Wilson v M Wiedermann t/as Guardian Industries

[2002] WADC 55

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   WILSON & ANOR -v- M WIEDERMANN t/as GUARDIAN INDUSTRIES [2002] WADC 55

CORAM:   COMMISSIONER GREAVES

HEARD:   19 DECEMBER 2001

DELIVERED          :   22 MARCH 2002

FILE NO/S:   CIVO 178 of 2000

BETWEEN:   DAVID WILSON

SANDRA MANN
Appellants

AND

M WIEDERMANN t/as GUARDIAN INDUSTRIES
Respondent

Catchwords:

Building dispute - Assessment of reasonable compensation in the sum of $23,760.00

Legislation:

Builders Registration Act 1939, s 12A, s 41

Home Building Contracts Act 1991, s 3

Result:

Assessment of compensation $23,760.00

Representation:

Counsel:

Appellants:     Mr J C Hammond

Respondent:     Mr A E Lynn

Solicitors:

Appellants:     Hammond Worthington

Respondent:     Andrew Lynn & Associates

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

Nil

Case(s) also cited:

Nil

1. COMMISSIONER GREAVES:  On 22 May 2001, the court ordered that this appeal be allowed, that the decision of the Building Disputes Committee be quashed, that the respondent pay to the appellant reasonable compensation to be assessed by the court, that the sum of $2,002 paid by the appellants to the Building Disputes Committee be released to the appellants, and that the respondent pay the appellants' costs of the appeal to be taxed.

2. As the reasons of the court disclose, the court ordered the respondent to pay the appellants such sum of money the court considers reasonable to compensate the appellants for the respondent's failure to carry out the installation of a swimming pool at the appellants' premises in a proper and workmanlike manner.

3. The court also directed that within 14 days thereafter the parties each have leave to file an affidavit in relation to the assessment of reasonable compensation.

4. The appeal came on again before me on 19 December 2001 where the transcript will reveal the course which the proceedings followed to that date and on that date.  At p 5 of the transcript I observed:

   "… [O]n the evidence and in the circumstances of this dispute it seems to me to be totally unreasonable to proceed upon the basis that the respondent carry out the work."

5. By consent, the court further directed the parties have leave each to file a further affidavit in relation to the assessment of reasonable compensation for the respondent's failure to carry out the installation of the swimming pool in a proper and workmanlike manner.

6. Accordingly, on behalf of the appellants, the Court has before it the affidavits of Sandra Mann sworn 5 June 2001 and 25 October 2001, and the affidavit of Graeme Frederick Allen sworn 6 January 2002, and the appellants' submissions on damages dated 7 February 2002.

7. On behalf of the respondent, the Court has before it the affidavits of David Wiedermann, sworn 5 June 2001 and 14 September 2001, the affidavit of Lindsay Tilly sworn 14 September 2001, the affidavits of David Wiederman sworn 18 December 2001 and 17 January 2002, together with the two outlines of submissions on assessment of compensation dated 22 October 2001 and 17 January 2002.

8. In order to assess reasonable compensation in the present case, the Court is required to consider the removal of the existing swimming pool and the supply of a replacement fibreglass shell and its installation.  The appellants obtained a number of quotations which are annexed to the affidavit of Sandra Mann of 5 June 2001.  Annexure "SM2" to that affidavit is the quotation of Fibre Technics (WA) Pty Ltd.  In his affidavit of 6 January 2002, Mr Graeme Allen says he is the managing director of that company.  It will be seen from par 11(a)(iii) of that affidavit and annexure SM2 his estimate of the current cost of removal of the existing shell is a total of $2,060.  His estimate of the cost of supply of a new shell is currently $17,500 (par 3(b)).  His estimate of the cranage costs for installation of the new pool is $3,200.  The estimate for installation is made upon the basis that it will be necessary to use a crane to install the new pool, which on the evidence of the appellants I accept.

9. There is a suggestion in the affidavit of Mr Wiedermann of 17 January 2002 that the Court should give little weight to the evidence of Mr Allen because it may not be impartial.  I do not accept that submission on the evidence before me.  The evidence before me establishes the estimates of Mr Allen are reasonable compensation for the work to be carried out.

10. The case for the appellants is further that they are entitled to reasonable compensation for the replacement of certain pool equipment including the filter, pump, salt chlorinator, electrical system, pipe work for the solar system, solar blanket, and paving and landscaping around the new pool.  In addition they seek the cost of replacing the pool fencing.  For these items, they seek a total of approximately $10,000.

11. In my opinion the appellants are entitled to no compensation in these proceedings in relation to the replacement of the pool equipment including the electrical system and pipe work.  In my opinion, the appellants are entitled to a reasonable sum for paving and landscaping which I assess on the evidence to be $1,000.

12. Accordingly, I assess the reasonable compensation to which the appellants are entitled as follows:

    Removal of existing shell  $2,060.00

    Supply of new shell  $17,500.00

    Installation of new shell  $3,200.00

    Paving and landscaping  $1,000.00

    Total$23,760.00

13. I will order that the respondent pay the appellants' reasonable compensation in the sum of $23,760 and that the costs of this assessment be in the appeal.