Trestrail v Briggs No. DCCIV-97-1318 Judgment No. D61

TRESTRAIL v BRIGGS
[1999] SADC 61

His Honour Judge Pirone
Civil

On the 24th day of July 1997 Lindsay Gordon Trestrail (hereinafter referred to as “Mr Trestrail”) and his wife Cynthia Margaret Trestrail, both trading as L.G. and C.M. Trestrail (hereinafter referred to as “the Trestrails”) issued proceedings out of the Magistrates Court of South Australia sitting at Mount Barker claiming the sum of $1,275 in addition to costs and interest against Sue Briggs (hereinafter referred to as “Dr Briggs”) “for work and materials supplied to 14/10/94”.
Dr Briggs filed a defence and counterclaim. The counterclaim exceeded the jurisdictional limit of the lower court and for that reason, therefore, the action was transferred to this Court.
On the 20th August 1998 Dr Briggs filed an amended defence and counterclaim. In her amended defence, she admits that the Trestrails carried out work and supplied material, but denies that they were entitled to claim the alleged or any sum, on the ground that they did the alleged work and supplied the alleged materials in an attempt to rectify previous work, which they had “wrongly carried out” on her land, the allegation being that that previous work had been done in breach of an oral agreement (hereinafter referred to as “the said agreement”) which was first entered into in 1992 as a result of a conversation between the Dr Briggs and Mr Trestrail. The parties are not agreed as to when that agreement was entered into. Dr Briggs says that it was entered into in mid 1992. The Trestrails, for their part, say that it was entered into in late 1992. That then, for reasons to which I refer later, is one of the issues that I must resolve.
The parties are also diametrically opposed as to what each of them says were the express terms of their agreement. According to paragraph 2(c) of the amended defence, Dr Briggs says that the express terms of the oral agreement were that:-
“(i) the plaintiffs would excavate a driveway on site;”
and that
“(ii)the plaintiffs would locate the entrance to the driveway so that it’s eastern boundary was three metres west of a stobie pole located on Sturt Valley Road adjacent to the site and running the driveway to a point west of the proposed house in the vicinity of the proposed carport.”
Dr Briggs goes on to say in subparagraph (d) of paragraph 2 that:-
“(d).. Common law implied into the agreement a term that the plaintiffs would carry out the excavation in a good and workmanlike manner and in particular if this Court does not find that the parties expressly agreed that the driveway would commence and run as alleged in paragraph (c)(ii) then the plaintiffs would locate the excavation in such a way that the driveway was as well situated and as useful as it could be given the topography of the site and the other works being carried out and to be carried out on it. This meant locating the eastern boundary of the commencement of the driveway three metres west of the stobie pole referred to above and running the driveway to a point west of the proposed house in the vicinity of the proposed carport.”
Dr Briggs says that the Trestrails are in breach of contract and claims damages against them under various headings. The breach of contract, on which Dr Briggs relies, is particularised in paragraphs 5 and 6 of the amended defence and counterclaim. Those paragraphs read as follows:-
“5..... In breach of the agreement the plaintiffs located the commencement of the driveway in the north western corner of the site considerably west of where it should under the agreement have commenced.
6.The resultant driveway:-
6.1... starts at a point which clashes with the commencement of the driveway of the defendant’s neighbour to the west;
6.2 starts lower down than it would have if the plaintiffs had started it where they should so that the plaintiffs had to excavate more of the site causing the defendant to lose more of her land.
6.3... has two switch back curves both of which are tight.”
The Trestrails filed a reply to the amended counterclaim. In that reply they admit the oral agreement to excavate the driveway on site but deny the allegations made by Dr Briggs in paragraph 2(c)(ii). They say in paragraph 5.2 of their reply that:-
“... the defendant instructed the firstnamed plaintiff that constructing the driveway in the manner referred to in 2 (c)(ii) was not allowed by council... .”

and go on to say that:-

“As a result and based on the instructions of the defendant and in accordance with council consent (given by officers of the council present at the site at the commencement of the work), the driveway was constructed in the north western corner of the site.”

In relation to Dr Brigg’s allegations contained in paragraph 2 (d) of the amended defence and counterclaim the Trestrails say that:-
“they carried out excavation work in a good workmanlike manner and in accordance with the instructions from the defendant and located the driveway in accordance with the instructions from the defendant and with the consent of the Adelaide Hills Council.”
With respect to paragraph 6.1 of the amended defence and counterclaim the Trestrails admit that the driveway starts at a point which clashes with the commencement of the driveway of Dr Briggs’ neighbour to the west, but say that she can take her driveway off the neighbour’s driveway which passes across the frontage of her property.
In relation to paragraph 6.2 and 6.3 respectively of the amended defence and counterclaim the Trestrails admit firstly, that the resultant driveway starts lower down than it would have, if they had started it where they should, so that they had to excavate more of the site, causing Dr Briggs to lose more of her land, and secondly, that the resultant driveway has two switch back curves, both of which are tight, but say firstly, that they carried out the excavation work in a good workmanlike manner, secondly, that they did so in accordance with Dr Briggs’ instructions, and thirdly, that they located the driveway as instructed by Dr Briggs and with the consent of the Adelaide Hills Council.
It is clear on the state of the pleadings before me, and from the manner in which the case has been presented, that the primary issues that fall for my consideration include the determination of the question of whether the admitted agreement between the parties was entered into in mid 1992 or in late 1992 and, in any event, the determination of the question of what were the terms of that agreement, and whether or not the Trestrails are in breach of it, either as alleged or at all.
Two further questions arose for consideration but only as a result of what was put to me in the course of counsel’s submissions. One of them was whether the agreement between the parties is enforceable. The other was whether, by her conduct, Dr Briggs had waived compliance with the contract.
I have heard evidence from several witnesses for and on behalf of the parties including Mr Trestrail himself and Dr Briggs. I have also received many documents as exhibits.
By agreement of the parties Dr Briggs was dux litis. I bear in mind, therefore, that Mr Trestrail was in Court throughout the proceedings and has heard all the evidence before he himself gave his evidence.
At this point I propose to say something about the impression that I formed in relation to some of the principal witnesses whose evidence I heard, bearing in mind of course that the events to which the proceedings relate go back to 1992.
Dr Briggs did not impress me favourably as a witness. At times she was vague and evasive. At other times she appeared to have difficulty in answering what, in my view, were clear and unambiguous questions. Some of her evidence was inconsistent with the contents of some of the exhibits. I have scrutinised her evidence carefully and I have looked for independent support before making findings of fact based on it.
Mr Trestrail has kept diary notes of events and dates which, to a large extent, have assisted him in refreshing his memory and in giving a far more accurate and reliable account of some of the topics about which he spoke. My impression of him though was that he was very careful in wanting to protect his apparent good name and reputation, and was intent on defending the position which he had adopted. Some of his evidence, on some of the topics about which he spoke, was so inconsistent with some of the other evidence which I found to be more credible and acceptable, and was so inherently implausible, that I am unable to accept his evidence on crucial issues at face value. For this reason, therefore, as in the case of Dr Briggs, I have scrutinised his evidence very carefully, and I have looked for independent support before making findings of fact based exclusively on it.
Another witness from whom I heard evidence was Mr Bradbrook. I shall record my impression of this witness later in these reasons.
I shall now direct my attention to the evidence that I have heard, and make the following findings, being satisfied as to each of them on the balance of probabilities.
Dr Briggs is a legally qualified veterinary surgeon who has practised as such for many years. She has resided within the region of the Adelaide hills since 1992.
In the early part of 1992 Dr Briggs became interested in purchasing the subject land, with the view of building on it what she then considered to be her dream home. The land was quite steep. It was heavily treed. Her first impression was that it might be difficult to utilise it as a residence, but on closer inspection she became aware of the existence of a plateau which, to her way of thinking, could be utilised as a home site. She spoke to several builders and had them come out to inspect the site in order to obtain their opinion on the actual building of the house. One of those builders was a Mr John Sinclair Ross. Mr Ross referred Dr Briggs to a building designer, a Mr Elvio Mario Ferrara. Mr Ferrara and Dr Briggs met on site in late February or early March of 1992 and had a general discussion. In March 1992 Mr Ferrara prepared sketch drawings in terms of page 1 of exhibit D14. He then prepared working drawings, being the page marked “W2” in exhibit D14.
On 15th April 1992 Dr Briggs filed, or caused to be filed, a development application in respect of a two storey detached dwelling. That application was filed with the Stirling Council (hereinafter referred to as “the Council”). On 30th April 1992 the Council requested further information and more specifically a complete site plan showing inter alia
contour lines and level of site;
proposed earth works, finished levels and areas of cut and fill;
gradient and surface finish of driveway.

In order to satisfy the Council’s requisitions Mr Ferrara arranged for the preparation of a survey plan and prepared further working drawings. The survey plan is now in evidence as exhibit P1. It is also part of exhibit D14. That plan is dated 15/5/1992. It shows various features including inter alia the plateau to which I have already referred, an ETSA stobie pole located some distance from the north eastern corner of the land, an entrance track at the north western corner of the block and a brick pathway. The further working drawings are shown as “W1” in exhibit D14. The part dealing with the access/entrance from the roadway is in evidence as P2. That exhibit also shows the configuration of a driveway and the proposed site of what is referred to as “future carport”.
Mr Ferrara and Dr Briggs have given inconsistent evidence as to what was the nature and extent of Mr Ferrara’s brief with respect to the positioning of the driveway onto the block. Mr Ferrara says that what is depicted in P2 is what Dr Briggs specifically instructed him to do in all respects, including the access from the roadway, the configuration of the driveway and the positioning of the carport. Dr Briggs for her part says that Mr Ferrara’s brief on the topic in question was limited to showing only the access/entrance point from the road onto the land, and that it was not part of his brief to show the configuration of the driveway itself or the positioning of the carport.
Dr Briggs says, and Mr Ferrara concedes, that Dr Briggs was at all times most insistent on having the proposed carport placed as high as possible on the block. He says that he had suggested that the carport be placed at a point as low as possible on the block so that the gradient to the carport would not be as high, but Dr Briggs did not accept that advice. There was no doubt in Mr Ferrara’s mind as to what Dr Briggs wanted and yet, as I find, on his own say so and contrary to her specific instructions, he showed the position of the proposed carport, not where Dr Briggs wanted it, but rather where he thought it should be, in order, as he says, to obtain council’s approval. Mr Ferrara was an important witness. It is necessary that I should refer to some of his evidence at length. His evidence on the topic as it appears at pages 721-723 was inter alia as follows:-
“Q.... The driveway that is shown on this plan, did you discuss that with Dr Briggs.
A.Yes.
Q...... Just flick over and look at p.3, which is the plan Wl.
A.Yes.
Q...... That also shows a plan of a driveway.
A.Yes.
....”
“Q.Does that plan then show the driveway with a dog leg.
A...... Yes.
Q.Did you discuss that plan with Dr Briggs.
A...... Yes, I discussed this plan with her.
Q.What did she say about that plan. If you can remember the conversation, give us the conservation, or if you can’t remember the conversation, give us the gist of the conversation.
A...... It is difficult to recall conversations, because we had a few goes at it, and as you can see from the sketch plan, you can see my writings in blue. I made a few amendments and some redesign of this driveway, but that was my first instinctive design for a driveway, to locate the carport down a lot lower and to have one turn and a sweep coming back and a reversing bay at the southern end of that site so she could go out in a forward direction, which was important to this site. You need to go out -
HIS HONOUR
....
Q.So the sketch plan was prepared shortly after your first meeting with her, which was late February/early March.
A...... Yes.
Q.At that time, she told you that she wanted the driveway at the highest possible level.
A...... Yes.
Q.You then go ahead and prepare a sketch plan showing the carport at the lowest possible level.
A...... I showed the carport at this level because this is what I felt was the best way -
Q.But that is not what your brief said, was it. Your evidence was that, according to the brief that you had received from Dr Briggs, she wanted the carport at the highest possible level.
A...... Yes.
Q.So why is it, then, that you prepared a sketch plan showing the carport, contrary to her instructions, at the lowest possible level.
A...... If I remember rightly, it would have been because it would not have been approved by council. To get the carport approved, it would have had to show at a lower level, otherwise the council would not have approved it, in my view, in terms of planning. There are certain gradients that I have to try to achieve.
Q.Did you tell her that before you prepared your sketch plan.
A. Yes. I would have told her ‘I am putting these plans to council with a carport at this level to get council approval. If we need to research it more or if you want to lift it up higher, we have to look at alternatives. We will see what else we can do.’”

His evidence continued at page 729 as follows:-

“HIS HONOUR
Q...... I am sorry, are you saying that Dr Briggs specifically instructed you that she wanted the driveway and the carport to be in the position shown on W1.
A.That’s right, and I had to try and make it work as best it could. That is why I put that reversing bay in: so that she could go out in a forward direction.
Q...... Do you mean, then, that the plan W1, where it shows the carport, the carport is located at the highest possible level at the block, or the lowest possible level, or some other level.
A.Well, it’s the level that she requested it.
Q...... Which was the highest possible level, was it not.
A.Yes.
Q...... And that is the highest possible level.
A.Well, I couldn’t have put it any higher, it would be impossible.
Q...... Is it the highest possible level.
A.We could have put the carport at the top of the block, but you couldn’t get to it.
Q...... You have told me that Dr Briggs wanted her carport located at the highest possible level on the block, your suggestion was that it should be located at the lowest possible level. You drew up the plan, and you are telling me now that Dr Briggs specifically instructed you to place the carport where it is shown in plan W1; that is your evidence, isn’t it. I ask you: is the position shown in that plan where the carport is located the highest possible position on the block, the lowest possible position, or some other position.
A.That is the highest possible position on the block.”

Dr Briggs says that she took objection to what Mr Ferrara had done. She says that his response was not to worry about what he had done because his only purpose for showing the position of the carport on the plan, as he did, was to obtain council’s approval for the access, and that the matter could be reviewed. Mr Ferrara does not remember having responded in those terms. His evidence was as follows:-
“A.... I don’t remember what I said to her, only that the intent of the location of this carport here was to get council approval for a driveway onto the site and to show a driveway on the site so that I could get my building approval.”
I have carefully considered what each witness had said in the context and in the light of the totality of the evidence before me. The version of the facts deposed to by Dr Briggs is supported, at least to some extent, by the evidence of Mr Bradbrook and Mr Binney who were at pains to say that, in so far as their department within the Council was concerned, the Council’s involvement was limited to the access or entrance from the roadway, and had no interest whatsoever in the configuration of the driveway itself. In my opinion the terms of the Council’s letter dated 29th June 1992, which forms part of exhibit P2, is strongly supportive of that proposition. Exhibit P23 is also supportive of that proposition and Mr Taylor, who was called on behalf of the Trestrails, said at page 819 that as far as he knew “the driveway isn’t a part of the building rules as such”. At the end of the day I am persuaded that the true position is as deposed to by Dr Briggs. I accept her evidence and find accordingly. I reject Mr Ferrara’s evidence to the contrary.
On 29th June 1992 the Council wrote to Dr Briggs on the subject of access and said inter alia as follows:-
“I refer to your recent planning/building application and advise that approval is granted for access only subject to the following conditions:
1...... The stobie pole adjacent to the access be retained in a safe and secure position.
2.E.T.S.A. be contacted and agreement reached regarding the safety of the pole.”
That letter is part of Exhibit P2. Following receipt of that letter Dr Briggs contacted ETSA and was advised that if the work to be carried out in relation to the access did not alter from the plan which had been approved for that purpose, the pole would remain in a secure condition. That advice was confirmed by ETSA in a letter dated 15th July 1992 which is in evidence as Exhibit P3. As a result of discussions that she had with officers of ETSA, Dr Briggs understood that in order to comply with ETSA’s requirements, the work in relation to the access should commence at a point not less than three metres west of the stobie pole.

One of the builders who had inspected the site early in 1992 at the request of Dr Briggs was Mr David Stevens. Following a discussion with her Mr Stevens recommended Mr Trestrail as a possible excavating contractor. At the suggestion of Mr Stevens, Dr Briggs arranged to speak to Mr Trestrail in relation to the access/entrance from the roadway and as to the proposed driveway.
The two of them met on site initially on 27th March 1992. They had a general discussion about access, how feasible it would be, whether it be from the top or from the bottom of the block, and any other ideas that Mr Trestrail might have about the matter. Dr Briggs says that on that occasion Mr Trestrail assured her that the land was useable and that an adequate driveway could be provided, either from the top or from the bottom of the block. She, however, later found that access from the top of the block was not possible because of the neighbour’s adverse attitude to that proposal. Dr Briggs and Mr Trestrail met on site at a later date and discussed a driveway commencing from the bottom of the block, with access from the road. It was then that, on her evidence, she told him that she wanted a driveway starting in the north eastern corner traversing the block in a westerly direction and ending near the pre-existing brick path. What she wanted was a basically straight up and down driveway. She went on to say that, having regard to the topography of the land, she wanted the driveway to be as steep as practicable and that in order to attain maximum height, she wanted it to end as near as practicable to the western boundary. Mr Trestrail suggested that it might have been a bit too steep to get it to that exact point and that it might end up a metre or two lower. She said that the suggested variation was acceptable to her and that it would not be a problem. It was on that basis that, on her evidence, Mr Trestrail quoted a figure of $4,000 to $4,500 for the proposed work.
Mr Trestrail tells a different story. He is an experienced earth moving contractor. He is 62 years of age and has been involved in the earthmoving industry all his working life. He has held a restricted builders’ licence and worked in local government for some seven years. He has been the holder of an overseer’s certificate. In the course of his work for the local government he performed duties which involved the approval of the construction of driveways and access thereto from roadways. It was part of his job to inspect proposed driveways and in particular where they had to go, having appropriate regard for safety factors, both in relation to motorists and people using the driveway.
In the course of his work as an earthmoving contractor, Mr Trestrail keeps diaries with appropriate entries to facilitate the charging for work done and for other purposes. He referred to those diaries for the purpose of refreshing his memory in the course of the trial. Referring to his diaries he said that he first met with Dr Briggs on site on 27th March 1992. They had a discussion about the proposed driveway. He noted that it was a very steep and awkward site. His evidence, at page 319, was that on that occasion he was advised by Dr Briggs that “she was not able to get permission to go in on the north east corner, because the council wouldn’t give it, and because of sight distance on Sturt Valley Road”. Dr Briggs denied that that conversation took place. I accept Dr Brigg’s evidence and reject that of Mr Trestrail on this topic. On 31st March 1992 Mr Trestrail estimated the cost of the proposed work at $4,000 - $4,500. The note which he made in his diary on 31st March 1992 reads inter alia as follows:-
“Sue Briggs - Sturt Valley Road - driveway excavation carport & site & turnaround 4 - $4500”
Mr Trestrail was adamant that what he had given was an estimate and not a quote, in the sense that it was not a fixed price for the work to be done. In providing that estimate he had been over generous in his own favour. The $4,500 estimate was a maximum estimate. The end figure could well be lower than that.
It was Mr Trestrail’s evidence that he provided the estimate, to which I have referred, without knowing either the point at which the driveway was to commence, or the point at which it was to end, or indeed its configuration. I found Mr Trestrail’s evidence as given quite unacceptable. It seemed to me that Mr Trestrail later qualified what he had said by introducing the notion of an estimate having been provided subject to an agreement, which provided for the charging of work done and material supplied on an hourly basis, on the understanding that the total cost would be somewhere between $4 - $4,500.
I had difficulty in following Mr Trestrail’s evidence on this topic. I was left in a state of confusion. I asked some questions to clarify the matter in my own mind. His evidence at pages 381 - 382 was as follows:-
“Q.... Is this what you’re telling me, your agreement with her was that you would charge her for work done and materials supplied on an hourly basis on the understanding that the total cost would be somewhere between $4 and $4,500.
A.That’s correct.
Q...... Did your agreement provide that the maximum sum that you could charge was $4,500.
A.Yes I would have thought so.
Q...... You charged more than that.
A.Yes I know I did.”
Mr Trestrail was questioned at length as to what he understood the position to be when he provided his estimate with respect to the commencement of the proposed driveway. He was asked this question at page 321:-
“At the time of preparing that estimate, are you able to say now what recollection you have of the position of the commencement of the proposed driveway”.

His answer was

“No, I am not.”

Dr Briggs, on the other hand, was certain that access was to be from the north eastern corner. I understand Mr Ferrara’s evidence and the council’s approval to be consistent with that. As to the estimate that was given by Mr Trestrail for the proposed work, I am persuaded to the appropriate degree and find that that estimate was given by Mr Trestrail for a driveway which was to commence at the north eastern corner. I find Mr Trestrail’s evidence on the topics under discussion to be quite unconvincing and I reject it for that reason. The totality of the evidence before me satisfies me to the appropriate degree that Dr Briggs’ evidence to the effect that the driveway was to commence at the north eastern rather than at the north western corner is correct. I accept her evidence and find accordingly.
There is one matter which needs to be clarified before I proceed further. Mr Meyer took the point throughout the proceedings that any reference to the north eastern corner meant just that, namely the point at the very boundary of the block where the north joins the east. That, however, in my opinion, is not the sense in which the witnesses were speaking. In my judgment when the witnesses were speaking of commencing the driveway at the north eastern corner, they were speaking of commencing it in the region of, or at some distance from, that corner, and more specifically they were speaking of commencing it at a point west of ETSA’s stobie pole. Mr Trestrail understood that to be so and said as much in the course of his cross-examination. As I understood his evidence, it was always clear to him that if he were going to start the driveway at the north eastern corner (which on his evidence he wasn’t, but if he was going to do so) that did not mean literally in the north eastern corner, but rather some distance west of the stobie pole. Some of the evidence which Mr Trestrail gave on that topic appears on page 621 - 622 as follows:-
“Q.... When we have spoken about starting the driveway in the vicinity of the north-eastern corner, have you had in mind that start position about 7 metres in from the eastern boundary.
A.No.
Q...... When we’ve been talking about starting in the vicinity of the north-eastern corner in the course of these proceedings, what start point have you had in your mind that we were talking about.
A.As close as possible to that north-eastern corner or boundary.
...
Q.What I’m suggesting to you is that, back in March of 1992, if there was talk about starting down in the north-eastern corner, that would have meant to you starting at some point west of the stobie pole.
A...... Yes, that’s correct.”
In these reasons I have used the expression “the north eastern corner” in the same sense for the purpose of indicating the position at which the driveway was to commence. To adopt the words of the witness, Binney, the parties as well as the witnesses were talking about location on to a carriage way/private property and not precision engineering. Accordingly, therefore, I reject Mr Meyer’s contention.
I have noted elsewhere in these reasons what ETSA’s requirements for the safety of the pole were in about July 1992 and, in particular, that in order to keep it secure, the work in relation to the access/entrance had to start at a point not closer than three metres west of it. I am satisfied and find that Dr Briggs made Mr Trestrail aware of ETSA”s requirements in that respect and that, as at September/October 1992, Mr Trestrail, in fact, was aware of those requirements.
Mr Trestrail says that “within perhaps a month” before the excavation work was commenced, he was provided with a plan by Dr Briggs. He is unable to put a more precise date on when that happened but is certain that it happened before work commenced. It is common ground that the work commenced on 2nd November 1992. It is clear, therefore, that on his evidence he was provided with that plan within perhaps a month before that date. He can not say whether he was provided with the plan on site or elsewhere. That plan, he says, was a total plan site depicting amongst other things the septic tank, the point at which the sprinkler system was going to be established for the septic effluent disposal area, the proposed carport, the house and the access to the driveway from the road. He says that the position of the carport depicted on that plan is the same, or very similar, to the position depicted in P2, but that the access to the driveway was further to the west than that depicted on P2. That plan, he says, showed the position as represented by exhibit D26 which, except for the modification that he made to it, is otherwise a facsimile of P2. Mr Trestrail was quite certain that he had not been given or shown any other plan at any other time. Where then is that plan? He no longer has it. He gave an explanation as to what might have become of it. I found his explanation unconvincing. I was advised that it had not been disclosed in his list of documents. No other witness spoke of it. Dr Briggs denies that any such plan ever existed or that it was ever shown or made available to him. I accept her evidence. I do not accept that Mr Trestrail ever had any such plan. His evidence on the topic, and particularly as to what might have become of the plan about which he spoke, was most unconvincing. In my judgment the only plan that was ever shown and/or that was ever made available to Mr Trestrail in relation to the commencement point of the driveway was the plan which forms part of P2. I reject his evidence to the contrary.
Mr Trestrail says that he had a conversation with Dr Briggs about the plan which he says was given to him. His evidence was that he discussed the plan with Dr Briggs at some time before the work was commenced and advised her that the entrance of the driveway should be at the north western corner in order to gain elevation to get further up the block. He says that she agreed with that proposal. His evidence was that what he understood her to be saying was that “she needed to get up on to the block, and if it could work, that is what she wanted” (page 325).
It was the Trestrail’s case, therefore, and Mr Trestrail’s own evidence, as given initially, that the agreement between the parties was made in late 1992 and was to the effect that the access to the driveway was to be from the north western corner of the property. That stance, however, at least on the face of it, seems to be inconsistent with other evidence which Mr Trestrail gave on the topic. Although I have not relied on it for my purpose, that evidence may be understood to the effect that, on his own say so, an agreement in relation to the position of the entrance was reached earlier in the year, but was subsequently changed. The evidence to which I am referring appears at page 333. It is as follows:-
“Q.... In relation to the position of the entrance, did you have a discussion with Dr Briggs about that.
A.Yes, I did.
Q...... This is before the work started.
A.Yes.
Q...... As a result of that discussion, was there a decision made to change the position of the entrance.
A.Yes, there was.
Q...... Was there agreement between you and Dr Briggs as to where it was now decided that the entrance would be put.
A.Yes there was.
Q...... Where was it now decided that the entrance would be put.
A.The entrance would come off of the existing entrance of number 41.”
It was for that reason, according to Mr Trestrail, that when the work commenced on 2nd November 1992 the excavation was begun at the north western corner. His evidence was that Dr Briggs wanted him to place the carport on a level similar to the brick paving with the result that “instead of going to the front of the house we were to go back towards the path” (page 350). He was adamant that he had carried out the work in accordance with the agreement that had been reached between them (page 350).
Dr Briggs accepts that she spoke to Mr Trestrail on about 3rd November 1992 but denies that the alleged conversation, as deposed to by Mr Trestrail, took place at any time before the excavation work actually started on 2nd November 1992. I accept Dr Briggs’ evidence and I reject Mr Trestrail’s evidence because, in my judgment, Mr Trestrail’s evidence is inconsistent with the only reasonable inference that can be drawn from what actually happened.
In addition to the evidence to which I have already referred in that regard, I also refer to a note which Mr Trestrail made in his diary on 23rd October 1992 and on 27th October 1992 respectively. These notes read as follows:-
“David Stevens & Stirling Council Sue Briggs Tues 27th”
“Inspected Sue Briggs Job - Council & David”
I have already noted that the excavation work began on site on 2nd November 1992, and that the point of entry from the road was started at the north western corner of the block. Mr Trestrail says that having done some work, he realised that although the entry point had been changed, council approval had not been obtained for that change. He made immediate arrangements for council to be contacted and a site inspection was requested “to approve this relocation of the entrance way” (page 330). Messrs Binney and Bradbrook attended for that purpose. A discussion took place between Mr Trestrail and Mr Bradbrook. Mr Binney was present but did not participate in the discussion. I am satisfied that no other person was present and I reject any evidence to the contrary.
As far as Mr Binney was concerned the reason for the attendance on site on the occasion in question, as he understood it, was because of the contractor’s [Mr Trestrail’s] “difficulty in placing the access in the approved position”. It was for that reason, that Mr Bradbrook “wanted to meet the contractor on site to discuss alternatives” (page 264). Mr Binney recalls that by the time of their attendance on site “quite a lot of earthworks had taken place inside the property itself” and that the contractor spoke to them “at the position that he wished the driveway to be amended to” (my emphasis) (page 265). As far as Mr Trestrail was concerned he wanted both Mr Bradbrook and Mr Binney “to have a look at what I’d proposed to them so that council were aware of what was happening”. (my emphasis) (page 331).
Mr Trestrail gave what I considered to be unclear and inconsistent evidence on the question of change of the entry point from the roadway. Had it been changed? Was it to be changed? Would it be changed? That evidence on these questions appears at page 332-333 as follows:-
“Q.... When did you realise that the entrance had changed.
A.I knew that the entrance was to be changed.
Q...... Was to be, or had been.
A.No, would be.
Q...... Did I note your evidence incorrectly when I noted that you said ‘I realised that the entrance had been changed’.
A.Yes.
Q...... Was I wrong in noting you -
A.No, that is right. I realised that the entrance had been changed, but I hadn’t contacted council.
Q...... Yes. My question is how and when did you realise that the entrance had been changed before you contacted council, or someone on your behalf.
A.Because I had a plan that showed the entrance there (INDICATES) and I was putting the entrance here (INDICATES).
Q...... Yes, but you said you realised that that had been changed. By whom, when and how had it been changed.
A.Well, Dr Briggs and I had agreed that they were going to change the entrance.”
It was Mr Trestrail’s evidence that at no time during the course of the performance of the work had Dr Briggs complained to him about the position in which he had commenced the driveway. He had had many telephone conversations with her but she did not make any complaint about the subject matter until about a year later. (page 350).
Dr Briggs tells a different story. She says that she became aware that the excavation work had begun on 2nd November 1992, and attended on site during her lunch break on 3rd November 1992 to see how the work was progressing. Upon arrival she observed that the block was being excavated from the north western corner. By the time of her arrival a fair amount of cutting had already been carried out. Mr Trestrail accepts that he had “dug the entrance” and had gone “part way up the slope” (page 553). She says that she was concerned about what was happening and spoke to Mr Trestrail. Mr Trestrail accepts that the two of them did have a conversation but went on to say at page 559 that “as to what was actually said, I have no idea”. He then changed that to “I don’t actually remember what was said”. The final position which he adopted was that Dr Briggs had instructed him “to change the end point of the driveway” (page 562). His evidence was as follows:-
“Q.... It’s in relation to that conversation that I ask you please to tell the court as best you can what she said.
A.It’s that long ago, but the only thing I can put is a summary of what was said. Something to the effect that I don’t want the garage in front of the house. I’d like to go back up adjacent to where the brick paving is, somewhere up that way. Something to that effect.”
Dr Briggs, on the other hand, says at pages 37-39 that her conversation with him was as follows:-
“A.... ‘This isn’t where I wanted the driveway to be, can you explain to me what’s going on here?’ He indicated to a point over in front of the intended house site and said, ‘We’ve decided it would be better if your garage was positioned there.’ And I said, ‘No, no, that’s totally unacceptable to me. I intended the garage to be where we discussed over in the region -‘ and I indicated the area where the brick path was and still is. I also said, ‘It’s unacceptable to me to have it there because it’s too much of a difference in height, between that level and where the house is. It makes it almost impossible to get to the house. As well as that, I intend to have, at some stage, when I have a garage, to have a studio above it and therefore, it would be obstructing any view from the house site.’ So there was no way I would accept it being in that site. It was then -
Q.Did you observe any reaction [on] the part of Mr Trestrail at this point, when you said this.
A...... I think he’s a man of few words, but he looked taken aback and perturbed and obviously it was a fairly serious situation, because a lot of work had already been carried out. Then he said to me he could still excavate the drive and have a garage positioned in the area I’d originally intended, which would involve putting in a switch-back, around about the point we were standing at the time and I said to him, ‘As long as I can have a driveway that I can drive straight up, without manoeuvring the car and I don’t have to back down. Are you sure you can do that?’ He assured me that it was possible to do it and having realised of course that a lot of damage had already been done to the site and also, I believed, in his professionalism I guess. I okayed him to go ahead and to continue up, doing the switchback up to the site, that I originally intended to have the garage.
Q.Was anything said about a backing space.
A...... Certainly. I said to him that in order to be able to drive down frontways, because I didn’t want to be backing down the driveway, there had to be a small backing area adjacent to the carport or garage so I could back out of the garage and drive straight down.
Q.Did he say anything about that.
A...... He certainly didn’t say that it wasn’t possible.”

Her evidence continued as follows:-

“Q.... You’ve said that he said to you ‘We decided that your garage should go there’.
A.That’s right.
Q...... Did he indicate to whom he was referring when he said ‘we’.
A.I presumed he just meant himself. I don’t know who else was involved, or didn’t know at that stage.
Q...... Was anything said on that occasion about why, apart from the fact that it was better to have the garage there, he didn’t start at the point that you say he had agreed to start, which was the north-eastern corner. Was anything said on that topic.
A.I recall asking him why it had been started in an area contrary to where I had requested it, and he said ‘It was much easier for us to start there. It would have been really difficult to start in the north-eastern corner because you would be right on the road verge. It would have been quite dangerous. We would have had to organise with the council to have traffic halted for at least a couple of hours’ to which I replied ‘I wouldn’t have minded that. I think that could have been arranged. I would have been quite happy to stand there myself and hold up the flags or whatever, to control the traffic’ and that was the end of the conversation as I recall.”

Mr Trestrail denied that such a conversation took place in those terms. He went on to say that the access off the roadway for machinery to get on the site was not a problem. He had been engaged in such activities many times in the past.
What then was the real reason for requesting the change? Was it because the commencing point had been changed by agreement between Mr Trestrail and Dr Briggs, but without council’s consent, as Mr Trestrail says, or was it as deposed to by Dr Briggs? I have looked for supporting evidence and I have carefully examined the evidence of Mr Bradbrook. He said that there was a desire to relocate the driveway for many reasons, but when asked whether those many reasons had been discussed with him, his evidence at page 287 was as follows:-
“Q.... Did he discuss many reasons with you.
A.The access off the roadway for the machinery to get on to the site, etc., etc., yes.
Q...... Did he discuss any other reasons with you.
A.Not to my knowledge.
Q...... Was it only the access for the machinery that he discussed with you.
A.Site access, and generally moving off the road.”
Mr Bradbrook accepted that, from a safety point of view, the position for the commencing point of the driveway, which he had approved in June 1992, was the best position. In re-examination he conceded that, when he subsequently changed the position of the driveway from that best position, the fact that the plant would be on the road for a period of time was something which had influenced his decision (page 315). That factor, he said, had been “one of the major factors” in causing him to change his mind.
I was not sure as to what the witness was really trying to convey to me. I questioned him in order to clarify my thinking. His evidence at pages 307-309 was as follows:-
“Q.... In granting your approval, in terms of the letter dated 29 June 1992 in connection with the plan, or very similar to it, did you have regard to the factors that you’ve mentioned.
A.Yes.
Q...... Having considered each of those factors, did you come to the conclusion that, in all the circumstances, the most desirable position where the access to the driveway should be is where you gave approval.
A.I believe so, yes.
Q...... I think that subsequently there was a variation to that approved point.
A.Correct.
Q...... And that was as a result of a discussion which you had on-site with Mr Trestrail, in the presence of Mr Binney.
A.Yes.
Q...... Tell me, what led you to consider that the most desirable site, having regard to the safety of the road users and the users of the driveway, was not the site at which you’d given your approval but rather at the position where the driveway was originally constructed, namely in relation to lot 41.
A.You are asking me why I changed my mind?
Q...... Yes.
A.The reason why I changed my mind is that there is three heads there talking about a particular situation and probably one or two factors that I may have overlooked and I was big enough to say “No, I’m wrong’ and we changed it.”
I interpose by noting that there were not “three heads there talking about a particular situation” but only two, namely his and Mr Trestrail’s, because I am satisfied, as I find, that Mr Binney did not participate in any relevant discussion. The evidence continued as follows:-
“Q.... What, to the best of your recollection, was it that you overlooked which the other two heads made you see. As I understand your evidence, in granting your previous evidence you said you considered all the factors that you said you would consider before granting approval or not.
A.Probably the main thing was the machinery had to start out on the road which would have blocked the road off.
Q...... Was that the main consideration.
A.One of them.
Q...... What else.
Q.I can’t recollect at this stage.”
It is now necessary for me to note the impression that Mr Bradbrook made upon me as a witness.
At the relevant time he was employed by the Council. In his own words he was “an internal worker with outside interests”. He played a vital role in what is now the dispute between the parties, in that it was he who approved the access/entrance from the roadway onto the subject land.
Mr Bradbrook had been acquainted with Mr Trestrail for some ten years. His opinion of him was that he was an excellent operator. My impression of Mr Bradbrook was that, because of what he thought of Mr Trestrail, and because of his relationship with him, he was likely to be, and probably was, easily influenced by Mr Trestrail’s views. Some of his evidence at page 286, for example, was as follows:-
“Q.... In relation to the movement of the driveway, did you have any consideration for the opinion of Mr Trestrail.
A.Certainly I must have had to go there to discuss it with him and to listen to his opinions, of course.
Q...... Why would you have listened to his opinion.
A.He is an expert in his field of using machinery and making driveways, or accesses. That is my opinion.”
The final conclusion that I reached about Mr Bradbrook was that he was intent on adopting a position which protected Mr Trestrail and, more importantly, which justified the action which he himself had taken in granting the original approval, which he subsequently reviewed and varied, but only after conferring with Mr Trestrail on site.
Mr Bradbrook had no recollection of, and/or had not considered, certain events touching on important issues. His evidence on certain topics was at some variance with the evidence of Mr Trestrail, and with that of his own manager, a Mr Binney, who was called to give evidence in the case.
At the end of the day I have come to the conclusion that Mr Bradbrook varied the written approval which he had originally given in June 1992 and gave verbal approval to the commencement of the access/entrance to the driveway from a point which was suggested to him by Mr Trestrail, and further, that he did so at Mr Trestrail’s request and only in order to assist Mr Trestrail. I reject his evidence and that of Mr Trestrail to the contrary.
It follows, therefore, that I accept the evidence of Dr Briggs in preference to that of Mr Trestrail and find accordingly. My specific findings in relation to the primary issues are:-
1. That the parties entered into an oral agreement in about mid 1992.
2. That the express terms of that agreement were inter alia:-
a)..... that the plaintiffs would excavate a driveway for the property known as 39 Sturt Valley Road Stirling and would provide labour, plant and machinery for that purpose at a cost of “4 - $4500”
and
(b).... that the plaintiffs would locate the entrance to the driveway so that its eastern boundary would be 3 metres west of a stobie pole which was then located on Sturt Valley Road at a point adjacent to the site and, further, that the driveway itself would run to a point west of the proposed house in the vicinity of the proposed carport to an area where there was a pre-existing brick path.
I make these findings after fully considering the evidence, after carefully weighing the submissions of counsel, and particularly after paying special regard to the contents of a letter which Dr Briggs wrote to the council on 9th April 1992 and the evidence of Mr Ferrara which is of relevance to the contents of that letter. The letter to which I have referred is in evidence as exhibit P25. It reads as follows:-
“To Whom it may Concern,
I am proposing to purchase Lot 53 Sturt Valley Rd. Stirling, with the intention of building a residence thereon in the near future.
The intended building is a 13.25 sq. double storey, provincial styled home, to be constructed of Hebel aerated concrete blocks & finished with a render.
There is already an excavated, level area available where it is intended the house will be positioned.
Access will be from Sturt Valley road, the drive commencing from a pre-cut area traversing the front of the allotment to no. 41. (My emphasis)
I would appreciate a prompt indication by Council regarding the allowance of this site for my intended use, the purchase of the property being subject to that.
Yours sincerely,
Sue Briggs” (signed)
Mr Ferrara’s evidence was inter alia as follows:-
“Q.... Ms Briggs on this occasion ruled out, with you, coming from the neighbour’s access up the top, and said that she wanted to come from the bottom.
A.Yes.
Q...... Did she indicate whereabouts from the bottom, or simply from the bottom.
A.Simply from the bottom. I did suggest using that existing track that goes to the neighbour on the south side; she indicated that that was not possible. I suggested that we have to start at the highest point possible to minimise our rise, and somewhere near the stobie pole or the north west corner was an ideal spot to start.
Q...... Did you say north west point.
A.I pointed to that corner, the north west corner, yes.
Q...... I do want to be clear, because you have said stobie pole and north west corner. You have mentioned the stobie pole. We have all talked about the stobie pole as being in the north-eastern corner not the north western corner. I would like to sort that out with you. Are we misguided in calling that north-east.
A.No; the north-east corner, my apologies. I am sorry.”

Evidence to the same effect is to be found inter alia at pages 747-748.

Mr Meyer of counsel for the Trestrails contended that even if the findings that I have made, should be made (and he urged me strongly against adopting that course, for reasons to which he directed my attention, and which I have rejected after fully considering each of them), Dr Brigg’s claim should nevertheless be dismissed for a variety of reasons. One of them was because, in his submission, the alleged breach had not been proved.
Dr Briggs says that the agreement has indeed been breached in that, contrary to the express terms of the agreement, the Trestrails located the commencement of the driveway in the north western corner of the site.
It is common ground, of course, that the commencement of the driveway was, in fact, located in the north western corner of the site. The question is: was that done in accordance with the terms of the agreement as the Trestrails contend, or was it done in breach of agreement as Dr Briggs maintains? On the facts, as found, I am satisfied that what was done by the Trestrails was done in breach of agreement and I so find. I reject Mr Meyer’s submissions to the contrary.
Another point to be made on this aspect of the matter is that whilst what Dr Briggs agreed to have, in my judgment, was a basically straight up and down driveway, what she actually got was inter alia a driveway with two switch back curves both of which are tight.
Paragraph 3(d) of the amended defence and counterclaim says that it was an implied term of the agreement between the parties that:-
“... the plaintiffs would carry out the excavation in a good and workmanlike manner and ... that the plaintiffs would locate the excavation in such a way that the driveway was as well situated and as useful as it could be given the topography of the site and the other works being carried and to be carried out on it.”
It was the evidence of Dr Briggs, which I accept, that for approximately eighteen months after she moved into occupation of the house she could not drive her motor vehicle around the first curve. She says that she had to drive onto her neighbour’s entrance before backing up the driveway and then go forward to the next curve. She went on to say that the curve was subsequently widened and that thereafter she could “just drive” around that curve.
In relation to the second curve Dr Briggs said, and I accept, that for the first eighteen months she could not drive around that curve at all. She went on to say that the curve was subsequently widened and that thereafter she could get around it but only by doing a three point turn.
According to Dr Briggs, coming down the driveway was also a problem because she has always had to back down to the first curve.
The court attended on site at the request of the parties. Dr Briggs demonstrated the manoeuvring that she had to undertake in order to get up and down the driveway. Having attended on site, I have no hesitation in accepting Dr Briggs’ evidence as given.
A question arose at trial as to whether the driveway is navigable by an ordinary or standard type of passenger vehicle such as the so-called 85th percentile vehicle. Mr Trestrail offered the opinion, based on what he says he saw, that an ordinary vehicle can get up and down the driveway. I reject that evidence. I am satisfied on the totality of the evidence before me, including what I saw and what was shown to me on site, that the driveway cannot be navigated by an ordinary passenger vehicle and I so find.
The Trestrails say that Dr Briggs got what she asked for and that the work was carried out in accordance with her specific instructions, and in accordance with council’s approval. They support their contention in part by relying on the evidence of Mr Ferrara. Mr Ferrara’s evidence was that, as he understood it from her, Dr Briggs would be the only person using the driveway, that she was not interested in having visitors, and that it did not matter to her how steep or difficult the driveway would be so long as she could get up and down with her four wheel drive. Part of his evidence at page 719 was as follows:-
“Q.... Did you have any discussions about how a steep driveway may be dealt with by Ms Briggs.
A.Yes. I remember Sue Briggs at the time had a blue Toyota four-wheel drive, and she mentioned to me that she would get up this steep driveway with this four-wheel drive, and that she would be the only person using that driveway.”

He went on to say at page 776:-

“A.... I was convinced by my client that she would be the only one using the driveway in a four-wheel drive.”

In cross-examination Mr Ferrara agreed that the driveway as designed “would never work” and that he knew that to be so back in February/March 1992 (page 774). His further evidence was as follows at page 776:-
“Q.... Does that mean you were designing and submitting for approval a driveway which could be used by anyone occupying that property only by the use of a four-wheel drive.
A.Yes.
Q...... So that it was a driveway not useable by any other vehicle, other than a four-wheel drive.
A.Yes.
Q...... A pretty useless driveway, in your professional experience, wouldn’t it be.
A.Yes, I agree.
Q...... And you went ahead and designed -
A.I submitted this on request because my client asked me to do it. She convinced me. If it was today I would reconsider that, because of the implications.
Q...... Because of the -
A.Implications.
Q...... But the same implications were in existence at that time as well.
A.Yes. Council didn’t query it at the time. Today, they are more likely to query it.”
I have noted elsewhere that Mr Meyer called Mr Taylor. Mr Meyer examined Mr Taylor in relation to what Mr Ferrara had said and done. That evidence as it appears at page 819 was inter alia as follows:-
“Q.... Let’s take this client and this site. Let’s say your client says to you these things: ‘I want to save trees. I am happy to have a driveway which I can get up in my four-wheel-drive vehicle, and I am not worried about anybody else who might come to the site’. Would you now, if they were the instructions to you, design a driveway which was negotiable by a four-wheel-drive vehicle.
A.I would say to my client ‘If you can get that through council, you would knock me over with a feather’, because when you build a house, you can’t believe that you are only ever going to be the owner, and you can’t do anything that is outside of the building rules. Now, I know the driveway isn’t a part of the building rules as such, but if I was in a position that I could do nothing else, at least I would be putting in writing to the client that it wasn’t acceptable.
Q...... And if the council approved it, so be it.
A.I think if the council approved it, I would still tell the client it wasn’t acceptable.”

I was impressed by what Mr Taylor said. I accept his evidence on the topic under discussion.

I don’t accept Mr Ferrara’s evidence. Mr Ferrara conceded at pages 722-723 that he had prepared a sketch plan contrary to Dr Briggs’ specific instructions in that he had shown the position of the carport at the lowest possible level instead of at the highest possible level. In answer to the question as to why he had done that he said at page 723:-
“A.... If I remember rightly, it would have been because it would not have been approved by council. To get the carport approved, it would have had to show at a lower level, otherwise the council would not have approved it, in my view, in terms of planning. There are certain gradients that I have to try to achieve.
Q.Did you tell her that before you prepared your sketch plan.
A...... Yes. I would have told her ‘I am putting these plans to council with a carport at this level to get council approval. If we need to research it more or if you want to lift it up higher, we have to look at alternatives. We will see what else we can do.’”
In my judgment the real reason for doing what he did in the manner that he did it, in his own words at page 757 was because:-
“A.... I had to show a driveway and a carport ending somewhere for purposes of council approval.”
At the end of the day, and after carefully considering all the material before me, I have reached the conclusion that in doing what he did Mr Ferrara was acting contrary to, rather than in accordance with, the instructions that he had received from Dr Briggs.
The conclusion that I have reached is that contrary, notwithstanding Mr Ferrara’s evidence and to the case for the Trestrails, in my opinion, the excavation work was not carried out in accordance with Dr Briggs’ specific instructions. I am also satisfied and find that the work in question was not carried out in accordance with council’s approval, because, in my opinion, the driveway which Dr Briggs has got is not the driveway that was ever approved by the council. I am further satisfied, therefore, that the Trestrails are in breach of agreement and I so find.
The next argument advanced by Mr Meyer was that Dr Brigg’s claim should be dismissed on the ground that the alleged agreement is unenforceable. As I understand it, the argument runs as follows. The Planning Act 1982 requires that work to which the Act applies must be carried out in accordance with planning approval. The Building Act 1971 contains similar provisions. Both Acts were repealed by the Development Act 1993, but the Development Act contains similar provisions. It follows, therefore, that any work to which the Act applies must be carried out in accordance with the planning approval which has been granted in relation to that proposed work.

The relevant excavation works, in the case at bar, is work to which the Act applies and must be carried out in accordance with its provisions. What then is the planning approval that has been granted in relation to it? Mr Meyer says that, on Dr Briggs’ own case, either she entered into a contract to construct a driveway from the north eastern corner of the allotment to a position in the vicinity of the brick path, or that the driveway was to commence in the position as shown in exhibit P2, but to terminate in the position of the brick path. In either case, Mr Meyer says, that is not what the council approved. The approval of council, he says, is to be found in exhibit P2 and/or in exhibit P25. Those exhibits were tendered by the Dr Briggs. It is therefore not open now to her to contest that they do not comprise the correct approvals granted by the council.
Mr Meyer referred me to chapter 11 in the sixth edition of Cheshire & Fifoot’s “Law of Contract” headed “Contracts Illegal at Common Law on Grounds of Public Policy” and quoted an extract from page 467 as follows:-
“Ex Turpi Causa
“... no contract would be enforced that was ‘contrary to the general policy of the law’ Lowe v Peers, ‘injurious to and against the public good’ (Collins v Blantern) or contra bonos mores, (Girardy v Richardson), or that had arisen ex dolo malo or ex turpi causa; Holman v Johnson.
It seems justifiable to infer from such expressions as these that the judges were determined to establish and sustain a concept of public policy. Contractual freedom must be fostered, but any contract that tendered to prejudice the social or economic interest of the community must be forbidden”.
Mr Meyer argued that there was clear public policy that development on land should be carried out in accordance with the planning and building approval granted by the relevant government authority. In his submission the public policy is clear. In his own words “It is most important that the development of land be carried out in a proper and orderly fashion in accordance with guidelines and standards provided by Government”. His further submission was that, in the case at bar, Dr Briggs is seeking to enforce a contract which is contrary to the approval which was granted by the council, and this Court cannot, and should not, provide its authority for the enforcement of such a contract. For that proposition he cited Archbolds... (Freightage), Ltd. v S. Spanglett, Ltd. & Anor [1961] 1 All E.R. 417 and relied on what fell from Pearce LJ at pages 421-422 where His Lordship said:-
“His cause of action comes from the contract, and if the contract is such that the court must refuse its aid, the plaintiffs cannot recover their damages.
If a contract is expressly or by necessary implication forbidden by statute, or if it is ex facie illegal, or if both parties know that though ex facie legal it can only be performed by illegality or is intended to be performed illegally, the law will not help the plaintiffs in any way that is a direct or indirect enforcement of rights under the contract; and for this purpose both parties are presumed to know the law.”
The term “public policy” is very wide. No precise definition of it appears to be possible. Whilst that is so, however, it can nevertheless be stated that one of the objectives of the common law is to protect public interest. It is for that reason, therefore, that any contract which is not for the good of the community as a whole, or which tends to be harmful to public interest, will not be upheld by the court. On the other side of the scale there is the long established freedom of the individual which cannot be overlooked. It is important to remember that the common law recognises and upholds the principle that persons may contract just as they wish subject only to the proviso that their contracts must not be harmful to the community.
What then is the test to be applied in any given case? The answer to that question was provided by Isaacs J in Wilkinson v Osborne & Another (1915) 21 C.L.R. 89 at page 97 where his Honour said:-
“... the ‘public policy’ which a Court is entitled to apply as a test of validity to a contract is in relation to some definite and governing principle which the community as a whole has already adopted either formally by law or tacitly by its general course of corporate life, and which the Courts of the country can therefore recognize and enforce. The Court is not a legislator: it cannot initiate the principle; it can only state or formulate it if it already exists.”
The common law, however, is not static. It is elastic and adaptable. It follows, therefore, that the heads of recognised categories of contracts offending or not offending against public policy are never closed or exhaustive. They may be enlarged as the occasion may require. As the Judicial Committee of the Privy Council said in Evanturel v Evanturel L.R. P.C. Vol. VI 1 at page 29:-
“... the determination of what is contrary to the so-called ‘policy of the law’ necessarily varies from time to time. Many transactions are upheld now by our own Courts which a former generation would have avoided as contrary to the supposed policy of the law. The rule remains, but its application varies with the principles which for the time being guide public opinion.”
The policy of the law at the present time appears to be that the courts will not interfere lightly with the right of an individual to contract as he wishes. Before interfering with that right the court must be convinced that “the harm to the public is substantially incontestable” (per Atkin CJ in Fender v St. John-Mildmay [1938] A.C. 1). If there is any doubt, the benefit of that doubt will be given to the contract.
Mr Randle of counsel for Dr Briggs referred me to chapter 10 of the sixth Australian edition of Cheshire & Fifoot’s Law of Contract. That work deals with “Contracts Illegal as being Prohibited by Statute”. Mr Randle submitted that a distinction must be drawn between a statute that prohibits the doing of something absolutely and one that prohibits the doing of the same thing without approval or subject to certain conditions. More specifically he said that, generally speaking, the Development Act is not concerned with contractual relationships but is rather regulatory in nature in the sense that it does not prohibit the entering into contracts for the building of, for example, driveways but rather it says that a driveway shall not be built without the requisite approval, or subject to complying with specified conditions. A further distinction therefore must be drawn between a contract which may be illegal as formed and one which may be illegal as performed.
It is the law that if the parties to a contract have agreed to do something that is either expressly or impliedly forbidden by statute, the contract is considered to be one which is illegal as formed Anderson, Limited v Daniel [1924] 1 K.B. 138 at 149. A contract which is so prohibited by statute is totally void. It is void ab initio. No action lies for its enforcement even though the plaintiff be innocent and even though it is the defendant who has broken the law and who pleads his own illegality re Mahmoud & Ispahani [1921] 2 K.B. 716 at 729. The law is that neither party to such a contract can acquire any rights under it, and that is so, irrespective of whether there was an intention on their part to break the law or not. Furthermore, neither party to such a contract can rely upon the doctrine of estoppel to prevent the other party from invoking the illegality of the contract. Nor can there be any right to sue for damages for breach of its terms, or to obtain relief in equity by way of specific performance or an injunction or rectification DJE Constructions Pty Ltd v Maddocks and Others [1982] 1 NSWLR 5 at 13. If the contract itself is thus statutorily forbidden, the contract is illegal and the parties, or one of them, cannot be heard to say that he or they did not know the law on the matter J.M. Allan (Merchandising) Ltd v Cloke and Another [1963] 2 Q.B. 340 because it is now settled that ignorance by one party of the illegality of the transaction does not entitle him to enforce the contract Patterson v Lowe 1955 St.R. Qd 437.
The rule that a court will not enforce a contract which is illegal as formed emanates from the classical statement of Lord Mansfield in Holman v Johnson (1775) 1 Cowp. 341 at 343 (E.R. 98 1120). That rule has become epitomised in two oft quoted maxims. One of them is:-
“in pari delicto potior est conditio defendentis, nemo suam turpitudinem allegans audiendus est”.

The other is:-

“ex turpi causa non oritur actio”.

It is important, therefore, that a plaintiff should be seen to come with clean hands. As Wilmot CJ said back in 1767 in Collins v Blantern (1767) 2 Wils. K.B. 341 at 350:-
“... no polluted hand shall touch the pure fountains of justice.”
This then is the position, as I understand it, in relation to contracts which may be illegal as formed.
Different considerations may well apply where the contract may be illegal as performed. In Hurst and Others v Vestorp Ltd (1988) 12 NSWLR 394 Kirby P (as he then was) compared the position by asking himself the question:-
“What are the consequences of non compliance with a statute?”

which he then answered as follows at page 411:-

“The principles of law applicable to the resolution of this question are found in First Chicago Australia Ltd v Yango Pastoral Co Pty Ltd [No 3] [1977] 2 NSWLR 583; affirmed sub nom Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410. I take the relevant principles to include:
1...... The fact that a transaction is made which results from or involves a breach of the requirement of statute may result in a conclusion that the transaction itself is illegal such that, to give effect to the statute, a court will decline to enforce the transaction or will treat it as void;
2.Such a result will not, however, always follow. Because statutes rarely provide, in terms, for the effect of the breach of their provisions upon such transactions, it is for the court, in applying the potentially crude instrument of the doctrine of illegality, to determine the imputed legislative intention. It must do so from the language, history and apparent policy of the statute: the court necessarily filling the gaps left by the legislature;
3...... In reaching its conclusion, the court will consider the extent to which the statute itself already provides adequately for securing the attainment of its apparent objects and for punishing breaches of and non-compliance with its terms. It will also have regard to the possible consequences upon innocent third parties of a rigorous application of the principles as to illegality; and
4.Because of the sometimes drastic consequences of the application of the doctrine of illegality upon transactions, the proscription may not be extended beyond those transactions which are clearly in breach of the statute, lest, by casting the net more widely, serious injustice may be done to third parties beyond that necessary to give effect to the presumed legislative intention.”

The Learned President concluded by saying that:-

“Inherent in these principles, and in their application to particular cases, is an inescapable element of imprecision and judgment. As in other cases, so in this, there are considerations which point in different directions.”

Having reflected on what Mr Meyer had submitted, and in the course of listening to Mr Randle’s submissions, I wanted to make sure that I had correctly understood what had been put to me by Mr Meyer. It was for that reason that I asked him:-
“Are you saying that the agreement itself is illegal or the enforcement of it is illegal?”

to which Mr Meyer replied:-

“The enforcement of it is illegal.”

100 After a further debate, the position that was finally adopted by Mr Meyer, as I understood what he was saying, was that an agreement to perform earthworks cannot be categorised as an illegal agreement, but an agreement to perform earthworks, which is in contravention of the planning approval, must be so categorised. In his further submissions if the Court were to find that an agreement had been made in the terms pleaded by Dr Briggs, such an agreement would be an illegal agreement as being contrary to public policy because it was an agreement to perform earthworks which was in contravention of the planning approval as granted.

101 Mr Meyer reminded me that the development application was filed with council on 15th April 1992 and that in addition to the access approval, which was granted on 29th June 1992, development approval was granted on 6th August 1992. There was an argument at trial as to precisely what it was that had been approved by council on each occasion. I need not go to that topic because it seems to me that for present purposes, irrespective of that issue, Mr Meyer’s submission may be well founded if, as the Trestrails say, and Mr Meyer urges me to find, the agreement was reached after 6th August 1992, because in that case the agreement may well be one to perform earthwork in contravention of the planning approval as given, but that submission cannot have any force if the agreement was made before that date because, in that case, the agreement would simply be an agreement to perform earthworks, and that, on Mr Meyer’s concession, cannot be categorised as an illegal agreement. I have already found that, in my opinion, the agreement was made in about mid 1992. I specifically find that it was made before approval was given on 6th August 1992. I do not accept Mr Trestrail’s evidence that it was made after 6th August 1992. It follows, therefore, that contrary to Mr Meyer’s submission the agreement was one for the performance of building work and not one to perform building work in contravention of the building approval as given. My ruling in the circumstances, therefore, is that the agreement was not an illegal contract. My further ruling is that the agreement is one which is enforceable at law.

102 The next argument advanced by Mr Meyer was that even if, contrary to his submissions and his client’s case, firstly there was an agreement as pleaded, secondly the agreement was legally enforceable and thirdly the Trestrails were in breach of it, Dr Briggs was still not entitled to any remedy on the ground that she had waived compliance with the agreement by her subsequent conduct. As I understand what Mr Meyer put to me the argument runs as follows.

103 Dr Briggs attended on site on 3rd November 1992. She did so at a time when at least the initial cut of the driveway had reached the position of the second bend. It was at that time that she instructed Mr Trestrail to place the driveway in the position of the brick path thereby varying the original agreement. She has not pleaded or relied on either a new agreement or a variation of the original agreement. If the agreement was as she has pleaded it, the Trestrails were in breach of contract as at 3rd November 1992. At that time she could have insisted on specific performance of the contract but didn’t. Instead of insisting on specific performance, she accepted the breach and waived specific performance thereby permitting the Trestrails to act to their prejudice in the sense that she thereby allowed them to proceed ahead and construct the driveway, as Mr Meyer put it, “in accordance with the agreed varied agreement”. Mr Meyer says that had Dr Briggs sought to enforce the agreement in accordance with what she contends were its original terms, the damage suffered by his clients would have been minor. That damage is now far in excess of what it would have been. The Trestrails have suffered irreparable prejudice and Dr Briggs is now estopped and should not be permitted to go back and enforce the original agreement.

104 Having made specific reference to acquiescence and estoppel, Mr Meyer also referred to and relied upon laches or delay and election.

105 In the course of his submissions Mr Meyer referred me to, and quoted from, many cases including Je Maintiendrai Pty Ltd v Quaglia (1980) 26 S.A.S.R. 101, Orr v Ford (1988-1989) 167 C.L.R. 316; Andrew Knox Holdings Pty Ltd v ANZ Banking Group Ltd. & Esanda Finance Corp Ltd (1996) 188 LSJS 385; Khoury & Another v Government Insurance Office (N.S.W.) (1983-1984) 165 C.L.R. 622; Ampol Limited v J.& P. Lawson (1993) 46 FCR 1; Mortgage Acceptance Nominees Ltd v Australian Thoroughbred Finance Pty Ltd (1996) 69 SASR 302 and other cases referred therein.

106 At this point I should note that throughout the trial Mr Meyer did not lose one single opportunity to raise objections to ensure that the opponent’s case was strictly kept within the bounds of her pleadings. He drew my attention to that topic on innumerable occasions. A considerable amount of the Court’s time was devoted to the resolution of that issue. Not unnaturally, Mr Randle of counsel for Dr Briggs now says that the same rules ought to apply in reverse. He points out that the Trestrails’ pleadings are totally silent on the questions raised by Mr Meyer in his address, and the Trestrails should not, therefore, now be permitted to rely upon them without having pleaded them. Having made reference to the matters relied on by Mr Meyer, in Mr Randle’s own words:-

“There is not one jot of reference to those in the defence to counterclaim. I say that my learned friend is well and truly hoist on his own petard there.”

107 Mr Randle took that stance because, having regard to what had transpired at trial, in his submission, if there ever was a case in which a litigant had to raise those matters by way of defence “this had to be it”. Mr Meyer, for his part, says that having regard to what fell from the Court in O’Keefe v Australian Trencher Company Pty Ltd (1991) 56 SASR 370, he was obliged to take the objections that he did take in order to protect his client’s position. He contended that his client was not obliged to specifically plead the matters on which he now wished to rely for the first time in his address and that he was entitled to the remedy which he sought having regard to the provisions of section 36 of the District Court Act and what fell from the Court in S P Hywood Pty Ltd v Standard Chartered Bank Ltd. being an unreported Judgment of Perry J. which was handed down on 11th December 1992 (Judgment No. S3764). He says, therefore, that if his defence is made out on the evidence, the Court should give judgment for his clients even though there is no specific plea in support of that defence.

108 In arriving at my ruling in this matter I have had regard to the Rules of Court and in particular to Rule 46.12(4) and Rule 47.01.

109 Rule 46.12(4) provides that a party in his or her defence or any subsequent pleading:-

“(4)   Shall specifically plead any fact or matter which:-
(a).... might make any claim or defence of the opposing party not maintainable;
(ab)   ................
(b)... if not specifically pleaded might take the opposing party by surprise;
(c)    raises issues of fact or any mixed question of fact and law not arising out of the preceding pleading.”
Rule 47.01, for its part, provides that:-

“A defendant must plead specifically every ground of defence on which he relies, together with the facts upon which the ground of defence arises.”

110 The purpose of these Rules, in my opinion, is to require a party to tell his opponent what it is that he is coming to court to prove, so that he or she will not be caught by surprise and the trial will not be one by ambush.

111 As I understand the law, both estoppel and waiver, on which Mr Meyer relies, are grounds of defence which under the Rules must be specifically pleaded (see for example the notes on R 46.14.25 in Volume 1 of Lunn on Civil Procedure South Australia at page 8545 and the cases referred therein).

112 I take the same view with respect to the defence of “election”, “acquiescence” and “affirmation”.

113 It is true, of course, that in a proper case the judge may allow defences to be raised at trial which have not been pleaded under the Rules, but the Court’s discretion should be exercised judicially in the sense that the order, permitting such defences to be raised, should be made only if it can be made without injustice to any other party.

114 I bear in mind, of course, that strict adherence to the Rules would be to make them our masters rather than our slaves. I also bear in mind as Griffith CJ noted in Union Bank of Australia v Harrison, Jones & Devlin Ltd. (1910) 11 C.L.R. 492 at page 504 that:-

“Rules and forms of procedure are not ends in themselves, but means to an end, which is the attainment of justice.”

115 What I must have in contemplation, therefore, is the attainment of justice and I must apply the rules with that objective in mind.

116 Having regard to the course which the proceedings have taken, in my view, justice can only be attained in the case at bar by adhering to the Rules. Doing that, and in the exercise of my discretion, I rule that each of the matters on which Mr Meyer wishes to rely by way of defence should have been pleaded. They have not been pleaded. Failure to do what should have been done has prejudiced the opponent in that she has had no warning of the case that she was to meet and, in that sense, has been caught by surprise. My conclusion is that to allow Mr Meyer’s clients to rely on the matters raised by way of defence for the first time in Mr Meyer’s address would be to cause an injustice to Mr Randle’s client. If that were to occur, justice would not have been attained. For that reason, and on those grounds, therefore, I rule that it is not open to Mr Meyer to rely upon defences such as estoppel, waiver, acquiescence, election, affirmation and the like to which he referred for the first time in his address.

117 In the event that it should be held elsewhere that I have erred in ruling as I have held, I have directed my mind as to what would have been the result if I had permitted the Trestrails to rely upon the matters referred to by Mr Meyer. After reflecting on the matter I indicate that, for reasons advanced by Mr Randle in the course of his submissions, which reasons I adopt, and for other reasons which I need not give at this stage, none of the defences sought to be relied upon by Mr Meyer would have succeeded.

118 I shall now direct my attention to the question of damages.

119 One item of damage claimed by Dr Briggs is the cost of chiropractic treatment. She says that for approximately 18 months after she moved into the house she could not drive her motor vehicle around the first curve at all. Her evidence was that she had to drive on to the neighbour’s entrance and then back up the driveway before going forward to the next curve. She goes on to say that she kept wrenching her neck during that exercise and spent money on chiropractic treatment.

120 I was provided with a document headed “SGIC Health Benefits Statement” which is in evidence as exhibit P11. That document and Dr Briggs’ own evidence show that Dr Briggs had been suffering from a condition of her back long before the excavation of the driveway, and that she had been receiving chiropractic and other treatment for several years.

121 At the request of the parties the Court attended on site to view the configuration and the condition of the driveway. I am satisfied that no maintenance work has been carried out and that the driveway has been allowed to fall into a state of disrepair.

122 Whilst it is possible that, in the initial stages, Dr Briggs may have suffered temporary aggravations of her neck condition in the course of navigating the driveway, the evidence before me does not enable me to say whether or not she required treatment in respect thereof, and if so what, if any, expenses she incurred. The claim under this heading has not been proved. There will be an order dismissing it.

123 The next item of damage claimed by Dr Briggs is $400 for the cost of rectifying damage to her motor vehicle. Her evidence was that, on the occasion in question, because of the manoeuvring that she was required to undertake in order to navigate the driveway, she collided with the septic tank, thereby damaging her vehicle.

124 I do not doubt that the collision occurred, but I do not know when it occurred. In any event I am not satisfied that it was caused by the configuration of the driveway. In my view the fact that no similar incident occurred before or after the occasion in question tends to support that conclusion. I am not satisfied that the Trestrails should be visited with the alleged loss. The claim has not been proved. There will be an order dismissing it.

125 It was Dr Briggs’ claim, as pleaded, that she had always intended to let out part of the house. She went on to say that she had been prevented to a large extent from doing so because prospective lodgers wished to park their vehicles on the property and that, of course, on her case, was impossible because of the driveway. She says that she has suffered a continuing loss of $100 per week and claims that sum on a continuing basis.

126 The evidence of Dr Briggs in court was that she had decided to let part of the house only after the budget blew out. There was evidence from Mr Ferrara that she wished to live on her own, and further that she had never spoken to him or indeed to anybody else about wanting to let part of the house at any time.

127 At the end of the day I must say that I found Dr Briggs’ evidence on this topic quite unconvincing. In the absence of any supporting evidence (and there is none) I have reached the conclusion that the claim has not been proved. There will be an order dismissing it.

128 One of the other claims made by Dr Briggs is for the sum of $1,450 being the “cost of re-excavating and placing boulders after landslip”. I have no reason whatsoever to doubt that there was a landslip which necessitated further excavations and the placing of boulders at the claimed cost but I fail to see how the Trestrails are liable for that. Their obligation under the contract was to excavate the driveway as agreed. It was not part of their task to provide boulders, retaining walls or anything of the sort to prevent a landslip. If any such precautionary measures were to be undertaken, in my opinion, the requisite responsibility lay with Dr Briggs and not with the excavators. I conclude, therefore, that this part of the claim has not been made out. There will be an order dismissing it.

129 The final item claimed by Dr Briggs is $33,000 being the cost of creating an acceptable driveway.

130 It was the evidence of Dr Briggs that what she has agreed to have was a basically straight up and down driveway, commencing some three metres west of the stobie pole and ending in the brick path area. Mr Trestrail contended otherwise, but when it was suggested to him at page 654 that, in giving Dr Briggs an estimate of $4 - $4,500 for the proposed work Mr Trestrail had based his calculations on a basically straight up and down driveway, he said “Yes I did”. I note, however, that he changed his mind shortly afterwards when, in answer to my question at page 658:-

“I think your evidence was that you gave your estimate based on a driveway which would be running in a straight line.”

he said:-

“No not necessarily in a straight line. Wherever.”

131 At page 659 Mr Trestrail accepted that if the driveway were to end in the vicinity of the brick pave the only starting point had to be the north eastern corner, but just before then, he said something different. His evidence on this topic is important. I must quote at least part of it at some length. That evidence as it appears at pages 654 - 655 was as follows:-

“Q.... Your bill for $5,000 was, speaking in robust terms, for doing something like 40 metres of driveway, correct.
A.Yes.
Q...... And it was, I would suggest to you, 40 metres of driveway in a shape that you did not, at least in March of 1992, contemplate you would be doing.
A.Yes, that’s right.
Q...... That’s right.
A.That’s right, yes.
Q...... It has worked out, though, to be within the ballpark of the length of the direct route or the sort of basically direct route that would have led from the north-east corner or thereabouts up to the brick pave.
A.Correct.
Q...... I am suggesting to you the reason why the figure that you billed is for that amount is because you made your estimate based on a basically straight-up-and-down driveway.
A.Yes, I did.
Q...... Good, thank you. I am suggesting to you that the reason why you worked it out was because that is what you and this woman agreed you would do.
A.Not from the north-east corner, definitely not.
Q...... Well, where else is there a straight-up-and-down driveway.
A.Anywhere along the block they could try to get in there.
Q...... Where else is there a straight-up-and-down 40 metre driveway, unless it be from the vicinity of the north-east corner up to the brick pave.
A.There isn’t - beg your pardon, whether it is 40 metres or 35 metres, it doesn’t matter greatly.
Q...... It doesn’t.
A.It doesn’t matter where it come, but it was definitely not from that north-east corner, because otherwise, why would I be given a plan to do it with?”

Having regard to what had been said I needed to clarify my thinking and for that reason I took the matter up at page 693 after the completion of the cross-examination. What I was told was this:-
“Q.... There is some evidence about which I’m not clear in my mind. What I want to do is to read from what you said yesterday in cross-examination and then ask you a question, understand.
A.I understand.
Q...... When you were being cross-examined yesterday, Mr Randle said this to you:
‘Q.... Your bill for $5,000 was, speaking in robust terms, for doing something like 40 metres of driveway, correct.
A.     Yes.
Q..... And it was, I would suggest to you, 40 metres of driveway in a state that you did not, at least in March of 1992, contemplate you would be doing.
A.     Yes, that’s right.
Q..... That’s right.
A.     That’s right, yes.
Q..... It has worked out, though, to be within the ballpark of the length of the direct route or the sort of basically direct route that would have led from the north-east corner or thereabouts up to the brick pave.
A.     Correct.
Q..... I am suggesting to you the reason why the figure that you billed is for that amount is because you made your estimate based on a basically straight-up-and-down driveway.
A.     Yes, I did.
Q..... Good, thank you. I am suggesting to you that the reason why you worked it out was because that is what you and this woman agreed you would do.
A.     Not from the north-east corner, definitely not.
Q..... Well, where else is there a straight-up-and-down driveway.
A.     Anywhere along the block they could try to get in there.
Q..... Where else is there a straight-up-and-down 40-metre driveway, unless it be from the vicinity of the north-east corner up to the brick pave.
A.     There isn’t - beg your pardon, whether it is 40 metres or 35 metres, it doesn’t matter greatly.’
......... What I would like you to do for me please, by reference to any of the exhibits that are before us, is to point out to me where else, on any of those plans you were shown, the driveway could have started for a distance of 35 to 40 metres in a basically straight-up-and-down way. Name whatever document you wish to view for the purpose of indicating that to me, because I am uncertain as to what your evidence is.
A.Well, P2, is it? The council plan - that’s the one, yes. Now, that’s the plan I was given to put the entrance in by.
Q...... From what point do you say, other than from the north-eastern corner, you can start the driveway, and let it run for a distance of 35 to 40 metres in a basically straight-up-and-down line.
A.The figure that I quoted, as I said, was an estimate.
Q...... Yes, I know.
A.It was the high side of the estimate, and that was to allow for whatever Ms Briggs came up with, as far as the plan goes.
Q...... I understand that, but it was put to you that the reason why the figure that you billed for that amount was because you made your estimate based on the basically straight-up-and-down driveway, and you agreed with that. Now, Mr Randle went on to say that what he was suggesting to you was that the reason why you worked it out was because that is what you and this woman agreed you would do, and you said ‘No, definitely not’, and he asked you ‘Well, where else is there a straight-up-and-down roadway?’ And your answer was ‘Anywhere along the block they could try to get in there’. What I am asking you to do is to show me where else, anywhere along the block, that could have been achieved, namely, a driveway of 35 to 40 metres straight-up-and-down.
A.The distance is not important.
Q...... I know that is what you said.
A.But that is the way I calculated the estimate. The distance is not important, because if you go shorter you take out more material.
Q...... You agreed that you have calculated it on the basis that the driveway would be basically straight-up-and-down. Mr Randle suggested the only way you could achieve that is to go from the north-eastern corner, and you said ‘Definitely not’. He asked you ‘Well, where else could you do that?’ and you said ‘Anywhere else along the block.’ What I am asking you to do is please tell me.
A.You cannot get a driveway anywhere else along the block for 40 metres in there.
Q...... 35 metres.
A.No, not even that.
Q...... In a straight-up-and-down line.
A.Not even that in a straight line.
Q...... Do you agree, then, that the only way you can get it in a straight-up-and-down line is from the north-eastern corner.
A.Yes, that’s right. But my price was based -
Q...... So then, when you say in answer to the question ‘Well, where else is there a straight-up-and-down driveway’, your answer ‘Anywhere along the block’ is incorrect; is that right.
A.That’s incorrect, because, as this plan indicates, that driveway there would have cost a similar amount to what I quoted, and that’s the way I worked that price out. Because there was no definite line where the entrance was going to come in.
Q...... For my purposes, do I take it that the answer to the question that was put to you as recorded is incorrect.
A.That’s right, yes.
Q...... And the answer should really have been ‘You can’t get in from anywhere else on any part of the block’.
A.Yes, you can get in, but you can’t get up to that top level.
Q...... You were not being asked whether you could get in; you were not being asked that. That is what I wanted to get clear in my mind, do you see. What you were asked - do you want me to read it again.
A.Yes.
Q...... The whole lot, or a portion.
A.No, just that portion you are referring to.
Q...... He said:
‘Q.... If it worked out, though, to be within the ballpark of the length of the direct route or the sort of basically direct route that you have alleged, from the north-east corner or thereabouts up to the brick pave.
A.     Correct.
Q..... I am suggesting to you the reason why the figure that you billed for that amount is because you made your estimate based on a basically straight-up-and-down driveway.
A.     Yes, I did.
Q..... I am suggesting to you that the reason why you worked it out was because that is what you and this woman agreed you would do.
A.     Not from the north-eastern corner, definitely not.’
He then said, and this is my difficulty:
‘Q.    Well, where else is there a straight-up-and-down driveway.
A...... Anywhere along the block that they could try to get in there.’?
A...... That is correct, because distance and depth, if you have less distance you have more depth, and that results in the same amount of material being taken out. As I said, it was a ballpark estimate.
Q.We are talking about a straight-up-and-down driveway for a distance of 35 to 40 metres. Where else could you have it along the block, other than from the north-eastern corner.
A...... They were his words.
Q.To which you agreed, and you replied ‘Anywhere along the block’, and I am giving you the opportunity to show me where else along the block that could have been done.
A...... You can’t get a driveway of (sic) in of that length.
Q.So therefore your answer is incorrect.
A...... It’s incorrect.
Q.So the proper answer would be that you can’t get it anywhere else, except from the north-eastern corner.
A...... Yes.
Q.And so if you have quoted - and you agreed that you did - on the basis of a straight-up-and-down driveway, you must have quoted from the north-eastern corner.
A...... No, no, because, as I say, wherever that driveway went in it was going to cost approximately the same, wherever it went, whether it was straight-up-and-down, whether it was an S bend, as it is now, or whether it is as this plan indicates here, which is the plan I was given before the work commenced.”

132 I found the evidence of Mr Trestrail as given on the topic in question to be totally unconvincing. I am not prepared to accept it. I reject it.

133 I found Dr Briggs’ evidence on the topic much more credible. Accepting Dr Briggs’ evidence as I do, therefore, I now find that the agreement between the parties was to provide a basically straight-up-and-down driveway commencing in the region of the north eastern corner, and ending in the region of the brick paving.

134 What Dr Briggs was, in fact, provided with was a driveway which started at a point which clashes with the commencement of her neighbour’s driveway to the west and has two tight switchback curves.

135 I have heard evidence from two eminently qualified engineers as to what, if anything, needs to be done in order to remedy the breach and at what cost. One of them was Mr David Coombe. He was called on behalf of Dr Briggs. The other was Mr Robert Taylor. He was called on behalf of the Trestrails.

136 Mr Coombe visited the site, reviewed the existing arrangements and made certain recommendations in order to improve the present position. In assessing the appropriateness of the present driveway Mr Coombe used the Australian Standard 2890 as corrected at page 183 and not 2870.1-1993 as stated in his report. That Standard deals with “off-street carparking”. In arriving at his conclusion Mr Coombe had regard to those provisions which deal with the swept path (turning circle) which in turn identify the AB85 design template for the 85 percentile vehicle in order to determine an appropriate turning circle. He also had regard to those provisions which deal with gradients of domestic driveways.

137 Using the two criteria to which I have referred Mr Coombe assessed the existing alignment and grades and came to certain conclusions. Those conclusions appear in his report dated 8th April 1998 which is in evidence as exhibit P22 and are as follows:-

“1. Turn 1
With access from Sturt Valley Road and turning east into the drive, the outer radius of the circle is inadequate by a dimension of about one metre. The bank to the east should be cut back by a further metre and a battered retaining wall installed to contain the fill batter from the upper track.
2.Turn 2
......... Due to the tightness and close proximity of turn 1 and turn 2, the approach to turn 2 is not ideal and this causes a widening required of approximately 3.75 metres and a further cut into the bank of up to 3 metre height over a length of about 20 metres, with the potential for some terracing near the house.
3.Lower Road Grades
The existing grades are acceptable at the turn, although steeper at about mid length and some levelling and regarding is required to achieve the maximum 1:4 grade. Over a length of about 9 metres the grades are currently about 1:3.5 and are too steep.

4.Upper Road Grades
......... The existing grades are as steep as 1:3.5 over a length of about 9 metres and again some flattening and regarding is required to achieve the allowable 1:4.”

138 It was the view of Mr Coombe that the existing alignment and grade could be rectified in one of two ways, which he submitted as options A and B, as shown in his drawings numbered 9633C and 9633B respectively in exhibit P10. Option B shows the proposed swept path widening and batters which, in his view, are necessary in order to achieve adequate grades and turning circles. He went on to say that it would be necessary to install a concrete spoon drain at the base of the intermediate plateau, which would have to be connected to the street water table via a sump. Mr Coombe estimated the cost of the new excavation, batters and retaining walls at $27,500, but added that balusters and fencing, or some terracing, may have to be provided to the top of the new battered bank.

139 Having discussed option B Mr Coombe expressed the view that a simple and more direct drive location would be what he called option A, as shown in drawing numbered 9633C. That option allows the drive to commence at the northern end of the property to establish a park area and garage on the southern property boundary at a bench level of RL 123.50 with maximum grade of 1:4. If that were to be done the existing path would be crossed at contour RL 120, thereby achieving a similar height gain as the existing entry, but without the tight turning circle of turn 1.

140 If option A were to be adopted, in Mr Coombe’s opinion, it would be necessary to close the existing access way with moss rock (or other) retaining walls, and to backfill and re-level batters. Mr Coombe estimated the total cost at $33,000, which sum includes moss rock walls and re-levelling. The figure quoted by Mr Coombe is made up of the following components:-

“BREAKDOWN OF COSTS FOR REFORMING AND GRADING AT   OPTION A
1. Form new entrance from northern corner and batter banks and form new spoon drain  $ 5500
2. Excavate upper length of drive  $ 3800
3. Form new plateau for garage and turning circle  $ 6500
4. Supply and install moss rocks to close entrance at lower drive   $ 3500
5. Supply and install upper moss rock wall and terracing to area above wall  $ 8200
6. Re-levelling and batters at area below drive  $ 2500
7. Re-levelling and batters to reconstitute area above drive           $ 3000
Total  $33000”

141 At the end of the day Mr Coombe recommended that option A be adopted because of the significant advantages that that option has over the existing double turn lay-out, in that it eliminates the tight turning circles, keeps the drive clear of the house, provides greater area for landscaping and plantings at the front of the house, and provides a turning area at the top of the drive in order to allow the vehicle to be driven forwards rather than part reversing, as is currently the case.

142 Mr Taylor who, as I have noted, was called for the Trestrails, was asked to comment on options A and B. As for option B Mr Taylor thought that, although the gradient was steep, it would be acceptable if appropriate surface treatment were to be applied. In his opinion, however, the shape of the driveway was not negotiable by the 85th percentile vehicle or ordinary passenger car.

143 In relation to option A Mr Taylor thought that whilst the gradient and swept path clearances, as shown in option A, were acceptable the RL of the proposed parking area was 1.5 metres lower than the existing parking area. In Mr Taylor’s opinion there were two aspects of option A which he considered to be inappropriate. One of them was the insufficient manoeuvring area behind the parking area. The other was the access on Sturt Valley Road. In his opinion the access on Sturt Valley Road was such that the approach angle is very acute, the line of sight up the Sturt Valley Road is short, and the access itself is relatively close to another access, which is approximately 20 metres from the existing access

144 On the face of it Mr Taylor’s criticisms with respect to option A appear to be well founded. What is important to note, however, is that none of them seem to be of any real concern to the council whose responsibility it is to have regard to those factors. The matters to which Mr Taylor referred were looked at and were taken into account by Mr Bradford before granting the initial access approval in June 1992. More to the point a drawing showing option A, in terms criticised by Mr Taylor, was submitted to council by Mr Coombe on 16th December 1998. The council considered the matter and replied by letter dated 19 January 1999. That letter is in evidence as exhibit P23. It is signed by Mr Binney who in June 1992 held the position of manager of works with the council. His responsibilities at that time were similar to those pertaining to the position which he holds at the moment, which position he has held since July 1997. His formal position is as operations manager of the works and infrastructure section of the Adelaide Hills Council. The Adelaide Hills Council resulted from the amalgamation of three councils. Those councils were known as the District Council of Sterling, East Torrens and Onkaparinga and Gumeracha respectively. In replying to Mr Coombe on behalf of the council, with respect to option A, Mr Binney said inter alia as follows:-

“I advise that my involvement with access to properties relates only to the section between the property boundary and the carriageway, and, as your drawing 9633/C is as per the approval granted on the 29th June, 1992 for this area, no further approval is required.”

145 In the course of giving his evidence Mr Binney was referred to the contents of exhibit P23. His evidence continued as follows at page 269-270:-

“Q.... Looking at Exhibit P2, if we make the assumption, just for the moment, that the plan upon which the approval in P2 was granted was the plan presently attached to the letter in P2 - are you with me.
A.I am.
Q...... Have you something to say to the court about the statement that the drawing, 9633/C, is as per that approval.
A.It would indicate to me that the driveway location is slightly altered. I guess I have made an assumption that it would still go around the ETSA stobie pole and come in from a point on the north-eastern side of the property.
Q...... As the officer with the responsibility of saying yes or no to Mr Coombe’s access points, and you having looked, again, at Mr Bradbrook’s approval as per P2, at the end of the day, are you prepared, on behalf of the council, to allow Coombe’s driveway to start in the position indicated in 9633/C.
A.I don’t believe that there is sufficient difference in the plans for me to alter my opinion on that. We are talking about location on to a carriageway and not precision engineering.”

146 Mr Binney was also asked this question at page 268:-

“Q.... Following on from what you have said, can you say whether there is any likelihood that the plan upon which the council granted its approval as per the letter of 29.6.92 was the other plan that I previously showed you as part of Exhibit P25, the one with the snaking -
A.Certainly not P25, it would never have come to our possession. It is contained within a document, it is draft. We are supplied with a plan that is somewhat final.”

147 Before reaching my final conclusion I bear in mind, of course, that in accordance with council’s approval, access was to be started from the position as exhibited in P2 with a starting point some seven metres west of the north-eastern boundary, whereas option A shows a starting point commencing right at the north-eastern boundary, which starting position is now feasible only because the ETSA pole has been moved from its original position. It is true to say therefore that option A does not truly represent the driveway which the Trestrails were to excavate in accordance with the agreement which I have found to have been made between the parties. However, given my finding that the agreement between the parties required the Trestrails to commence the excavation at the P2 position and to take it up to the brick patch in a basically straight up and down configuration, in my judgment the only practicable and reasonable alternative to remedying the Trestrail’s breach, subject to certain qualifications, is the provision of a driveway along the configuration of what has been referred to as option A.

148 The cost of providing such a driveway has been estimated at $33,000. I am not persuaded, however, that the whole of that cost should be incurred by the Trestrails because some of the components of that total would have been the responsibility of Dr Briggs in any event. I refer in particular to the cost of providing a spoon drain, the cost of reinstating the bitumen and the cost of providing an upper moss rocks wall and terracing. Mr Randle conceded as much. The cost involved in the items to which I have referred has been estimated in the region of $4,000 - $5,000.

149 Doing the best I can with the material before me, therefore, I propose to award damages in favour of Dr Briggs in the sum of $28,500.

150 I now come to the claim of the Trestrails. Their claim is for $1,275 (in addition to costs and interest) for work and materials supplied. Dr Briggs admits that the Trestrails carried out work and provided materials but says that they are not entitled to the amount claimed, or to any amount, because the work done and the materials were supplied in an attempt to rectify previous work, which they had carried out incorrectly.

151 I make the following findings being satisfied as to each of them to the appropriate degree.

152 Dr Briggs moved into occupation of her home early in 1993. She telephoned Mr Trestrail on 10th March 1993 complaining about the difficulties that she was experiencing in attempting to navigate the driveway and requesting an inspection to see what could be done to remedy the problem. Mr Trestrail attended on site on a date which I am unable to identify, viewed the situation and discussed the problem with Dr Briggs. He agreed that the driveway needed to be widened. I asked him what he was supposed to do and on what basis. His answer was:-

“I was supposed to increase the radiuses on the two bends, top and bottom, number 1 and 2 corner.”

153 I asked Mr Trestrail if he was supposed to do that as part of his original price. His evidence follows at page 387:-

”A.... In my own mind I was not happy about doing it as part of my own thing, own, what would you call it, doing it for nothing, if you like, but it needed doing, it had to be done.
Q.Did you agree to do it for nothing because it needed doing, and had to be done as part of the original construction.
A...... No.
Q.What were the arrangements.
A...... I don’t recall we made any arrangements about it.
Q.Did you tell her that you expected to be paid.
A...... No.
QDid you ever tell her that you would not be doing the work for free, and that it was her responsibility.
A...... No, not then I didn’t, no.”

I think that the true position is to be found in answer to my question to Mr Trestrail at page 387. The question was:-
“Did you quote for any work that you would have done on any basis.”

The answer was:-

“A.... Came back there when I actually did the work, I did some other work for her that was to be charged up.” (My emphasis)

154 All the work was done on 13th October 1994 when the two curves were widened and on 14th October when the other work was done. The “other work” consisted of excavating and cleaning up an area adjacent to the house. Mr Trestrail rendered an amount for the whole of the work on 3rd September 1995. The account is in evidence as D27. That document shows a charge of $200.00 for rubble, which I am satisfied was for the widening of the curves, and $1,075.00 for the hiring of machinery and labour. Mr Trestrail’s evidence was that, in addition to the $200 for the rubble, a further amount of $250.00 was the cost of labour and equipment in relation to the widening of the driveway. It follows therefore that, of the $1275 charged, $450.00 was referable to the driveway, which in my view was rectification work at a cost to be borne by the Trestrails, and the balance of $825.00 was for “the other work”. I think that the Trestrails are entitled to that amount and I propose to award that sum.

155 It follows, therefore, that there will be judgment for the Trestrails on the claim for $825.00.

156 There will be judgment for Dr Briggs on the counterclaim for the sum of $28,500.

157 I will hear counsel on the question of costs and any other order that needs to be made.

158 Before leaving this case, in fairness to counsel, and lest it be thought that I have overlooked them, various points have been argued by counsel and submissions have been made in relation to each of them.

159 I have considered all of them but I have not found it necessary to deal individually with each of them or to specifically canvass each of them in detail.

160 I have deliberately recounted only some of those arguments and submissions and I have done so merely by way of examples.

161 Accordingly, therefore, when any point made by counsel has not been specifically mentioned by me in these reasons, it must be taken that I have reached the conclusion, after fully considering it, that there is no substance in it.

[1999] SADC 61

7 May 1999