Tsotsis v Khneiger & Khneiger No. DCCIV-02-1364

TSOTSIS v KHNEIGER
[2003] SADC 138
Judge Robertson
Civil
Nature of the Proceedings

In July 2001 the Plaintiff and the Defendants entered into a written agreement, (“the Contract”) whereby the Defendants, trading as BJ Home Constructions, (some times called “the Builder”) agreed to undertake building works at the premises of the Plaintiff at Cumberland Park. It turned out to be a most unhappy association. The Plaintiff terminated the services of the Defendants in December 2001. The termination of those services has ultimately brought the parties to this Court.
The Plaintiff seeks damages against the Defendants alleging breach of contract, breach of statutory duties under the Building Work Contractors Act 1995 (“the Act”) and negligence.
The Defendants have cross-claimed against the Plaintiff seeking compensation for the cost of variations to work forming part of the contractual work and the cost of work performed by them, which it is alleged was not included in the Contract but was requested by the Plaintiff whilst the building works were being undertaken. The Defendants also seek compensation for what they describe as the cost of work performed by the Defendants’ sub-contractors pursuant to contracts entered into directly between the Plaintiff and those sub-contractors. It seems that with respect to this latter part of the case the Defendants’ assert that, whilst they were not a party to these separate contracts, they are liable to meet the costs of each of the sub-contractors.
I should point out at this point that I have deliberately used the expression “cross-claim”. In accordance with the procedure of the Court it would be expected that I would use the term “counter-claim”. However, this action proceeded without pleadings and on affidavits. I will have more to say about that procedure shortly. At this point all I wish to say is that such a procedure was completely unwarranted and made a case which was by its nature a difficult one to manage even more difficult.
The Plaintiff’s Claim
The Plaintiff’s claims for damages were set out in her affidavits. The first part of her claim was described in the following terms:

· Costs met by the plaintiff in completing work required to be completed by the Builder under the Contract
$9,686.81

· Costs of rectifying defective work, and completing other works still outstanding under the Contract

$30, 912.29

The Plaintiff also claims damages for the Builder’s breach of the statutory duty, under the Act, in failing to obtain building indemnity insurance as required by Division 3 of the Act. Furthermore, the Plaintiff also claims damages in negligence arising out of rain damage to various personal items, which it is alleged, occurred when the Builder failed to place a covering over an exposed portion of the roof of the Plaintiff’s premises during the course of the building work. Finally, the Plaintiff also claims damages for inconvenience resulting from the Defendants’ breach of Contract.
Due to the absence of pleadings, I required the Plaintiff to produce a Schedule itemizing the costs alleged to have been incurred by her in completing work she alleged should have been completed by the Defendants under the Contract (“Schedule of Plaintiff’s Costs”).
The Schedule of Plaintiff’s Costs contained the following details of the Plaintiff’s claim.
SCHEDULE OF PLAINTIFF’S COSTS
1.     Relocation of Shed – Flinders
University Student Employment     $200.00
2.     Installation of pedestal basin
(ensuite) & completion of work
done in original bathroom  $2,073.50
3.     Complete tiling on original bathroom        $300.00
4.     Complete electrical work to extension      $290.00
5.     Render existing house and extension      $4,000.00
6.     Supply of hand basin ensuite  $301.31
7.     Extension piece to Range Hood (required
as result of fault to kitchen ceiling
height)  $120.00
8.     Shower screen ensuite  $660.00
9.     Shower screen original bathroom         $517.00
10.    Deposit on kitchen appliances  $500.00
11. Rubbish removal x 3 trailer loads  $75.00
12. Complete storm water work           $650.00
        $9,686.81
The Plaintiff’s claim for defective work and the completion of other work still outstanding was itemized in a Report of Mr Jankovic a Building Consultant. The monetary formulation of that claim, namely $30,912.29, was contained in a builders’ quotation from a builder in which each item of work identified in the Building Consultant’s Report was costed.
The Defendant’s Cross-Claim
The Defendants’ cross-claim against the Plaintiff is for the sum of $20,378.74. Again, because of the absence of pleadings I had difficulty in understanding the Defendants’ cross-claim as described in the first Defendant’s affidavits. I also required the Defendants to file a Schedule itemizing their claim (“Defendants’ Schedule of the Defendant’s Claims”). In addition, there is a small amount claimed for the balance of the Contract price. The Schedule of the Defendants’ Claim contained the following details of the Defendants’ Claims.
Schedule of Defendants’ Claims
1.     Variation in Bedroom 3/Ensuite -   $1,200.00
2.     Variation in New Kitchen -   $1,260.00
3.     Variation in Roof/Colour Bond -   $5,412.35
4.     Variation in design of Window/Sliding doors -                         $1,594.20
5.     Variation in Laundry/Ensuite       -   $2,048.99
6.     Variation in Existing Kitchen/ Bedroom -           $1,300.00
7.     Variation in Carpentry for existing house -  $100.00
8.     Repair work of existing bedroom 2 (Cornices) -  $200.00
9.     Replacing old ceiling in existing bathroom -   $350.00
10.    Replacing old ceiling in existing kitchen -  $594.00
11.    Relocation of shed -   $550.00
12.    Removal of fireplace in bedroom 1 (not in Contract)                  $400.00
13.    Sealing existing floor in new laundry -   $358.00
14.    Concrete cutting between laundry and bedroom 3 -  $470.00
15.    Laying of insulation in the roof -   $540.00
16.    Building work associated with veranda   $500.00
17.    Installing of skylight -   $297.00
18.    Installing/labour only of wind masters -  $99.00
19.    Rewiring existing house -   $2,464.90
20.    Variation and added cost for tiling of ensuite -   $2,702.30
21.    Addition of 3 niches in living room -   $85.00
22.    Pouring new concrete between laundry and bedroom 3        $395.00
23.    Variation to Plan - John Saxon -        $440.00
TOTAL  $23,260.74
Received invoice 1022, 1024, for variations   $3,532.00
  Balance  $19,728.74
Contract value  $67,000.00
Received  $61,740.00
Balance   $5,260.00
Credit (given on works not done) $4,610.00
Balance still owing on Contract (Add)       $650.00
Credits (see above)
1.     Rendering   $1,000.00
2.     Downpipes  $60.00
3.     Main bathroom            $3,550.00
                  Total Credits   $4,610.00
                  (Total)  $20,378.74
The reference to the receipt of $3,532 for Invoices 1022 and 1024 refers to payment having been received for some of the items set out in the Schedule of the Defendants’ Claims. The “Credits for Variation” set out in the Schedule refer to items of work which the Defendants were required to complete pursuant to the Contract but the Defendants were unable to complete as a result of the Plaintiff’s purported termination of the Contract in December 2001. The amounts set out are an estimate by the Defendants of cost of that work. I will refer to these matters again later in these Reasons.
Procedure Adopted in the Proceedings
The Plaintiff elected to commence the proceedings by a Summons which was supported by an affidavit with a number of exhibits. There is power under Rule 7.04 of the District Court Rules for a plaintiff to elect to proceed by affidavit instead of filing a statement of claim. Pursuant to Rule 7.06 the Court, on its own motion, or on the application of a defendant, may direct that the proceedings thereafter continue on pleadings. There was not any order made directing that the proceedings continue on pleadings. The Defendants filed an affidavit in reply to the Plaintiff’s initial affidavit. What then followed was the filing of a further two affidavits by the Plaintiff and the filing of a further affidavit by the Defendants. The contents of each affidavit were extensive. Each affidavit also made reference to numerous exhibits which accompanied that affidavit.
In my opinion, the nature of these proceedings made it totally inappropriate that they should have been instituted with the support of an affidavit. Furthermore, it was totally inappropriate that the proceedings continued by medium of affidavits. The most expeditious and efficient manner of instituting and maintaining proceedings of this nature is through the use of pleadings. Using affidavits, in lieu of pleadings, is generally confined to proceedings of a specialised nature. Rule 62.02 of the Rules of the District Court highlights this point, in that it indicates that if an inter partes summons proceeds on affidavits it is to be disposed of in chambers unless the Court otherwise directs.
As I said earlier, the use of affidavits, in lieu of pleadings, made the management of a difficult Trial even more difficult. Extensive oral evidence was still required during the course of the Trial. One of the difficulties which arose was that of balancing the contents of the affidavits with the oral evidence. The problems in managing the Trial were further exacerbated as a result of both parties becoming unrepresented shortly prior to the Trial.
I now turn to consider the evidence in the Trial.
The Defendants’ Experience in the Building Industry
About the middle of 2000, the Defendants were operating a café in Richmond Arcade in the city. On 1 August 2000 the first Defendant (“Mr Khneiger”) was issued with a Restricted Builder’s Licence. That his Licence permitted the licensee to engage in residential building work up to and including a two-storied timber framed and steel framed premises. Prior to Mr Khneiger obtaining the Licence, he had worked with a building company for about five years, in which he was involved in erecting fences, doing some carpentry work and assisting with renovations and other building activities. Mr Khneiger does not have any qualifications as a tradesperson. During the time that he was working with the building company, he had been involved in some administrative work, such as ordering materials, but he had not obtained any experience in preparing quotations for work. The building company in which he was employed was involved in new house construction and the renovation of houses. It became clear as the Trial unfolded that Mr Khneiger has very limited experience in the building industry and had very little understanding of his obligations as a builder and his obligations under the Act.
On 9 August 2000 Mr Khneiger and the second Defendant, his wife, registered the business name “BJ Home Constructions”. The nature of the business was described as “building construction”. At the time of the registration of the business name, the Defendants nominated the date of the commencement of the business was to be 14 August 2000. At the time, the second Defendant was not licensed as a builder under the Building Work Contractors Act 1995 (“the Act”). The absence of the second Defendant as a Licensed Builder, led eventually to the second Defendant being removed as a member of the building business as the Act required that each partner of a building business is to be licensed.
The Parties entering into the Contract
Sometime in the latter half of 2000, the Plaintiff was considering adding extensions and doing renovations to her house. She had obtained some sketches from an architect. She was looking to obtain a quotation from a builder for the purpose of undertaking the extensions and renovations.
The Plaintiff’s partner, Gary Picton, who lived with her in the house premises, was acquainted with the Defendants as he operated a business in Richmond Arcade not far from the Defendants’ cafe. Mr Picton understood that Mr Khneiger was also a builder and he suggested to the Plaintiff and Mr Khneiger that they meet to discuss the Plaintiff’s proposed building works. Shortly after the Plaintiff and Mr Khneiger did meet and briefly discussed the Plaintiff’s intended building works. As a result of this meeting, Mr Khneiger suggested to the Plaintiff that she have plans drawn up by Mr John Saxon, who was a building designer known to Mr Khneiger. Mr Khneiger arranged a meeting between the Plaintiff and Mr Saxon.
Mr Saxon said in evidence that the preliminary drawings were done on 8 December and a full set of Plans were produced on 2 January 2001. He produced a further set of Plans about February 2001 as a result of being required to change the roof structure from a flat roof to a pitched roof. I will need to return to the evidence of Mr Saxon and the Plans shortly. One of the main issues in the Trial was the precise work to be undertaken by the Defendants under the Contract. For present purposes, it is suffice to simply mention that Mr Saxon prepared the Plans to which I have referred.
After the Plans were completed, there was some discussion between the Plaintiff and Mr Khneiger regarding the building contract. There is a dispute between the Plaintiff and Mr Khneiger regarding the extent of that discussion and I will deal with that issue shortly.
In the end, a Housing Industry Association standard form of building Contract was entered into by BJ Home Constructions and the Plaintiff in July 2001. The Contract was accompanied by the Plans of 12 February 2001, prepared by Mr Saxon, together with engineer’s Plans and calculations and a Housing Industry Association standard form of Specification. The Contract contained a Schedule which indicated that the price of the building works was $67,000. The starting date was stated to be August 2001 and the finishing date was November 2001.
Assessment of the Plaintiff and Mr Khneiger as witnesses
I mentioned earlier, that one of the main issues in the Trial was the extent of the building works agreed to be undertaken by BJ Constructions under the Contract. However, before I come to that issue and other issues which arose, it is appropriate, at this point, to express my views on the Plaintiff and Mr Khneiger as witnesses. Whilst there were other witnesses who gave evidence during the Trial, it is only the Plaintiff’s evidence and that of Mr Khneiger which I need to deal with at present.
Regrettably, I was not impressed with either the Plaintiff or Mr Khneiger as witnesses. I thought the Plaintiff did not have a particularly good memory. She appeared, at times, to be consumed by what she considered to be the injustice she felt she had suffered at the hands of Mr Khneiger. At times her emotions stood in the way of her giving her evidence clearly. I felt there were occasions when she was not relying upon her memory but was unconsciously reconstructing. I did not feel that she was trying to intentionally mislead me. However, as I said, I felt at times she was not relying upon her memory for some of her evidence. I am prepared to accept parts of her evidence but not other parts, due to my lack of confidence in its reliability.
Similarly, I felt that Mr Khneiger did not have a particularly good memory of events. At times I became concerned about his evidence. I thought on occasions he was disingenuous. One example of this was his explanation regarding his conduct in obtaining progress payments from the Plaintiff’s financiers. There was also other evidence he gave where I felt he was disingenuous. I also felt there were a number of occasions where he was not relying upon his memory but was reconstructing. I formed the view that it was unconscious reconstruction. Like the Plaintiff, I am prepared to accept some of the evidence given by Mr Khneiger but there is other evidence which I am not prepared to rely upon.
Termination of Building Works
It seems that the Defendants commenced work on the premises in late August and continued until 19 December 2001, although the work was not carried on continuously during that period. On 19 December 2001, the Plaintiff orally informed Mr Khneiger that she did not wish him to do any further work on her premises. She did not offer any explanation to Mr Khneiger for her termination of the building work. At that point there was still some outstanding work to be completed. The Contract provided that work was to be completed by the end of November.
In her evidence the Plaintiff said that her decision to terminate the building works was a combination of a number of factors. She said she was dissatisfied with the progress of the work, the time for the completion of the work having long passed. She said that there was still work outstanding and there had not been any activity at the premises for a number of days prior to 19 December. The Plaintiff said she was also dissatisfied with the standard of workmanship. She said she had observed a number of deficiencies in the work. The Plaintiff said she had spoken to Mr Khneiger on a number of occasions regarding the standard of workmanship.
The Plaintiff also said she had also lost faith in Mr Khneiger as a result of the methodology he had adopted for the purposes of obtaining progress payments from her financier, Members Equity. She said she had earlier discovered that Mr Khneiger, in seeking progress payments from Members Equity, presented with each application for a progress payment, an unsigned letter purportedly from the Plaintiff. The letter indicated that the Plaintiff was happy with the work and requested that payment be made to the Defendants. The Plaintiff was unaware that Mr Khneiger had prepared those letters and had attached such a letter with each application for a progress payment. They were prepared by Mr Khneiger without her knowledge or approval.
There was a substantial body of evidence relating to this subject matter, both from the Plaintiff, Mr Khneiger and Ms Caputo, an officer from Members Equity. It is unnecessary for me to refer to any of the evidence in detail. It is suffice to say that I do not accept Mr Khneiger’s evidence providing an explanation for his conduct. I thought his evidence was disingenuous. The evidence of Ms Caputo, which evidence I accept, was in conflict with the evidence of Mr Khneiger.
In any event, the point to all this is that on discovering that the letters had been sent to the financier, the Plaintiff said that she told Mr Khneiger to cease this practice. However, she said that after informing Mr Khneiger to cease she discovered a further letter was prepared in support of a further application for progress payments. It was her evidence that on discovering this letter any remaining trust she had in Mr Khneiger evaporated.
Events following Termination of the Work
Following the termination of the works by the Plaintiff she received a letter from the Defendant’s solicitors, dated 14 January 2002, demanding the sum of $7,591.90 alleged to be for monies owing under the Contract and for agreed variations. It prompted the Plaintiff to seek legal advice.
On consulting solicitors the Plaintiff became aware that the building Licence issued to Mr Khneiger had not been complied with in two respects. First, a registered building works supervisor had not been engaged as required by his Licence and Section 12 (1) of the Act. Furthermore, it also became clear to the Plaintiff that there had been failure to comply with Clause 25.3 of the Contract and also Section 34 of the Act, in that the Defendants had not obtained builders indemnity insurance. Section 34 of the Act provides that a Building Work Contractor is not to perform any building work unless such a policy is in force. The Section also requires the builder to provide a certificate of currency of such a policy to the property owner. Section 35 of the Act provides that such a policy is for insurance against the risk of the contracting party being unable to enforce any statutory warranty contained in the Act by reason of the insolvency, death or disappearance of the building contractor.

By letter dated 21 January 2002 the solicitors for the Plaintiff purported to terminate the Contract on the grounds that the Defendants had committed substantial breaches of the Act. In the letter the solicitors identified the breaches of the Act which I have just described.
Absence of any Issues Arising from Termination of the Contract
I have spent some time on factors which are relevant to the termination of the contractual relationship between the Plaintiff and the Defendants. However, issues such as whether the Plaintiff’s actions was a termination of the Contract and if so whether it was lawful or whether it was still open to terminate the Contract on 21 January 2002, when the Plaintiff’s solicitors wrote to the Defendants do not need to be resolved. None of these issues were raised in the course of the proceedings or during the Trial. The parties proceeded on the basis that the Contract was at an end. Any questions regarding whether the Contract had been lawfully terminated and if it had been lawfully terminated at what point it was so terminated were not raised.
For my part, I have simply raised these matters, to identify them and then to put them aside. Of course, I do not overlook that with respect to the breaches of the Act that the Plaintiff seeks damages. I will deal with that part of the Plaintiff’s claim later.
Who were the Contracting Parties?
Earlier in the proceedings an issue arose as to whether both Mr Khneiger and the Second Defendant were both parties to the Contract. In an affidavit sworn on 13 November 2002 Mr Khneiger denied that the Second Defendant was ever involved in the business of BJ Home Constructions and that the records of the Office of Business and Consumer Affairs were in error when they indicated that both Mr Khneiger and the Second Defendant were the registered proprietors of BJ Home Constructions. However, in his evidence, Mr Khneiger acknowledged that at the time of the entering into of the Contract, the Second Defendant was joint proprietor of the business conducted by BJ Constructions albeit that she was not licensed as a building contractor under the Act.
To avoid any doubt about the issue, I find that the agreement with the Plaintiff was entered into by BJ Home Constructions, which at that time was a registered business name under which the building business of both Defendants operated. Accordingly, I find that both the Defendants were parties to the Contract with the Plaintiff.
What Buildings Works Were to be Undertaken Pursuant to the Contract?
The first issue to be determined is the identification of the work required to be undertaken pursuant to the Contract. The resolution of this issue will resolve a number of the individual items of claim made by both parties. It is the Defendants’ claim, as expressed in affidavit of Mr Khneiger of 23 September 2002, that the only works which formed part of the Contract, were building works involved in the actual extension of the Plaintiff’s house and some work in the existing laundry, in the existing bedrooms known as Bedroom two and three and in the existing bathroom. Mr Khneiger’s oral evidence differed to the extent that he said the work he was required to quote was for the extension work and alterations to the existing bathroom.
It is the Plaintiff’s case that the work to be undertaken pursuant to the Contract was the construction of the extension to her house, together with work to the existing house as identified in the Plans of Mr Saxon of 12 February 2001 except for the rendering of the outside of the existing house.
I earlier referred to the evidence of Mr Saxon, the house designer. As I said earlier he produced two sets of Plans. The first set of Plans included a flat roof in the area covering the extensions to the existing house. However, due to the Plaintiff’s change of mind regarding the pitch of the roof, he produced a second set of Plans which were dated 12 February 2001. Those Plans included a pitched roof over the extension. That roof was to be tiled in a similar manner to that of the existing house.
It was Mr Saxon’s evidence that before he prepared the first set of Plans, he and Mr Khneiger attended at the Plaintiff’s premises and discussed with the Plaintiff her wishes regarding the works to be undertaken. He said he made extensive notes during the course of the meeting regarding the work that the Plaintiff required. Mr Saxon said the works the Plaintiff requested were set out and identified in both the earlier set of Plans and the Plans of 12 February 2001.
Mr Saxon said that in addition to the Plans relating to the extensions to the house, he identified and recorded on each set of Plans, seventeen items of work to be undertaken to the existing residence. It was his evidence that all of this work which he identified on each set of Plans was in accordance with the instructions given by the Plaintiff. In addition, he also identified on the Plans other work to the existing house, in accordance with the Plaintiff’s instructions.
Mr Saxon said that the Plans of 12 February 2001 were passed on to Mr Khneiger. He said in evidence that he noted that on the Plans of 12 February 2001, that three of the seventeen items of work he recorded as being required to the existing premises had been deleted by a line being placed through each of these items. Mr Saxon said he could not be certain whether these deletions had been made by him or had been made at a later time by another person. In any event nothing turns on these deletions. The seventeen items of work identified in the Plans were recorded under the heading “ALTERATIONS TO BE MADE TO EXISTING RESIDENCE LISTED BELOW”.
I found Mr Saxon to be an impressive witness. I thought he was a witness whose evidence I could rely upon. Accordingly, I have no hesitation in accepting his evidence.
Mr Khneiger said in evidence that he used the Plans of 12 February 2001, for the purpose of quoting for the job. He said that he discussed with the Plaintiff the work to be undertaken prior to quoting. It was his evidence that the Plaintiff told him that she only wanted him to quote for the extensions and alterations to the existing bathroom as identified on the Plans. Mr Khneiger said that the Plaintiff told him that she did not want him to quote for any of the other work identified on the Plans because the extent of any other work to be undertaken would depend upon the finance she obtained. He said that a discussion of this nature took place more than once and occurred some time before he quoted for the work. He said that his quotation for $67,000 was for the extensions and the work to the existing bathroom and nothing more.
The Plaintiff denied that she had any conversation with Mr Khneiger of the nature he described. She said that she told Mr Saxon the building work she required and he set this out in the Plans. The Plaintiff said that when she consulted Mr Khneiger she sought a quotation for the work outlined in the Plans of 12 February 2001.
The terms of the Contract make it quite clear that the work required to be done under the Contract was the work identified in the Plans. A reading of Clauses 1.7 and 1.8 of the Contract make it clear that the work to be done is that shown in the Plans, specifications and other Contract documents. Despite this, it was Mr Khneiger’s evidence that he was told only to quote on the limited amount of work I have described. There is nothing in writing to indicate that the work to be done under the Contract was limited to the extent described by Mr Khneiger. His unconvincing explanation for this absence was that he did not think it was necessary at the time. This explanation is to be considered against the background of a Memorandum in writing dated 15 July 2001, in which the parties agreed that the rendering of the walls of the house and other work described would be at an additional cost. The rendering work was specified in the Plans. It was not in dispute that the reference to “rendering” in the Memorandum was to the walls of the existing house. The parties on that occasion had been careful to identify work not to be included in this price.
I found the evidence given by Mr Khneiger regarding the work he was required to quote on was vague and unconvincing. Furthermore, it stretches credulity to breaking point when it is seen against the terms of the Contract which clearly specifies that the Contract price was for work set out in the Contract documents.
During the course of his submissions Mr Khneiger referred to the evidence of Mr Short, a Building Consultant, who said the cost of completing the works identified in the Plans would be about $100,000. Mr Khneiger asked rhetorically, why would he quote a price of $67,000 for Contract works valued at about $100,000 if it was not the case that most of the work on the existing house was not excluded. This submission does not persuade me to accept his evidence. As I said I found his evidence on this topic most unconvincing. I do not accept it. The Contract makes it plain what work is required to be undertaken pursuant to the Contract. That is the work the parties to the Contract agreed upon.
As a result of this finding, the Plaintiff is entitled to recover those costs which she has expended since 19 December 2001 in doing various works, which were part of the works required to be carried out under the terms of the Contract. Furthermore, as a result of this finding, certain items of the Defendants’ claim for extras are to be disallowed.
I now turn to consider the Plaintiff’s claim and the Defendants’ cross-claim.
Plaintiff’s Claim for Cost of Contract Items
This part of the Plaintiff’s claim is for costs incurred by her in completing works required to be done under the Contract. The items are those set out in the Schedule of Plaintiff’s Costs which I referred to earlier in these Reasons.
(1)Relocation of the shed - $200
The Site Plan contained in the February Plans (Plan No. 5) identified the presence of a large shed on the land. It needed to be relocated to make way for extensions to the premises. A dispute arose regarding who should be responsible for relocating the shed. In the end Mr Khneiger arranged for it to be removed. The Defendants charged for the cost of removal. I do not accept that they were entitled to do so. I will deal with that question when I come to consider their claim.
The cost of $200 was incurred by the Plaintiff in relocating the shed from the position where it was placed by Mr Khneiger to a more suitable site. Neither the Plans nor the Contract places an obligation upon the Builder to further relocate the shed after the works had been completed. I am not satisfied that the Plaintiff is entitled to the cost of further relocation.
(2)Installation of Pedestal Basin (en-suite) and completion of work in original bathroom - $2,073.50.
The Existing Floor Plan (Plan No. 1) and the Proposed Floor Plan (Plan No. 2) of the February Plans indicated that this work was to be undertaken. There is also reference to the work to be performed to the existing bathroom in the List of Alterations to the Existing House set out on the Existing Floor Plan.
The Plaintiff gave evidence that she had this work completed by another contractor after December 2001. An invoice from the contractor for the cost of the work was produced by the Plaintiff. All this work was part of the contract work under the Contract.
It was not suggested by the Defendants that the costs are unreasonable. I, therefore allow the costs of completing the work in the original bathroom.
Further, the Plans provide for the installation of a Pedestal Basin in the en-suite bathroom. Accordingly, I also allow this part of the Plaintiff’s claim.
(3)Complete tiling in Original Bathroom - $350. Complete electrical work to extension - $290.
The Plaintiff said she had this work completed after December 2001. She did not call any evidence nor produce any invoices to establish the cost of the work. I advised her on a number of occasions during the Trial that she would need to present evidence to prove the quantum of the claim. She failed to produce any evidence to support her claims. I therefore disallow these claims.
(4)Render Existing House Extension - $4,000.
The Plaintiff initially relied upon the following notation on the Elevation Plan (Plan No. 4) on the February Plans in making this claim:
“Existing Walls and New External Walls to be rendered to Owner’s requirements”.
However, it became clear following the production of the Memorandum of 15 July 2001 that the rendering of the outside of the existing house was to be an extra cost. The Plaintiff claimed $4,000 for the rendering of the house after December 2001. It was not disputed by the Defendants that the rendering of the extensions was included in the Contract price. In the Defendant’s claim they have allowed a credit of $1,000 for the cost of rendering the extensions which allowance I find to be reasonable. As the Plaintiff has been given a credit for the rendering of the walls of the extension, and that the rendering of the walls of the existing house were not part of the contract works then this claim cannot stand. The claim must be disallowed.
(5)Supply of Hand Basin to En-Suite - $301.
As I said earlier, the Plans clearly show a hand basin in the en-suite bathroom which was formerly the laundry in the existing house. The Plaintiff produced an invoice from the supplier to support her claim. It was not suggested by the Defendants that the cost was unreasonable. This claim is allowed.
(6)Extension Piece to Range Hood - $120.
The Plaintiff required an extension to the stainless steel cover, which covered the flue from the range hood in the kitchen. This was brought about because the ceiling was installed at a greater height than the standard cover for the flue and range hood. The standard cover did not cover the entire flue. The Plaintiff is entitled to this amount.
(7)Shower Screen En-Suite - $660. Shower Screen to Original Bathroom - $517.
The Plans show that a shower screen is to be installed in the original bathroom and the en-suite. The Plaintiff produced separate invoices to support the cost of purchase in each case. It was not suggested by the Defendants that the costs were not reasonable. I allow the two amounts of $660 and $517.
(8) Deposit on Kitchen Appliances $500.
This claim relates to the payment of a deposit by the Plaintiff for the purchase of an oven, cook top and range hood. The supply of these items were included in the contract price. However, the Defendants said that they only allowed $1,000 in the contract price for the supply of these items. The total cost was $1,800.
Clause 6 in the Contract provides for some parts of the work to be “prime costs”. As I stated before, this was a standard form of Housing Industry Association contract. It provides for a situation where a builder has only estimated the cost of certain items. In those circumstances the terms of the contract entitled the builder to identify those items as prime cost items in the Schedule to the Contract and indicate the amount estimated. The terms of Clause 6 provides that if the home owner selects items whose costs are greater than the estimated amount, then the extra cost is borne by the owner. The Defendants did not make the kitchen appliances prime costs in the Schedule to the Contract. Indeed, they did not include any prime cost items in the Schedule although there were others which by their nature should have been included, such as the kitchen cupboards.
Mr Khneiger said that he informed the Plaintiff of the estimate of $1,000 and the Plaintiff denied that he did. I find that the Plaintiff was not informed that the estimate for these items was only $1,000. A valid explanation was never forthcoming for the Defendants’ failure to properly include the supply of these appliances as a prime cost in the Contract. In my opinion it is but one of many examples of Mr Khneiger not understanding his obligations as a builder. The Contract required the supply of these items. The evidence indicates that the cost of the appliances selected by the Plaintiff were reasonable. It follows that the Plaintiff is entitled to recover the $500 deposit paid towards the purchase of these items.
(9)Rubbish Removal Three Trailer Loads - $75.
The Plaintiff gave evidence that her father and herself cleared up the site after December 2001 and transported three trailer loads of rubbish to the dump. She incurred a dumping fee of $25 for each load. It was not disputed that the charge was reasonable. The obligation was on the Defendants to leave the site in a tidy condition. If the Defendants had completed the works under the Contract they would have incurred a similar expense. I allow this claim.
(10) Complete Storm Water Work - $650.
The Site Plan (Plan No. 5) in the February Plans provided as follows :-
“New 90 mm Diam. UPVC. Storm Water Pipe.”
The Plan also showed the position where the pipe was to be laid. At the time the Defendants were refused access to the site, the storm water pipe had not been installed. The Plaintiff paid a Contractor to supply and install a storm water pipe for the sum of $650. It was not suggested by the Defendants that these costs were not reasonable. I allow the sum of $650.
Summary of Claims Allowed for costs paid by the Plaintiff.
I set out hereunder the items of the Plaintiff’s claim which I have allowed:-
Installation of Pedestal Basin (En-suite) and completion
   Of work in original bathroom.   $2073
Hand basin to en-suite  $301
Extension to Range Hood  $120
Shower Screen En-suite  $600
Shower Screen Original bathroom  $517
Deposit Kitchen Appliances  $500
Removal of Rubbish  $75
Storm Water Pipe  $650
  $4836
Plaintiff’s Claim for Defective Work and other Outstanding Work
I turn to the second part of the Plaintiff’s claim being the cost of rectifying defective work and completing further work required to be undertaken pursuant to the Contract.
As I mentioned, Mr Peter Jankovic, a Building Consultant, prepared a Report on behalf of the Plaintiff in which he addressed the following matters with respect to the building works:
·Defective work;
·Works not in accordance with specifications;
·Work which required rectification.
The Report is dated 29 April 2002 and forms part of the evidence. He also gave evidence.
Following the receipt of that Report the Plaintiff engaged the services of a builder to cost the works which Mr Jankovic identified in his report. That costing amounted to $30,912. This amount forms the second part of the Plaintiff’s claim.
The Defendant engaged the services of Mr Chris Short, a Building Consultant, who prepared a Report directly commenting upon each item of work contained in the Report of Mr Peter Jankovic. Mr Short’s Report became part of the evidence in the Trial. He also gave evidence. Mr Short had also engaged a builder to cost each item set out in Mr Jankovic’s Report.
Prior to the two building experts giving evidence I discussed with the parties whether they would agree to having two experts meet and identify the areas where they were in agreement and where they differed in their opinions. I also asked the parties if they would agree to the two experts discussing the costing of works required to be undertaken to determine if they could reach agreement on those costs. Before I asked the parties to consider this latter point I satisfied myself from discussion with the experts that they both were qualified to undertake such a costing task. I made these suggestions to the parties as I could see that a great deal of time would be taken up in hearing evidence from the experts and from the builders who had costed the works set out in Mr Jankovic’s Report. The costings of each builder were far apart. The Trial had already proceeded much longer than the parties had anticipated. This was brought about to a substantial extent, as I said, by having to manage the unwieldy process of the evidence in the affidavits and exhibits and the oral evidence of the Plaintiff, Mr Khneiger and the other witnesses.

The parties agreed to the course suggested and agreed to be bound by the results of the experts deliberations. The experts undertook their task outside the Court Room. They reached agreement on most items raised in Mr Jankovic’s Report. They also reached agreement on the costings. Each of the experts gave evidence on the topics upon which they disagreed. A Schedule (“Experts’ Schedule”) was prepared by the experts and admitted into evidence recording the results of their deliberations. I need to record my appreciation to both experts for the spirit and practical approach they brought to their task. This was evidenced by the small number of items that they remained in disagreement upon after they had completed their work. Their efforts saved an enormous amount of time which would have been spent in the Trial if they had not undertaken their work together.
In the end the experts total costing of the works identified in Mr Jankovic’s Report was $19,040. Set out hereunder is a summary of the experts conclusions which are contained in the Experts’ Schedule:-
Item in  Issue  Agreed
Jankovic’s   Value
Report                Item 1 – Front Elevation  $
1.1Verandah Post Connections
Agreed that bolts are required   17
1.2Verandah downpipe
Agreed that downpipe is required  100
1.3Holes in wall plate
Agreed that holes need filling with plastibond,
Prior to painting  50
Item 2 – East Elevation
Incomplete vent
Agreed that vent required completion  280
2.1Incomplete carport roof
Agreed that roof sheet and support bracket needed
         Completion  450
2.3  Carport downpipe
Agreed that downpipe required  100
2.4  Carport debris
Agreed that debris be removed  25
2.5  Brickwork joints not level
Agreed that no consequences flow from this matter                   0
2.6  Sliding door wheels  75
2.7  Gutter straps
  Agreed that the omitted straps should be replaced          60
2.8  Incomplete eaves lings  38
Item 3 – Rear Elevation
3.1  Rear elevation downpipes
Agreed that downpipe required  100
3.2  Weep holes
Agreed that weep holes are required at not more than
1200 mm centres, and that some additional weep holes
should have been provided by the builder           410
Item 4 – West Elevation
4.1  Downpipe
Agreed that downpipe(2) required   300
4.2  Airconditioner
Agreed that the rendering has been achieved without
Decommissioning or removal of the unit.  0
4.3   Kitchen waste pipe hole
Agreed that if the problem existed, the cost of rectification
         Would be insignificant and would be part of the plasterer’s
Work  0
4.4                     Redundant kitchen waste pipe
Agreed that the pipe required capping or disconnection    100
Item 5 – roof Cover
5.1Flashing at roof ventilator
Agreed that the roof sheet(s) should be replaced   580
Item 6 – Living/Dining/Kitchen
6.1Wine rack painting
Agreed that the wine rack required repainting   680
6.2Cupboard doors
Agreed that the Australian Standard is silent on this matter           0
6.3  Damaged edge strip
  Agreed that the edge strips required replacement   190
6.4   Stainless steel kickboard
Agreed that the kickboard material be replaced   230
6.5  Cupboard joint
  Agreed that a single piece of laminate should be installed          490
6.6  Bowed tiling
Agreed that the bow should be ameliorated   300
6.7Laundry threshold incomplete
Agreed that this work would be attended to in Item 7.2          0
6.8Step at hall door
See item 11.5  0
6.9  Scratched bench top   60
6.10  Poor Drawer operation   105
6.11Cupboard bi-fold door
Not to be pursued       0
Item 7 - Laundry
7.1Laundry skylight
Agreed that ventilation is required
We cannot agree on a price however
7.2  Laundry floor
  Agreed that the floor should be replaced using Hardies
  Thicksheet as a substrate   3800
7.3  Laundry door incomplete
Agreed that if a problem existed, it would have cost about
$60 to fix  60
Item 8 – Existing Meals/Kitchen
8.1Fireplace hearth
Agreed that the construction documents are silent on
This matter. If it is found that the work was required,
We agree that about $120 would cover the cost   120
8.2Polished floor damaged
Refer item 11.10
Item 9 – Bathroom (North of Bedroom 2)
9.1Drainage flange
Agreed that a drainage flange is required   120
9.2Floor gradient & 9.3 Shower floor set down
Agreed that these 2 items as well as item 9.1, could
Be addressed by lowering the shower floor. Agreed
That the overall cost would be $900.   900
9.4  Tap Penetrations
Agreed that these required sealing. Allow $30.  30
9.5Tiles joints
Agreed that the grout should be replaced, and that
The work in item 9.4 can be done at the same time.   350
9.6  Step at door
In the spirit of compromise, agreed not to pursue this matter       0
9.7   Plumbing
Agreed that problem no longer exists  0
Item 10 – Main Bath Room
10.1No work in bathroom
Agreed that no comment required  0
Item 11 - Generally
11.1Roof cover
Agreed that no comment required  0
11.2  Render not commenced
  Agreed that no comment is required  0
11.3  Paving
  Agreed that no comment is required  0
11.4Agreed that the stormwater system was in progress
On 11 December 2002
11.5Floor level
Agreed that the floor level of the addition does not
Match that of the existing house.
Agreed that it is not practical to elevate the floor level
In the addition because of the effect on various elements
Of the building.
In the spirit of compromise, we recommend that the
Lobby floor (only) be raised to equal the finish height
Of the hall floor (remove the existing timber threshold
  In the process)
The work addresses the issue in item 6.8
  Agreed that the value of this work is $900  900
11.6Air vents
Agreed that 2 extra ventilator bricks should be installed
In the laundry external wall  50
11.7Shed relocation
Agreed that this is a matter of Contract
11.8Ceiling height
Agreed that the addition ceiling height does not match
That in the existing house.
Agreed that the cost is about $3,750.   3,750
11.9Electrical
Agreed that no comment required
11.10Damaged floor boards (also see item 8.2)
Agreed that if the work had to be done, the cost
Might be about $500 but it is not possible to agree
On the cause of the problem   500
11.11                  Painting
Agreed that is a matter of Contract
Agreed that the cost is about $2,700   2,700
Mr Jankovic and Mr Short disagreed on the following items:
4.3 Sliding door wheels $75.
6.9Door drawer operation $105.
11.11Damage to Floor Boards $500.
In addition they disagreed on the cost of the Laundry Skylight (7.1).
Mr Short visited the premises and inspected it on two occasions in December 2002, which was a considerable period of time after the inspection by Mr Jankovic in March 2001. At the time of his inspection Mr Short could not discover any malfunction with the sliding door (2.6) and the drawer operation (6.10). I accept his evidence. I found both experts to be truthful and reliable witnesses. Accordingly, the amounts of $75 and $105 are disallowed.
On the question of the damage to the floor boards (11.10) Mr Jankovic appears to have made the assumption that it was caused by the Defendants’ sub-Contractors. This is not an assumption which can be validly made. Both the Plaintiff and Mr Picton were residing in the premises throughout the time that the building works were being undertaken. The Plaintiff said in evidence that the Defendants’ workers did the damage. She did not provide details. Mr Short said that he was unable to detect any defects with the floor finish that could be readily distinguishable from normal wear and tear. I accept this evidence. This claim is therefore disallowed.
I now come to the disagreement regarding the cost of the Skylight. The Proposed Floor Plan (No. 2) in the February Plans indicates a vented skylight in the new laundry. In accordance with my findings regarding the scope of the works to be performed the Defendants were required to supply and install such a skylight.
A skylight without ventilation was installed by the Defendants. It was also smaller than the skylight set out in the Plans. The Defendants have claimed it as an extra. Clearly they cannot have it as an extra as a result of my findings. It was required to be installed as part of the Contract works. In any event, as I said, they have not installed a ventilated skylight.
It was Mr Short’s evidence, that it was not necessary to install a new ventilated skylight. It was his view that the problem could be rectified by installing an exhaust fan at a modest cost. He agreed that the presence of an exhaust fan would mean a slight increase in power consumption.
Mr Jankovic was of the view that the Plaintiff was entitled to the type of skylight set out in the Plans, namely a ventilated skylight. He also pointed out that an exhaust fan has two disadvantages, namely, it requires maintenance and has a limited life. He said they also disagreed on the price of the cost of replacing the skylight with a ventilated skylight. Mr Short thought the cost would be $430. Mr Jankovic said that he had recently seen the cost of a builder for the same type of skylight and it was $600.
I prefer the evidence of Mr Jankovic on this item. Accordingly, I allow an additional $600.
There are three further items which arise from the Experts’ Schedule which need to be addressed.
The first is the claim for $3,800 for the replacement of the Laundry floor. The new laundry shown in the Plans is where Bedroom 3 was situated before there were any alterations or extensions done to the house. It had a timber floor. The Plaintiff said she told Mr Khneiger that she wanted the timber floor retained. She said that she had seen floor boards in wet areas shown in magazines and wanted to have the same. The Plaintiff said that Mr Khneiger told her she should have tiles but she said she wanted the floor board appearance. Her evidence was that Mr Khneiger told her that he would need to paint the floor boards with a water proof paint. The Defendants painted the floor for which they claim compensation as an extra. I will deal with this claim when I come to the Defendant’s cross-claim.
There is not a significant difference between the Plaintiff’s evidence and Mr Khneiger’s evidence on this issue.
Unfortunately the timber floor cannot remain. As Mr Jankovic pointed out, the floor is constructed of a grooved strip timber which is not water resistant and does not comply with the Building Code of Australia and the South Australian Housing Code. Both experts agreed that what was undertaken by the Defendants does not constitute compliance. Both agreed that the floor will require removal and replacement. This is another example of the lack of knowledge of Mr Khneiger as a Licensed Builder.
The Plaintiff claims the cost of removal and replacement. However, it is clear from her evidence that the cost of removal of the floor and replacement was not included in the Contract price. Quite the opposite. She required the retention of the existing floor. Accordingly, this part of the Plaintiff’s claim as contained in the Experts’ Schedule cannot be allowed. The work was not part of the contract works. Accordingly, I disallow the claim for $3,800 for the cost of replacing the laundry floor.
The second matter to consider is the claim for the cost of $2,700 for painting of the extension. The parts of the extension which require painting have not been identified. There is no specific reference to painting in the Plans. Clause 17 of the Specifications generally indicate the standard of painting to be achieved. However, as I said, these specifications are a standard form published by the Housing Industry Association. Clause 1.1 of the specifications provides that the extent of the works are to be governed by the Plans, Special Details and Building Schedule. It is to be noted that the same paragraph provides that the specification is to be read as a general specification only. There is no Building Schedule and Special Details. As I mentioned earlier, the Contract provided that the work to be undertaken by the Defendants was that shown in the Plans, Building Schedule, and other documents showing what the Builder is to perform.
The evidence regarding the painting is very limited. The parties only dealt with it briefly. The evidence of the Plaintiff is that during the course of the works she was told by Mr Khneiger that the cost of the painting for the extension was not included in the contract as he did not include it in his quote. She said she understood it was part of the contract works. She said she had made enquiries concerning the painting with Mr Khneiger as she planned to do it herself and obtain a credit for it in order that she could fund some variations to the Contract. The Plaintiff said that she was then told that the painting was not included. There is no evidence to suggest that Mr Khneiger had informed the Plaintiff that the painting was not included prior to this time.
In resolving this question it is necessary to refer the evidence of Mr Khneiger regarding the scope of the works he said the Defendants agreed to undertake pursuant to the Contract. In that evidence he never disputed that the Defendants were obliged to complete the works required for the extension. His dispute was that he only agreed with the Plaintiff to do very limited work with respect to the existing premises. I have earlier found against the Defendants on that point.
The evidence indicates that there was painting work which needed to be done for the extension. If it was not done then the extension work would not be completed. There is no evidence that the painting work on the extension was specifically excluded from the work to be undertaken on the extensions. In those circumstances, I find that part of the works to be completed under the Contract is the painting to the extension. As the work was not completed by the Defendants they are liable for the cost of completing the painting.
In the Schedule of Experts, the two experts have assessed the cost of the painting work at $2,700. However, at the time Mr Short inspected the premises in December 2002, he reported that most of the painting work had been completed, with some external painting work in progress. The Plaintiff said in evidence that she had done the painting work herself and was in the process of completing it. The Plaintiff led no evidence of the painting work she had undertaken, the time contribution to that work and the cost of paint and material. In my opinion the Plaintiff is not entitled to recover the cost of $2,700 estimated by the experts as this is clearly calculated on the basis that the work would be performed by professional painters.
As I said, there is no evidence provided by the Plaintiff to support her costs of painting. In my view, this does not exclude me from making my own assessment of the costs. I need to take a broad axe approach. I am prepared to allow $1,000 for the cost of painting.
The final matter is the cost of the Fireplace Hearth of $120. This was not part of the Contract price. The Defendants undertook some work on the fireplace as an extra, at the request of the Plaintiff. I cannot be certain if this work is included in the charges made for this extra work. If it was and the work is not complete then the Plaintiff would be entitled to this amount. As the Plaintiff had not discharged her onus of proof with respect to this claim, I disallow the amount.
I should also mention that in the Experts’ Schedule there are other Items I have not dealt with specifically, such as “Roof Cover” and “Render Not Completed”. These items have been dealt with elsewhere. With respect to the Item of “Paving” this does not need to be considered because it was not part of the contract works.
Summary of Allowances for Defective Work and Work not in Accordance with Specifications.
I set out hereunder in summary form the allowances made under this head of the Plaintiff’s claim.
Costing of Experts for Work  $19,040
Less amounts disallowed:
         Sliding Door Wheels   $75
         Drawer Operation  $105
         Damage to Floor Boards            $500
         Cost of Laundry Floor             $3800
         Part cost of Painting                $1700
         Fire Place Hearth   $120                $6,300
  $12,740
         Add Cost of Ventilated Skylight      $600
  Total Allowance  $13,340
The Plaintiff is entitled to damages with respect to this part of her claim of $13,340.
Plaintiff’s Claim for Damage to Personal Property
The Plaintiff brings this claim in negligence. During the course of the work the Defendants removed part of the back section of the roof of the existing house premises. This exposed the old Bedroom Three to the elements. In that bedroom there were stored shoes, record albums, books, prints and a bookcase. The roof was apparently removed on a Friday. It was the Plaintiff’s evidence that Mr Khneiger informed her that he was intending to cover the exposed area with a tarpaulin. No tarpaulin was produced and the room containing the personal property remained exposed to the weather.
In the early hours of Monday morning it began to rain. The Plaintiff and Mr Picton attempted to cover the exposed area with some sheets of corrugated iron. This was not particularly successful. The Plaintiff said that much of the property stored in the room was damaged by water.
In my opinion the Defendants were negligent in failing to cover the exposed area with some type of covering to prevent rain from coming into Bedroom Three. I accept that some of the items stored in that room were water damaged. The Defendants are liable for such damage. However, the Plaintiff has failed to prove any loss. I invited her to provide evidence of her loss on more than one occasion. She failed to identify the specific items of property which were damaged nor did she provide any evidence of the cost of such damage. In any event, during the course of his evidence, Mr Picton, the Plaintiff’s partner, stated that much of the personal property in the room belonged to him. He is not a party to the action.
As the Plaintiff has failed to establish any loss relating to this claim, it follows that the claim must fail.
Claim for Breach of Statutory Duty – Builder’s Indemnity Insurance.
I mentioned earlier that the Defendants failed to take out a Builder’s Indemnity Insurance policy. Section 34 of the Act requires Building Work Contractors to have a Building Indemnity Policy in force before the commencement of building work. Furthermore, the Building Work Contractor must provide the building owner with a certificate of currency. The Defendants were Building Work Contractors. Section 35 of the Act provides that the policy must insure a person (the owner) who is entitled to the statutory warranties under the Act against the risk of being unable to enforce those warranties by reason of the insolvency, death or disappearance of the building work contractor.
The Defendants failed to take out such a policy of insurance. The Defendants had an insurance policy described as a Contract Work Insurance Policy. By its nature it was a totally different policy to that of a Builder’s Indemnity Policy. Mr Khneiger appears to have believed that this policy was a Builder’s Indemnity Policy. In my view, this is another example of Mr Khneiger failing to ensure that his obligations as a Licensed Builder were met.
The Plaintiff did not have the benefit of such a policy during the period the contract works were undertaken nor since that time. There is no policy on foot at present. The Defendants no longer carry on the business of builders. The Plaintiff seeks damages for the Defendant’s failure to insure. Regrettably, there does not appear to be any manner in which the Plaintiff’s loss can be quantified. There has not been any loss suffered to date by the failure to insure. The Plaintiff has not produced any evidence to quantify any loss.

One possible method of compensating the Plaintiff may be to reduce any amount found to be due by the Plaintiff to the Defendant, by the amount of the premium the Defendants would have been required to pay for the issue of such a policy. However, no evidence was produced regarding such costs. Whilst he was giving evidence I enquired of Mr Short, the Building Consultant, regarding the premiums for a policy of this type. He was unable to assist.
Claim for Inconvenience
The final claim made by the Plaintiff is damages for inconvenience. Her claim is based upon the proposition that she has been required to live in an incompleted residence since December 2001. In her evidence the Plaintiff said for some time she had one shower until she arranged for completion of the other bathroom. She said there were not any taps in the laundry, except those connected to the washing machine. She said she was reluctant to do anything with the laundry because of the non-complying timber floor. She stated that the height of the house floor and the floor of the extensions were not the same which meant the dirt under the original floor is visible. She said this caused her distress.
The common law regarding the recovery for damages for disappointment, distress and inconvenience arising out of a breach of contract was stated by Mason CJ in Baltic Shipping Company v Dillon (1992-93) 176 CLR 344 (at 365):
“On the other hand, as a matter of ordinary experience, it is evident that, while the innocent party to a Contract will generally be disappointed if the Defendant does not perform the Contract, the innocent party’s disappointment and distress are seldom so significant as to attract an award of damages on that score. For that reason, if for no other, it is preferable to adopt the rule that damages for disappointment and distress are not recoverable unless they proceed from physical inconvenience caused by the breach or unless the Contract is one the object of which is to provide enjoyment, relaxation or freedom from molestation.”
In such circumstances a Court will award general damages although no pecuniary loss can be proved.
If physical inconvenience is relied upon to found the claim, then for the innocent party to recover such damages, the physical inconvenience must be substantial. Mere annoyance, or inconvenience which cannot be described as “substantial” will not allow a contracting party to recover damages. (D Galambos and Son Pty Ltd v McIntyre (1974-75) 5 ACTR.10 at 14).
I have some sympathy for the Plaintiff’s plight. She has suffered inconvenience which has caused her distress. However, in my opinion the inconvenience did not reach the level required by the law for her to be compensated by an award of damages under this head of her claim.
Defendants’ Cross-Claim
I now come to the Defendants’ cross-claim. I earlier set out the various items included in the Defendants’ claim which was contained in the Schedule of the Defendant’s Claims. I will deal separately with each of those items.
1. Variation in Bedroom 3/En-Suite
Mr Khneiger said in evidence that after removing a brick wall on the outside of the existing house being a wall marked by the numeral “1” of the Existing Floor Plan (Plan No 1) of the February Plans he discovered that the wall to the then Bedroom Three was an artificial one, constructed of a steel frame and some masonite material. In accordance with my earlier finding, he was required to remove the brick wall as it was part of the Contract works.
Mr Khneiger said that if the artificial wall remained there was a potential for the remaining brick wall to collapse as it was not properly braced. This necessitated replacing the artificial wall with a more substantial wall. It was the installation of this new wall which is the subject of the claim for a variation.
I am prepared to accept the evidence of Mr Khneiger regarding the necessity for installation of this new wall. It was therefore a variation. However, there is no evidence that it was discussed with the Plaintiff before the costs were incurred. It was clear during the course of the hearing that she had no idea what was the nature of this claim for a variation.
Clause 12 of the Contract provides a regime with respect to variations to the Contract. Clause 12.1 provides that there must be an agreement between the parties regarding a variation. There are some exceptions which are not relevant here. The remainder of Clause 12 provides for obligations on the part of the owner and the builder with respect to requesting a variation and undertaking and charging for a variation. The Defendants failed to comply with the provisions of Clause 12. Indeed, as I said there is no evidence that they obtained the consent of the Plaintiff.
On the face of it, due to the Defendant’s failure to comply with Clause 12, they are not entitled to the cost of this variation. It is possible that the Defendants have a claim in quantum meruit. I will need to consider this question shortly, as the Defendants did not adopt the procedures laid down in Clause 12 with respect to any variations the subject of claims. However, I do not stay to consider this issue here because in the end the Defendants could not establish the costs of the work claimed.
An inordinate amount of time was spent on the question of establishing the quantum of this claim but in the end Mr Khneiger could not establish what were the costs of construction of the wall. His evidence was totally confusing. The onus is upon the Defendants to prove their claim. They failed to do so. Accordingly, the claim is disallowed.
2. Variations in New Kitchen - $1260
This claim is composed of two parts. The first is for $300 being the extra cost of the kitchen appliances chosen by the Plaintiff. I mentioned earlier that the Defendants had allowed $1000 in the contract price for kitchen appliances. The Plaintiff was not informed of this limit and chose an oven, cook top and range hood amounting to $1800. I considered this issue when I was dealing with the Plaintiff’s claim. I allowed her claim of $500 which she paid as a deposit on the purchase of the kitchen appliances.
The Defendants did not include in the Contract a prime cost of $1000 for the appliances. The Contract obligated the Defendants to supply the appliances. It was not suggested that the costs of the appliances selected by the Plaintiff were not reasonable. The items were not included in the Contract as a prime cost and as a result the Defendants cannot use the terms of Clause 6 to support their claim. Accordingly, the claim for $300 is disallowed.
The second part of this claim relates to the kitchen cupboards. The Defendants claim the sum of $900 being the extra costs of the cupboards following a variation requested by the Plaintiff. In the Plans prepared by Mr Saxon and upon which the Defendants relied in preparing the quotation, the cupboards were depicted in basically a “U” shape. Mr Khneiger said he allowed a cost of $5,400 for the cupboards. He did not include that amount in his quotation as a prime cost item. I do not accept his evidence that he informed the Plaintiff of this amount before the Contract was signed.
Sometime after the Contract was signed the Plaintiff indicated that she wanted the design of the kitchen cupboards to be altered. She discussed these alterations with Mr Seinfeld the manufacturer and installer of the kitchen cupboards. The configuration of the cupboards were changed and the sink placed in a different position. Mr Seinfeld prepared plans incorporating the changes. I accept that the changes resulted in the costs of the cupboards being increased. The total cost of the cupboards were $6,300, being $900 greater than the amount estimated by Mr Khneiger and used by him in providing the Defendants’ quotation.
I am satisfied that this is a variation undertaken at the request of the Plaintiff. However, the procedure provided in the Contract for variations was not adopted. Clause 12 provides that where the owner requests a variation, then the Builder is required to provide a written quotation which sets out the change to the price to do the variation. It also provides that the Builder is not required to undertake the variation unless it has been accepted by the Owner. None of these steps were taken. In those circumstances, as there had not been compliance with the terms of the Contract, a claim for a variation cannot be recovered pursuant to the terms of the Contract.
There have been a number of decisions where a contractor’s claim for the cost of variations have been defeated because the contractor has failed to obtain written authorisation for the variation. These were cases where, on a proper construction of the contract, that written authorisation was a condition precedent to the entitlement to payment. That is the case here. However, in similar circumstances there have been instances where a contractor recovered payment for a variation notwithstanding lack of written authorisation required by the contract. Since the High Court decision in Pavey and Matthews Pty Ltd v Paul (1987) 162 CLR 211, such a claim by a builders in circumstances where there has been no written authorisation is governed by the law of Restitution. It is not based upon the principle of implied contract as it had been for many, many years prior to the decision in Pavey.(See: Liebe v Molloy (1906) 4 CLR 347).
In Update Constructions Pty Ltd v Rozelle Child Care Centre Pty Ltd (1990) 20 NSWLR 251 the Court considered that the critical factors in Liebe which allowed the contractor to recover the cost of the “extra” work were:-
·That the extra work was done “outside the contract” in the sense that the builder was not obliged to undertake the work pursuant to the contract and the owner was aware that the work was outside the contract;
·that the owner had actual knowledge of the work as it was being done; and
·the owner knows that the builder expected to be paid for them as extras.
If those circumstances were present then Liebe is authority for the proposition that there is implied contract to pay for the works.
Whilst in Pavey it was stated that the correct categorisation of an action to recover costs in such circumstances is that it is a claim in Restitution or Unjust Enrichment and not in contract (implied contract), in my view, the principles laid down in Liebe are still relevant to a claim in Restitution.
What then are the circumstances with respect to the claim here? As I said the Plaintiff requested that the cupboards be altered. She must have been aware, that such an alteration meant that it was a variation to the work required under the Contract. The Plaintiff must also have known that such a variation would lead to extra costs being incurred and that the Defendants would expect to be paid those costs. In those circumstances I consider all the relevant criteria are present for the Defendants to recover in Restitution.
Following the discussions which the Plaintiff had with Mr Seinfeld, Mr Khneiger was advised by Mr Seinfeld that the new design would cost $6,300. I think it is open on the evidence to infer that Mr Seinfeld’s original price was $5,400 being the amount allowed by the Defendants. There is nothing to suggest that the costs of $6,300 were not reasonable.
I accept the Plaintiff’s evidence that after Mr Seinfeld produced the new plans she was advised by Mr Khneiger that the costs would be $6,300 instead of the amount he allowed of $5,400. I further accept her evidence that in order to reduce the costs of cupboards, the height of the cupboards were reduced.
I have not been told how much the cost of the cupboards were reduced by following the reduction of the height. Some allowance should be made for this reduction. In my view, taking a broad axe approach, I am of the view the Defendants are entitled to the sum of $600 as an extra.
3. Variations in the Roof/Colorbond - $5,412.
The February Plans indicated that the roof for the new parts of the premises would be tiles to match the existing tiles on the roof. At some time after those Plans were produced the Plaintiff indicated she wished to have a colorbond roof over the entire premises, including the new section. The Plaintiff made this known to Mr Khneiger and the tiles were removed and a colorbond roof was installed.
The only issue to be determined with respect to this claim is whether this request for the colorbond roof was made prior to the Contract being entered into or after it was executed by both parties in July 2001. The Plaintiff asserts that she requested the change prior to the entering into the Contract and therefore the cost of the colorbond roof is part of the Contract price. The Defendants claim that the request was made some time after the Contract was executed and is therefore an additional cost.
It was the Plaintiff’s evidence that prior to the Plans being submitted to Council for approval she decided to change to a colorbond roof and orally informed Mr Khneiger that she would like the roof for the entire house to be changed from tiles to colorbond. She said this conversation took place in April 2001, well before the time when the Contract was signed.
Mr Khneiger said that the Plaintiff requested the change to a colorbond roof in about September 2001. He said that he informed the Plaintiff that it would be an extra cost. It was his evidence that he needed to obtain a quote from Mr Raymond, the first fix carpenter, regarding the alteration of the roof purlins and a quote from a plumber regarding the installation of the colorbond roof. He said he dealt with both of these matters in September.
Mr Raymond gave evidence. He was the first fix carpenter. Mr Raymond said that he originally quoted for a flat or skillion roof on the extension. Later, he said the Plans were changed and he was required to quote for a pitched tiled roof. He referred to the Plans of December 2001 and then the later Plans of February 2001.
Mr Raymond said he started the job in September 2001. He said that after he started the work he was informed by Mr Khneiger that the roof was to be changed to a colorbond or iron roof. He said he was therefore required to install purlins for the colorbond roof, which he did. He said that this was an extra cost.
I found Mr Raymond to be a truthful and reliable witness. I accept his evidence.
I felt that the evidence the Plaintiff gave about the time and the content of conversation about the colorbond roof to be vague and unimpressive. I thought she was not relying on her memory in giving the evidence. I felt it was the product of unconscious reconstruction. I am not prepared to rely upon it.
Mr Khneiger’s evidence about the time when the request for the change to the roof was to some extent supported by Mr Raymond’s evidence.
Having rejected the Plaintiff’s evidence and accepted the Defendant’s evidence, it is clear that it is a variation to the Contract. Sadly, once again the procedure laid out in Clause 12 of the Contract relating to variations was not followed. I say “sadly” because if it had been followed then some of the present items in dispute regarding variations would have not likely to have arisen. However, in my opinion the Defendants are entitled to recover the reasonable cost of the colourbond roof under the common law doctrine of Restitution to which I referred to earlier.
My acceptance of Mr Khneiger’s evidence results in the conditions required to recover under this doctrine being present with respect to this claim.
The sum claimed for variation is $5,412. This was not the total cost of the colourbond roof. It was a greater sum than this. Mr Khneiger gave evidence of how the amount was calculated. It is unnecessary for me to refer to it in detail. It is suffice to say that I am satisfied that the cost of the colourbond roof was reasonable. I am also satisfied regarding the method adopted to reach that amount. I therefore allow the Defendants the sum of $5,412.
4.Variations in design of Windows and Sliding Doors - $1594.
It is not disputed by the Plaintiff that she requested a variation to the Contract. She wanted to change the design of some windows and convert a window into a sliding door to match another sliding door. Again the procedure laid out in Clause 12 was not followed so the Defendant cannot rely upon the Contract to recover tis amount. However, I am satisfied that the relevant criteria for the recovery of the amount under the law of Restitution has been established by the evidence.
There was at one point some confusion regarding the amount of the claim. I am satisfied the total cost of the variation was greater than the amount claimed. The Defendants have received $1200 of the cost of this variation through a progress payment. The remainder of the claim is made up of the balance of the total amount charged by Boral Window Systems Limited and an amount of $250 payable to the carpenter, Mr Raymond. In my opinion, the charges for the variation were reasonable. I allow the Defendants the sum of $1594.
5. Variations in Laundry/Ensuite - $2048.
The evidence of Mr Khneiger regarding this claim was totally confusing, particularly in attempting to justify the amount of the claim. At one point he said:
“I think we need to be a magician to put all these figures together for me after two years”.
The claim consisted of a number of items of work. I am satisfied that some of the work claimed by the Defendants as extras were included as part of the Contract works. This room which was an existing laundry was identified in the Plans as being changed to a bathroom.
The Plaintiff accepts that there were variations for which she is responsible. The entrance door to the bathroom as shown in the Plans was bricked up and a new door was made between Bedroom Two and the new bathroom to make it into an ensuite. This was requested by the Plaintiff. I am prepared to allow the sum of $450 for costs paid to Mr Ladic for the bricking up of the original doorway and the creation of a new doorway. The Plaintiff sought a credit to offset this amount for work that the Defendants were not required to perform. There was no evidence regarding an amount to support the credit so I cannot take it into account.
The Plaintiff also conceded the cost of the supply of a new toilet which she requested in the ensuite as an extra. Furthermore she conceded the cost of removing a part wall in the room as an extra. The costs of these two claims were each $200. I allow these.
With respect to the claim for tap ware I am not satisfied that this is an extra so it is disallowed.
As I said before, these claims cannot be made pursuant to the terms of the Contract as there was no compliance with Clause 12. The claims are allowed because the criteria for establishing relief in Restitution are present.
The total amount allowed is $850 and I am satisfied with the reasonableness of the charges which make up this amount.
It was upon the Defendants to prove their case with respect to any other claims they made under this heading and they have failed to do so.
6.Variations in Existing Kitchen/Main Bedroom - $1300.
The issue here is whether the work was required to be undertaken as part of the Contract or whether it was a variation. The Defendants claim that it is additional work. The work involved converting the existing kitchen into the main bedroom and work in extending the hallway.
In the Plan entitled “Proposed Floor Plan” which is Plan 2 of the February Plans, clearly shows the former kitchen in the existing house as a bedroom. It is marked as “Bed 1”. The Plan also shows a stud wall and a door to be added to enclose the former Kitchen in order that it could become a bedroom. The adding of the stud wall also had the effect of extending the existing hallway. Furthermore, in the items under the heading “Alteration List” on the Plans, Item 5 indicates that the Kitchen joinery and appliances are to be removed.

Accordingly, this work was part of the contract works. The claim is therefore disallowed.
7. Variation in Carpentry for Existing House - $100
This claim was for the installation of two doors in the living room supplied by the Plaintiff. I am not satisfied that the installation of the two doors came within the contract works. Their installation was done at the request of the Plaintiff. I am of the view that the cost of the installation is an extra. The sum of $100 is a reasonable charge. I allow the claim for $100.
8. Repair of Cornices in Bedroom 2 - $200
These repairs were undertaken by Mr Khneiger at the request of the Plaintiff. The work was not part of the Contract. I am not convinced that the Plaintiff has paid this amount. The costs are reasonable for the work. I allow $200.
9.Replacing Old Ceiling in Existing Bathroom - $350
This work did not form part of the work under the Contract. It was done at the request of the Plaintiff. The amount is made up of labour $100 and costs of materials. It is an estimate on the part of Mr Khneiger. I accept the evidence of Mr Khneiger regarding the calculation of the costs. I allow the claim for $350.
10. Replacing Old Ceiling in Existing Kitchen - $594
I accept the evidence of the Plaintiff that this ceiling was in a satisfactory state of repair and was water damaged when Mr Khneiger failed to cover the area where the roof had been removed. I referred to this evidence earlier. I reject the evidence of Mr Khneiger that it was replaced because it was in poor condition. As it was damaged due to the negligence of the Defendants and this necessitated it being replaced, the Defendants cannot succeed on this claim. I disallow the Defendants’ claim to recover this amount.
11. Relocation of Shed - $550.
Earlier in these reasons I found that the relocation of the shed was part of the works which were included in the Contract. Accordingly, the Defendants cannot claim this amount as an extra. I disallow this claim.
12. Removal of fireplace in Bedroom - $400
It is not disputed by the Plaintiff that she requested the removal of the mantle and the hearth. That is an extra cost. The amount claimed is for the labour of Mr Khneiger. It appears that he claims to have done more work than the Plaintiff accepts. On the evidence it is difficult to determine the actual work undertaken. Clearly there was some substantial work done. I am prepared to allow the $400.
13.Sealing existing floor in new laundry - $358
I have already considered this issue in dealing with the Plaintiff’s claim. The Plaintiff had requested the retention of the timber floor in the laundry. The Defendant agreed to this course but applied two pack paint to the floor which he said was a temporary form of waterproofing. The Building Consultant experts have said that the timber floor does not comply with appropriate standards and will need to be removed. Mr Khneiger did not advise the Plaintiff that a timber floor did not comply with Standards for a laundry. The Defendants cannot receive total payment for work undertaken which has been of limited benefit to the Plaintiff. However, she has obtained some benefit from the work to date in the sense that the floor has been painted. I will allow the sum of $100.
14.Concrete Cutting between the laundry and Bedroom 3 - $470
The concrete was cut between the new laundry and the ensuite bathroom. It would seem that when the concrete floor was poured for the floor extension there was a difference in level with the concrete floor of the existing house. It looked unsightly and needed to be remedied. There is a dispute between the parties regarding whether the Plaintiff made a request for the concrete to be cut or not. The Plaintiff denies she made the request and said that the Defendants undertook the work at their own volition. It is not necessary to determine this issue. In my view, the obligation was upon the Defendants to ensure that the concrete for the extension was at the same level as the existing concrete. As this was not achieved then the Defendants were required to remedy the problem at their cost. This claim is disallowed.
15. Laying of Insulation to the Roof - $540
The Plaintiff did not dispute that this was an extra which she was required to pay. During the course of the evidence it became clear that Mr Khneiger was in error and that the cost of insulation was $594. I allow the sum of $594.
16. Building Work Associated with the Verandah - $500
The issue here is whether the Defendants were required to undertake this work pursuant to the Contract. The Plans clearly identify that a verandah was to be added to the front of the house. Mr Khneiger said that the Plaintiff was undecided whether she wished to have a porch or a verandah and so this work was excluded from the works he agreed to undertake. The Plaintiff denied this and said that the verandah was part of the works to be done. Consistent with my earlier findings regarding contract works, I find that the construction of the verandah is included in the Contract price.
The evidence of the Plaintiff is to some extent supported by the evidence of the first fix carpenter, Mr Raymond. He said that when he quoted for the work he also quoted for the installing of the verandah beams, the rafters, facia and scotia. At the time of the quote Mr Raymond understood that there would be tiles laid on the verandah roof.
As I find that the construction of the verandah was included in the contract price I disallow the claim.
17. Installing of Skylight - $297.
This claim relates to the installation of the skylight in the laundry. I made a finding earlier that a vented skylight in the laundry was clearly identified in the Plans as part of the work to be undertaken. The cost of installation cannot be claimed as an extra. Accordingly, I disallow this claim.
18. Installing/Labour only of wind masters - $99
This claim is not disputed by the Plaintiff. I allow the sum of $99.
19. Rewiring Existing House - $2464
It is accepted by the Plaintiff that this work did not form part of the Contract works. She accepts that it is an extra charge. The evidence of the electrician Mr Vermey is that the total cost of the rewiring of the existing house was $2306. Accordingly, I allow the sum of $2306.
20.Variation and added cost of tiling of ensuite - $2702.
The Plaintiff accepts that the work in the ensuite is an extra cost because it did not form part of the Contract. However, part of the claim relates to tiling in the kitchen and the Plaintiff says this extra cost to the kitchen was a result of Mr Khneiger’s error. The Plaintiff challenges the sum of $168 being for tiles mistakenly affixed on the kitchen. These were removed at the Plaintiff’s request. I accept that the Defendants were in error with respect to the kitchen tiles. Therefore the sum of $2702 is to be reduced by the sum of $168. I allow the sum of $2534.
21. Addition of 3 inches in living room - $85
The Plaintiff does not dispute this work incurred as an extra cost. I allow the sum of $85.
22.Pouring new concrete between laundry and Bedroom 3 - $295.
This claim relates to the cutting of the concrete referred to in Item 14. After the concrete was cut it was necessary to lay some further concrete. When dealing with Item 14, I reached the conclusion that it was the obligation of the Defendant to ensure that the level of the concrete floor of the extension matched the level of the concrete floor of the existing premises. That claim was disallowed. This claim must also be disallowed as the obligation was upon the Defendants to ensure there was a level finish.
23. Variation to Plan – John Saxon
The Plaintiff accepts that she was responsible for the costs of drawing the Plans. However, the amount has been paid. Therefore the claim is disallowed.
Summary of the Allowed Claims
I now set hereunder the claims of the Defendants which have been allowed:
Colourbond Roof  $5412
Windows/Sliding Door     $1594
         Variation – Laundry/Ensuite     $850
         Carpentry to existing house  $100
         Repair to Cornices  $200
Ceiling in Existing Bathroom  $350
Removal of Fireplace  $400
Sealing in New Laundry  $100
Insulation  $594
Windmasters  $99
Rewiring House  $2306
Tiling to ensuite  $2702
Niches              $85
$14792
Credits Allowed by Defendants
At the time that the Plaintiff required the Defendants to leave the site there was still outstanding work to be done under the Contract. The Defendants have allowed the following credits with respect to that outstanding work:
Rendering of Outside of Extensions         $1000
         Downpipes  $60
         Main Bathroom     $3550
   $4610
The Plaintiff challenged the quantum of the credits. She submitted that the credits should be greater.
The first related to the rendering of the outside of the extension. It was accepted that only that part of the house was within the terms of the Contract. The Defendants had a quote for rendering the entire house of $4000. In my opinion that credit is reasonable.
The credit for the downpipes was reasonable.
The final credit of $3550 relates to the main or existing bathroom. The renovations of this bathroom was included in the Contract works. This credit was calculated as follows:-
(a)$1200 in relation to removing the cupboard and part of the internal wall and installing the shower.
(b)$1500 for the remaining building work.
(c)$550 for the shower screen.
(d)$300 for the hand basin.
The reference to the remaining building work of $1500 is for most of the plumbing work required. I earlier allowed the Plaintiff her claim for installation of a Pedestal Basin and completion of plumbing work to the original bathroom. If she is granted a credit for $1,500 for the plumbing work and $300 for the hand basin she would obtain the benefit twice. Accordingly, the credits given by the Defendants need to be adjusted by $1,800.
Claim for Balance of Contract Price
This claim is calculated by the Defendants as follows:-
Contract Price  $67,000
         Received from Plaintiff  $61,740
Balance  $5,260
Less Credits Allowed
(See above)   $4,610
         Balance Still Owing        $650
As I have reached the conclusion the Plaintiff is not entitled to a credit of $1,800, the total credits of $4,610 must be reduced by that amount. As a result the credits the Plaintiff is entitled to is $2,810. The effect of this is that the balance owing under the contract is increased from $650 to $2,450, by the addition of the sum of $1,800.
Summary of the Defendant’s Claims
I have earlier allowed the Defendants the sum of $14,792. To this amount is to be added the sum of $2,450 being the amount remaining due under the Contract thus making a total of $17,242.
Judgment Arising from Both Claims
As a result of my findings on the Plaintiff’s claim she is entitled to:
Claim for costs of work paid   $4836
Claim for defective work and work not in
Accordance with specifications  $13340
Total  $18176
The Defendants on their cross-claim are entitled to the sum of $17,242.
In my view, either as a set-off or under Rule 48.03(b) of the District Court Rules I have power to give judgment for the balance between the two amounts. Accordingly, there will be judgment for the Plaintiff for the sum of $934.
Interest
The Plaintiff is entitled to interest on the amount of $934 for the period commencing on 24 September 2002 being the date when proceedings were commenced by the Plaintiff. In my opinion an appropriate rate is four per cent. I propose to award a lump sum for interest. Interest amounting to $37 is allowed.
Costs
In many ways this case has been sad and tragic. The issues arising in the proceedings have consumed the parties for nearly two years. An enormous amount of energy and time has been expended. I mentioned earlier that both the Plaintiff and the Defendant employed solicitors until shortly before Trial. At the hearing, I was told that both parties have expended substantial funds on legal and other expenses. The case has also engaged an enormous amount of the Court’s time, not only in the proceedings leading up to Trial but also the Trial itself and the preparation of these Reasons. Without casting around to apportion blame one wonders how such a matter could reach the stage that the only option remaining for the resolution of the respective claims was the decision of a Court.
In the end, there is very little difference between the damages awarded to the Plaintiff and the damages awarded to the Defendants. Having heard the case and knowing the time spent roughly on the issues in the proceedings, I am satisfied that the interests of justice are best served by ordering the parties to bear their own costs, in other words, by making no order as to costs.
Orders of the Court
There will be judgment for the Plaintiff against the Defendants for the sum of $971 which sum includes interest. There will be no order as to costs.

· Costs met by the plaintiff in completing work required to be completed by the Builder under the Contract	$9,686.81
· Costs of rectifying defective work, and completing other works still outstanding under the Contract	$30, 912.29

[2003] SADC 138

4 November 2003