Willshee v Westcourt Ltd - [2008] WASC 18

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: WILLSHEE -v- WESTCOURT LTD [2008] WASC 18

CORAM: TEMPLEMAN J

HEARD: 22 30 NOVEMBER 2007

DELIVERED : 22 FEBRUARY 2008

FILE NO/S: CIV 1497 of 2004

BETWEEN: DEREK MICHAEL WILLSHEE
Plaintiff
AND
WESTCOURT LTD (ABN 98 009 250 373)
Defendant

Catchwords:

Contract - Breach of contract to build house - Representation that high quality limestone used to construct external wall of house - Reasonableness of damages - Turns on own facts

Legislation:

Trade Practices Act 1974 (Cth), s 52

Result:

Damages awarded

Category: B

Representation:

Counsel:

Plaintiff: Mr P G Clifford
Defendant: Mr S OwenConway QC & Mr P A Monaco

Solicitors:

Plaintiff: Lavan Legal
Defendant: GV Lawyers

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

Bellgrove v Eldridge (1954) 90 CLR 613
Jones v Dunkel (1959) 101 CLR 298
Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344

TEMPLEMAN J:

Introduction

In 1999, the defendant, which carries on business under the name Plunkett Homes, built a substantial house for Derek Michael Willshee, the plaintiff, on his land at Jandakot.
The work was carried out pursuant to a written contract embodying a specification which required the external walls of the house to be constructed of brick with a limestone cladding. The plaintiff contends that negligently, or in breach of its contractual duty to him, the defendant supplied and installed inferior and unsuitable limestone.
The plaintiff contends further that certain representations made to him by employees of the defendant, and on which he relied in deciding to use limestone in the construction of the house, were false, and constituted misleading and deceptive conduct, within the meaning of the Trade Practices Act 1974 (Cth).
The plaintiff claims damages in an amount of $257,977.91, this being the cost of removing and replacing the limestone cladding. The plaintiff claims also the costs associated with moving himself and his family from the house while the rectification work is in progress: and the costs of interim repairs carried out to date.
The defendant denies that the limestone cladding is defective, apart from five blocks it has offered to replace: and it denies that it engaged in any misleading or deceptive conduct.
The trial was conducted over seven sitting days, during which I took evidence from eleven witnesses, including six who were tendered as expert witnesses, albeit subject to certain objections.
At the request of the defendant, and without objection from the plaintiff, I attended at the plaintiff's house after the parties had closed their respective cases, and viewed the limestone cladding. I did so in order to ensure that I had a full understanding of the evidence.
I wish to emphasise that the view did not involve my taking further evidence. I have refrained from reaching any conclusion, or even an impression, as a result of the view. My findings and conclusions are based entirely on the evidence adduced at trial.
In making those findings, I have had regard to the numerous objections to evidence contained in statements tendered as the evidence in chief of a number of witnesses. Generally, my findings will reflect the view I have taken about the admissibility of this evidence, which I received subject to objection. In most cases, I do not consider it necessary to set out each ruling individually.
I commence by introducing the parties.

The plaintiff

The plaintiff, who originates from England, was employed by the Coca Cola Company from 1997 to 2002 as its General Director - Expatriate.
In about April or May 1998, the plaintiff was in Singapore for medical treatment and was required to walk for health reasons (ts 129). At the time, the plaintiff was engaged to be married and was considering the possibility of settling in Perth. The plaintiff was looking to establish a home in a new country which would provide a stable environment in which to raise children and where he might have a suitable home in which to relax, with his family, on returning from work overseas (exhibit 3, pars 3 ‑ 4).
It was while walking in Singapore, that the plaintiff came upon the display office maintained by the defendant at the Royal Crown Plaza Hotel on Scott's Road in Singapore (exhibit 3, par 5).

The defendant

As I have noted above, the defendant is the owner of the business name Plunkett Homes. The defendant (and/or some predecessors in title) have been building homes in Western Australia under that name since 1902. Evidence was given by the current managing director of the defendant, Anthony William Pritchett, who has held that position only since 2000, that:
We don't profess to be … the best builder in Perth. We consider ourselves to be a high quality builder … (ts 505)
In the late 1990s, the defendant was marketing new homes in south‑east Asia. Its display office in Singapore operated under the name Design 5 which was managed by Ken Regan, the defendant's international business manager.

The pre‑contractual representations

In the period from April/May to 14 October 1998, when the parties entered into a building contract, the plaintiff had several meetings with Mr Regan and Kenneth John Sopp, then the defendant's Perth‑based chief designer. The purpose of the meetings was to discuss the plaintiff's requirements and to work towards a design of house which would satisfy those requirements.
Initially, the plaintiff told Mr Regan that he was looking for a stable environment in which to live 'with a little bit of land'. The plaintiff said words to the effect that he wanted a home which was suitable for him to relax in, with his family, on returning from overseas work. He wanted a home in which everything was complete 'so that all we need to do is to walk in the door and live in it'.
The plaintiff had no friends or relations in Perth. He therefore told Mr Regan that he required the defendant 'to do everything and manage the project as a turnkey build'. Mr Regan told him that Design 5 was performing that service for its clients (exhibit 3, par 8). The plaintiff apparently had no experience in the building industry, having at some stage, been an electrical engineer (ts 179).
At their first meeting, Mr Regan gave the plaintiff the defendant's corporate brochure to read.
The brochure (exhibit 1/123) referred to the fact that in more than 90 years since 1902, 'Plunkett/Domain' had built more than 30,000 homes in Western Australia. 'Domain' is a reference to Domain Homes, which is apparently another business name used by the defendant.
Under the heading 'Why build with Plunkett?', the brochure listed a number of reasons for choosing a member of the defendant's group to build a house.
In par 5 of his statement of claim, the plaintiff pleads that:
In the brochure the defendant made the following representations:
(a)the defendant:
(i)provided a structural guarantee in respect of any house built by it;
(ii)was committed to its customers for life;
(iii)would honour its obligations to its customers;
(b)a house constructed by the defendant would:
(i)realise a superior re‑sale value compared to houses constructed by other builders;
(ii)be constructed using the highest quality materials;
(c)the defendant's staff personally ensured a high standard of construction.
In par 4 of its defence, the defendant admits (a)(i) and (b)(ii) above. However, it denies (a)(ii), (a)(iii) and (b)(i). The defendant goes on to say that the brochure represented that the defendant built houses 'using clay brick walls'.
As to (a)(ii), the brochure contained the statement:
We provide a 25 year structural guarantee and our commitment to you for life.
That is clearly the basis for the allegation pleaded in pars (a)(i) and (ii). I assume the denial of par (a)(ii) is intended to reflect the defendant's interpretation of the statement as being mere puff. However, nothing turns on that for present purposes.
The defendant's denial that it represented to the plaintiff that it would honour its obligation to its customers is inconsistent with the statement in the brochure that:
Plunkett has been building homes in WA for more than 90 years - we'll be around to honour our commitments to you: peace of mind in today's uncertain world.
We provide a 25 year structural guarantee and 6 months free maintenance - we'll be around to honour these too: security for your investment.
Further, in his evidence, Mr Pritchett accepted that the defendant would always provide what it contracted to provide: and would do so in the present case to the extent sought by the plaintiff, if the court found in his favour.
However, again, nothing turns on that representation for present purposes.
In my view, the defendant was justified in denying the allegation pleaded in par (b)(i) above. The brochure claimed that:
Your Plunkett Home will realise a superior re‑sale value.
The brochure did not set out any comparison with values of houses constructed by other builders. I therefore consider that the representation does no more than convey the impression that a well‑built house, constructed of 'the highest quality materials' and backed by the 25‑year structural guarantee is likely to make the property attractive to subsequent purchasers and therefore have a favourable effect on its re‑sale value.
Again, nothing turns on that representation for present purposes.
The representation pleaded in par (b)(ii) is, however, of crucial importance in this case. In my view, the representation cannot be regarded as mere puff. Nor, I think, could it reasonably be regarded as a representation that materials of the highest possible quality would be incorporated into a house built by the defendant. As will be seen, there is evidence in this case that the highest quality limestone for building purposes is to be found in France. The plaintiff does not suggest (nor would it be reasonable for him to do so) that the defendant should have obtained limestone from this source.
In any event, the representation must, I think, be understood in the light of representations made to the plaintiff by Mr Regan in about April 1998, as admitted by the defendant. These are pleaded in par 6 of the statement of claim and admitted in par 6 of the defence. They are as follows:
(a)the defendant constructed houses of high quality;
(b)the defendant and its employees were extensively experienced in the construction of high‑quality houses in Western Australia;
(c)the 'Design 5' division of the defendant's business specialised in the construction of high‑quality houses for clients outside Australia;
(d)'Design 5' houses were built to 'Bronze', 'Silver', 'Gold' and 'Platinum' specifications with the platinum specification incorporating the highest‑quality materials used by the defendant.
As appears from (d) above, houses built to 'platinum' specifications incorporated the highest quality materials used by the defendant. It can therefore be reasonably supposed that houses built to the bronze, silver or gold specifications incorporated lower quality materials.
I therefore think that the combined effect of the representations pleaded in pars 5 and 6(a) to (d) of the statement of claim is that the defendant would build using materials of a quality appropriate to the specification of any house it constructed, and that the work would be supervised by the defendant's staff.
There is a further representation pleaded in par 6(e), which is alleged to have been made by Mr Regan: namely that the defendant could sell the plaintiff a block of land in Perth and construct a high quality house for the plaintiff, to the defendant's platinum specification as a turnkey project.
The defendant denies that any such representation was made, or that if it was made, Mr Regan had authority to make it. The basis for the denial is that Mr Regan did not have any authority to offer lot 322 (12 Cessna Drive, Jandakot) to the plaintiff, because the defendant was not the registered proprietor of that land.
Here, I think, the parties are at cross‑purposes. As I have noted above, the brochure contained a representation that the defendant offered a choice of quality land throughout the metropolitan area and the south‑west. That being so, I have no reason to doubt the plaintiff's evidence that Mr Regan did make a representation in the terms alleged: indeed, I believe him. However, it is clear from the contract for the sale of land (exhibit 1/6 ‑ 7) that the plaintiff did not purchase the land from the defendant.
I accept that Mr Regan told the plaintiff that lot 322 (number 12) Cessna Drive was available and that he put the plaintiff in touch with the owners, Gloria and Joseph Maduram. I find that the plaintiff offered $200,000 for the purchase of that land, but then accepted the vendors' counter offer in the sum of $230,000, at which price he purchased the land. Settlement was effected on 6 November 1998 (exhibit 1/105).
It appears that Mr Regan used the defendant's pro‑forma 'house and land package' calculation sheets in his dealings with the plaintiff. This may explain why the plaintiff alleged in par 7 of his statement of claim that on 2 May 1998, he and the defendant agreed that the defendant would sell him the land at lot 322 Cessna Drive. The plaintiff is clearly mistaken about this, for the reasons given above. Nothing turns on the plaintiff's error.

The plaintiff's house is designed

Having secured the land in Cessna Drive, the plaintiff and Mr Regan started to work towards the design of a house which would satisfy the plaintiff's requirements.
At an early stage, the plaintiff provided Mr Regan with some housing magazines showing a range of designs from around the world. The plaintiff told Mr Regan he wanted to spend a total of about $620,000 for the land and house. At Mr Regan's request, the plaintiff compiled a list of his requirements for living accommodation. I accept the plaintiff's evidence that 'literally from day one of ever meeting him' he told Mr Regan that he was 'looking for a natural stone product' (ts 131 and ts 160).
Mr Regan sent the information to Mr Sopp, who worked at the defendant's office in Victoria Park. In about May or June 1998, Mr Sopp drew a concept sketch for the plaintiff's house and sent it to Mr Regan in Singapore. Following Mr Sopp's usual practice, the sketch was drawn for double brick construction, with cavity walls (exhibit 27, par 3). That was the defendant's preferred construction method.
It is the plaintiff's evidence that during the period in which the design was being developed, he visited Perth twice (exhibit 2, par 19).
The plaintiff said he met Mr Sopp in about September 1998 (exhibit 2, par 20). Mr Sopp's evidence was that they met in June or July 1998; and that he had two meetings with the plaintiff in Perth, the second being before the execution of the building contract. As I have noted above, that contract was dated 14 October 1998 (exhibit 1/9).
This is consistent with the plaintiff's recollection that he visited Perth at the invitation of the defendant to finalise the drawings (ts 133). The drawings are dated 29 September 1998 (exhibit 1/172). They show limestone block piers in a number of places, although they do not show limestone cladding for the house as a whole. However, because the plaintiff did not want a house built entirely of brick, and because the drawings were finalised by the end of September 1998, I think it probable that the decision to use a limestone facing had been taken by then.
However, I find that the decision had not been taken by August. That is because the defendant's Estimate Request of 27 August 1998, prepared by Mr Sopp, includes an amount of $10,000 for limestone facing 'if required' (exhibit 1/18).
I find the sequence of events to have been as follows.
The plaintiff came to Perth in about June or July 1998. He met Mr Sopp at the defendant's Victoria Park office and showed him photographs of houses from books and magazines. The plaintiff told Mr Sopp that he wanted a natural look and finish for his house.
The plaintiff had not visited Western Australia previously. He did not know what natural materials were available and wanted to look at the kinds of houses which had been built here (ts 160).
I accept Mr Sopp's evidence that he took the plaintiff to the rear of the defendant's office, where there was a display area. The display included clay bricks, concrete pavers and Florentine limestone blocks (exhibit 27, pars 24 and 30).
At that time, the defendant had not built any houses using natural limestone. Mr Sopp tried to persuade the plaintiff to use Florentine limestone bricks, but the plaintiff did not like their appearance and would not agree.
I find that it was not until the plaintiff made his second visit to Perth in September 1998, that he decided to build in limestone.
In his evidence in chief, the plaintiff said that in September 1998, over the course of two days, Mr Regan drove him to the Cessna Drive site and to various suppliers of materials. The plaintiff said that at this time Mr Regan told him that he had built a similar house on 5 acres and that he (the plaintiff) should avoid some of the mistakes Mr Regan had made when building. The plaintiff said Mr Regan told him that he should have a tarmac drive with kerbs, a pool and a gazebo at the back of the house.
According to the plaintiff, Mr Regan said that he should use natural limestone blocks for his house. Mr Regan said he had built his house with red brick, but limestone blocks would produce a better finish. Mr Regan said that natural limestone was a superior product to any other brick or construction product on the market: it would require no painting or rendering and no maintenance. Mr Regan said that the limestone would add value to the house, was visually superior to any other brick or construction product on the market, was superior to reconstituted limestone and had a better feel and quality. It was a durable and long‑lasting material which would cost more than brick.
Mr Regan said also that if the plaintiff agreed to the use of natural limestone, the defendant would use appropriately skilled limestone bricklayers to lay the natural limestone so as to give the house the best possible finish.
The plaintiff said in his evidence in chief that:
In September 1998, Regan drove me to several brick display centres and show houses and I was shown samples of limestone bricks they recommended to be incorporated in the specification used in the construction of the house. These were smooth and displayed no obvious signs of deterioration.
In cross‑examination, the plaintiff said the bricks he was shown were 'smooth and displayed no obvious signs of deterioration'. He chose a sample that had 'smooth finish, no marks, freckles or anything', and that 'they' wrote down the specification number (ts 135). Later the plaintiff said it was Mr Regan who had taken those details and given them to Mr Sopp (ts 176).
This evidence is reflected in par 11 of the statement of claim, where it is pleaded that:
At a meeting in September 1998, at the defendant's office in Perth, Sopp showed the plaintiff samples of limestone bricks the defendant recommended be incorporated in the specification and used in the construction of the house. The sample natural limestone bricks showed to the plaintiff were smooth and displayed no obvious signs of deterioration.
This is alleged in par 12 to have been a representation, although the precise effect of the representation is not clear. I take it to have been a representation that the limestone used in the construction of the plaintiff's house would have the same appearance as the sample. In par 14 of the defence, par 11 of the statement of claim is denied. It is there pleaded that Mr Sopp showed the plaintiff Florentine limestone bricks (these being clay bricks with a limestone finish) and recommended that they be used.

I accept that Mr Sopp showed Florentine bricks to the plaintiff. However, I find that because they were not acceptable to him, he was shown natural limestone blocks which had a smooth surface and which he chose for the construction of his house.
The plaintiff said he attended a barbeque at Mr Regan's house where he asked Mr Regan what he thought about the bricks. Mr Regan said that if he had to build his house again, he would use limestone. He said natural limestone was 'better'. On the following day, when the plaintiff and Mr Regan were in the latter's office, updating the specifications, they talked again about the limestone blocks. Mr Regan said the limestone was better because it kept the house cooler in summer and warmer in winter and that it required 'less than no maintenance because you don't have to paint or render it'.
The plaintiff said that based on the information provided to him 'by Sopp and Regan' he decided that the outer leaf of the block work to the house would be constructed of natural limestone.
This evidence is contained in pars 20 ‑ 28 of the plaintiff's witness statement (exhibit 3), to which objection is taken on a number of grounds, including hearsay, that the statements are vague, rolled up and conclusionary. I do not consider any of the objections valid. None of the material in those paragraphs is hearsay: the plaintiff relies on what was said to him by Mr Regan, not the truth or accuracy of the statements. As to vagueness: the plaintiff said in par 5A of his statement that where he had been able to recall a conversation he had used the exact words but where unable to do so he had used the substance of the words spoken to the best of his recollection. I do not understand the objection that the evidence is conclusionary.
The plaintiff's evidence in cross‑examination was largely consistent with the evidence referred to above. He said:
Ken Regan looked after me when I was in Perth. I was a stranger here. He arranged the hotel for me to stay in and he took me round. He took me round the displays and showed me different types of houses and the looks and the finishes. Ken was very, very helpful. Plunkett was very, very helpful. After seeing the various products that were available, I decided that I would like limestone. (my emphasis)
… At a barbeque at his house, because he was being very social and a very pleasant gentleman, he had a 5 acre block with a house, and we walked round and he was using that as a template, saying, 'You do this Derek. I made this mistake, and if I'd had done that I would have added a gazebo and take the eaves out a little bit more because of the sun bleaching things,' and a lot of what Ken recommended was put into the house and specifically at that barbeque he said, 'If I was going to build my house again I would use a natural limestone product'. (ts 165)
It was then put to the plaintiff that it was he who had said to Mr Regan that he should use natural limestone blocks, not the other way around. The plaintiff said that was incorrect.
I accept much of the plaintiff's evidence about what was said to him by Mr Regan. However, there are some conflicts between his evidence in chief and in cross‑examination. Where those conflicts exist, I prefer the plaintiff's evidence in cross‑examination because the impression I had was that it reflected his unrehearsed and spontaneous recollection.
Thus, I do not accept that Mr Regan told the plaintiff that he should use natural limestone. I prefer the plaintiff's evidence in cross‑examination that Mr Regan said that if he was to build again, he would use natural limestone.
Further, I accept the plaintiff's evidence that after seeing various products then available, 'I decided that I would like limestone'.
In any event, I have no doubt that whatever Mr Regan said, the decision to use limestone was made by the plaintiff. Having observed the plaintiff giving evidence during an extensive cross‑examination, it is clear to me that he is not a man to bow to pressure: he is firm in his views. This is exemplified by the plaintiff's resistance to building in brick, contrary to Mr Sopp's attempts to persuade him to do so. Similarly, I accept the plaintiff's evidence (and that of Mr Sopp) that the plaintiff insisted on a green coloured roof for his house when Mr Sopp sought to persuade him that a red roof was more traditional.
It should be noted that Mr Regan was not called by the defendant to give evidence, as might have been expected if the plaintiff's evidence was to be contradicted.
The plaintiff was asked in cross‑examination whether he was calling Mr Regan as a witness. The plaintiff said that he wanted to do so, but that Mr Regan's mother was dying and he had to look after her in Melbourne (ts 165).
There is no independent evidence about Mr Regan's whereabouts or current employment. However, this action has been on foot since 2004. I note that Mr Sopp's witness statement was prepared in July 2004 and signed on 4 November of that year. The defendant has had a considerable period of time in which to gather evidence in its defence. If it had a statement from Mr Regan, which contradicted the plaintiff's evidence, but Mr Regan was prevented by circumstances beyond his control from attending court, I should have expected the defendant to apply to have his statement admitted pursuant to s 79C of the Evidence Act 1906 (WA). No such application was made.
I therefore draw the inference that Mr Regan's evidence would not have assisted the defendant: Jones v Dunkel (1959) 101 CLR 298.

Further representations are alleged

In par 10 of the statement of claim, the plaintiff pleads that he met Mr Regan and Mr Sopp on several occasions in September 1998 at the defendant's Perth office. The plaintiff alleges that at the meetings, 'Regan and Sopp' made the following representations for and on behalf of the defendant:
(a)natural limestone:
(i)was a superior product to any other brick or construction product on the market;
(ii)would require little maintenance;
(iii)would require no painting or rendering;
(iv)would require less maintenance than other brick or construction product on the market;
(v)would add value to the house;
(vi)was visually superior to any other brick or construction product on the market;
(vii)was superior to constituted limestone and have a better feel and quality;
(viii)was a durable and long‑lasting building material;
(b)if the defendant agreed to the use of natural limestone in the construction of the house, appropriately skilled limestone bricklayers would be engaged to lay the natural limestone to give the house the best finish possible.
For the reasons given above, I accept the plaintiff's evidence that Mr Regan (but not Mr Sopp) made statements to the effect pleaded in (a) above. As to (b), I accept only that Mr Regan said words to the effect that if the plaintiff wanted to use limestone, the defendant would ensure that appropriately skilled limestone bricklayers would be engaged to carry out the work.
In par 12 of its defence, the defendant says that if the representations alleged in (a) above were made, which it denies, then:
13.1Neither Regan nor Sopp had the Defendant's actual or ostensible authority to make any representations as to the use of natural limestone.
13.2The nature of the representations in paragraph 10(a) of the Statement of Claim were such as to excite a reasonable apprehension that Regan and Sopp were acting without actual or ostensible authority in circumstances where the Defendant did not construct houses in natural limestone and there was no information provided to indicate that the Defendant would construct in natural limestone.
13.3Regan was an independent contractor and therefore any representations which were made (which is denied) were not made by Regan on behalf of the Defendant, or at all, but by Regan in his own capacity.
13.4Prior to attending the meetings, the Plaintiff had decided not to use conventional bricks and instead use limestone bricks and by reason [sic] there was no reliance by the Plaintiff by any representations made by Regan or Sopp nor any impression therefrom directly or indirectly attributable to the Defendant (which representations are in any event denied).
13.5The decision to use natural limestone was made without reliance upon and without having any regard to any representation or conduct emanating from Regan or Sopp and such decision to use natural limestone was made contrary to Sopp's express recommendation to use Florentine limestone bricks.
The assertion in par 13.2 above was not put to the plaintiff in cross‑examination. In any event, although I accept that the defendant did not normally construct houses in natural limestone, I accept the plaintiff's evidence that Mr Regan told him, in substance, that the defendant would build in whatever material he required. This is consistent with Mr Regan saying that experienced limestone bricklayers would be employed if the plaintiff chose to build in limestone.
Further, there was no evidence that Mr Regan was an independent contractor as alleged in par 13.3 of the defence. Indeed, the evidence is that Mr Regan was an employee of the defendant.
In my view, the plaintiff was entitled to regard statements made to him by Mr Regan as being made on behalf of the defendant. That is because Mr Regan was held out by the defendant as a salesman of the products and services it offered.
I accept that the plaintiff chose to build in limestone against Mr Sopp's recommendation. However, although I accept that it was the plaintiff's decision to use limestone, I consider that in making the decision, he relied on statements made to him by Mr Regan and that it was reasonable for him to do so, as a newcomer to Australia, with no knowledge or experience of building practices here. As I have noted above, the plaintiff wanted the defendant 'to do everything and manage the project as a turnkey build'. This is clear evidence of reliance.
In summary, I make the following findings:
1.The plaintiff wanted to build a house with a natural finish.
2.The plaintiff did not know what was available in Western Australia until he visited here and was shown various products by Mr Regan.
3.The plaintiff liked the appearance of natural limestone and decided to use it as a cladding, not only because he liked its appearance, but also because he relied on the representations made by Mr Regan as I have found them to be, and on the representations contained in the defendant's brochure, to which I have referred earlier in these reasons.

The contract

As noted above, the plaintiff and the defendant entered into a written contract for the construction of the plaintiff's house on 14 October 1998. The contract was in the form of the Housing Industry Association Ltd Lump Sum Building Contract which incorporated the drawings and specifications. The price was $390,000. The specifications were contained in a document entitled 'Singapore Addenda' (exhibit 1/89 and 97).
By cl 1(a), the contract imposed on the defendant an obligation to complete the works 'in a proper and workmanlike manner' in accordance with the contract, the drawings and the specifications. The clause provided also that:
The Contract Documents signed by the parties shall constitute the entire Contract between the parties.
Despite that provision, the plaintiff pleads in par 14 that 'the house and land agreement' was partly written, partly oral and partly implied.
As I have noted above, the plaintiff did not purchase his land from the defendant. That being so, the allegation that the house and land agreement was partly written, partly oral and partly implied, must be taken to refer only to the building contract. In any event, that is clear from pars 16 and 17 of the statement of claim. In par 16, the oral part of the agreement is said to have been contained in the representations made by Mr Regan and Mr Sopp at the meetings referred to in pars 5, 6, 10 and 11 of the statement of claim. The implied part of the agreement is alleged to arise or to be inferred from the fact that the defendant held itself out as an experienced builder of high quality houses in Western Australia and that the defendant 'recommended natural limestone as a building material to be used in the construction of the house'.
It is not necessary to dwell on the question whether, given the 'entire contract' provision in cl 1(a) of the contract, any pre‑contractual representations can be regarded as terms of the contract or whether terms can be implied. That is because, in par 24 of its defence, the defendant admits the allegation in par 20 of the statement of claim which is in the following terms:
It was an implied term of the house and land agreement [that] the natural limestone supplied by the defendant and used in the construction of the house would be:
(a)of high quality;
(b)reasonably fit for the construction of the facings of the house as described in the specification; and
(c)installed by the defendant in a proper manner.
The plaintiff alleges in par 19 of the statement of claim that:
19.It was an express oral term of the agreement that:
(a)the house would be built using high quality natural limestone;
(b)the natural limestone to be supplied and installed by the defendant in the construction of the house would:
(i)be of high quality;
(ii)be visually appealing;
(iii)require little maintenance;
(iv)increase the re‑sale value of the house;
(v)be durable and long‑lasting;
(vi)continue to enhance the visual impact of the house for the reasonable life of the house; and
(c)the defendant's employees responsible for the installation of natural limestone in the house:
(i)were experienced in the installation of natural limestone;
(ii)would ensure that the house was constructed to a high standard of workmanship;
(d)the natural limestone used in the construction of the house would be installed by a bricklayer with experience in the use and installation of natural limestone.
In my view, the allegations in (a) and (b)(i) above add nothing to the admitted implied terms.
I have accepted that Mr Regan made the representations pleaded in par 10 of the statement of claim. However, I do not regard them as being promissory in nature, such that they could reasonably have been regarded by the plaintiff as contractual terms. In any event, a representation that limestone would be 'visually appealing' can be no more than a statement of opinion because the visual appeal of any building material is entirely subjective. Further, I can see nothing in the representations made by Mr Regan in September 1998 which would support a term that natural limestone would 'continue to enhance the visual impact of the house for the reasonable life of the house'.
The representation that limestone would require little maintenance and would be durable and long‑lasting do not, in my view, add anything to the admitted implied term that the natural limestone used in the construction of the house would be of high quality. That is because the evidence suggests that high quality limestone requires little maintenance and is durable and long‑lasting.
I have already described representations about the re‑sale value of the house in the defendant's brochure as mere puff. I place in the same category any representations to that effect made by Mr Regan.

The breach of contract claim

In par 23 of the statement of claim the plaintiff alleges that:
Negligently, and in breach of its contractual duties to the plaintiff arising from the terms of the house and land agreement set out in paragraphs 18 to 20, the defendant supplied and installed inferior and unsuitable limestone in the construction of the external and part internal facings of the house.
Particulars
Almost all of the natural limestone blocks supplied by the defendant for the construction of the house have obviously deteriorated. The plaintiff estimates that 25% have extensively deteriorated and have:
(a)cracked;
(b)split;
(c)spalled;
(d)pitted;
(e)crumbled;
(f)holed; and/or
(g)otherwise deteriorated in a manner which renders them:
(i)structurally unsound; and/or
(ii)visually unappealing; and/or
(iii)otherwise unacceptable for the construction of the house.
In my view, the claim in negligence does not add anything to the claim for breach of contract. For that reason, I shall not make any further reference to it.
The estimate that 25% of the limestone blocks had deteriorated extensively was made by the plaintiff by 'walking around' (ts 158). However, the plaintiff carried out a more detailed quantification in March 2007, apparently, for the purpose of a mediation (ts 153).
The plaintiff then produced a table in which he identified 31 discrete areas of the house and counted the number of limestone blocks in each area. He then counted the number of blocks he considered required replacement and those which, in his view, showed sufficient damage to require some repair.
The areas referred to in the table are identified by reference to a plan of the house (exhibit 1/58 ‑ 59).
The plaintiff counted 3,402 limestone blocks. He considered that 521 required replacement and 1,972 needed some repair. The balance of 909 blocks were considered satisfactory.
In cross‑examination, the plaintiff said:
I think the bricks that I've listed under the column as Replacement have got every indication of being soft, cracked and large holes. Yes, they are totally visually displeasing and, yes, I believe that they are to be replaced.
The plaintiff went on to say that as a layman, he contended that those blocks were structurally unsound (ts 154).
As will be seen, it is now accepted by the plaintiff that the house as a whole is not structurally unsound. As I have noted above, whether or not the limestone blocks are 'visually unappealing' is a subjective question about which opinions can differ widely. There is no standard by which the question can be judged. However, the defendant relies on a document entitled 'Guide to Standards and Tolerances 2007', produced in collaboration by the Victorian Building Commission, the Office of Fair Trading NSW, the Tasmanian Government and the ACT Government (exhibit 2/34).
Section F of the guide relates to the inspection of surfaces from a normal viewing position. It provides:
Generally, variations in the surface colour, texture and finish of walls, ceilings, floors and roofs, and variation in glass and similar transparent materials are to be viewed where possible from a normal viewing position. A normal viewing position is looking at a distance of 1.5 m or greater … with the surface or material being illuminated by 'non‑critical light'. 'Non‑critical light' means light that strikes the surface is diffused and is not glancing or parallel to that surface.
The defendant contends that many of the defects about which the plaintiff complains have been exaggerated because the plaintiff has viewed them from a distance closer than 1.5 metres.
The defendant sought to counter the plaintiff's evidence as to the nature and extent of the defects by tendering a series of photographs of the house. The photographs were taken by Mr Pritchett in the week before the trial. The points at which they were taken were marked on a plan of the house (exhibit 9). It appears from the photographs that they were taken at distances considerably greater than 1.5 metres from the surfaces they depict. The photographs are not of good quality. They show major defects, but not a large number of imperfections identified by the plaintiff, which, I accept, do exist. I shall consider the significance and extent of these imperfections, having regard to further evidence referred to below.

The plaintiff no longer contends that (at least taken as a whole) the limestone blocks are structurally unsound: and there is no provision in the contract relating to the appearance of the limestone blocks. The principal issue between the parties is, therefore, whether or not the defendant did supply high quality limestone. Put another way, the issue is whether the imperfections are a normal feature of high quality limestone, or whether they are the result of premature ageing and indicate a lower quality of limestone which is unacceptable for the construction of the house.
In order to resolve this issue, it is necessary to set out the history of the matter and to review the expert evidence adduced in support and in opposition to the plaintiff's claim.

The construction of the house

The defendant carried out the construction of the plaintiff's house from late 1998 until December 1999, when the plaintiff took possession.
As required by the specification, the external walls of the house were constructed from an inner leaf of clay brick and a cladding of limestone blocks, separated by a cavity. Limestone blocks were used also to construct the interior walls of two garages which are set at either end of the house.
While the house was under construction, Mr Pritchett was the defendant's finance and administration manager. He had then been with the defendant for some 15 years and knew that the defendant had not built a house using limestone blocks. That being so, the defendant was unable to build the plaintiff's house with the tradesmen it then had available. Mr Pritchett therefore suggested that the defendant 'get a supply‑and‑install contract with somebody to do it' (ts 506 ‑ 507). It seems that the defendant sub‑contracted the block laying work to one John Mayben, trading as Mayben Masonry.
The defendant called as a witness, Jeffrey Maxwell Jones, who, between 1998 to 2000, was a director of Jeffrey Jones Pty Ltd which was then trading as Limestone Resources Australia (Limestone Resources). That company carried on the business of quarrying and supplying limestone in Western Australia. It produced limestone from two quarries: Carabooda from a quarry at Wanneroo, and Moore River from a quarry at Guilderton. Carabooda limestone is the finer grained material and has a cream colour. Moore River limestone is coarser grained and is of 'biscuity colour' (ts 658).
Mr Jones had worked in the limestone industry since approximately 1993 when he started 'as a general quarry person'. He progressed to managing the Carabooda quarry.
In about May to August 1999, Limestone Resources received orders placed by Mayben Masonry to supply Carabooda limestone blocks to the plaintiff's land in Cessna Drive, Jandakot.
Mr Jones was not involved personally in the supply of the limestone blocks. However, for the purpose of giving evidence, he examined invoices issued by the company to Mayben Masonry and reconciled them with Limestone Resources' bank statements (ts 659). These invoices (which were tendered as part of Mr Jones' evidence in chief, exhibit 41) showed that approximately 150 square metres of limestone were delivered and that the blocks had been diamond‑cut 'which involves a secondary cutting process to the quarry cutting' (exhibit 36, pars 6 ‑ 9).
As appears from the invoices produced by Mr Jones, the dimensions of the blocks supplied by Limestone Resources to Mayben Masonry were 500 x 245 x 100 mm. Thus, the face area of each block was 500 x 245 mm, being 0.1225 square metres. Dividing 150 square metres by the area of each block produces a result of 1,224.5. That is therefore the approximate number of blocks which must have been supplied by Limestone Resources.
That is, however, only some 36% of the number of blocks used in the construction of the house. I have accepted the plaintiff's evidence that he counted about 3,402 in the course of carrying out the survey to which I have referred above. This equates to a surface area of some 416 square metres.
Mr Jones said in his evidence that he understood that approximately 300 square metres was used for the plaintiff's house. He therefore believed that Limestone Resources had not supplied all the limestone blocks used in the construction.
For the reasons set out above, I think it probable that Mr Jones' conclusion is correct.
Mr Jones gave extensive evidence about the quality control arrangements in place at Limestone Resources at the material time. He referred also to the skill and reputation of John Mayben, the proprietor of Mayben Masonry. Mr Jones said that on the basis of his dealings with Mr Mayben, if Mr Mayben had any 'issues' about the limestone blocks supplied by Limestone Resources, he would not have laid them, and would have contacted Limestone Resources (exhibit 41, par 17). I accept Mr Jones' evidence. However, it does not assist me in reaching any conclusion about the quality of the limestone blocks actually laid by Mayben Masonry, particularly as it seems that nearly two‑thirds were obtained from a supplier other than Limestone Resources.
Mr Mayben was not called to give evidence. I therefore know nothing of his modus operandi. Nor do I know the source of the blocks other than those supplied by Limestone Resources; or whether Mr Mayben personally laid the blocks or whether the work was carried out wholly or in part by others.
What is clear, however, is that when the house was completed in about December 1999 and the plaintiff took possession, he was entirely satisfied with the limestone cladding and the workmanship of the stonemason. I accept his evidence that he was
most impressed with the overall cleanliness and the limestone. All of the blocks were smooth and apart from a few minor stains the appearance of the limestone was very good (exhibit 2, pars 34 ‑ 35).
Indeed, such was the degree of satisfaction with the house that, with the plaintiff's permission, the defendant used it as a showcase in the annual builders' awards. The plaintiff was satisfied also with the defendant's performance. He had some other houses built for him by the defendant.

The emergence of defects in the limestone

The plaintiff said that for some three and a half years, the limestone blocks looked 'great'. His evidence was that in July 2003 he saw that the limestone had started to crumble and large holes had begun to appear in the blocks. He said this was to at least 90% of the house: 20% had serious damage and 70% showed damage of some kind (exhibit 3, pars 37 ‑ 39).
As I understood the plaintiff's evidence, he was not suggesting that 90% of the blocks had holes in them. Rather, he was saying that in over 90% of the house there were holes in some of the blocks. The plaintiff confirmed that interpretation of his evidence (ts 184).
By way of explanation, the plaintiff said that he noticed this phenomenon following his return from overseas, after an absence of perhaps two to three months (ts 19). However, he also said that:
Literally this thing happened overnight. It was like a time clock on it (ts 189).
And:
It was like a time bomb (ts 191).
There is nothing in the expert evidence relating to the characteristics of natural limestone which would explain a sudden change in its appearance, such as that described by the plaintiff, in the absence of any chemical attack or the application of some force. I accept the plaintiff's evidence that to his knowledge, nobody had treated or touched the limestone between the date he took possession and July 2003 (ts 191 ‑ 192). The plaintiff was overseas for extended periods during that interval. However, I am satisfied that if any work had been carried out on the limestone walls during his absence, he would have known about it.
The plaintiff impressed me as a truthful witness and I accept that he noticed what he thought was deterioration in the way he described. However, I do not accept that the deterioration occurred suddenly.
On the balance of probabilities I think the explanation for the phenomenon observed by the plaintiff lies in the fact that the limestone blocks had been cut using a diamond‑tipped saw, which was lubricated with water or slurry when engaged in cutting. I accept the evidence of Mr Jones that blocks produced by Limestone Resources were cut in this way. Although, as I have noted above, it seems that Limestone Resources did not supply all of the blocks used in the construction of the plaintiff's house (at least, not directly), the generally uniform appearance of the blocks, as can be seen from the various photographs in evidence, suggests that they were all cut in the same way.
Evidence was given by Dr Armand Zurhaar, a consulting and forensic and materials scientist, who was called by the defendant. Dr Zurhaar has a Bachelor's degree, a Master's degree and a PhD in applied science (applied chemistry). He has been consulted in many aspects of his field of expertise since 1985. Of particular relevance is his work involving the analysis and examination of limestone structures. He also investigates the suitability of new limestone for specific applications. Dr Zurhaar 'operates a complete chemical and physical testing laboratory' for the analysis and characterisation of materials under investigation (ts 577 ‑ 578, exhibit 34/3 of 33).
In a report dated November 2007 (exhibit 34), Dr Zurhaar said:
Limestone blocks that are produced by diamond saw cutting initially exhibit very smooth and uniform faces, particularly when the cutting swarf (or slurry) is impacted into fractured pores, holes and crevices. As the cut face weathers or is subjected to water washing, the impacted powder is removed and the texture of the stone remains. The durability and surface texture is highly variable and dependent upon a number of variables including composition, sedimentation, orientation, source location, age etc. All limestone progressively exhibits a more highly textured and 'pitted' surface upon ageing and weathering.
I accept that evidence. I therefore consider it probable, and find as a fact, that over a period of time from the completion of the plaintiff's house down to July 2003, the process of weathering described by Dr Zurhaar took place slowly, but was not observed by the plaintiff until July 2003, when he returned from a lengthy overseas business trip. I find that the plaintiff then noticed the condition of the limestone and assumed that the weathering which he then observed had occurred suddenly. For reasons to which I shall refer below, I am satisfied that much of the limestone was softer than it should have been, and that this is reflected in the rate of weathering.
Mr Jones' evidence was that Limestone Resources recommended to its customers that after limestone blocks had been laid, they should be pressure cleaned to remove any dirt or dust and that they should then be sealed (exhibit 36, par 23).
In the present case, Limestone Resources' customer was Mayben Masonry. Mr Jones said that from his knowledge of Mr Mayben, it was not Mr Mayben's practice to pressure clean limestone or to seal it. Mr Mayben was concerned only to lay the limestone and would leave cleaning and sealing to others (ts 661).
This is not, of course, evidence that Mr Mayben did not clean the limestone after he had laid it. There is no evidence from the defendant as to whether it carried out any such cleaning.
However, the fact (as I have found it to be) that the limestone exhibited a smooth finish at the completion of construction, suggesting as it does that the cutting swarf or slurry had filled surface voids, is inconsistent with the limestone having been cleaned post‑construction.
Further, the plaintiff was informed by a representative of the defendant that the limestone had not been washed, sealed or hardened. I shall refer to this evidence below.
At about the time the plaintiff noticed the change in the appearance of the limestone blocks, there was an incident in which one of the 'up and over' garage doors fell down while the plaintiff was opening it. I accept the plaintiff's evidence that he was able to hold the door up while his wife drove the car from the garage to avoid it being damaged by the falling door. I accept the plaintiff's evidence that the defendant carried out repairs to the doors and their fittings. However, it is not clear whether the incident resulted from the failure of the limestone to which the door supports were fixed, or from an inadequate fixing.

The plaintiff complains

In about July 2003, being concerned about the apparent deterioration in the limestone blocks, the plaintiff asked representatives of the defendant to carry out an inspection.
In his evidence, the plaintiff said he telephoned the defendant's supervisor, Mr Wally Tyler, who visited the property with Mr Pritchett. As I have noted above, Mr Pritchett is an accountant, not a builder. He denied that he had inspected the property. That conflict of evidence was resolved when the plaintiff realised that his recollection was incorrect: it was agreed that the defendant's employee who accompanied Mr Tyler was Ed Clent (ts 226).
Neither Mr Tyler nor Mr Clent was called to give evidence.
I accept the plaintiff's evidence that at the meeting, one or other of Mr Tyler or Mr Clent said that the limestone blocks needed some repair and that they would arrange for the supplier to inspect and see what might be done to identify and repair the fault (exhibit 3, par 41).
There was a subsequent meeting at the plaintiff's house. It was attended by the plaintiff, Mr Clent, John Burns the defendant's construction manager and Colin Verth, a representative of Limestone Resources.
The plaintiff's evidence was that Mr Verth asked Mr Pritchett (by which he meant Mr Clent) whether the limestone blocks had been washed, sealed and hardened. Mr Clent said they had not: and Mr Verth said that should have been done. Mr Clent said that the bricklayer had not told the defendant that any such work was required.
According to the plaintiff, Mr Verth told Mr Clent that the defendant should have been responsible for carrying out the work of washing and sealing. However, Mr Verth offered the defendant the materials necessary to repair the limestone at no charge, if the defendant would supply the labour necessary to effect the repairs.
Mr Clent said the defendant would not do so, because it was the responsibility of Limestone Resources.
The plaintiff said that both parties left his property still arguing, not having reached any agreement.
The defendant objects to the plaintiff's evidence about the meeting on the basis that it is conclusionary, hearsay and 'rolled‑up'.
I do not accept that the evidence is objectionable. Essentially, it is a statement made by a representative of the defendant about the way in which the defendant carried out the work in question. In any event, the plaintiff confirmed his evidence in cross‑examination (ts 196 ‑ 197).
The defendant called Mr Verth to give evidence. He said he commenced employment with Limestone Resources on 22 May 2000 as a sales representative. Later in that year, he took on the position of General Manager.
Mr Verth recalled attending an inspection of the plaintiff's house sometime during 2003 in the company of a representative of the defendant and the plaintiff.
Mr Verth did not recall saying that the limestone blocks should have been washed and sealed at the time of construction. However, he accepted that he might have done so because, at the time, that was Limestone Resources' recommendation.
Mr Verth's evidence, which he confirmed in cross‑examination, was that in the course of the inspection, he formed the view that the defects in the limestone blocks pointed out by the defendant were the result of natural ageing. However, he considered that the limestone appeared to be worn to a greater extent than he would have expected for its then age (exhibit 47, par 8 and ts 690).
Mr Verth's qualification for making that statement is somewhat limited because he had been looking at limestone only for a period of some two years before the meeting at the plaintiff's house (ts 690).
Mr Verth said in his evidence that he did not recall having an argument with the defendant's representatives.
He said also that the appearance of the limestone blocks suggested that they might have been cleaned in some way, possibly using a high pressure system.
Although, as I have noted above, the plaintiff was mistaken in his evidence that Mr Pritchett had attended the meetings, my impression was that the plaintiff had a good recollection of the discussion: and certainly, a better recollection than Mr Verth. The defendant did not seek to adduce evidence from Mr Burns. In any event, I accept the plaintiff's evidence as summarised above.

The defendant attempts some patching repairs

I accept the plaintiff's evidence that shortly after the meeting attended by Mr Verth, one of the defendant's construction managers from Mandurah came to his house to carry out some patching. He applied some putty to one of the columns at the gazebo. However, the putty was a pink colour and did not match the limestone. The plaintiff stopped the work after only a small area had been repaired in this way 'because it was obvious it didn't work' (ts 226).

The plaintiff engages a contractor

Having regard to the impasse between the defendant and Limestone Resources, the plaintiff decided to have the limestone blocks treated at his own expense, this being Limestone Resources' recommendation.
I accept the plaintiff's evidence that, being unsure who to contact for this purpose, he spoke to Mr Regan who advised him to speak to 'the Riverstone people' (ts 201). This is a reference to the RiverStone [sic] Construction Company (Riverstone).
The plaintiff spoke to Mark Stratfold, a director of Riverstone, and as a result of his recommendation, engaged Paul Stratfold (Mark Stratfold's brother) to clean and seal the limestone. At that time, Paul Stratfold, and his father, Gordon Stratfold, were carrying on business in partnership together, in which they cleaned, sealed and treated limestone.
Mr Paul Stratfold gave extensive evidence on behalf of the plaintiff and was cross‑examined at considerable length. In the course of cross‑examination, it was put to him that Riverstone had a 'well recognised reputation in the industry … as being builders of quality limestone property' (ts 369). I take that to be the defendant's position.
Mr Stratfold's evidence was that in about 1995, he and his father were approached by Riverstone and asked to find a way of cleaning limestone. Mr Stratfold and his father then had no experience in this field. They therefore carried out their own research. They did so by using various cleaning methods on some 50 or 60 limestone blocks they had obtained for the purpose. The methods employed included acid, high and low pressure water, all forms of industrial cleaners, wire brushes and brooms. The Stratfolds proceeded on a trial and error basis because at the time, there was no one carrying out this kind of work in Western Australia. They found that high pressure water washing was the most effective method, and they tried a number of types of equipment available for that purpose.
Mr Stratfold said that to his knowledge, he and his father were the only people carrying out work of this kind professionally (ts 369 ‑ 370).
Mr Stratfold impressed me as a careful and conscientious witness. I accept this evidence, as I do generally, his evidence of fact.
Mr Stratfold said at the time, he was using a Karcher 720 high pressure hose which was capable of delivering water up to a pressure of 160 bar which is approximately 2,300 pounds per square inch (psi). However, the pressure could be reduced to about 1,200 psi (ts 370). He said he started high pressure cleaning by a 'sweep' of a length of block work three blocks wide. He said he did this twice in two different areas but stopped when he observed a 'falling away' of the limestone:
The sand that actually came out of the stone was very coarse, like 36 grit. It was large chunks of stone (ts 376).
This occurred even though he held the cleaning wand so that the nozzle was about 0.5 metres away from the wall, about twice the usual distance. Mr Stratfold was surprised by this result, because he had not experienced it previously: 'I had never come across limestone that had done that before'.

Because the limestone was too soft to be cleaned, Mr Stratfold ceased the work and pointed out the problem to the plaintiff (exhibit 16, pars 9 ‑ 10, ts 382 and 387).
The plaintiff's evidence was to the same effect. He said that within 25 minutes of his arrival, Mr Stratfold informed him that he could not carry out any of the repairs. Mr Stratfold showed the plaintiff that the limestone blocks 'were soft and were falling/crumbling away' (exhibit 3, par 47 and ts 206).
Mr Stratfold's evidence was that 95% of the limestone he works on is under construction and is cleaned to remove the swarf, which is a very fine dust. This is the material to which I referred above, which remains on the surface of the limestone after it has been cut. Mr Stratfold said that if the swarf was not removed, it would fret away over time, resulting in an accumulation of dust. This was a phenomenon observed by the plaintiff, in his garage.
As I understand it, Mr Stratfold was called by the plaintiff both as a witness of fact and as an expert witness. However, the defendant objected to Mr Stratfold giving evidence in the latter category. Indeed, leading counsel for the defendant put to the plaintiff in cross‑examination that Mr Stratfold was simply a labourer.
Accepting, as I do, Mr Stratfold's evidence about the process by which he and his father came to learn the techniques of limestone cleaning and sealing, I consider that Mr Stratfold has developed an expertise in this specialised field. While I accept that the expertise does not qualify Mr Stratfold to express an opinion about the structural integrity of the limestone, I consider that he is entitled to express a view about the quality of the limestone used in the construction of the plaintiff's house, in comparison with the quality of limestone used in the construction of other buildings he had cleaned in the eight years before he carried out the initial work at the plaintiff's house. I accept Mr Stratfold's evidence that during this period he had cleaned limestone at over 360 jobs, using a water pressure of 2,300 psi at a distance of 250 ‑ 300 millimetres from the surface (ts 387).

Mr Stratfold writes to the defendant

I accept Mr Stratfold's evidence that following his short attendance at the plaintiff's house in August 2003, he attended again in September 2003 in the company of two representatives of the defendant (one of whom was Mr Burns), Mr James Lacey from Limestone Resources and a representative of Calmarc Chemicals whose Christian name was Jeff and whose surname was probably Meacham (ts 391). Calmarc Chemicals was Mr Stratfold's supplier of limestone sealant (ts 386).
I accept further, that Mr Burns asked Mr Stratfold to write to him about the condition of the limestone at the plaintiff's house.
On or about 12 September 2003, Mr Stratfold wrote to Mr Burns. In the letter (exhibit 2/22) Mr Stratfold referred to the fact that:
Upon first inspection, I was impressed at the overall cleanliness of the limestone. There were no 'dags' or any slurry at the joints of the stone.
Mr Stratfold went on to refer to some stains which he treated by the application of chlorine. That is not relevant for present purposes. He continued:
I began pressure cleaning with water, and noticed how soft the stone was. Considering that the stone had been laid for over 6 years and parts of it were subject to no rain it had me stumped.
There were stains around the tops of the piers that although appeared to be a dark soil, turned out to be in fact rust. A blade was run over the limestone in this area to reveal that the stone was collapsing in these areas of discolouration. The blade dug straight into the areas and visible gouges were left in the stone.
I continued to clean until it became apparent that a foreign product had been previously used to clean the stone. This would account for the softness that the stone now has.
The continued cleaning and sealing of the stone with the introduction of an alkali reinforcer will run in the vicinity of $4,000. Also in my opinion the stone would need to be patched in places to aid the binding of the sealant at a cost of $450.
There is no warranty implied or given that this treatment will work. However I am of the opinion that this is the only course of action available.
In my view, Mr Stratfold was not qualified to form an opinion that a foreign product had been used to clean the limestone. Because the limestone was much softer than limestone he had encountered previously during his cleaning activities, he seems to have assumed that there must have been some reason for this phenomenon, other than the inherent quality of the limestone.

The defendant proposes an investigation

On 20 November 2003, Mr Clent met the plaintiff at his house. The meeting is the subject of a letter sent by facsimile from Mr Clent to the plaintiff's wife, Tatiana Willshee, on 2 December. In the letter, Mr Clent referred to the decision taken at his meeting with the plaintiff to 'proceed with a preliminary investigative report from a geologist to establish the limestone's properties in relation to Australian Stds [sic Standards]'.
Mr Clent went on to say in his letter that the consultant geologist, Kim Bamblett, would require permission to carry out core sampling from a number of areas of the limestone wall. Mr Clent said there would be approximately three to nine cores sampled. He said that this was discussed and approved by the plaintiff on 20 November at the site meeting. He asked Mrs Willshee to acknowledge her agreement for the test to be carried out by signing and returning the letter by facsimile.
It appears that Mr Clent communicated with Mrs Willshee, rather than the plaintiff, because the plaintiff was then overseas. Mrs Willshee signed the document giving permission for the test to be carried out.
I accept Mrs Willshee's evidence that 'the man' (who was not identified) arrived at the house at about 8.30 am. After a couple of hours she asked him how long it would take him to do his job so that she could plan the rest of her day. In fact, he continued for a further two hours before telling Mrs Willshee he had finished and was leaving.
Mrs Willshee referred in her witness statement to an opinion as to the quality of the limestone expressed by the person who came to the house by arrangement with Mr Clent. Objection was taken to the evidence on the grounds that it was hearsay. In my view, the objection is well‑founded and I therefore decline to admit the relevant passages: exhibit 11, pars 13 and 14.
Mr Pritchett was asked in cross‑examination whether there had been any 'preliminary investigative report' as foreshadowed by Mr Clent in his letter of 2 December 2003 to Mrs Willshee. Mr Pritchett said that the work was not carried out because Mr Bamblett had quoted some $4,000 and would have required to take out 10 or 20 blocks, 'but at that type of price with that type of intrusion, we decided not to go ahead with it' (ts 520). Mr Bamblett was not called to give evidence.
Mr Pritchett went on to say in cross‑examination that the defendant disagreed that there was any problem with the limestone used in the construction of the plaintiff's house. However, as will be seen, that was not the position adopted by the defendant in subsequent correspondence with the plaintiff.
I accept that Mr Clent's letter of 2 December 2003 contains an accurate summary of the agreement made between him and the plaintiff on 20 November. I accept Mrs Willshee's evidence that the plaintiff was overseas on business on 2 December 2003. I infer that he left shortly before that date, because, on 30 November 2003, he wrote to the defendant's company secretary, Graham Fellows, to set out his concern and to threaten legal action if nothing was done to rectify the problem as he saw it (exhibit 1/28).

The plaintiff requests action

The plaintiff's letter of 30 November 2003 was headed 'FIRST AND FINAL NOTICE'. It was as follows:
In 1999 Plunkett Home's (Design Five) built my home, Plunkett have used my home as a show case in the annual builders awards. In July this year I contacted Mr John Burns your Construction Manager to inspect my house because serious defects had started to appear in the Carabooda lime stone brick work. Colin Verth from Limestone Resources came to my house with John Burns on several occasions to inspect the limestone.
My house 20 weeks ago was in perfect condition, over the past 20 weeks the limestone has started to crumble and large holes appear in the bricks, at least 90% of the house has this defect. Over the past 2 ‑ 3 weeks the condition / fault of the bricks have accelerated. Several bricks have broken / snapped in two and large holes have started to appear on both sides of the brick. Carabooda say that the bricks urgently need attention to stop them crumbling away. I am serving notice to The Plunkett Group to take urgent action to repair / replace all the limestone bricks or I will be forced to take legal action against your company. I give your company 14 days to come up with the solution to the problem before I take legal action.
On 22 December 2003, Mr Fellows replied on behalf of the defendant (exhibit 1/30). He said:
I refer to your correspondence of 30 November 2003 concerning the condition of the limestone at your residence.
Plunkett Homes has taken serious note of your request for repairs or replacement of the limestone and has referred this matter to its consultants for advice on the best method to proceed.
Our preliminary advice from our engineers is that the current condition of the limestone does not present a problem structurally that would inhibit your occupation of the house.
However, we need to find out the cause of the phenomena so we can understand and determine the type or types of solutions that are available.
To assist us in this process we have obtained your permission to inspect the limestone with our consultants. During these visits there will not be any invasive testing undertaken. Should invasive testing become necessary we will contact you with the appropriate details and scope of the testing to obtain further approval.
Unfortunately with the festive season only a few days away and with the annual building industry shut down we will be unable to carry out these preliminary investigations under the middle of January 2004.
I propose to contact you in January to arrange suitable times.
Please rest assured that we will investigate the matter to find out the appropriate solutions.
In my view, it is significant that the stance taken by the defendant as at December 2003 is quite different from that taken in its defence to the plaintiff's claim. Mr Fellows did not deny that there was a problem (albeit not of a structural nature). Indeed, his assurance that the matter would be investigated 'to find out the appropriate solutions' must be taken as an acknowledgment that a problem did exist.

Dr Zurhaar's inspection

Although the defendant did not obtain a report from Mr Bamblett, it did request assistance from Dr Zurhaar, to whom I have already referred.
In his report dated November 2007, Dr Zurhaar said he attended at the plaintiff's house on 4 February 2004
to carry out a comprehensive examination of the state of the external limestone blocks to the home. The objective of the inspection was to obtain a first hand perspective of the alleged defects and their perceived consequences (exhibit 34/6 of 33).
Dr Zurhaar said that during the inspection he noted the following points:
1.The whole of the external limestone blockwork walls exhibited an appearance of accelerated pitting for its age and was characteristic of having been subjected to an external influence such as abrasive blasting.
2.There is a range of surface quality with some blocks exhibiting greater prevalence of holes and porosity than others.
3.The mortar joints are intact and well bonded to the limestone blocks.
4.There is no evidence of structural movement in walls that are symptomatic of structural issues.
5.Repaired cracks are sound and exhibit no ongoing movement.
6.Some fissures and sedimentary folds have been incorrectly identified by others as 'cracked' blocks.
7.The attempted patching repairs is of poor quality and aesthetically unacceptable.
8.Some localised blocks exhibit excessive erosion and require replacement.
9.There is virtually no visible evidence of any sealer or polymeric coating on external weather‑exposed walls.
10.The limestone blocks used in the construction appear to be structurally adequate even though many surfaces exhibit the presence of surface pitting and organic matter spalling.
The appearance of the limestone as described by Dr Zurhaar in par 1 above is, I think, consistent with the plaintiff's complaint. The term 'accelerated pitting' largely encapsulates the phenomenon observed by the plaintiff in July 2003.
I accept Dr Zurhaar's evidence that the appearance of the limestone as he saw it was characteristic of having been subjected to an external influence such as abrasive blasting. He expressed his opinion in that way because he had been told that there had been 'some form of aggressive external treatment such as water blasting' (ts 622). However, I find as a fact, that the limestone used in the construction of the plaintiff's house had not been subjected to any such treatment. The only 'blasting' which had been carried out by that date was that carried out by Mr Stratfold in August 2003. That process involved the use of water, not an abrasive: and more importantly, it was carried out over a very small surface area.
The observations to which Dr Zurhaar referred in par 8 and the second part of par 10 above are also consistent with the plaintiff's evidence.
Dr Zurhaar inspected the limestone again in late August or September 2005 (ts 653) and on a third occasion shortly before the trial. In the course of his examination in chief, he was asked whether he had noticed any change in the appearance of the limestone between that visit and his 'previous visit'. He answered:
Between November 2007 and January [sic - February] 2004, no, I did not notice any appreciable difference. In fact I was surprised in November when I looked at the stone that it actually appeared to be in, you know, a very stable condition. I saw no deterioration (ts 588).
In my view, this is significant evidence, having regard to the fact that, as will appear below, Mr Stratfold water‑washed and sealed the whole of the exterior limestone in October 2004. Accepting Dr Zurhaar's evidence as I do, I conclude that the work carried out by Mr Stratfold did not cause any further deterioration in the limestone and, indeed, stabilised it.
The reference in Dr Zurhaar's par 7 above to 'the attempted patching repairs' being of poor quality and aesthetically unacceptable, apparently refers both to the attempts made by a representative of the defendant to which I have referred above, and also, to patching carried out by Mr Stratfold in October 2004, to which I shall refer below.
I take that view because Dr Zurhaar explained in re‑examination that the 10 points he had listed in his report, as set out above, were 'equally relevant' for the inspection he had carried out shortly before the trial. He said:
They are an accumulated position on the state of the limestone at that property, even though there may be some disparity as to the actual dates on which those observations were made. Nothing is listed there that was there at one point in time and is not there any more now or has in some way changed its status (ts 655).
When asked whether he recalled if there was anything there in 2005 which had not been there during his initial inspection in 2004, Dr Zurhaar said 'I can't recall that difference' (ts 656).
A party cannot, of course, impeach the credit of his own witness. However, I had the impression that in the course of re‑examination of Dr Zurhaar, leading counsel for the defendant was endeavouring to have Dr Zurhaar consider whether his first visit to the plaintiff's house might have been in January or February 2005: in other words, after Mr Stratfold had carried out the cleaning and sealing, not before.
I have considered whether Dr Zurhaar might have been mistaken in his recollection of the date of his first visit to the plaintiff's house. He said in re‑examination that he was called briefly by the defendant's solicitors before the first inspection in January 2004 'which I believe is the correct date' (ts 653). Dr Zurhaar said he subsequently received formal instructions from the defendant's solicitors. The first letter of instruction annexed to Dr Zurhaar's report of 14 July 2005 is dated 17 January 2005. However, Dr Zurhaar was clear in his recollection that he attended early in 2004 (that is, either in January or February of that year). That is consistent with his understanding that a geologist was to be consulted (ts 639). The defendant decided early in 2004 not to proceed with the geologist, Mr Bamblett. Further, in his report of November 2007, Dr Zurhaar identified 4 February 2004 as the date of his attendance, a date which I expect, was identified by reference to his 2004 diary (ts 653).
I therefore have no reason to doubt that Dr Zurhaar's first attendance was on 4 February 2004.

The plaintiff commences proceedings

The plaintiff commenced these proceedings by writ issued on 15 April 2004. However, he remained concerned about what he regarded as the continued deterioration in the limestone and the possibility of structural failure. He therefore considered it appropriate to take remedial action in advance of any resolution of the dispute.
The plaintiff asked the lawyer who was then acting for him whether his case would be affected if he undertook remedial work. The plaintiff's evidence, which I accept, was that he was advised that his case would not be prejudiced if he carried out remedial work and took photographs of that work (ts 235).

Some limestone blocks are replaced

The plaintiff's evidence is that in about October 2004, he instructed Mr Stratfold and his father to 'do the best repair they could to remove the damaged bricks, seal and harden the walls' (exhibit 3, par 53). This was on Mr Stratfold's advice (ts 244).
The plaintiff's recollection was that Mr Stratfold had removed and replaced a number of blocks. However, I am satisfied that he was mistaken, and that the work was carried out by Paul Schreurs.
Mr Schreurs gave evidence that he has a trade certificate as a bricklayer and mason: that he had been in the building industry for approximately 36 years and that he had been working with limestone as a bricklayer/stone mason for 'a good 30 years'.
Mr Schreurs impressed me as a straight‑forward honest witness. Subject to one matter, I accept his evidence in its entirety (exhibit 21 and ts 478 ‑ 483).
Mr Schreurs said that at the material time, Mark Stratfold from Riverstone asked if he would carry out some work on the plaintiff's house. Mr Schreurs was then working on a house nearby. (I infer that because Mr Stratfold was not a mason or bricklayer, he asked his brother Mark to assist.)
Mark Stratfold took Mr Schreurs to the plaintiff's house and walked round with him. He pointed to a number of blocks that were in poor condition and asked Mr Schreurs to cut them out and replace them with new ones.
Acting on that request, Mr Schreurs removed about 20 blocks which he cut out with a hammer and a bolster. He then cleaned the resulting cavities and replaced the blocks he had removed with new ones which he obtained from a nearby site where a house was being built for Riverstone. The blocks were identical in size to those he had removed.
Mr Schreurs said he left the limestone blocks he had removed, at the site (that is, at the plaintiff's house). He said that the blocks so removed were not in good condition and that although they had not 'turned to dust' they had fallen apart.

Dr Kucharski noticed that the qualitative tests confirmed that the limestone obtained from the plaintiff's house was considerably weaker and more friable (that is, susceptible to deterioration on handling) than the samples of Carabooda and Moore River limestone, which were both obtained from Limestone Resources. Dr Kucharski reported that each time the samples from the plaintiff's house were handled, some loose material would fall away.
Further, Dr Kucharski found that the material from the plaintiff's house was much easier to cut than the samples of Carabooda and Moore River limestone.
The weight loss due to one wet‑dry cycle was much more extensive in the limestone taken from the plaintiff's house than it was for Carabooda and Moore River limestone. Two test samples lost 0.41% and 0.45% of their weight respectively. This compared with 0.06% for Carabooda limestone and 0.11% for Moore River limestone. Dr Kucharski expressed the view that:
The Carabooda limestone obtained from the house lost on average 0.43% of its weight in this test, which is seven times the amount lost by the Carabooda sample obtained from Limestone Resources. This would suggest that the rate of deterioration of the limestone used in the construction of the house would be around seven times faster than that which would normally be expected for Carabooda limestone.
Dr Kucharski explained in cross‑examination that this was only a suggestion (ts 333).
It was put to Dr Kucharski in cross‑examination, that because the two blocks taken from the plaintiff's house on which he conducted his tests were defective - that being the reason for their removal - they could not be regarded as typical examples of the blocks used. However, Dr Kucharski tested only sound sections of the blocks. He said those sections looked 'very representative' to him of the rest of the structure (ts 360).
I accept that evidence. Indeed, as Dr Kucharski pointed out, the results obtained from the three samples were very consistent.
As to comparison between the limestone used in the plaintiff's house and the samples obtained from Limestone Resources in 2005, Dr Kucharski said:
All I was trying to do was to understand where the limestone used in [the plaintiff's] house compared with other limestones that were available in the overall scheme of things (ts 340).
The samples from Limestone Resources were obtained some six or seven years after the plaintiff's house was constructed. However, it is agreed by the experts that limestone tends to harden with age. It follows that the limestone used in the construction of the plaintiff's house is likely to have been softer originally than it was when Dr Kucharski carried out his tests, albeit marginally softer.
One indication of the quality of the limestone used in the construction of the plaintiff's house, in what Dr Kucharski described as 'the overall scheme of things', appears from a graph relating the strength of natural limestone to its density. Dr Kucharski included the graph in his report of 7 November 2007 (exhibit 13). The graph is taken from the book 'The Building Limestones of France' by D B Honeybone. The author has plotted volumetric mass (ie. density) on the horizontal axis against compressive strength on the vertical axis for a number of limestone samples so as to produce a curve of average hardness. The graph demonstrates that hardness increases with density.
Dr Kucharski superimposed his results on the graph, showing that the density of the limestone taken from the plaintiff's house and the Carabooda and Moore River samples are all at the lowest part of the graph, reflecting their low compressive strength. This is consistent with the conclusion that none of the samples would satisfy the ASTM standard C568‑03.
Dr Kucharski plotted also on the graph, the results of two studies carried out at Curtin University in relation to the properties of coastal limestone found in the Perth metropolitan region. These confirmed that local limestone follows 'the same correlation of strength with density as that displayed by the extensively studied French natural limestone' (exhibit 13/3 and 5).
Dr Zurhaar was critical of Dr Kucharski because he had not tested the compressive strength of the limestone using the Uniaxial Compressive Strength (UCS) test. However, I accept Dr Kucharski's evidence that it would not have been practical to do so, having regard to the dimensions of the blocks: it would not have been possible to remove 125 mm long core samples to meet the minimum length to diameter criteria required by the UCS test method. Further the number and size of the blocks available to Dr Kucharski, and the impracticality of removing more blocks from the house, effectively ruled out this procedure (exhibit 13/2).
In any event, Dr Zurhaar (who had not carried out any testing himself) conceded in cross‑examination that there would be no point in testing the compressive strength of limestone which failed ASTM C568‑03 on the density criterion (ts 631).
Dr Kucharski's investigations led him to the conclusion that the limestone used in the construction of the plaintiff's house was of 'significant inferior quality' (ts 330).
Dr Zurhaar's criticism of Dr Kucharski's investigation must, I think, be tempered by the following statement contained in his report of 14 July 2005, to which Dr Kucharski referred in cross‑examination:
The quantitative tests carried out included density and porosity measurements and percentage weight loss as a measure of deterioration. We do not recognise these tests as complying with any international test method or any recognised protocol for assessing limestone quality and suitability for use as a building material.
The measurement of density does not require 'an international test method': it is simply the mass or weight per unit volume of the sample (ts 355). Further, as Dr Kucharski pointed out, the statement appeared to demonstrate that Dr Zurhaar was unaware of the work which had been carried out in this field.
Dr Zurhaar said, however, that he had been aware of ASTM C568‑03 but that:
if one is going to assert compliance with a standard it must wholly comply with the standard (ts 629).
I accept that proposition. However, Dr Zurhaar went on to accept Dr Kucharski's point, that limestone which did not satisfy the density criteria specified in ASTM C568‑03 would not meet that standard (ts 631).
It is true, as Dr Zurhaar says, that ASTM C568‑03 is not directed to the quality of limestone in general terms, but rather, to its suitability for building and structural purposes. However, I accept Dr Kucharski's view that in considering quality it is relevant to have regard to ASTM C568‑03.
I have referred above to the evidence of Mr Stoney, the architect.
Mr Stoney visited the plaintiff's house on 31 October 2005, 25 January 2006 and 16 November 2007, shortly before the trial. Mr Stoney provided a written report dated 16 March 2006 (exhibit 28). Mr Stoney included his curriculum vitae in the report. He there said that his experience with limestone had begun with the construction of his own two storey home in 1998, in which he was still living; and a subsequent commission for a similar limestone home early in the 1990s.
Mr Stoney's apparently limited experience with limestone caused the plaintiff's solicitors to question his expertise in this field. As a consequence, on 15 October 2007, the defendant's solicitors wrote to the plaintiff's solicitors setting out further information obtained from Mr Stoney about his experience with limestone (exhibit 30).
In relation to Mr Stoney's own residence, he made a number of comments, including an observation that:
The blocks do have some considerable surface imperfections including holes, sand pockets and surface roughness and they range in hardness from relatively soft to hard.
A little later in the letter, Mr Stoney is reported as commenting that:
Limestone blocks are cut from the quarry in 350 thick 'rough' sawn blocks, which are then cut into 3 No 110 blocks with water lubricated saws, giving a flat face to most surfaces.
The blocks often arrive on site with the surface looking smooth and even and covered with limestone slurry from the wet cutting process.
The slurry generally covers visual imperfections and sand pockets in the block surface and must be washed off before the block is able to be selected as a suitable quality for a face block wall.
Pausing there: for reasons set out above, I am satisfied that no such washing was carried out in the present case, either before the blocks were incorporated into the plaintiff's house, or after the construction had been completed.
Returning to Mr Stoney's report of 16 March 2006; it is to be noted that it was in the form of questions asked of him by the defendant's solicitors, followed by his answers.
In answer to the question 'Has the Limestone deteriorated?' Mr Stoney answered:
Except for some isolated blocks, the limestone did not display abnormal signs of deterioration. Generally, the predominant block surface plains were still flat and level with the mortar joint faces. The mortar joint faces still displayed the jointing tool finish, indicating that there has been no erosion of the mortar joint, and therefore no loss of block thickness.
This was the proposition to which I have referred above, which was put to Dr Kucharski. However, in cross‑examination, it appeared that Mr Stoney regarded deterioration as loss of thickness overall: he was not referring to the parts of the blocks that had spalled or had holes in them (ts 547).
Mr Stoney was then asked whether individual limestone blocks had cracked, split, spalled, pitted, crumbled and/or holed: and whether this was a sign of deterioration or was consistent with the natural progression of the ageing of limestone.
Mr Stoney answered:
Some individual blocks did show evidence of having cracked or split or spalled or pitted or crumbled or holed with some displaying more than one of these 'features'. Some repairs had been carried out so I am only able to comment on those in which these 'features' were still evident.
Blocks which displayed cracking, splitting, spalling or crumbling were not extensive.
In my view, it is significant that Mr Stoney inspected the plaintiff's house only after Mr Stratfold had carried out the extensive patching work: he did not inspect the limestone blocks which had been patched (ts 562). That is, he could not see the condition of the limestone beneath the patch (ts 572). I consider it probable that Mr Stratfold patched the worst of the holes in the limestone, thereby presenting a different appearance from that observable previously. By contrast, it will be recalled that Dr Zurhaar, who inspected before Mr Stratfold had carried out washing and patching, noticed that the whole of the external limestone block work walls 'exhibited an appearance of accelerated pitting for its age'.
Mr Stoney in his report, said:
Almost all blocks displayed a pitted surface. I observed no holes which I felt were inconsistent with the natural characteristics of limestone. The existence of these 'features' is not surprising, given that the walls were blasted with a 1800 psi water jet. The nature of the limestone is that it consists of hard and soft material, and the water blasting will erode the softer material leaving a pitted surface.
Mr Stoney went on to say that the limestone walls had 'a pleasant appearance'.
I have noted above that the defendant's solicitors reported in their letter of 15 October 2007, that the limestone of which Mr Stoney's house was constructed did have some considerable surface imperfections, including holes, sand pockets and surface roughness. Mr Stoney appears to regard this as providing a pleasing appearance. Indeed, that seems to have been the point of his evidence. He did not carry out any tests and was not qualified to opine about structural matters. His experience of washing limestone was confined to 'jetting' at his own house, at a pressure of 1,200 psi, apparently at close range (ts 552). Mr Stoney accepted that he did not have Dr Kucharski's expertise in classifying or testing limestone (ts 565).
Whether or not limestone has a pleasing appearance is a highly subjective consideration. Although the plaintiff complains that the limestone used in the construction of his house is 'visually unappealing', that is not the criterion by which I can judge whether there has been a breach of contract. The question I have to consider is whether the surface imperfections have resulted from excessively rapid deterioration associated with limestone which is not of high quality. Mr Stoney was not asked that question.
With all respect to Mr Stoney, I am not assisted by his opinion that the features he observed in the limestone were 'not inconsistent with the natural characteristics of limestone'. He was, however, asked a series of other questions, including whether, if individual blocks had signs of some or more of the 'features' referred to above, that rendered the limestone 'unacceptable' for the construction of the house. He was asked also whether the limestone was inferior as a building material by reason of the fact that it exhibited these 'features'.
Mr Stoney answered both of these questions in the negative. However, again, those answers do not assist me in determining whether there was a breach of contract.
One of the plaintiff's concerns, from an early stage in the dispute, was whether the defects in the limestone blocks used in the construction of his house, resulted in the building being structurally unsound. That was the view of Mr Stratfold, but, as he accepted, he is not qualified to express that opinion.
As I have noted above, there was evidence directed to the nature and extent of cracks present in a number of the limestone blocks.
The plaintiff called Dr Fiona Chow, a highly qualified geotechnical engineer who, in a report dated 21 June 2005, said she had been asked to comment on 'the current state of the building and the future deterioration that could occur' (exhibit 18).
I do not consider it necessary to refer to Dr Chow's evidence other than to her opinion that:
The current state of the building is such that it could not be described as structurally unsound.
That was also the opinion of Mr Gervase Purich, a chartered engineer who was also of the opinion (expressed in a letter dated 17 November 2003 to the defendant - exhibit 38) that:
... while it is acknowledged that pitting has occurred to some of the limestone blocks it is considered that does not constitute a structural fault and as such, it is considered that the external masonry which has been constructed using limestone blocks is in a satisfactory structural condition.
The plaintiff does not now dispute that the limestone block walls as a whole, are structurally sound (plaintiff's closing submissions, par 24). That being so, that part of par 23 of the statement of claim falls away in which it is alleged that the limestone blocks have deteriorated in a manner which rendered them structurally unsound. And because it is the plaintiff's observation that the sealing carried out by Mr Stratfold has halted the fretting, I see no basis for a finding that individual limestone blocks are likely to deteriorate to the point where they become unsound.

Did the defendant breach the contract?

I have accepted the plaintiff's evidence that a significant number of the 3,402 (or thereabouts) limestone blocks used in the construction of his house have pitted, spalled, and crumbled to an extent which, Dr Zurhaar opines, appears to be excessive for their age. This is consistent with the view of Mr Verth on his inspection in July 2003. It is consistent also with the fact that at the same inspection, either Mr Tyler or Mr Clent of the defendant said that the limestone blocks needed some repair. And it is consistent with the defendant's initial response to the plaintiff's concerns, when it acknowledged there was a problem.
I accept Dr Kucharski's estimate of about 50% overall as being a reasonable assessment of the extent of the blocks affected. This is much less than the plaintiff's contention that some 2,493 blocks (or 73%) are defective in some way. I think that the plaintiff's estimate does not take sufficient account of the expert opinion that some pitting at least is normal and acceptable.
I leave out of account the small number of the blocks removed by Mr Schreurs (perhaps 12) which crumbled when he removed them. It is not clear whether those blocks were affected by Mr Stratfold's initial attempts to clean at the usual water pressure in October 2003.
I have accepted Dr Kucharski's evidence that the limestone samples he took from the plaintiff's house are reasonably representative and that they are less dense and softer than limestone taken from the Carabooda and Moore River Quarries: and less dense than local limestone which was the subject of earlier Curtin University studies. This is consistent with Mr Wallis' evidence, which I have accepted also, that the limestone was soft.
I have accepted Mr Stratfold's evidence that the limestone used in the construction of the plaintiff's house is softer than limestone he has encountered in at least 360 other buildings over a period of some years, which have not deteriorated as a result of the high pressure water washing techniques he customarily employs.
I have accepted further that the washing carried out by Mr Stratfold in October 2004, as a precursor to the sealing process, did not result in any significant further deterioration.
Mr Jones (formerly of Limestone Resources) accepted in cross‑examination that it would be fair to say that Carabooda limestone could be categorised as high quality, low quality and medium quality (ts 660). That, no doubt, explains the necessity for the kind of quality control which Limestone Resources employed in order to achieve its Quality Assured status. However, I have found that only about one‑third of the limestone blocks used in the construction of the plaintiff's house came directly from Limestone Resources: there is no evidence about the provenance of the remaining two‑thirds. I am satisfied that they originated from the Wanneroo quarry because there is no doubt that they have been cut from Carabooda limestone. However, there is nothing to suggest that they were high quality blocks.
The defendant has admitted that its contractual obligation was to use high quality limestone blocks. Although there is no standard by which I can judge quality, I am satisfied for the reasons given above that, on the balance of probabilities, a significant proportion of the blocks used in the construction of the plaintiff's house could not be described as being 'of high quality'.
My confidence in making that finding is increased by the fact that the defendant did not carry out any tests on the limestone and did not adduce any evidence about the way in which the house was constructed. In particular, there was no evidence from the block layer (apparently Mr Mayben) and no explanation for the defendant's failure to call him as a witness.
Mr Jones' evidence, which I accept, is that blocks which are not graded as 'a first' are regarded as 'a second'. Seconds are not used in house construction but are sold as garden edge blocks (ts 665).
It follows, that approximately 50% of the limestone blocks used in the construction of the plaintiff's house, not being of high quality, should be regarded as seconds and therefore unacceptable for the construction of the house.
I therefore find that the defendant was, to that extent, in breach of the contract.

What should be the plaintiff's remedy?

In his further particulars of loss and damage dated 21 November 2007, the plaintiff claims damages as follows:

1	Cost of rectification (incl GST)	$257,977.91
2	Rental during rectification ($650/week x 26 weeks)	$16,900

3	Storage and removals • Removal • Storage (26 weeks at $106.50) • Redelivery • Insurance ($3.30 per $1,000 per month)	$20,339 $5,250 $2,769 $2,420 $9,900
4	Inconvenience	general damages
5	Ongoing repairs: 5.1 P Stratfold (clean patch fuel [sic - fill] & seal limestone) 5.2 Emerald Painting (painting to external decking post beams and eaves, deterioration and repairs)	$12,716 $4,290
6	Costs.

The rectification work the plaintiff wishes to have carried out is the removal of the entire limestone cladding of his house and its replacement with high quality limestone blocks.
The cost of that rectification is the subject of evidence from Paul Gabriel Rafferty, a quantity surveyor practising as Borrell Rafferty Associates Pty Ltd. The evidence, which was admitted by consent, consists of a report dated 27 October 2006 and an email dated 30 October 2007, in which Mr Rafferty updated his earlier report so as to reflect increased building costs.
I accept Mr Rafferty's opinion that the cost of the works as at the date of trial would be $257,977.91.
The other heads of damage set out in the further particulars are self‑explanatory.
As a general rule, a person who contracts with a builder for the construction of a house is entitled to be provided with a building which conforms with the contract plans and specifications. However, there is a qualification to that general rule, as stated by the High Court in Bellgrove v Eldridge (1954) 90 CLR 613. There, in the judgment of the court given by Dixon CJ and Webb and Taylor JJ, their Honours said:
The qualification, however, to which this rule is subject is that, not only must the work undertaken be necessary to produce conformity, but that also, it must be a reasonable course to adopt. No one would doubt that where pursuant to a building contract calling for the erection of a house with cement rendered external walls of second‑hand bricks, the builder has constructed the walls of new bricks of first quality the owner would not be entitled to the cost of demolishing the walls and re‑erecting them in second‑hand bricks. In such circumstances the work of demolition and re‑erection would be quite unreasonable … We … think that the building owner's right to undertake remedial works at the expense of a builder is not subject to any limit other than is to be found in the expressions 'necessary' and 'reasonable' … Many examples may, of course, be given of remedial work, which though necessary to produce conformity would not constitute a reasonable method of dealing with the situation and in such cases the true measure of the building owner's loss will be the diminution in value, if any, produced by the departure from the plans and specifications or by the defective workmanship or materials (618 ‑ 619).
In the present case, although I have found that a significant percentage of the limestone blocks incorporated into the plaintiff's house were unacceptable, the house is structurally sound and is likely to remain so. As I have noted above, on the plaintiff's own evidence, the sealing carried out by Mr Stratfold has been effective to prevent any further deterioration in the condition of the limestone.
Although the plaintiff regards the appearance of his house as 'visually unappealing', Dr Zurhaar's evidence was that the defects about which the plaintiff complains could be repaired in a way which are invisible or virtually invisible to the untrained eye. This would include the removal of the patches applied by Mr Stratfold, which, it is generally accepted by the experts, has not been carried out to an acceptable standard (ts 596).
The plaintiff adduced valuation evidence in the form of a report by Vy Dang, a certified practising valuer dated 17 January 2006 (exhibit 10). Mr Dang's opinion was that the market value of the plaintiff's house as at 29 December 2005 was $1.4 million on the basis that the property was in good condition for its age 'and that there is no deterioration suffered by the property'. That evidence was not challenged and I accept it.
The plaintiff also adduced a residential valuation and security assessment produced by James Wong, a licensed valuer of Ray White Valuers (WA) (exhibit 4). On the basis that the external condition of the plaintiff's house was 'good', Mr Wong valued it at $1.7 million at 24 January 2007. Again, this evidence was not challenged, and I accept it.
In early 2007, the plaintiff attempted to sell his house at a price of $1.9 million. He was unsuccessful. I accept his evidence that he received no offers. However, there might be many reasons for that: it is not evidence of any diminution in value as a result of the condition of the limestone.
The plaintiff contends that it is reasonable to spend some $258,000 in rectifying defects in a house worth $1.7 million. I do not accept that proposition. In my view, it would be unreasonable to demolish the entire external cladding of the plaintiff's house, including a substantial number of satisfactory blocks, when the structural integrity of the house is not in doubt and when the plaintiff's complaint can now be based only on the aesthetic quality of the limestone, about which the contract was silent.
In Bellgrove v Eldridge, the owner's complaint was that the house in question had been built with defective foundations. That claim was upheld. The owner was awarded the cost of reinstatement.
More recently, in Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344, the House of Lords considered a case which is in many ways similar to the present case. There, the building owner entered into a building contract for the construction of a domestic swimming pool. The contract expressly provided that the maximum depth of the swimming pool should be 7 feet 6 inches. However, after the work had been completed, it was found that the maximum depth was only 6 feet 9 inches. The owner refused to pay all of the moneys due under the contract and was sued for the outstanding balance by the builders. The owner counter‑claimed for breach of contract.
The trial judge held that because the maximum depth of the pool was less than that specified in the contract, there was a breach of contract. However, the judge also found that the shortfall in depth had not decreased the value of the pool.
The owner contended that he should be awarded damages to reflect the cost of reconstructing the swimming pool so that it would conform with the contractual specification. However, the trial judge held that it would be unreasonable to take that course. He awarded the owner £2,500 by way of general damages for loss of amenity.
The Court of Appeal allowed the appeal, holding that it was not unreasonable to award as damages the cost of replacing the swimming pool, even though the shortfall in depth of the pool had not decreased its value.
On appeal to the House of Lords, the decision of the trial judge was upheld. Lord Bridge of Harwich said:
The circumstances giving rise to the present appeal exemplify a situation which one might suppose to be of not infrequent occurrence. A landowner contracts for building works to be executed on his land. When the work is complete it serves the practical purpose for which it was required perfectly satisfactorily. But in some minor respect the finished work falls short of the contract specification. The difference in commercial value between the work as built and the work as specified is nil. But the owner can honestly say: 'This work does not please me as well as would that for which I expressly stipulated. It does not satisfy my personal preference. In terms of amenity, convenience or aesthetic satisfaction I have lost something.' Nevertheless the contractual defect could only be remedied by demolishing the work and starting again from scratch. The cost of doing this would be so great in proportion to any benefit it would confer on the owner that no reasonable owner would think of incurring it. What is the measure of the loss which the owner has sustained in these circumstances? If there is no clear English authority which answers this question, I suspect this may be because parties to this kind of dispute normally have the good sense to settle rather than to litigate (353).
Lord Jauncey of Tullichettle said:
I take the example suggested during argument by my noble and learned friend, Lord Bridge of Harwich. A man contracts for the building of a house and specifies that one of the lower courses of brick should be blue. The builder uses yellow brick instead. In all other respects the house conforms to the contractual specification. To replace the yellow bricks with blue would involve extensive demolition and reconstruction at a very large cost. It would clearly be unreasonable to award to the owner the cost of reconstructing because his loss was not the necessary cost of reconstruction of his house, which was entirely adequate for its design purpose, but merely the lack of aesthetic pleasure which he might have derived from the sight of blue bricks. Thus in the present appeal the respondent has acquired a perfectly serviceable swimming pool, albeit one lacking the specified depth. His loss is thus not the lack of a usable pool with consequent need to construct a new one (358).
In my view, this example is analogous to the present case. Accepting that a significant proportion of the limestone used in the construction of the plaintiff's house was originally unsuitable for that purpose, the present position is that the deterioration has been halted by the sealing carried out by Mr Stratfold. It is now true to say, therefore, that the house is 'entirely adequate for its design purpose', thus, the plaintiff's concern can only be 'the lack of aesthetic pleasure' which he might have derived from the sight of limestone in pristine condition.
That is not the end of the matter, however. The limestone has stabilised because it has been sealed. Mr Stratfold did not render a separate account for carrying out this work. His invoice, in the sum of $12,716, was for 'clean, patch, fill, seal and bind limestone' (exhibit 1/31). However, the patching was a time consuming process.
It will be recalled that in Mr Stratfold's letter of September 2003 to Mr Burns of the defendant, Mr Stratfold estimated that the 'continued cleaning and sealing of the stone with the introduction of an alkali reinforcer will run in the vicinity of $4,000'. No doubt prices had increased in the 12 months which elapsed before the work was actually carried out. That being so, I will estimate the cost of cleaning and sealing as at October 2004 to have been $5,000.
That, in my view, is an amount for which the defendant should be held liable. It is the cost of carrying out work which should have been carried out in any event when the plaintiff's house was built, having regard to the recommendation of Limestone Resources.
I accept that the limestone might have to be re‑sealed at some time in the future. That is Mr Stratfold's opinion. However, there is no evidence on which I could make any valid assessment of the cost of carrying out this work.
However, I consider the defendant should be held liable for the cost of repainting timber decking, posts, beams and eaves which had been affected by the cleaning, and for which the plaintiff paid $4,290.
I do not think it appropriate to award the plaintiff any damages for loss of amenity. That is because the contract did not impose on the defendant an obligation to provide limestone which was aesthetically pleasing to the plaintiff. No doubt the plaintiff has been inconvenienced by the reason of his devoting time and energy to the pursuit of his claim. However, that is a regrettable consequence of litigation. Further, I think it should be noted that much of the plaintiff's concern was the result of Mr Stratfold's gloomy (but unfounded) prediction that the house was structurally unsound.

The claim under the Trade Practices Act 1974 (Cth)

The plaintiff alleges in par 30 of the statement of claim that each of the representations referred to in pars 5, 6, 10 and 11 was made in trade or commerce within the meaning of that expression in the Trade Practices Act. Although that is denied by the defendant, I consider that the representations were made in that context.
It is then alleged in par 31 of the statement of claim that each of the representations 'was, and collectively the representations were, misleading and deceptive or likely to mislead or deceive contrary to section 52 of the Trade Practices Act (Cth)'.
The particulars of that paragraph are in similar terms to those given in support of the breach of contract claim. They differ only in that in par 31, it is said that 'a substantial number' of the limestone blocks had cracked, split, spalled (etc), whereas in relation to the breach of contract claim it is alleged that an estimated 25% had 'extensively deteriorated' and had cracked, split, spalled (etc).
Further, in par 31 of the statement of claim, it is alleged that the deterioration complained of resulted either from the natural limestone being inferior and unsuitable for the construction of the house or from the defendant's failure to properly install the natural limestone, or both.
In my view, the differences between par 23 and par 31 are immaterial for present purposes.
I consider that the only relevant representation among those pleaded in pars 5, 6 and 10 of the statement of claim, is that high quality limestone would be used in the construction of the plaintiff's house. However, that representation adds nothing to the term to that effect which, the defendant admits, is to be implied into the contract.
I therefore see nothing in that aspect of the misleading and deceptive conduct claim.
The allegation in par 11 of the statement of claim is, I think, in a different category. As I have noted above, I have taken it to be a representation that the limestone used in the construction of the plaintiff's house would have the same appearance as the sample shown to the plaintiff in about September 1998 which had a smooth finish and which he approved.
In my view, there was nothing misleading or deceptive about that representation.
It will be recalled that when the plaintiff took possession of the house, its appearance matched his expectation. The change in the appearance of the limestone was not, therefore, a consequence of a misleading or deceptive representation. It was a consequence of the limestone not being of high quality: and that is the basis for the breach of contract claim.
I therefore see no basis for the plaintiff's claim for damages for breach of the Trade Practices Act.
I conclude that there should be judgment for the plaintiff in the sum of $9,290, on which I would award interest pursuant to s 32 of the Supreme Court Act 1935 (WA). I do not expect it will be necessary to order the defendant to replace the five limestone blocks which it accepts as being defective.