Treffers v Phung - [2020] SASC 228

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
TREFFERS v PHUNG
[2020] SASC 228
Judgment of The Honourable Justice Nicholson
1 December 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - PARTIES
Appeal against findings and award of damages by Magistrate.
The respondent, Ms Phung, arranged with the appellant, Mr Treffers, for timber flooring to be supplied and installed in the respondent’s home. A minor works agreement was entered into on 8 May 2014 and the installation took place during 2015. Upon completion of the works the respondent complained of certain defects, which the appellant sought to have rectified in September 2015. In October 2015, the respondent obtained an unsatisfactory building inspection report and proceedings were issued against both the appellant and the company of which he was the controlling mind, Truflor Australia Pty Ltd. The Magistrate held that the appellant was the party with whom the respondent had contracted, and that the works as performed were unsatisfactory in a number of respects. The Magistrate awarded damages to the respondent in the amount of $80,000, in addition to costs.
On appeal, the appellant complained that the Magistrate had erred: in finding various defects and that the flooring needed to be replaced (grounds 1-5, 10); in quantifying the loss and awarding pre-judgment interest and special costs (grounds 6-8); in failing to allow the appellant to repair the defects (ground 11); in finding that it was necessary to hold a builder’s licence to undertake the works (ground 12); and in finding the appellant to be personally liable for the claim (ground 9). The respondent contended that the Magistrate was correct in her findings and quantification of damages and costs.
Held:
1.      The time for filing the notice of appeal is extended to 18 October 2019.
2.      Appeal allowed.
3.      The Magistrate's orders for the payment by the appellant of damages, interest and costs are set aside.
4.      The respondent's claim against the appellant at trial is dismissed.
Building Work Contractors Act 1995 (SA) s 3, s 6, s 32, s 34, s 37, s 62; Building Work Contractors Regulations 2011 (SA) reg 5, reg 12, reg 13; Magistrates Court Act 1991 (SA) s 40; Supreme Court Act 1935 (SA) s 30C, referred to.
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; Nanosecond Corporation Pty Ltd & Anor v Glen Carron Ltd & Anor [2018] SASC 188; Barrier Wharfts Ltd v Scott Fell & Co Ltd (1908) 5 CLR 64; Kuehn & Kuehn v Masterton Homes (NSW) Pty Ltd [2020] NSWSC 1049; Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149; Holt v Bunney [2020] SASCFC 89; Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 97023; Bank of Australasia v Palmer [1897] AC 540; Homburg Houtimport BV & Ors v Agrosin Private Ltd & Anor [2004] 1 AC 715; Lym International Pty Ltd v Marcolongo [2011] NSWCA 303; Australia Constructions Pty Ltd v Kapeller (2019) 100 NSWLR 367; Salomon v Salomon [1897] AC 22; BH Australia Constructions Pty Ltd v Kapeller & Anor (2019) 375 ALR 159; Fox v Percy (2003) 214 CLR 118; Raedel & Anor v Shahin [2019] SASCFC 141; Sotiroulis v Kosac (1978) 80 LSJS 112; Campbell v CJ Cordony & Sons Pty Ltd [2009] NSWSC 63; Bellgrove v Eldridge (1954) 90 CLR 613; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; Duke Group (in liq) v Pilmer [1998] SASC 6529; Queen Elizabeth Hospital v Curtis (2008) 102 SASR 534, considered.

TREFFERS v PHUNG
[2020] SASC 228
Magistrates Appeal: Civil
NICHOLSON J.
Introduction

In May 2014, either the appellant, Mr Keith Treffers or the company, Truflor Australia Pty Ltd, (ACN 159 440 114) (Truflor Corporation[1]) contracted to supply and install wooden floorboards (the works) in the house of the respondent, Ms Hoa Phung (referred to in the evidence as “Kate”). An important issue in dispute is whether Mr Treffers or Truflor Corporation was the contracting party. Where the context requires, I will refer to the contracting party as “the contractor”. The contractor performed the works between May 2015 and July 2015.
[1] I will refer to the corporate entity as “Truflor Corporation” to distinguish it from the business name(s) “Truflor” and “Truflor Australia” also to be referred to.
The respondent was dissatisfied with the quality and workmanship of the works and during July 2015, she advised the appellant of asserted defects. In September 2015, the contractor undertook remedial work at the respondent’s property. After obtaining a building inspection report in October 2015, the respondent sued Truflor Corporation and the appellant for damages in the Adelaide Magistrates Court for breaches of the implied statutory warranties in section 32 of the Building Work Contractors Act 1995 (SA) (the BWC Act).
The Magistrate awarded damages to the respondent (the first judgment[2]) as against the appellant, and in a subsequent decision awarded costs and pre-judgment interest in favour of the respondent (the second judgment[3]). The appellant has appealed against both judgments.
[2] Hoa Phung v Truflor Australia Pty Ltd and Keith Treffers, AMCCI-16-1424, 9 April 2019.
[3] Hoa Phung v Truflor Australia Pty Ltd and Keith Treffers, AMCCI-16-1424, 24 September 2019.
Background
The appellant registered Truflor Corporation on 11 July 2012 and was appointed a director at that time. He ceased to be a director on 13 March 2014 when he retired, although he continued to work part time.[4] The appellant’s son, Andrew Treffers, was the sole director between 13 March 2014 and its deregistration.[5] Truflor Corporation was a party, as first defendant, to the proceedings at trial. The appellant was the second defendant. No orders were entered against Truflor Corporation and only the second defendant has appealed.
[4] Trial Transcript (TT) 601-603.
[5] Exhibit P25.
Truflor Corporation succeeded with an application to the Australian Securities and Investment Commission (ASIC) for voluntary deregistration made on and effective from 25 February 2016.[6] Truflor Corporation has never held a builder’s licence issued pursuant to the BWC Act. However, the appellant held a builder’s licence personally from 10 February 1993 until cancellation on 19 April 2015. The appellant appears to have obtained a new builder’s licence on 14 May 2015. According to the appellant, he inadvertently failed to renew it on 19 April 2015.
[6] There is now a new company with the same name “Truflor Australia Pty Ltd” but a different ACN (ACN 619 008 847) which was first registered on 10 May 2017. The appellant is the sole director, but this company had no standing in these proceedings at trial and has no standing on appeal.
The appellant first met the respondent on 1 May 2014. On that same day, a quote for the works was emailed to her.[7] The works involved the supply and installation of floorboards in a downstairs area, an upstairs area and a stairway. The works required “130 x 14 select grade Spotted Gum, both adhered and secret nailed”. The quote was for $36,336.30 and “if new downstairs extension is to be batten and ply”, $2,000 would be added. After asking some further questions through an exchange of emails, the respondent accepted the quote on 4 May 2014 by email.[8] A document entitled “Minor Works Agreement”[9] was signed by the appellant and the respondent on 8 May 2014.
[7]    Exhibit P1, tabs 1 and 2.
[8]    Exhibit P1, tab 5.
[9]    Exhibit P1, tab 11.
The trial in the Magistrates Court proceeded over eight days spanning almost 11 months during 2017 and 2018. In the first judgment, the Magistrate held that the appellant, and not Truflor Corporation, was the contracting party. Her Honour found that, in a number of respects, the appellant had breached a statutory warranty, under subsection 32(2)(a) of the BWC Act, to perform the works in a proper manner to accepted trade standards. Her Honour awarded damages in the amount of $80,000.
In the second judgment, the Magistrate ordered that the appellant was to pay pre-judgment interest in the amount of $11,000 to the date of the first judgment, 9 April 2019. Her Honour also ordered that the appellant meet the respondent’s costs and allowable disbursements in the amount of $60,871.25.
Grounds of appeal
The appellant has raised the following grounds of appeal:
The Court erred:-
1.In finding that the flooring needed to be replaced.
2.In finding that the wrong glue had been used to fix the flooring.
3.In finding that it was necessary to place plywood under the flooring in the ground floor area of the work, in particular the hallway.
4.In finding that the flooring in the hallway had been laid in the wrong direction.
5.In finding that insufficient gaps have been left between the edge of the flooring and the skirting boards on the ground floor.
6.In quantifying the plaintiff’s loss without any or [sic] any proper evidence.
7.In awarding prejudgment interest when no prejudgment repair expenses have been paid by the plaintiff.
8.In awarding the plaintiff special costs.
9.In finding that the second defendant was personally liable for the plaintiff’s claim.
10.In receiving and acting upon unqualified evidence as to the nature of the glue that was used to do the work.
11.In failing to allow an opportunity to repair acknowledged defects in the flooring.
12.In finding that it was necessary to hold a builder’s licence to do the work.
Grounds 1 to 5 and 10 complain that the Magistrate erred in her findings in relation to the quality of the building work. Grounds 6 and 11 complain about her Honour’s approach to the assessment of loss. Grounds 7 and 8 complain about the interest awarded and costs awarded, respectively. Grounds 9 and 12 complain that the Magistrate erred in her conclusion as to who was the contracting party.
There were three key issues considered at trial: (1) who was the contracting party; (2) what was the scope of the agreed works and was there a breach of any of the statutory warranties; and (3) the proper assessment of loss. I propose to deal with appeal grounds 9 and 12 first before proceeding to consider the remaining grounds, some only briefly. In my view, the appeal should be allowed on the basis of appeal ground 9.
Who was the contracting party (appeal grounds 9 and 12)
This is a very important issue. If Truflor Corporation had been the contracting party, the appeal must be allowed irrespective of whether or not the works were properly performed. The respondent would be left with such claim as she might be able to bring against Truflor Corporation (now deregistered) but no claim against the appellant.
The Magistrate found that the appellant was the contracting party. Given the importance of this issue, I set out her Honour’s reasoning on this issue in full. Her Honour made reference to specific passages from Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[10] and Nanosecond Corporation Pty Ltd & Anor v Glen Carron Ltd & Anor (No 2)[11] and then continued as follows.
[10] [2004] HCA 52; (2004) 219 CLR 165 at [40], 179.
[11] [2018] SASC 188 at [11].
Mr Treffers held a general builder’s licence at the relevant time. The defendant company never held a builder’s licence prior to deregistration. Mr Andrew Treffers has never held a builder’s licence. Moreover, none of the employees, subcontractors or workers involved in the installation of the plaintiff’s flooring had also ever held a builder’s licence.
In his defence, Mr Treffers denied he was a party to the contract or bound by the contract in his individual capacity. In evidence, he said he was an employee of Truflor and it was his builder’s licence that provided the company the right to engage in flooring work. However, this assertion is not supported by his dealings with the plaintiff before and after the flooring was supplied and installed.
After the first written quote signed by Mr Treffers as ‘Manager’ under the letterhead ‘Truflor Australia Pty Ltd’, a series of email transmissions were sent or received by the plaintiff, ‘Kate’ at the email address [email protected] in a correspondence with ‘Keith’ at KeithTreffers,[email protected] [sic]. These emails support my finding that Mr Treffers contracted with the plaintiff in his personal capacity. The email transmissions resulted in an agreement set out in a Minor Works Agreement, Contract Number 14454, between ‘Keith Treffers Truflor Aust P/L’ and ‘Mr and Mrs Phong (Kate)’. Mr Treffers signed the agreement in his individual capacity.
During negotiations about the plaintiff’s complaints about defects in the flooring ‘Keith’ sent emails on 16 June 2015, 15 July 2015, 16 July 2015, 17 July 2015, 22 July 2015, 28 July 2015, 29 July 2015, 1 August 2015, 2 August 2015, 10 August 2015, 19 August 2015 and 13 October 2015 stating that the views expressed in the emails were those of the individual sender, ‘Keith’ only and not ‘TRUFLOR’, except when it is expressly stated to be the views of Truflor. Many of these emails contained personal assurances.
On numerous occasions it was Mr Treffers who determined what work should be done and instructed and directed the installers, who complied with his wishes and directions. When the ‘boys’ were replacing a section of the floor, ‘Keith’ said that these workers were not responsible for the removal of paint spots from the stairs but he ‘told them to do the best they can’. When he was agreeing to rectify the plaintiff’s complaints set out in her letter dated 29 July 2015, he said he would attend with the workers and ‘systematically attend to each issue’ and continue to do his best ‘to ensure the plaintiff’s complete satisfaction’. He referred to the installers as ‘my guys’. He had arranged for ‘Ronnie Andrew and Ardi to rectify any work that did not comply with ‘TFA published standards’. In negotiations about rectification work, Mr Treffers said he was instructing the workers. He stated that he had instructed Ardi to scuff and put another coat on the floorboards in the passage. He arranged an inspection of the flooring to occur when he was ‘back at work’. After a site inspection and an email from the plaintiff complaining she had not heard from him for 3 weeks Mr Treffers responded by email dated 9 November 2015, which began:
“Dear Kate
I was of the opinion that you don’t want me to do anything anymore as you were getting ATFA to do an inspection. As I said all along, I will stick by you and do whatever it takes to ensure your floor is and remains serviceable.”
At the relevant time, Truflor Australia Pty Ltd did not hold a builder’s licence and the defendant company had no builder’s licence because Mr Treffers was in full control of Truflor; it was his business; he set it up, he ran it, he exclusively liaised with clients, he determined the price in all quotes, he organised the workforce to do the work and scheduled when the work was to be undertaken. The evidence of his son and the other workers who installed the plaintiff’s flooring confirm that work on the basis of Mr Treffers’ instructions, and know nothing of the workings or operations of Truflor, the defendant company or any other company registered by Mr Treffers. It may be that from time to time Mr Andrews Treffers is recorded as a company director for some or all of the companies registered by his father, but he does not direct; he follows the directions of his father who determines what corporate entity will be registered or deregistered. Mr Andrew Treffers’ evidence establishes that he has no role in securing contracts or the financial management of the business. Whatever Mr Keith Treffers thought Truflor’s role in his operation was, the relevant contract was signed by him on 8 May 2014, shortly after he resigned as a director of the defendant company on 13 March 2014.
Mr Treffers signed the contract as a party to the contract and at all times advised the plaintiff that he was personally responsible for any remedial work and felt personally obliged to resolve any problems. He raised a corporate shield for the first time in defence of these proceedings.
I find the parties to the contract were the plaintiff and the defendant Mr Treffers.
(Footnotes omitted)
There are a number of criticisms that can be levelled at this reasoning. Principally, with respect, the Magistrate: accorded little or no acknowledgment the basal proposition that a corporate entity can only operate through a human agency such that merely drawing attention to the appellant’s conduct begs the critical question – was he acting on his behalf or the corporate entity’s behalf; asserted twice that the appellant signed the contract as a party without giving any proper reason for this ultimate conclusion; did not focus on the objective theory of contract formation; improperly relied extensively on post formation conduct and criticised the appellant for only raising the “corporate shield” for the first time in his defence, an irrelevant consideration and where there was no real reason to do so earlier in any event.
In order to determine this issue of the correct contracting entity, it first will be convenient to set out a chronology of the parties’ material interactions.
A chronology of the parties’ material interactions
Item 1
In response to a leading question in examination in chief concerning her first contact with the appellant – “How did you locate Keith Treffers in the first instance” – the respondent answered:
Initially through Ebay, advertised as, you know, the type of timber that I wanted.
. . . .
And then I was able to speak to him on the phone and then he said he had a showroom.
The respondent did not say whether, on making this initial enquiry, she had been directed to a website or search result that referred to the appellant or to Truflor Corporation. However, it is apparent from the evidence that the business of supplying and installing timber flooring was conducted by the corporate entity, Truflor Corporation, albeit through the apparent agency of the appellant.[12] It is common ground that all of the respondent’s personal dealings were with the appellant.
[12] As at the time of contract formation, the appellant was no longer a director of the Truflor Company; however, he remained one of two shareholders and continued to conduct the business.
The respondent said that, before entering into any contract, she did some research about the appellant’s credentials and his work.[13] She said she looked at “his” website.[14] The website pages in evidence only refer to the apparent business name(s) “TRUflor Australia” and “TRUflor”. There is no express mention of Truflor Corporation or Keith Treffers. The website includes the statements “TRUflor Australia are the experts in all timber flooring …”, “We are committed to 100% client satisfaction, making Truflor the preferred company by leading architects …”, and “TRUflor is a licensed and registered company that specialises …” (emphasis added).
Item 2
[13] TT78.
[14] Exhibit P1, tab 61.
The respondent visited the showroom and spoke with the appellant. He provided information about the particular timber the respondent was interested in after which the appellant went to the respondent’s home to measure the area and for further discussion.
Item 3
On Thursday 1 May 2014, the appellant sent an email[15] to the respondent to which was attached a quote.[16] The email was received from the address, “Keith TREFFERS [email protected]”. This address identified to a recipient, a sender entity different from the appellant but with which he was somehow involved. The email was in these terms.
Hi Kate
Attachment for quote attached.
As I have not much extra left after your job requirements, I wont sell any of it until after the weekend, allowing you time to discuss with your hubby.
The price I have quoted you is for a complete job with no extras.
Kind regards
Keith
(Emphasis added)
Item 4
[15] Exhibit P1, tab 1.
[16] Exhibit P1, tab 2.

The attached quote was on the letterhead of Truflor Corporation and apparently was authorised[17] by “Keith Treffers Manager”. The full terms of the quote were as follows.
[17] There is no actual signature on the attachment.
TRUFLOR AUSTRALIA PTY LTD
Commercial Architectural Flooring Outfitters
Thursday, 01 May 2014
Mrs Hoa Phung
….
Dear Kate
Following my on-site visit, I am pleased to quote your flooring requirements as follows;
For the entire area downstairs, upstairs and stairway, including new extension (slab level with existing pine floor.) 130 x 14 select grade Spotted Gum, both adhered and secret nailed.
If new downstairs extension is to be batten and ply $36,336.30
Please add $2000.00
Kate, as discussed doing the entire home will result in it being the showpiece
It deserves to be. The spotted gum wide plank will achieve a real WOW! Factor.
Currently I have enough flooring for your home in stock, hence you will need to decide as soon as possible. As you know the normal price is $108 psm, so at $68.00 psm it is a real steal that won’t last.
Hoping the above meets with your expectations and please contact me at any time should you require further information.
Kindest regards
Keith Treffers
Manager
42 Tapleys Hill Road, Royal Park, SA, 5014 Ph. 84471839 [email protected]
(Emphasis added)
A recipient of this quote would understand, on reading it, that it was a quote from an entity called Truflor Australia Pty Ltd, sent on its behalf by the appellant as manager of that entity.
Item 5
The respondent discussed the quote with her husband and then on Saturday 3 May 2014, sent the following email[18] raising 10, mostly technical, questions. The aspects of this email potentially material to the present enquiry are as follows.
[18] Exhibit P1, tab 3.
Hello Keith,
Thank you for your quote. My husband would like to know the following details about the spotted gum engineered flooring job:
1.     Thickness of timber above tongue and groove in mm. Width and length of boards.
.  .  .  .
10.     Will you be able to oversee the entire job?
Thank you for your assisting me with these questions Keith. I hope to hear from you soon so we can make our final decision on Monday.
Sincerely
Kate Phung
(Emphasis added)
Item 6
On Sunday 4 May 2014 at 9.19 am, the appellant emailed a response[19] to the 10 questions, again recording the sender and sender’s address in the same terms as in Item 3. The email addressed each of the 10 questions in turn and includes the following.
[19] Exhibit P1, tab 4.
Good Morning Kate I will answer as follows;
1/. The face starts of [sic] at 4 mm less factory sanding, plus 7 coats clear. Like I pointed out in 15 to 20 years time when a re-sand in [sic] required you only remove the old coating, With all timber floor engineered or solid, you only ever sand once to level the floor, so even this engineered flooring can be resanded and re-coated many times in the future. It is important to keep some spares in the event you damage the floor like dragging out dishwasher or fridge, in which case you replace damaged planks not re-sand entire floor area
.  .  .  .
3/. Yes, we will seal entire concrete area, Our system is Seal Slab – Glue and pin battens to slab, glue and secret nail floor to battens.
.  .  .  .
5/. Where and if required we will sand existing floor known as “ Rough cut the floor on 45 ”
.  .  .  .
8/. Full payment for flooring required, Balance on completion of work . Delivery from TRUFLOR to site at buyers account. As the work is over $ 12000 in S.A. we require to issue Small Works Contract . We will store flooring for you until required, Once house is to lock up It can be stored in the front 2 rooms, if placed in the middle of rooms, thereby not interfering with trades like painters, etc., who may need to work in there.
.  .  .  .
10/. Yes me or Andrew plus we record and pix every few hours, ensuring we have a full record of the work on DVD.
Should you wish to proceed the discounted flooring price payable will be $ 23,800.00 based on 350 x $68 The balance payable on completion.
Thnx and Kind Regards
Keith
. We will beat any written quote for same product by 20%
(Emphasis added)
Item 7
After discussing the matter further with her husband, the respondent decided to proceed and on Sunday 4 May 2014 at 10.18 pm she sent the following email.[20]
[20] Exhibit P1, tab 5.
Hi Keith,
Thank you for answering all my questions.
We would like to accept your quote.
Am I able to get a sample off you when I see you next to sign the contract?
Could you please confirm the LENGTH , width and thickness of the boards in the contract.
Please let me know what will happen next.
Thank you
Kate
The request “to confirm … LENGTH, width and thickness … in the contract” is a reference back to the respondent’s first question in Item 5 and the appellant’s incomplete response in Item 6, omitting information about length and width.
Item 8
On Monday 5 May 2014, the appellant emailed a reply[21] to the respondent’s specific concern (length and width) in these terms.
[21] Exhibit P1, tab 6.
Hi Kate 130 x 14 x 1.8 each pack will have a couple of short planks in it. This is required to obtain the stagger . Some I will pull out for the stairs.
Over the next week, I will pull out all our Spotted Gum, to ensure I have all your requirements . After which I will repare the contract. You will need to let me know if we are putting ply down on top of the battens in the new area.
so we can give builder a confirmed level to work to.
Once I have all packs ready for your inspection I will contact you
Kind regards
Keith
(Emphasis added)
I interpolate that it appears that the respondent was satisfied with this response. The issue of length and width does not appear to have arisen again.
Item 9
On Tuesday 6 May 2014 at 1.04 am, the respondent emailed[22] further queries.
Hello Keith,
That would be good if you could confirm you have enough timber.
Are the floors sound enough at the new area to have battens only under flooring. Or do we need battens then ply then flooring?
Alright I will wait to hear from you once you have the packs ready for inspection.
Thank you and speak to you soon
Kind regards
Kate
Item 10
[22] Exhibit P1, tab 7.
On Tuesday 6 May 2014, at 11.51 am, the respondent emailed[23] two more queries.
Hi Keith,
Please place engineered flooring over ply and battens in the new section ( and any other areas that are over new cement base). Can you confirm the level of the new area with the builder once you have calculated it.
KR
Kate
Item 11
[23] Exhibit P1, tab 9.
On Tuesday 6 May 2014 at 3.24 pm the appellant emailed a response.[24]
Hi Kate yes we hvave [sic] enough timber and tomorrow we will get them all out we can do straight on the battens but I feel more confident if it has ply under it making it strong like the rest of the house. I have quoted you just cost we will do the install of battens and ply for free as part of the overall project/ regards keith
Item 12
[24] Exhibit P1, tab 8.
On Wednesday 7 May 2014, the appellant sent the following email[25] to the respondent. As with all previous emails, whilst from “Keith TREFFERS”, it came from the “[email protected]” address. It was in these terms.
hi Kate
Attachments for your approval. I think I have covered everything. I have allowed for 12 mm ply, might as well make it as strong as possible. As long as the builder sets the slab down 31 mm from existing top of existing floor level , we will get a perfect result.
you can call on sign and collect originals any time you are ready
Kind regards
Keith
[25] Exhibit P1, tab 10.
The email refers to “attachments for your approval”. The exhibit[26] in evidence comprises the one page email together with six other documents being: a colour photograph of pallets of stacked timber floorboards covered in what appears to be clear plastic shrink wrap on which is handwritten “6/5/14 SOLD PHUNG 1445”; a copy of the South Australian “Building Regulations 1991”; a one page document headed “Kate Phung Room Measurements”; a four page document headed “Schedule 3 FORM 1 Notice under section 28(1)(f) of Building Work Contractors Act 1995”; a one page “Tax Invoice” document addressed to the respondent and her husband in the name “Truflor Australia Pty Ltd trading as TRUFLOR”; and a one page document headed “Minor Works Agreement”.
[26] Exhibit P1, tab 10.
The contents of this exhibit were not identified in any detail during the evidence. Counsel for the respondent during her evidence in chief took her to tab 8 and then tab 9 after which this exchange occurred.[27]
Q.And I think in one of those emails Keith says the packs can be inspected so did you go and inspect the packs.
A.I did, yes.
Q.And did you do anything else when you went and inspected -
A.That was when I came to the showroom to sign the contract.
Q.Okay and so he's sent you an email attaching the contract by that stage and you've gone to the showroom to sign the contract, is that right.
A.Yes, that's correct.
Immediately thereafter, counsel took the respondent to tab 11, the copy of the Minor Works Agreement signed by the respondent (see below). I infer that the reference (above) to “an email attaching the contract” was a reference to tab 10 and I further infer that there was no dispute concerning the full contents of tab 10 (the six attached documents) accepted into evidence.[28] Neither the appellant nor the respondent were asked any questions concerning these six attachments. I make the following observations.
[27] TT51-52.
[28] The respondent’s counsel when cross-examining the appellant acknowledged the sending of two attachments, TT552-553.
Whoever wrote on the shrink wrap “6/5/14 SOLD PHUNG” appears to have been of the view that an arrangement had been struck with the respondent concerning this stock, consistent with the respondent’s acceptance of the quote on 4 May 2014 (Item 7) and the email exchange on 5 and 6 May 2014 (Items 8 to 11).
The attached “Tax Invoice” records a brief description of the works, the quoted price of $38,336.30 and a tear off “Please detach and return with your payment to …” slip. The tax invoice makes no reference at all to “Keith Treffers” but refers to “Truflor Australia Pty Ltd” at four places and “Truflor” or “Truflor Australia” at six places. Throughout the document, only the plural form of pronouns is used (“we”, “our”).
The attached copy of the “Minor Works Agreement” had been signed, at this stage, by only the appellant but otherwise was in the exact form of that document ultimately also signed by the respondent and dealt with in the next item.
Item 13
Item 13 is a copy of the “Minor Works Agreement” as signed by the appellant and then by the respondent and dated 8 May 2014. It comprises two apparent back to back pages, the reverse page of which is headed “Terms of Minor Works Agreement”.[29] The front page or agreement itself consists of pre-typed text and handwritten inclusions. It is an important page of the document and I set it out in full. The material in italics is the handwritten inclusions.
[29] Exhibit P1, tabs 11 and 12.
MINOR WORKS AGREEMENT  (SA, NT) Contract Number: 14454
We, our us    Name: Keith Treffers   Truflor Aust P/L
(the Builder) A.B.N.: 87 159 440 114       A.C.N.: 159 440 114
Address: 42 Tapleys Hill Rd, Royal Park SA 5014
Phone No: 8447 1839  Builders Lic No: [blank]
You, your     Name/s: Mr & Mrs Phung (Kate)
(the Owner) Address: [address of respondent]
Phone No: [phone number of respondent]   A.B.N.: [blank]
The site       [address of respondent]
Volume: CT XXX       Folio: XXX
Finish date    [blank]
The Work (also write any of the Builder’s access obligations in this space)
If required rough cut areas of existing floor at 45° to create level surface. Batten and ply pantry and new slab. Seal concrete areas. Supply and install 130 x 14 spotted gum engineered pre finished flooring to all areas as per attached calculations.
Supply and install stair case covering in same plus spotted gum solid timber stain nosing.
Once installation starts, other trades excess [sic] is restricted unless agreed to by flooring contractor to prevent damage.
The level of new slab to be 31 mm below existing pine floor.
List progress payments (if any)

1 Materials payment

$25800-00

2 On completion and hand over

12536-30

3

10% GST

Total Contract Price

(Including GST)

$38336-30

The Price
We offer to do the work for you for the price, at the site and on the terms set out overleaf. The offer remains open for 14 days.
[signed by the appellant]            [signed by the witness]  8/5/14
Builder  Witness  Date of signing
[signed by the respondent]   [blank]  [signed by the witness]     8/5/14
Owner  Owner                Witness  Date of signing
NB If this contract exceeds $12,000.000 in value, a Form 1 from the Building Work Contractors Act must be attached (for work completed in SA).

In her evidence in chief, the respondent said that she signed this document at the showroom on 8 May 2014 and that the witness to both signatures was the appellant’s son, Andrew.[30] The following exchange occurred.[31]
[30] TT51-52, 553.
[31] TT52-53.
Q.Did you ask any questions about who would be doing the work.
A.I ask - I did because I just wanted to make sure that, you know, I was talking to the person who was going to be dealing with my house and he said that he'll oversee it but he won't be installing. Most likely his son would be installing.
Q.Did you pay the deposit then.
A.No. I went home and I asked Jason to transfer the money.
Later in the respondent’s evidence in chief she gave this evidence.[32]
[32] TT77-78.
Q.Yes, it’s not a big issue but I just wanted to clarify. Did Keith ever give you a building licence to show you that he had a building licence; did he show you a number at any stage that you’re aware of.
A.No.
Q.Never.
A.I wasn’t aware about the whole building licence number thing until when I engaged with Andersons Solicitors, and they asked me and I said I don’t know, and that’s when they did that search and found his licence. But before then, I wasn’t aware of that legality.
Q.You told us earlier that you went to eBay to have a look and you found Keith through there, and then you went to his showroom. Did you have a look at the website at any stage, Keith’s website.
A.Yes. Yes, so as part of my research, I did, you know, look at his credentials and his work, they had pictures of his work, and also when I spoke to him he gave me examples of his work where he said, you know, he – Pembroke School and he named this prominent school, the basketball court in there, he was the one who polished it and every year they contract him to renew it. So I thought, you know, he’s reputable and he should be able to do a good job.
Q.I ask you to turn to tab 61. Do you recall seeing those words on the website when you went to have a look for Keith’s Truflor website.
A.Yes, very much so.
Q.Was there anything in particular in that that gave you reassurance about engaging him.
A.Well, the fact that he was licensed and being a master craftsman of AFA, and then all the work was guaranteed, and insurance, so he looked very reputable.
I interpolate here that the website[33] made no mention of the appellant. The characteristics to which the respondent referred could only be those of “Truflor” and “Truflor Australia”.
[33] Exhibit P1, tab 61.
In cross-examination, the appellant gave this evidence concerning Item 13.[34]
[34] TT553-555.
Q.You see at the top of that document -
A.Yep.
Q.- where it says ‘Minor Works Agreement’ and then it says ‘We, our, us’.
A.Yes.
Q.And your name is the first name there isn’t it.
A.Yes.
Q.So do you agree that you are a party to the contract.
A.No.
Q.Why do you say that.
A.I, I put my name there as the representative that she’s dealing with and the contract is Truflor Australia and as you can see that by the ABN and the ACN numbers.
Q.Yes you can see that but Truflor Australia didn’t have a building licence -
A.It doesn’t have to have a building licence.
Q.No, it doesn’t. Why doesn’t it have to have a building licence.
A.I’m, I’m the supervisor, I was the licenced building supervisor. I hold a work supervisor’s licence as well as a general builder’s licence and I’m just representing this company on the legalities of the building.
Q.Well this is going to be a matter for legal submission but let me tell you that the Building Work Contractors Act says that whoever enters into a contract has to have a building work contractor’s licence.
A.My licence was noted by Consumer Affairs that’s representing Truflor.
Q.That’s correct you had a supervisor for an interview that doesn’t have its own – perhaps a company or whatever has to have a supervisor as well -
A.Yes.
Q.- but the entity who entered into the contract has to have a building work contractor’s licence.
A.Well -
Q.I’m putting it to you that’s the case.
. . . .
Q.You’re the only person on this document who’s got a building contractor’s licence.
A.Correct.
Q.Yes, that’s all I’m asking. So you see there’s a place for a builders licence number on the form. On the right hand side.
A.Yes.
Q.And that’s blank.
A.Just an oversight.
Q.Yes. Well whose licence number would have gone there if you were to put one on there.
A.My licence number would have gone there.
The appellant agreed in cross-examination that at the time he signed the contract, he was no longer a director of Truflor Corporation but said that he was working part time as the manager.[35] The appellant gave this further evidence during cross-examination.[36]
[35] TT602-603.
[36] TT625-626.
Q.Can I just say, in response to what my friend has said, it goes to the very heart of my initial questions to Mr Treffers, which were ‘Why is your name on the contract?’ and the reason your name was on the contract, as I said to you at the time, is you need a licence and you said ‘No, we don’t need a licence to carry-out the work’. What I’m saying to you is that’s wrong. Someone needs a licence to carry out that work and you’re the only one who had the licence and your name was on the contract – now, what do you say about that now.
A.Now – well I say that’s – you’re completely wrong and you’re making up a story. Andersons Lawyers, the initial people, very well knew the reason why my name was on that contract and why Ms Phung’s name was on that contract. It – the – that contract doesn’t say ‘Keith Treffers and Truflor’. It has ‘Keith Treffers’ written on the top corner. The reason being, the lady asked me my name and how to spell it and so I said ‘Look, I’ll write it here’. So, I wrote it there and then she said ‘You can write my name down as Kate, I like to be referred to as Kate’ and so as a consequence of that I wrote ‘Kate’ behind her name.
Q.Well, now we’re going to have to have a look. Looking at Exhibit P1 produced, if you open that up to tab 11, you’ll see the Minor Works Agreement.
A.11? Yes. Yes.
Q.Now, is it your evidence that the name ‘Truflor Australia Pty Ltd’ was written on that before your name was written on it.
A.Say again?
Q.Are you saying that ‘Truflor Australia Pty Ltd’ was written on this agreement before your name was written on it.
A.Yes.
Q.Okay, have a look at the first line, do you still say that’s the truth.
A.I’m not – where am I looking?
Q.Tab 11, the top part of the page.
A.Yeah. The first line. What do you mean by the first line?
Q.Where it says ‘name’.
A.Yes.
Q.Can you see that.
A.Yes.
Q.Can you see ‘Truflor Australia Pty Ltd’ is right out on the right-hand side of the page.
A.Yes, yes, yes.
Q.And your name is next to the word ‘name’.
A.Yes.
Q.You’re telling me that ‘Truflor Australia Pty Ltd’ was written on there first -
A.That’s -
Q.- but conveniently you left a space for your own name there to be added later.
A.Always do. Always right about the middle of the page and, and you will see if you go a little bit further down, where it says ‘name, Mrs Phung, (Kate)’ because she asked me to put her name there, so -
Q.Well you didn’t leave a space to put ‘Kate’ before ‘Mr and Mrs Phung’ -
A.Because she mentioned that afterwards, she said ‘put my name in’. It doesn’t say – it doesn’t say ‘Keith Treffers and Truflor’. I’m – I’m not in a situation to, to, to issue contracts on my own behalf.
Formation of contract and parties to the contract – legal principles

The question of who are the parties to a contract is quintessentially an aspect of how, when and in what form has a contract been entered into. In order to bring into existence a simple[37] bilateral, executory contract whether orally or in writing, the parties must have reached agreement as to terms, valid consideration must have moved from each to the other and the parties said to be charged must have agreed to enter into legal relations with each other by way of an enforceable contract.
[37] That is, not by specialty or deed.
In Barrier Wharfts Ltd v Scott Fell & Co Ltd,[38] Higgins J made the following well known and unimpeachable statement.
There is no contract unless the two parties mutually consented to be bound one to the other by one agreement. Moreover – though it ought to be superfluous to say it – it is one thing for two parties to settle what are to be the terms of an agreement, if it should be made; and quite another thing to make the agreement.
[38] [1908] HCA 88; (1908) 5 CLR 647 at 650.
In Kuehn & Kuehn v Masterton Homes (NSW) Pty Ltd,[39] Hammerschlag J provided the following summary of some of the principles applicable when assessing whether a binding agreement has been entered into with reference to well known authority.
(1)Whether an agreement has been entered into is to be objectively assessed. The objective intention of the parties is fact-based, found in all the circumstances, including by drawing inferences from their words and their conduct in their making of the agreement … .
(2)In ascertaining the intention of the parties, whether from a series of communications or from a single document, regard can be had to the commercial circumstances in which the parties exchanged their communications and to the subject matter of the supposed contract … .
(3)The Court will not write a contract for parties who have failed to reach agreement. Failure to reach agreement includes where there is obscurity or incompleteness in the agreement … .
(4)The existence of matters of importance on which the parties have not reached consensus in their informal agreement will render it less likely that they intended immediately to be bound before the execution of a formal document. That the terms have not been fully or well stated is material to whether a contract has been made. The more important the term, the less likely it is that the parties will have left it over for future decision, but there is no legal obstacle which prevents the parties agreeing to be bound now while deferring important matters … .
(5)Regard may be had to the parties’ subsequent communications to assess whether it was in their contemplation that they were not to be bound until all the essential preliminaries had been agreed to or until the formal contract had been drawn up embodying all the matters incidental to the transaction … .
(6)An agreement may contain an implied term requiring the parties to do all cooperative acts necessary to bring about the contractual result. A duty to cooperate may require parties to execute a formal instrument but does not apply to the negotiation of varied or additional terms … .
(Citations omitted)
[39] [2020] NSWSC 1049 at [29].
Communications between the parties and their conduct, subsequent to the putative formation of a contract, can be admissible and relevant to the question of whether and when a contract has come into existence. The applicable principles were recently summarised and discussed by Giles JA (with whom Hodgson and Campbell JJA agreed) in Sagacious Procurement Pty Ltd v Symbion Health Ltd.[40]
[40] [2008] NSWCA 149 at [99]-[106], and see Holt v Bunney [2020] SASCFC 89 at [141], [143].
However, there is no dispute concerning whether and when the contract came into existence; the only question in this case is whether the signatories to the Minor Works Agreement intended the contracting party to be Truflor Corporation or the appellant or both. This requires an objective analysis of the admissible evidence. In this context, the statement of basic principle by McLelland J in Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd[41] is of assistance.
Questions of the relevance and probative value of evidence cannot properly be considered independently of what the relevant issue is. It is thus necessary to identify with some degree of precision what the relevant issue is, in the present case. This involves a consideration of what it is in point of fact that constitutes the making of an informal contract, in circumstances such as the present. In my opinion, in such circumstances, a contract is made by the mutual communication between the parties of their respective assents to being bound by identifiable terms otherwise capable of having contractual force, the mutual communication typically taking the form of offer and acceptance. “It is not the subjective thing known as meeting of the minds, but the objective thing, manifestation of mutual assent which is essential to the making of a contract.” (Williston on Contracts, 3^rd ed, vol 1 para 21.)
Frequently one finds the relevant issue formulated in terms of the “intention of the parties”. It is necessary to understand the sense in which the expression “intention” is thus used. In my opinion the following words of Lord Diplock in Gissing v Gissing [1971] AC 886 at 906, albeit in another context, are apt here:
“… the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party’s words or conduct, notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party.”
[41] (1979) 1 BPR 97023 at p 9254.
In the present case, it is common ground that the contract was entered into on 8 May 2014 when the “Minor Works Agreement” was signed by the appellant and the respondent together with any terms that might be implied in fact at common law or by statute. It is also common ground that the contract in this case is wholly in writing. There had been a series of communications, essentially in the nature of negotiations, which were then reduced to writing and signed by the respondent and the appellant. Whilst not necessary to decide in the context of this dispute, in my view, the written terms comprised the Minor Works Agreement together with various of the assurances sought and given in the email exchanges, in particular, those items 5, 6, 10 and 11.
After the Minor Works Agreement was signed, there were further communications, which both parties have sought to rely on as evidence of their earlier respective intentions as to who was the contracting party on the contractor side.
A contract wholly in writing is subject to the parol evidence rule. For present purposes, I adopt the statement of that rule by Lord Morris in Bank of Australasia v Palmer.[42]
[P]arol testimony cannot be received to contradict, vary, add to or subtract from the terms of a written contract, or the terms in which the parties have deliberately agreed to record any part of their contract.
Whilst various formulations of the rule refer to parol evidence, that is, oral testimony, the rule applies to any form of extrinsic evidence, that is, evidence other than the document or documents under consideration.[43] However, it is well accepted that extrinsic evidence is admissible to resolve ambiguity in the written agreement.
[42] [1897] AC 540 at 545.
[43] See generally, J D Heydon, Cross on Evidence (LexisNexis Butterworths, 11^th ed, 2017) at [39140]-[39145].
Of present relevance, extrinsic evidence has been received in order to determine the capacity in which a party has executed a document, where otherwise ambiguous.[44] The identity of the parties to a contract can be fundamental to whether a contract has come into existence. In Homburg Houtimport BV & Ors v Agrosin Private Ltd & Anor,[45] Lord Millett observed the following.
The identity of the parties to a contract is fundamental. It is not simply a term or condition of the contract. It goes to the very existence of the contract itself. If it is uncertain, there is no contract. Like the nature and amount of the consideration and the intention to create legal relations it is a question of fact and may be established by evidence.
[44] See J D Heydon, Cross on Evidence (LexisNexis Butterworths, 11^th ed, 2017) at [39190].
[45] [2004] 1 AC 715; [2003] UKHL 12 at [175].
In Lym International Pty Ltd v Marcolongo,[46] Campbell JA explained the approach to interpreting a wholly written contract in these terms.
There is a vast difference between the task that is involved in interpreting a wholly written contract, and the task involved in finding what has been agreed in a contract that is not wholly in writing. The difference between those tasks in itself makes a vast difference between the circumstances in which post-contractual conduct can be relevant for the respective tasks.
Where there is a contract that is wholly in writing, there is no doubt what the contract is - it is the writing. The task of interpretation is ascertaining the meaning that the bystander who knows all the relevant surrounding circumstances would understand from the parties using the words in that writing. The admissibility of evidence for interpreting a wholly written contract is decided by reference to whether it is able to assist in ascertaining the meaning that the bystander who knows all the relevant surrounding circumstances would understand from the parties using those words. Save in the case of post-contractual events providing retrospectant evidence of a surrounding circumstance that was known to the parties at the time of contracting, the view favoured in this court is that post-contractual conduct cannot assist in that task, and thus is not admissible, or if admitted cannot legitimately be used in that task …
By contrast, the task in ascertaining what are the terms of a contract that is not wholly in writing is quite different - the task is finding as a fact what the parties have agreed. A range of post-contractual conduct could be relevant to ascertaining what the parties have agreed. For example, their conduct in carrying out the contract could itself be objective evidence of what they had agreed, an admission of one of the parties could assist in ascertaining what they have agreed, and business records created to record or report on the contract rather than carry it out could also assist in that task.
(Citations omitted)
[46] [2011] NSWCA 303 at [141]-[143].
Whilst the law is not completely settled, Leeming JA in BH Australia Constructions Pty Ltd v Kapeller,[47] after an exhaustive consideration of relevant authorities, reasoned persuasively, with respect, that post-contractual evidence is not available for the purpose of identifying the parties “in the case of a contract which is wholly written and which is not said to be a sham or to involve fraud or is sought to be rectified in equity”.
[47] [2019] NSWSC 1086; (2019) 100 NSWLR 367, 387 at [90].
Consideration
An issue ventilated during the trial on a number of occasions was whether the entity who performed the works in question was required to hold a builder’s licence under the BWC Act. Such a licence was held by the appellant but not by Truflor Corporation. It was the appellant’s evidence that 95 per cent of Truflor Corporation’s work involved installation of floating floorboards for which such a licence was not required. Further, according to the appellant, for the occasions when Truflor Corporation did work for which a licence was required, the statutory requirements were satisfied provided the (licensed) appellant supervised the work. It was the appellant’s case that the works in this case involved floating floorboards and did not require a licensed builder.
These issues raise questions of law and of mixed fact and law to which I will return. The works have been completed (subject to complaints) and paid for. The issue between the parties is whether the respondent is entitled to rectification work or damages and, if so, from whom. The question of whether or not the works had to be performed by a licensed builder is of no relevance to the dispute save to the extent, if any, that the answer to this question might assist with the issue of who was the contracting party.
The contract was formed upon the execution by the respondent of the Minor Works Agreement (Item 13). The parties at trial referred to various email communications between the respondent and the appellant thereafter in support of their respective cases as to who was the contracting party on the appellant’s side. The Magistrate was persuaded that the terms of the emails sent to the respondent by the appellant before execution of the Minor Works Agreement (identified in the chronology above) the terms of numerous emails sent afterwards and the parties’ personal interactions thereafter concerning the performance of the works and the appellant’s attempts to deal with the respondent’s complaints, all lent support to the finding that the appellant had signed the Minor Works Agreement in his personal capacity.
I do not propose to set out the detail of the many post contract formation communications. In my view, none are admissible on the question of who were the parties to the contract. Even if they were admissible, they do not assist either party and, with respect, her Honour’s approach was misconceived. Truflor Corporation was a corporate entity; it could only have operated through the agency of a human being or human beings. At all material times, from the perspective of the appellant and Truflor Corporation, the appellant assumed the role, de jure or de facto, as manager of Truflor Corporation’s business. The appellant negotiated and signed contracts on behalf of Truflor Corporation, he arranged for contracted works to be performed on behalf of and for invoices to be issued in the name of Truflor Corporation so that Truflor Corporation was paid amounts due for the work performed for clients. The fact that various emails went to and came from the appellant both before and after the Minor Works Agreement was signed and the fact that he employed both singular and plural pronouns in that correspondence from time to time is intractably neutral.
It is readily apparent from the business documentation in evidence, including the website information, the quotation and the invoices and from the appellant’s evidence, that the operational structure employed for the business of providing flooring services was that of a proprietary limited company, the shareholders of which were the appellant and his son.
The appellant managed the company’s business but did not himself conduct a flooring business on his own account. Such a business model is extremely common and dates back to the 19^th Century.[48]
[48] Salomon v Salomon [1896] UKHL 1, [1897] AC 22.
I have reviewed the post-contract formation evidence and behaviour by the appellant in this context. The appellant’s emails and conduct are entirely consistent with this business model. Of particular note is a tax invoice for extras (in the amount of $1,902.50) dated 28 May 2015 and sent by Truflor Corporation to the respondent which was paid by transfer into the bank account of Truflor Corporation. The invoice makes no reference to Keith Treffers and refers to the creditor entity as Truflor Australia Pty Ltd.
The Magistrate’s critical findings were the following.[49]
At the relevant time, Truflor Australia Pty Ltd did not hold a builder’s licence and the defendant company had no builder’s licence because Mr Treffers was in full control of Truflor; it was his business; he set it up, he ran it, he exclusively liaised with clients, he determined the price in all quotes, he organised the workforce to do the work and scheduled when the work was to be undertaken. The evidence of his son and the other workers who installed the plaintiff’s flooring confirm that work on the basis of Mr Treffers’ instructions, and know nothing of the workings or operations of Truflor, the defendant company or any other company registered by Mr Treffers. It may be that from time to time Mr Andrews [sic] Treffers is recorded as a company director for some or all of the companies registered by his father, but he does not direct; he follows the directions of his father who determines what corporate entity will be registered or deregistered. Mr Andrew Treffers’ evidence establishes that he has no role in securing contracts or the financial management of the business. Whatever Mr Keith Treffers thought Truflor’s role in his operation was, the relevant contract was signed by him on 8 May 2014, shortly after he resigned as a director of the defendant company on 13 March 2014.
[49] First judgment at [18].
Even if these findings were to be accepted as by and large correct, it does not necessarily follow, as her Honour concluded,[50] that the appellant signed the contract in his personal capacity. The issue remains whether, notwithstanding the available corporate business structure, the appellant on this occasion contracted personally with the respondent rather than executed the contract on behalf of Truflor Corporation. Furthermore, it is not so much a question of what the appellant “thought” but, applying the objective approach to contract formation, with whom would a reasonable person in the position of the respondent have thought they were contracting.
[50] First judgment at [19].
The first question to ask is whether there is an ambiguity on the face of the Minor Works Agreement concerning the contracting parties. In my view, there is such an ambiguity.
Two names have been inserted as “the Builder”. They are separate legal entities: a person (the appellant) and a corporation (Truflor Corporation). It is true that the expression “We, our, us” has been pre-printed as a definitional expression. However, this is not because more than one entity necessarily was expected to be recorded as the contracted Builder. It is a recognition that often a business enterprise (partnership, business name or corporation) rather than an individual will be recorded as the “Builder” and allows generally for occasions when more than one entity might be the contractor.
The Minor Works Agreement also includes a handwritten Australian Company Number (ACN). This can only relate to Truflor Corporation and strongly suggests that the entity recorded as “Truflor Aust P/L” (a corporation) was intended as a party. However, it also includes an Australian Business Number (ABN), but only the one. An ABN is a unique 11 digit number provided by the Commonwealth government to identify an individual business whether that business be owned and conducted by a person, a partnership or a company. It is compulsory for a business with a prescribed annual turnover to have an ABN for goods and services tax (GST) purposes. It is not clear on the face of the Minor Works Agreement whether the recorded ABN is said to belong to a business conducted by the appellant or by Truflor Corporation. However, accompanying the Minor Works Agreement was a third page headed “Quotation”.[51] It is a standard form using a tick box system and sets out a summary of the works to be undertaken and the price. It identifies Truflor Australia Pty Ltd (Truflor Corporation) trading as Truflor as the quoting party (with no reference to the appellant) and records Truflor Corporation’s ABN, address and phone number consistently with each of those handwritten on the Minor Works Agreement. As such, it is to be inferred that no ABN or other identifying information has been included on the Minor Works Agreement for the appellant.
[51] Exhibit P1, tab 13.
The Minor Works Agreement has been signed once only by the appellant immediately above the typed word “Builder” and once only by the respondent immediately above the typed word “Owner”. Both signatures have been witnessed.

It is not expressly indicated whether the appellant has purported to sign in his own capacity or for and on behalf of Truflor Corporation or in both capacities. The latter would be very unusual. Ordinarily, where a person executes a dispositive document in more than one capacity that person should and usually would sign more than once, in respect of and identifying each capacity.
Finally, whilst it is not at all uncommon to have more than one contracting party on one or both sides of a transaction, it is not so common for a transaction of this nature. This is a minor building works contract. One would expect a single principal to be contractually responsible to do or to organise and take responsibility for the work. It is not uncommon, particularly where a limited liability company is the contracting party, for an individual also to sign as a guarantor. But this is quite a different capacity and would require terms of guarantee to be included and a clear expression of intention to be liable as guarantor. There is no suggestion of that here.
As it happens, the works have been completed (albeit subject to complaint) and all contractual payments have been made in favour of Truflor Corporation. The respondent’s husband paid on behalf of the respondent the amounts claimed, in invoices issued by Truflor Corporation, by way of electronic transfer to Truflor Corporation’s bank account.
The question arises whether, having regard to the foregoing, a reasonable person in the position of the respondent would have understood that two “Builders” were parties to the agreement each assuming identical obligations and each being entitled to payment of the price (itself a very unusual notion) or only one “Builder” was a party, and, if so, which one.
The respondent carries the onus of proving who is the contracting party or parties, in particular, that the appellant was the or a contracting party. In the absence of any further clarifying evidence, the respondent would fail to establish that the appellant was an additional party. Nevertheless, in these circumstances, extrinsic evidence concerning the negotiations prior to the execution of the Minor Works Agreement, if available, can be admissible to resolve any ambiguity.
The evidence discloses that, at all times before and after formation of the contract, the respondent dealt only with the appellant. She had to direct her enquiries and concerns to some responsible person no matter which of the appellant or Truflor Corporation was to be the contracting party and the appellant, at all times, was presented as that responsible person.
However, the evidence also demonstrates that at all times prior to signing the Minor Works Agreement a reasonable person in the position of the respondent would have understood that the appellant was acting as a representative of Truflor Australia Pty Ltd trading as Truflor.
The website initially looked at by the respondent (Item 1) included references only to “Truflor Australia” and “Truflor” and to Truflor as “the preferred company” and as “a licensed and registered company”.[52] Whilst a reasonable person in the circumstances of the respondent may have obtained some level of reassurance from the terms of the website, it was only with respect to the business name Truflor and the entity behind it, not the appellant personally.
[52] Truflor is the business name under which Truflor Australia Pty Ltd traded. It was, at the time of the relevant dealings, a registered company. It was not licensed under the BWC Act. However, the appellant said in evidence that it had a licence “from ATFA” (the Australian Timber Flooring Association). The accuracy or otherwise of this evidence was not pursued. In any event, the accuracy or otherwise of the website statement that the company was licensed is at most a representational issue between the respondent and the entity responsible for the content of the website.
The quotation sent by the appellant to the respondent (Items 3 and 4) was on the Truflor Corporation letterhead and was in terms that remained, materially, unchanged by the time the Minor Works Agreement was prepared. The quote described the appellant as “Manager”.
In the email of 3 May 2014 (Item 5), the respondent asked the appellant “will you be able to oversee the entire job” to which the appellant replied by email on 4 May 2014 (Item 6), “Yes me or Andrew”. It was apparent from this to a reasonable person in the circumstances of the respondent that persons, other than the appellant, would do the actual work and that the appellant or his son, Andrew, would be “supervising”. In other words, the contracting party was some form of enterprise that employed or subcontracted people to do the work.
On 7 May 2014 (Item 12), the respondent was provided with the Minor Works Agreement document and the one page “Tax Invoice” document. The latter was in terms consistent with the earlier quote and again referred only to Truflor Corporation and its business name, in numerous places. It contained Truflor Corporation’s business details including its address, contact details and bank account details and its ABN number being the only one recorded on the Minor Works Agreement document.
A reasonable person in the circumstances of the respondent, as a result of the communications with the appellant and having received the formal quotation document and this Tax Invoice document, could have been in no doubt that the business entity who was undertaking to do the work and to whom the price was to be paid, was Truflor Corporation of which the appellant was the manager.
The only potential contra-indication to this very straightforward contractual position was the inclusion of the appellant’s name on the Minor Works Agreement document. I have already set out the various features of this document that render it, at best for the respondent, ambiguous. Further, when the communications to this point are considered from an objective (reasonable bystander) perspective, there has been no suggestion, at any time prior to the signing of the Minor Works Agreement on 8 May 2014, that the appellant, himself, would be the contracting Builder or was to guarantee the works. The respondent had not asked for this; all that she had sought was an assurance that the appellant would supervise the works.
It is also significant that the appellant signed the Minor Works Agreement only once in the space designated “Builder”. As such, it would be inferred by a reasonable person in the circumstances of the respondent to this point, that he was signing on behalf of Truflor Corporation who was undoubtedly a contracting party and represented by the appellant.
The respondent’s evidence concerning her execution of the Minor Works Agreement was brief and unhelpful either way. She did not say whether she read the document or took note of the recording of the names in the entry adjacent to the word “Builder” or, if she did, what she understood by it.
The appellant also gave only brief evidence concerning the preparation and execution of this document. He said in cross-examination that he put his name there “as the representative that she’s dealing with” but with the contact details being those of Truflor Corporation. The Magistrate made no findings as to whether or not this was the appellant’s intention. On an objective assessment, this is likely to have been the reason. There had been no discussion about the appellant being a contractual party, let alone a request for this. In circumstances where the appellant’s business model had been to conduct the business through his limited liability company, it is simply implausible that, unless insisted upon by the respondent, he would offer himself as a co-contracting party. With respect, the putting of his name on the document adjacent to “Builder” was an act of foolishness but it is to be explained as a recording of his name as the contact person for Truflor Corporation. The wording used was not “Keith Treffers and Truflor Aust P/L” but simply “Keith Treffers Truflor Aust P/L”. It is better understood as “Keith Treffers for Truflor Aust P/L”.
In any event, as I have said, it is not so much a question of what the appellant intended but what a reasonable person in the circumstances of the respondent would have understood when signing the Minor Works Agreement.
Later during cross-examination, the appellant said the following.
The lady [respondent] asked me my name and how to spell it and so I said “Look, I’ll write it here”. So I wrote it there and then she said “You can write my name down as Kate, I like to be referred to as Kate” and so as a consequence of that I wrote “Kate” behind her name.
If this conversation had, in fact, occurred prior to the respondent signing the Minor Works Agreement, a finding that a reasonable person in the circumstances of the appellant would have known that the appellant was not a party to the transaction, would undoubtedly follow. However, the Magistrate made no finding as to whether a conversation in these terms took place or, if so, where or when it took place. The respondent was not cross-examined concerning any such conversation.
It is unlikely that any such conversation occurred at or immediately prior to the time the Minor Works Agreement was executed on 8 May 2014. This is because the copy of the Minor Works Agreement document provided to the respondent as an attachment to the email sent on 7 May 2014 (Item 12) had the names “Keith Treffers” and “Kate” already handwritten on it. The only change to the Minor Works Agreement document signed the next day (Item 13) was the addition of the respondent’s signature and the signature (twice) of the witness. That does not mean, necessarily, that a conversation in those or similar terms did not occur by telephone or in person at or prior to the time the appellant was completing (filling out the details on) the Minor Works Agreement so as to be able to send a completed copy as an attachment to the 7 May 2014 email. However, there is no direct evidence in support of this. I will proceed on the supposition that such a conversation did not occur.
The respondent raised other matters said to support her argument that she had contracted with the appellant personally.
It was contended that Truflor Corporation would have been acting illegally in contracting to do the work because it was not licensed and insured under the BWC Act, whereas, the appellant was licensed (or at least maintained that he was) and would not be acting illegally if he were to be the contracting party. It is not clear on the evidence whether or not either had insurance.
I accept that ordinarily a contracting party will be taken to have sought to comply with the law.[53] As Leeming JA observed in BH Australia Constructions,[54] there is every reason to ascribe an intention to the parties that they not break the criminal law. As such, it might be inferred that the respondent only intended to contract with an entity licensed and insured under the BWC Act and the appellant also did not intend to break the law. However, on the facts of this case, this argument or consideration is artificial. It does not reflect the objectively discerned intentions of the parties. The appellant at all times believed that his business conducted through Truflor Corporation was compliant and the respondent sought and obtained comfort in this respect prior to the time of contracting. The Magistrate made no findings to the contrary of the first proposition and there was insufficient evidence to support any such finding. The following further considerations arise.
[53] See BH Australia Constructions Pty Ltd v Kapeller and Another [2019] NSWSC 1086; (2019) 100 NSWLR 367 at [112]-[114].
[54] BH Australia Constructions Pty Ltd v Kapeller and Another [2019] NSWSC 1086; (2019) 100 NSWLR 367 at [112].
It is clear beyond doubt that, from an objective perspective, the respondent and Truflor Corporation intended to contract with each other with the appellant signing on behalf of the company. All of the identifying details on the Minor Works Agreement (ACN, ABN, address etc) and the previous formal documentation (quote, Tax Invoice) make this apparent to the reasonable person in the position of each of these two parties. The issue is not whether the addition of the appellant’s name (his only identifying feature on the Minor Works Agreement) meant that he was the contracting party in lieu of Truflor Corporation but rather whether he was to be an additional contracting party. As such, the respondent (objectively) intended to contract with an entity, Truflor Corporation, that, as it happens, was not licensed under the BWC Act.
The respondent gave evidence to the effect that she was comforted, following her research, by the appellant’s reputation and that the business was licensed and insured. However, she did not seek any assurance from the appellant in this respect and as far as the objective observer was concerned, Truflor Corporation was the relevant business entity about which the website spoke and provided the representations. The respondent gave this evidence in chief.[55]
[55] TT77, 78.
Q.Yes, it’s not a big issue but I just wanted to clarify. Did Keith ever give you a building licence to show you that he had a building licence; did he show you a number at any stage that you’re aware of.
A.No.
Q.Never.
A.I wasn’t aware about the whole building licence number thing until when I engaged with Andersons Solicitors, and they asked me and I said I don’t know, and that’s when they did that search and found his licence. But before then, I wasn’t aware of that legality.
.. . .
Q.I ask you to turn to tab 61. Do you recall seeing those words on the website when you went to have a look for Keith’s Truflor website.
A.Yes, very much so.
Q.Was there anything in particular in that that gave you reassurance about engaging him.
A.Well, the fact that he was licensed and being a master craftsman of AFA, and then all the work was guaranteed, and insurance, so he looked very reputable.
Given the terms of the website, the respondent’s evidence does not support a finding that she wished to contract with the appellant personally in addition to or in lieu of Truflor Corporation because only the appellant was licensed and insured. A reasonable person in the circumstances of the respondent, in relying on the website, would have understood that the appellant’s business (through whatever entity) was licensed and insured.
I reiterate that the website in evidence referred only to “Truflor” and “Truflor Corporation” and identified the business as being conducted by a company with no mention of the appellant. It was this corporate enterprise about which a reasonable person in the circumstances of the respondent would have received comfort.
In any event, the question of whether Truflor Corporation (or the appellant) had to be licensed under the BWC Act with respect to the respondent’s works is a vexed one.
In South Australia, the installation of fixed flooring requires the builder to have a builder’s licence pursuant to section 6 of the BWC Act. Such a builder is also required to possess a policy of insurance for the work pursuant to section 34 of the BWC Act. The appellant held a builder’s licence personally, but Truflor Corporation did not. However, the appellant consistently maintained that, on his understanding, the floorboards were installed as a “floating floor” not fixed flooring such that the BWC Act did not apply and no licence was required. No builder’s licence number was in fact included on the Minor Works Agreement, as signed, notwithstanding that there is a section where any relevant licence number is to be recorded. And, the respondent did not ask for one.
Section 6 of the BWC Act provides for a building work contractor to be licensed.
6—Obligation of building work contractors to be licensed
(1)A person must not—
(a)     carry on business as a building work contractor except as authorised by a licence under this Part; or
(b)     advertise or otherwise hold himself or herself out as being entitled to carry on business as a building work contractor unless authorised to carry on business as such a contractor by a licence under this Part.
Maximum penalty:
(a)     for an offence committed by a natural person—
(i)for a first or second offence—$50 000; or
(ii)for a third or subsequent offence—$50 000 or 12 months imprisonment or both; or
(b)     for an offence committed by a body corporate—$250 000.
(2)A person required by this Act to be licensed as a building work contractor is not entitled to any fee, other consideration or compensation under or in relation to a contract with another on whose behalf the person performed work as a building work contractor unless—
(a)     the person was authorised to perform the work under a licence; or
(b)     a court hearing proceedings for recovery of the fee, other consideration or compensation is satisfied that the person's failure to be so authorised resulted from inadvertence only.
(3)The Commissioner may, on application, exempt a person from compliance with this section subject to such conditions as the Commissioner thinks fit.
(4)The Commissioner may vary or revoke an exemption granted under subsection (3) as the Commissioner thinks fit.
Section 3 of the BWC Act defines “building work contractor”.
building work contractor means—
(a)a person who carries on the business of performing building work for others; or
(b)a person who carries on the business of performing building work with a view to the sale or letting (whether by lease, licence or other agreement) of land or buildings improved as a result of the building work;
Section 3 defines “building work”.
building work means—
(a)the whole or part of the work of constructing, erecting, underpinning, altering, repairing, improving, adding to or demolishing a building; or
(b)the whole or part of the work of excavating or filling a site for work referred to in paragraph (a); or
(c)work of a class prescribed by regulation;
Section 62 of the BWC Act empowers the making of regulations. Subsection 62(2)(e) permits the making of regulations to
exempt (conditionally or unconditionally) classes of persons or activities from the application of this Act or specified provisions of this Act.
Subregulations 5(11), (12) and (13)[56] provide as follows.
(11)The Act does not apply to the installation, maintenance, repair or removal of a floating floor under a contract entered into on or after 1 April 2010.
(12)The Act does not apply to the installation, maintenance, repair or removal of carpet or of vinyl floor covering in circumstances in which it is not used for water proofing.
(13)In this regulation—
floating floor means a floor covering comprised of boards designed to be laid over a floor without being fixed to the floor;
[56] Building Work Contractors Regulations 2011 (SA).
The appellant submitted that Truflor Corporation only provided floating flooring and carpet flooring, which did not require a builder’s licence. He contended that the work agreed upon in this matter was for a floating floor. It is common ground that the tongue and groove flooring employed was designed to be and could have been laid, simply clipped together and resting on the substrate as an installed floating floor. However, in this case the boards were also secret nailed[57] and glued to some form of timber base.[58] The Magistrate made the following finding.[59]
The engineered flooring that was installed is not designed to be a structural floor and is designed as a floating floor or to be installed as a direct stick application over a flat structural substrate. A 14 mm engineered floor cannot be substituted as a structural floor over joists, as the floors structural integrity will fail.[60]
(Footnote included)
[57] This is where a nail passes through the tongue but is hidden from view when the groove of the next board is clipped in place.
[58] Such as battens attached to a concrete substrate or a plywood base or a pre-existing timber floor.
[59] First judgment at [40].
[60] Exhibit P3 [2.0] page 9 of 43.

The Magistrate was also correct to conclude[108] that the express conditions of the Minor Works Agreement had been breached by the contractor in the following ways.
•By failing where required, to sand the existing ground floor section to ‘rough cut areas of existing floor at 45 degrees to create level surface’.
•By failure to place ply over the battens before installing the flooring over the concrete slab area.
•By using line gluing on the existing pine on the ground floor and the Structaflor on the upper story as industry standards require a full bed of glue. His error is a breach of the contractual requirement that the work be performed ‘properly and skilfully’.
(Footnote omitted)
These breaches also comprise breaches of the subsection 32(2)(a) statutory warranty.
[108] First judgment at [57].
If I am wrong when earlier concluding that in this case the contractor did not install a floating floor as defined in the Regulations, such that the contracted works did fall outside the BWC Act, I am satisfied that the contractor’s performance the subject of the Magistrate’s findings first set out above would also amount to a breach by the contractor of the term to be implied at common law in the contract that the materials supplied and work performed would be fit for purpose.
Appeal ground 6
By appeal ground 6, the appellant contends that the Magistrate erred in quantifying the respondent’s loss in the absence of “proper evidence”.
Subsection 37(6) of the BWC Act provides as follows.
If, on an application under this section, the Magistrates Court is satisfied that there has been any breach of, or failure to perform or fulfil, a contract or warranty to which the proceedings relate, the Court may, subject to this section, make one or more of the following orders:
(a)to the extent to which it is satisfied that it is practicable for the breach or failure to be remedied by the performance of building work—an order requiring the performance of remedial work;
(b)an order requiring the payment of an amount due under the contract or an order requiring the payment of an amount by way of compensation for the breach.
In short, the court has power to make an order requiring performance of remedial work or an order requiring the payment of compensation for the breach. The appellant submitted at trial that he was willing and competent to do a series of remedial works in-situ and that the Magistrate should permit this to occur. The Magistrate declined to do so and this, as I apprehend it, is the subject of appeal ground 11.
The Magistrate was satisfied that the whole of the flooring had to be removed and replaced and her Honour set about ordering compensation sufficient to achieve this objective. In doing so, her Honour, correctly in my view, purported to apply common law contractual damages assessment principles, as best she could, bearing in mind the state of the evidence.
The Magistrate relied on a summary of those principles given by Hammerschlag J in Campbell v CJ Cordony & Sons Pty Ltd.[109]
Where a builder breaches a building contract with an owner by departing from the specifications, the measure of damage is the cost, in excess of any amount of the contract price unpaid, of reasonable and necessary work to make it conform to the contract plus consequential losses by reason of the breach.
The rule is subject to the qualification that not only must the work undertaken be necessary to produce conformity but it must be a reasonable course to adopt. As to what remedial work is both necessary and reasonable in any particular case is a question of fact.
Consequential losses are claimable if they satisfy what is commonly referred to as the rule in Hadley v Baxendale. The rule has two limbs. The first limb is that loss is recoverable if either it may fairly and reasonably be considered as arising naturally, that is according to the usual course of things, from the breach. The second limb is that loss is recoverable if it may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it.
A plaintiff bears the onus of proving its loss. The fact that quantification may be a difficult exercise does not relieve the court of the obligation to do its best.
A plaintiff is under a duty to mitigate its damages arising from a breach of contract but does not have to show that it has fulfilled that duty. The onus is on the defendant to show that it has not and to show the extent to which it has not done so.
(Citations omitted)
[109] [2009] NSWSC 63 at [154]-[158].
The evidence relevant to quantum before her Honour included the following.
(i)An associate of the appellant, Mr Kingsnorth, who had worked on the original job, provided a quote to remedy those defects, as agreed upon by the appellant, for $31,000.
(ii)Mr Barnes estimated that a complete removal and replacement in accordance with his opinion as to the standard of work required would cost $84,245.70 inclusive of GST. However, Mr Barnes excluded from this estimate a number of consequential expenses including accommodation expense for five weeks, furniture storage expense, the cost of incidental plumbing, electrical, painting and cleaning work and the cost for a cabinet maker to remove and reinstall all built in cabinetry throughout the various rooms.
(iii)RCI Property Developers quoted an amount of $172,551.50 to undertake the work recommended by Mr Barnes which the Magistrate described as “staggering” and “fanciful”.
(iv)A Mr Deane estimated that the rectification work would cost $45,120 for the rear downstairs section, $24,403 for the front downstairs section, $13,595 for the upstairs section and $2,658 for the stairs – a total of $85,776. Again, the quote does not deal with consequential costs.
The respondent also provided estimates of costs that she maintained would be incurred for alternative accommodation during the replacement work, furniture storage and other consequential losses. The respondent submitted at trial and on appeal that when allowance is made for these consequential losses or expenses, Mr Barnes’ quote would increase to $138,490.70 and Mr Deane’s quote would increase to $114,646 but without including other substantial costs that also might arise.
The Magistrate was not prepared to accept any of these quotes or formulations at face value. I agree for the reasons given by her Honour[110] that none represents a reliable calculation of the cost of the reasonable and necessary work to bring the appellant works into conformity with the Minor Works Agreement and the statutory (or common law) warranty together with consequential losses.[111] However, that is not to say that assistance is not to be derived from them. Her Honour made these general observations concerning the position of the respondent which were available on the evidence.[112]
The plaintiff is not entitled to a flooring upgrade to compensate her for her poor decision to shop on Gumtree for a product she knew nothing about. Having viewed the floor and seen the plaintiff’s attempts to make it glossier using additional coats of timber varnish, it seems obvious that she was dissatisfied with her choice of flooring material. It is likely that she will upgrade the quality of the flooring she used but she should bear the cost of that improvement.
The plaintiff has not explored the most convenient arrangements for her family when the flooring is replaced. She has not advised Mr Deane nor Mr Barnes whether she can arrange alternative accommodation or stay with family. I assume she would want to complete this work in the shortest possible time with the least inconvenience. The plaintiff’s home, with the extension, provides much amenity, including multiple wet areas, substantial space, multiple entrances exits and garages. The rectification could be done in stages and it is not necessary for them to abandon their home and live in a motel, hotel or apartment for the entire time the work is occurring. I consider it is highly unlikely that the plaintiff and her family would leave their home for 7-9 weeks and I consider this estimate of time to demolish Mr Treffers flooring and replace it is excessive. When the new ground floor is being sealed, the plaintiff’s family would need to vacate their home for a few days. It might be possible to seal the flooring upstairs and the family remain downstairs, but these options were not explored. A large workforce, which could be provided by a bigger flooring firm than Mr Treffers’ business could cut down the time required. The plaintiff will need to fix the potential finished level problem caused by installing ply on top of the existing pine flooring on the ground floor, should it survive the demolition work involved in removing Mr Treffers’ flooring and the plaintiff accepts this modification is not part of her claim.
[110] First judgment at [65]-[77].
[111] Campbell v CJ Cordony & Sons Pty Ltd [2009] NSWSC 63 at [154]-[158], Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 at 617.
[112] First judgment at [76]-[77].
In the circumstances of this matter, the Magistrate was entitled to retreat to the well known observation of Mason CJ and Dawson J in Commonwealth v Amann Aviation Pty Ltd[113] for the reasons her Honour gave.[114]
There was an ability for both parties to assist the court and provide quotes from reputable flooring installers prepared to do the work for a commercial rate. Given the length of the proceedings to date I do not intend to ask the parties to provide further assistance to give more precise details of loss and damage. In facing the difficulty I perceive in estimating damages because of great variations in evidence, and the witnesses not being able to provide details of current industry cost, I am guided by Mason CJ and Dawson J in Commonwealth v Amann Aviation Pty Ltd, who stated:
The settled rule, both here and in England, is that mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can: Fink v. Fink [1946] HCA 54; (1946) 74 CLR 127, at p 143; McRae v. Commonwealth Disposals Commission [1951] HCA 79; (1951) 84 CLR 377, at pp 411-412; Chaplin v. Hicks (1911) 2 KB 786, at p 792. Indeed, in Jones v. Schiffmann [1971] HCA 52; (1971) 124 CLR 303, Menzies J. went so far as to say that the "assessment of damages ... does sometimes, of necessity involve what is guess work rather than estimation": at p 308. Where precise evidence is not available the court must do the best it can: Biggin and Co. Ltd. v. Permanite Ltd. (1951) 1 KB 422, per Devlin J. at p 438.
(Footnotes omitted)
Her Honour concluded with respect to her assessment of compensation as follows.[115]
In consideration of all of the quotation evidence, and based on the above reasoning, I award the plaintiff $80,000. This amount allows $45,000 for materials and labour to install the new floor, $15,000 demolition costs, including skips and rubbish removal, $10,000 for painting, patching and repair of walls, skirting boards and adjoining flooring and another $10,000 for accommodation, storage of furniture and possessions during the reinstallation and damage that may occur when carpentry and fitting are removed and reinstated.
[113] [1991] HCA 54; (1991) 174 CLR 64 at [31].
[114] First judgment at [74].
[115] First judgment at [78].
The appellant contends that it had always been possible for the respondent to obtain experienced commercial contractors to give accurate quotes and that the respondent has not proved her loss. I agree with the first part of the proposition but not the second. The respondent has proved a substantial loss and the Magistrate was entitled to take the broad axe approach to quantification that she did.
However, the fundamental task was to remove and replace flooring of the same type, albeit some consequential loss necessarily would be incurred.
I agree with an allowance of $45,000 for the basic job; this is relatively consistent with the contractor’s quote given the time that has passed.[116] It should be noted that given the secret nailing and direct stick application, very little, if any, of the removed flooring could be re-used.
[116] And particularly so, given the email representation (Item 6) that Truflor Corporation would “beat any written quote for the same product by 20%”.
For the reasons given by the Magistrate, I doubt very much whether the respondent will need to vacate the house and remove all furniture for the whole period of the job at a cost of $10,000. Nor do I accept that demolition costs and incidental repairs and painting should be allowed at $25,000. I would allow $20,000 for these matters giving rise to a total award of $65,000. If I am in error with respect to the contracting party issue so that the judgment against the appellant should stand, I would allow the appeal to the extent of reducing to award to $65,000.
Appeal ground 7
The appellant contends that the Magistrate erred in allowing prejudgment interest when no prejudgment repairs had been performed and no costs incurred by the respondent. This issue was dealt with by the Magistrate in the second judgment in these terms.[117]
Section 34 of the Magistrates Court Act states that unless good reason is shown to the contrary a court will award interest to the party in whose favour a monetary judgment has been given at a rate fixed by the Court. Interest is compensatory and should take into account interest rate fluctuations over the time the application was filed until the judgment date, being 20 June 2016 until 9 April 2019. I fix a pre-judgment interest rate of 5%. I award $4,000 for each of the first 2 years and $3,000 for the remaining period before judgement, $11,000.
The appellant does not complain about the assessment itself only that, as a matter of principle such interest should not be awarded in this case. The respondent contends that the fact that no expense had been incurred as at the time of judgment is irrelevant; the respondent has been kept out of her money for the period described by the Magistrate.
[117] Second judgment at [36].
Section 34 of the Magistrates Court Act 1991 (SA) insofar as is material is in these terms.
(1)Unless good reason is shown to the contrary, the Court will, on the application of a party in whose favour a monetary judgment has been, or is to be, given include in the judgment an award of interest in accordance with this section.
(2)The interest—
(a)     will be calculated at a rate fixed by the Court; and
(b)     will be calculated in respect of a period fixed by the Court (which must, however, in the case of a judgment given on a liquidated claim, be the period running from when the liability to pay the amount of the claim fell due to the date of judgment unless the Court otherwise determines); and
(c)     is, in accordance with the Court's determination, payable in respect of the whole or part of the amount for which judgment is given.
(3)…
(4)…
Section 34 provides for an unfettered discretion as to the rate to be fixed and the period during which interest is to run, provided it is exercised judicially. However, an award of pre-judgment interest is obligatory with respect to a money judgment “unless good reason is shown to the contrary”.
Section 34 is in terms similar to section 30C of the Supreme Court Act 1935 (SA).[118] Pre-judgment interest is recompense for keeping a plaintiff out of money which should have been paid earlier.[119] However, the judgment under consideration does not relate to a liquidated claim and therefore, the specific injunction in subsection 34(2)(b) does not apply.
[118] Subsection 30C(1) refers to “a judgment for the payment of damages, compensation or any other pecuniary amount” whereas section 34 refers to a “monetary judgment”.
[119] Duke Group (in liq) v Pilmer [1998] SASC 6529; (1998) 144 FLR 1, Queen Elizabeth Hospital v Curtis [2008] SASC 344; (2008) 102 SASR 534.
A broad axe approach has been taken to the assessment of the respondent’s loss. It would be artificial to treat the amount awarded as at the date of judgment as having fully compensated the respondent with respect to the change in the value of money between the date her cause of action arose (the date of breach) and the date of judgment (some four years). I am not persuaded that to allow pre-judgment interest would give rise to double counting.
The respondent was entitled to her assessed loss at the time she brought her claim. Unliquidated damages are a means to put the respondent in the position she would have been in had the contract been properly performed as compared with the position she finds herself in following breach, subject to remoteness principles. However, the respondent will not be obliged to expend that money on a new floor. It will be a matter for her whether she decides to retain the damages award and live with the floor as it is or undertake limited repairs or replace the floor. In either case, she has been kept out of an award of damages to which she was entitled on breach. I see no good reason to disturb the Magistrate’s decision to award pre-judgment interest. The amount should be reduced to $8,950 to reflect the adjustment to the award from $80,000 to $65,000.
Appeal ground 8
The appellant complains that the Magistrate erred in awarding the respondent special costs. The question of the costs of the trial will need to be considered in any event given that I would allow the appeal and enter judgment for the appellant.
Appeal grounds 9 and 12
These grounds have been dealt with earlier.
Appeal ground 11
The appellant complains that the Magistrate erred in awarding damages rather than making such orders as would have enabled the contractor to undertake rectification works. There is no merit in this ground.
The claim to be allowed to undertake rectification cannot stand with the appellant’s contention and my finding that the contracting party was not the appellant but Truflor Corporation. That entity has been deregistered. Given my finding on appeal, an order by the magistrate or on appeal that the contractor was to rectify the works would lack utility.
In any event, at no time has the appellant offered or been prepared to perform a complete removal and replacement in accordance with Mr Barnes’ recommendations and to take responsibility for consequential losses, as found by the Magistrate to have been the proper remedy. Further, given the history of the parties’ disputation by the time of trial the extensive detail of which it is unnecessary to set out, it would have been entirely unreasonable to require the respondent to continue to deal with the appellant in whom she had lost all trust.
The appellant also contended that, notwithstanding the defects as found, a complete removal and replacement was wasteful and unwarranted when a perfectly acceptable result (to the appellant) could be achieved by a series of in-situ repairs. The argument is a reference to the qualification to the general rule for calculation of damages in such cases identified by the High Court in Bellgrove v Eldridge[120] and summarised by Hammerschlag J in Campbell as earlier set out. The submission overlooks the burden of Mr Barnes’ evidence that a number of the defects (lack of ply breaker, lack of expansion gaps, incorrect and incorrectly applied adhesive) are likely to lead to problems over the expected life of the floor. These problems would not be avoided by merely fixing the extant problems at the time of inspection before trial. The Magistrate’s decision to require replacement was reasonable in these circumstances.
[120] [1954] HCA 36; (1954) 90 CLR 613.
On final matter
At the commencement of the hearing of the appeal, the appellant made an application that I should undertake a view of the floor which was still in the respondent’s house and, according to the appellant, had not been rectified in any way. The purpose, as sought, was that of a traditional view, that is, to assist me to understand the evidence that was before the Magistrate. However, the appellant also wanted to demonstrate that a number of the potential deteriorations referred to by Mr Barnes had not come to pass.

I declined to undertake a view and gave the following reasons.
Mr Scragg, at this stage I'm not minded to go and have a view. I do have before me, the expert reports with photographs; I do have before me and I've read the view notes that took place when the magistrate had a view. At the moment - and of course I will have drawn to my attention, the examination and cross-examination of the experts, I dare say, as relevant to your grounds.
I am concerned that it's five years after the floor was laid and three years after the view was held before the magistrate. I'm also concerned that inevitably, almost, I would receive impressions and understandings that might be characterised as additional evidence without the assistance of the experts and with only the existence of counsel, with all due respect. It may be difficult for me to separate my own thoughts and thinkings and assessments from those that would be provided to me in formal evidence from experts and any eyewitnesses.
At this stage I'm disinclined. I'd like to hear the argument and I'll review the position as to whether I see a need for review; strict view only. That is, to understand the evidence that's put before me and the arguments that's put before me. I'll review that position as the argument develops or, perhaps, even at the end of the argument.
Having now heard and considered the parties’ submissions and reviewed the evidence, I maintain my initial position that a view was not necessary to assist me to understand the evidence before the Magistrate. Further, in the circumstances, it would not have been appropriate for me to (and it was not suggested that I should) received, as fresh evidence, an impression of the state of the flooring as at the date of the appeal, some five years after it was installed.
Conclusion
I allow the appeal on the basis of appeal ground 9 (the correct contracting party). I dismiss all other grounds (other than the merits of ground 8) save that I would reduce the damages award to $65,000 and the pre-judgment interest award to $8,950.
Depending on a question of the proper construction of the relevant rule of Court, the appellant’s notice of appeal filed on 18 October 2019 was either three days or some months out of time. Given that the merits of the appeal favour the appellant and that there has been no prejudice caused to the respondent, I extend the time for filing the notice of appeal to 18 October 2019.
I make the following orders.
1.The time for filing the notice of appeal is extended to 18 October 2019.
2.Appeal allowed.
3.The Magistrate’s orders for the payment by the appellant of damages, interest and costs are set aside.
4.The respondent’s claim against the appellant at trial is dismissed.
I will hear the parties on the questions of the costs of the trial and the appeal.

1 Materials payment		$25800-00
2 On completion and hand over		12536-30
3
10% GST
Total Contract Price (Including GST)	$38336-30