowledge evidenced by his qualifications, for which he can be inferred to have undertaken training and/or study, and to his 9 years of experience with ACM removal across approximately 600 sites. Mr Ishak held the formal qualifications identified earlier for 7 of those 9 years.

137. The Court is satisfied that the combination of Mr Ishak’s formal qualifications and experience rendered his opinions admissible. Mr Ishak was competent to differentiate between friable and non-friable asbestos. The regulation of asbestos removal and disposal by several State and Federal legislative instruments reflects the danger to public health and safety of asbestos. The Court has not been referred to any training or licence which Mr Ishak lacked which precluded him from forming the opinions he did with respect to ACM on the Defendant’s property.

138. It is also necessary to be satisfied that the opinions expressed by Mr Ishak were wholly or substantially based on his specialised knowledge. Nothing emerging in the evidence suggests, if Mr Ishak had the requisite specialised knowledge and experience, that his opinions, or anything which he did with respect to the assessment and removal of ACM from the Defendant’s premises, were in reliance upon anything but that specialised knowledge and experience.

139. Mr Ishak’s opinions have not been shown to have been reliant upon matters which were within the knowledge of ordinary persons, or other than reliant upon his own specialised knowledge and experience of matters which are “outside the knowledge or experience of ordinary persons” (Valevski v The Queen (2002) 76 ALJR 402).

140. The Court is satisfied that there was “sufficient connection” between Mr Ishak’s opinion and his specialised knowledge (Dasreef Pty Limited v Hawchar [2011] HCA 21; HG v The Queen (1999) 197 CLR 414) to render his opinion evidence admissible.

141. Mr Ishak’s opinion was shown to be “intelligible, convincing and tested” (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705). The contemporaneous photographic record of Mr Ishak’s assessment of ACM on the Defendant’s premises provides material support for that finding. Nothing emerging from his cross-examination suggests that Mr Ishak’s assessment was influenced or vitiated by any improper financial or non-financial motive. As previously recorded, it is also significant, and consistent with the application of Mr Ishak’s specialised knowledge, that he did not proceed with removal of any ACM without the proper consent of the Defendant, who was invited to inspect the premises, or have an expert of his choosing to do so.

142. It is significant that neither party’s expert suggested by reference to the photographs and/or videos contained in Exhibit CI-2 to Mr Ishak’s Affidavit that anything appearing there militated against accepting his opinion that the ACM removed from the Defendant’s premises was non-friable. Mr Ishak’s method of delineating between friable and non-friable asbestos, the crumbling by hand test, finds expression in the regulatory instruments, guides and code to which reference has earlier been made.

Whether Mr Ishak’s opinion that the 168.68 tonnes of material removed from the Defendant’s premises contained ACM or sufficient ACM to justify its removal and tipping pursuant to the contract between the parties

143. Counsel for the Defendant, with commendable candour, acknowledged that there was asbestos on the Defendant’s property at the time the Plaintiff suggested that there was. It was also conceded that some but no specified proportion of the eight loads, each of approximately 20 tonnes, of material which was removed from the Defendant’s property and disposed of contained, or could have contained, ACM. As recorded earlier, by volume, only a relatively small amount of asbestos is required to be present in material in order for it to be properly classified as ACM. In submissions Counsel for the Plaintiff suggested that, by reference to the applicable scales, 168.68 tonnes of material disposed of need not have contained anything remotely like that weight, a figure in kilograms being suggested.

144. It was not suggested to the Plaintiff in cross-examination nor, with respect could Counsel for the Defendant have done so in circumstances where the evidence does not suggest that the Defendant ever attended the site to see what was actually being removed, that, for example, by the time 90 tonnes had been removed no asbestos remained, nor that at any other time prior to the tipping of 168.68 tonnes, all of the asbestos had been removed from the site.

145. Mr Ishak’s photographs at Exhibit CI-2 are consistent with his evidence that each of the eight loads of material that was removed and disposed of contained significant quantities of ACM, albeit it is not possible for the Court to quantify by weight or volume how much that was. As the expert evidence confirms, whether by volume, weight or percentage, only a relatively small amount of asbestos needs to be contained in soil in order for it to be classed as ACM, such is the risk to health of friable and non-friable asbestos.

146. There is no objective reason for rejecting Mr Ishak’s evidence that each and every truckload contained significant amounts of bonded ACM. To the extent that, contrary to his evidence in cross-examination, Mr Ishak may not have visually inspected every bucket load of material as it was loaded into tip-trucks for removal, that would not provide a reasonable basis for rejecting his opinion that the 168.68 tonnes of material which was removed was ACM. Mr Ishak employed the method for ACM removal which the parties agreed on. It is not suggested that doing so was contrary to accepted practice or any regulatory requirement.

147. Image 3248 to which the Defendant referred and on which Mr Ishak was cross-examined reveals a pile of material awaiting removal and disposal. It is not possible from that photograph, which appears to have been taken after rain, to identify ACM within the material. It is reasonably clear from the series of photographs that it came, and could only have come, from the material containing the asbestos revealed in earlier photographs which was removed. It was not suggested in cross-examination, nor could it properly have been in the circumstances of this case, that the sum awaiting disposal shown in that photograph did not contain ACM.

Disposition

148. The Plaintiff was transparent and open with the Defendant in relation to the identification and removal of previously undiscovered asbestos on the Defendant’s premises. The contemporaneous photographic evidence, all of which was made available to the Defendant before he accepted the Plaintiff’s offer to harvest and dispose of that material, gave the Defendant the option of not proceeding with the work and seeking to have others undertake it, or requesting the Plaintiff not to do anything until the Defendant arranged for further investigations, or accepting without reservation the Plaintiff’s offer. The Defendant chose the last of those options.

149. It was only after the Plaintiff invoiced the Defendant that he raised any issue about any aspect of the removal of ACM from his property. That is unsurprising having regard to the transparent way in which the Plaintiff dealt with this issue at every stage, both in terms of email contact, photographs and videos of the site and provision of invoices with respect to disposal.

150. In her Affidavit of 14 September 2022, Mrs Rhonda Ishak deposed (at paragraph 32) to a conversation which she alleged occurred with the Defendant “through his interpreter friend Tim” on or about 16 May 2022, in which she said that the Defendant’s interpreter said “Kang and I are coming to your office at 6.00 p.m. to make a part-payment of $100,000. Please keep going”. Mrs Ishak asserted she had sent a text which resulted in a further call from “Tim” stating “I am coming to the office at 6.00 p.m. with Ze”, and a subsequent call in which Tim stated “We can’t make it today”. Mrs Ishak was not cross-examined in relation to the alleged conversation. In his Affidavit of 26 October 2022 the Defendant did not dispute Mrs Ishak’s claims in that regard.

151. Although the reliability of Mrs Ishak’s evidence with respect to tree removal is problematic in the light of damaging cross-examination of her, there is no reason to reject her version of that conversation. Nor, for the reasons recorded earlier, does the Plaintiff’s success depend materially on such acceptance.

152. In written closing submissions (at paragraph 37) Counsel for the Plaintiff submitted that the Court would find that 168.68 tonnes of ACM was removed from the Defendant’s property having regard to:

“(a) invoices and dockets issued by the waste disposal facilities;

(b) the material produced under subpoena by the waste disposal facilities;

(c) the fact that both waste disposal facilities are licensed to accept asbestos contaminated waste;

(d) the photographs and video taken at the site prior to and during the excavation of the asbestos contaminated material;

(e) the evidence of Mr Ishak who was on site during the demolition and the removal of the asbestos contaminated material; and

(f) the test results in the report of Mr Thompson-Laing (with which Mr Kang’s expert, Mr Simnett, agrees) which demonstrate that significant asbestos contamination remains in the unexcavated portion of the property.”

153. The Court agrees that the evidence upon which the Plaintiff relied supports those contentions, and establishes on the balance of probabilities that the 168.68 tonnes of material removed from the Defendant’s premises and disposed of contained ACM at a level or to an extent which required it to be disposed of at waste disposal facilities which were licensed to receive ACM. The Plaintiff makes out this part of its claim.

154. To the extent that the Defendant suggests that the Plaintiff’s inability to quantify the amount of asbestos contained in the 168.68 tonnes of material it removed from the Defendant’s property militates against acceptance of its claim, the Court cannot accept such suggestion. It was only after the Plaintiff had removed that quantity of material that the Defendant raised any concern about what was being removed. That initial concern did not suggest that any material which had been removed was not ACM. As recorded earlier, if Mr Ishak’s evidence is accepted, in the absence of any competing evidence, and there is none, the Plaintiff makes out its case with respect to this issue.

155. The remaining, and understandably less significant aspects of the Plaintiff’s claim, sensibly, did not attract great forensic agitation during the hearing. The Plaintiff abandoned, as it was obliged to on the evidence, the claim for $1,100 with respect to tree removal.

156. The Court finds the Plaintiff’s disputed claim with respect to sediment control ($750) has been established. The Defendant admitted that the Plaintiff quoted that sum to prevent sediment escaping in his Amended Defence. The Defendant signed a document confirming that he required the Plaintiff “to provide and install Sediment and Erosion control” (Exhibit GI-1, page 8). The Defendant admitted that the work was undertaken, by instructing his solicitor to argue that the costs of the work should “be part of the demolition fees” (Defendant’s solicitor’s letter of 19 May 2022, Exhibit GI-1 at 15). In those circumstances, the Defendant having agreed to the work being done, the work having been done, the Plaintiff is entitled to the sum of $750.

157. So far as the disputed claim for water meter relocation ($1,800 plus GST) is concerned, the quotation which the Defendant accepted provided for that, as the Defendant’s Amended Defence acknowledged. By email dated 5 May 2022 the Defendant requested the Plaintiff to “go ahead and move the water meter for me”. Subsequently, on 11 May 2022, by his email, the Defendant authorised the Plaintiff to relocate the water meter by stating “If the fence water meter is in the way and there is a safety hazard before dismantling, please move it”. The Plaintiff moved the water meter after being instructed to do so at the Defendant’s request. There is no issue that the water meter was in fact moved, and was moved by the Plaintiff. In those circumstances the Plaintiff is entitled to the sum of $1,800 plus GST which it claims in that regard.

158. The Defendant asserted that the conceded payment of $4,400 plus GST with respect to asbestos sheeting attached to concrete slabs of the porch and bathroom slab and removed by the Plaintiff was subsumed in any sum which was found to be payable for the subsequent removal of previously undiscovered asbestos. The Plaintiff’s email of 9 May 2022 to the Defendant stating “Thick asbestos sheeting found attached to concrete slab found both under the front porch and underneath the bathroom slab”, and photographs depicting those matters which the Defendant admitted in his Amended Defence that he accepted, together with his entry into the subsequent contract for further asbestos removal on 12 May 2022, precludes the Defendant from successfully advancing that claim.

Components of damages

159. The Plaintiff has established an entitlement to the following payments, noting the GST component has not been included to the sums referred to below:

Demolition – 115 West Street, South Hurstville 2221	$28,000
Agreed tip fee increase	$4,800
Sediment control	$750
Second layer of concealed asbestos sheet under timber battens and iron roof of granny flat	$2,800
Water meter relocation	$1,800
Asbestos sheeting located attached to concrete slabs of porch and bathroom slab	$4,400
Removal and disposal of 168.68 tonnes of asbestos contaminated material	$118,076

Consequential matters

160. During the hearing, the Defendant was asked to provide his current residential address to the Court. By agreement, the Defendant’s address was placed in a sealed envelope. As a consequence of my findings above, I order the release of the Defendant’s address to the Plaintiff’s legal representatives for the purposes of enforcement of judgment.

161. The parties are to bring in Short Minutes of Order, in 14 days, reflecting the agreed mathematical calculation of damages, inclusive of GST and interest, noting that the sum of $1,000 (for a deposit paid by the Defendant prior to the commencement of the demolition work) is to be deducted from the damages award before interest is applied.

Orders

1. Judgment for the Plaintiff.

2. The parties are to bring in Short Minutes of Order, in 14 days, reflecting the agreed mathematical calculation of damages, inclusive of GST and interest.

3. The Cross-Claim is dismissed.

4. The Plaintiff’s legal representatives to have access to the sealed envelope containing the Defendant’s current residential address.

5. The Defendant/Cross-Claimant is to pay the Plaintiff’s/Cross-Defendant’s costs as agreed or assessed on the ordinary basis, with liberty to vary this order subject to order (7) below.

6. Matter relisted on 11 December 2023 for entry of judgment and any costs application.

7. Any party wish to bring a costs application to vary order (5) above (“costs applicant”) is to file and serve written submissions on costs by 4.00pm 29 November 2023, and to email a copy of any such submissions to my Associate.

8. The costs respondent is to file and serve written submissions in reply by 4.00pm 6 December 2023.

9. Exhibits retained for 28 days.

10. Liberty to restore.

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Decision last updated: 17 November 2023