Zdravkovic v Potter - [2010] SADC 95

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ZDRAVKOVIC v POTTER
[2010] SADC 95
Judgment of His Honour Judge Muecke
23 July 2010
CONTRACTS - PARTICULAR PARTIES - VENDOR AND PURCHASER - SALES OF SUBDIVIDED LAND
Contract for sale of land to be sub-divided - contract conditional upon plaintiff performing works on defendant's house - claim by plaintiff for specific performance - defendant alleged that works not done by plaintiff and that plaintiff repudiated contract.
Held: Relief sought by plaintiff refused - claims dismissed - no orders made.
Dunedin Water Works Co v Bassett (1868) 1 NZCA 141; Gold Coast Oil Co Pty Ltd v Lee Propertyies Pty Ltd (1984) 1 BCL 63 at 66; Australian Hardwoods Pty Ltd v Commissioner for Railways [1961] 1 All ER 737, 742, considered.

ZDRAVKOVIC v POTTER
[2010] SADC 95
Background to the dispute

In October 2006 Stanojlo Zdravkovic (the plaintiff) and Justin Potter (the defendant) knew each other. They had met some time before then when the defendant represented the plaintiff as a sales consultant for new homes that the plaintiff had constructed.
In October 2006 the defendant was living in a house at Marion. The house was on a sizeable block of land. The defendant had purchased that property in late 2005 and settlement on it had been finalised in January 2006. The defendant said that he purchased it because it had potential for sub-division. He said that it was always his intention to use the house as his residence but there was a large vacant part of the allotment and he knew that the Marion Council had a policy which he thought would allow for development of the site.
The plaintiff and the defendant negotiated for the sale of part of the allotment from the defendant to the plaintiff. That was that part of the defendant’s property that he hoped to sub-divide and to sell as vacant land, or at least vacant of any residence. I shall return to those negotiations later.
For the purpose of setting the scene, however, it is sufficient to say that the parties executed a contract of sale of part of the defendant’s property. The contract was signed by both parties on 19 October 2006. The purchase price was said in the contract to be $132,500. There was to be a deposit of $5000. (The contract contains the words “Ten Thousand Dollars” but the numerals “$5000”. It is not in dispute that the latter sum was paid.)
The contract was for the sale by the defendant to the plaintiff of part of the defendant’s land. That part was described as “Lot 12 in a Plan of Division yet to be deposited at the Lands Titles Office (See Annexure A)”. That plan showed the defendant’s land divided into two parts. That part which contained the defendant’s dwelling was indicated to become Lot 11, and the vacant land that was the subject of the sale to the plaintiff was indicated to become Lot 12.
The contract of sale of the proposed Lot 12 by the defendant to the plaintiff was subject to two relevant special conditions. The first was that the plaintiff would obtain “all the necessary consents and approvals to obtain deposit of the Plan at the Lands Titles Office”. This was the Plan by which the defendant’s land would be sub-divided into two lots, one of which (Lot 12) the plaintiff was to purchase. This condition provided that the plaintiff would bear all costs in relation to the sub-division.
The other special condition was contained in Annexure B to the contract. That annexure is headed “ANNEXURE ‘B’ SPECIAL CONDITIONS”. That annexure provided that certain works that were identified in it were to be carried out by the plaintiff prior to settlement on the sale of Lot 12. Although the annexure does not specifically say so, it was not in dispute that all the works contained in Annexure B involved work that the parties agreed the plaintiff would perform in and around the defendant’s residence on what would later become Lot 11 of the sub‑divided land. I shall refer to this annexure as “Annexure B” and to the works described in it as “Annexure B works”. Item 12 of the Annexure B works required the plaintiff to “Render and paint the front of the house as per attached Annexure C”. Such an annexure appears as the final annexure to the contract of sale. On that annexure appears a plan identical to the plan in Annexure A. An “Existing Dwelling” is marked. Some of the external walls of the dwelling have been marked with a bold line. Those walls are those external walls of the dwelling that front onto Alison Avenue on one side of the block and Farne Terrace on the other. They appear to be the external walls of the dwelling that might be described as “the front of the house”, depending upon, or regardless of, your point of view.
The contract of sale provided that the settlement date for the contract was “within 14 days after the date on which the last of the conditions set out in the Schedule has been satisfied”. Those, relevantly, were the completion of the sub‑division of the land and the completion by the plaintiff of the Annexure B works to be carried out by him on and around the defendant’s dwelling.
The contract made no provision for the time at which or by which the plaintiff was to carry out the Annexure B works, nor did it provide a time by which the property was to be sub-divided.
Sometime before Christmas 2006 the defendant moved himself and his belongings out of his house. That was to enable the plaintiff to do the Annexure B works. It is common ground that just before that Christmas the defendant moved back into his house. That was in the days immediately before Christmas Day.
In a Statement of Claim filed on behalf of the plaintiff on 29 February 2008 the plaintiff alleged that in early December 2007 (sic) (he meant 2006) he commenced the Annexure B works and continued to carry them out until 17 July 2007, by which date they were substantially completed. In his Defence filed on 16 May 2008 the defendant denied that the works performed by the plaintiff were substantially complete by that date as alleged. The defendant alleged that in breach of the contract the plaintiff had failed to perform the required Annexure B works and that the building work that had been performed had not been performed in a proper and workmanlike manner and had, in part, been performed by non‑licensed persons and remains incomplete.
At the trial the plaintiff maintained that the Annexure B works were 95% completed by him (inside the house at least) and that he could not finally complete them because the defendant would not allow him in his house or on his property. The defendant maintained that the Annexure B works were never completed, much of what was done was badly done and some of what was done was done by unlicensed people. The defendant said that he never stopped the plaintiff from completing the works, rather he tried to get the plaintiff back time and time again to do so. He said that the plaintiff promised on a number of occasions that he would come and complete the works and put right some things that were wrong, but he never did. The defendant said at the trial that on 17 July 2007 the plaintiff told him that he had spent too much money on his (the defendant’s) house, that the house was good enough, and that he wouldn’t be doing any more work on it. Despite that, the plaintiff wanted to settle the contract of sale.
On 23 July 2007 a Caveat was lodged by solicitors on behalf of the plaintiff over the whole of the defendant’s land.
Before the trial the plaintiff had solicitors acting for him. It was pleaded that those solicitors, by letter dated 7 August 2007, required the defendant to execute and return to them an enclosed Memorandum of Transfer for the transfer of Lot 12 from the defendant to the plaintiff. It is admitted that on or about 2 August 2007 the defendant’s original title was cancelled and two new titles were issued in respect of Lot 11 and Lot 12. The Statement of Claim refers to the defendant’s solicitors asserting that the defendant was not bound to transfer Lot 12 to the plaintiff. It was alleged that that refusal constituted a breach of the contract.
It was further alleged that the plaintiff “has at all relevant times been and remains ready, willing and able, upon being granted access to Lot 11 to complete the Renovation Works”. It was pleaded that the plaintiff “wishes to complete on the sale and purchase of Lot 12 by transfer from the defendant to the plaintiff”.
The plaintiff sought orders, by way of specific performance of the contract dated 19 October 2006, that would have the effect of transferring Lot 12 to the plaintiff. The plaintiff also sought damages “in addition to specific performance of the Contract”. Alternatively, the plaintiff sought damages in lieu of specific performance. The plaintiff sought orders as to interest and costs.
In his Defence the defendant alleged that the plaintiff had repudiated the contract by not completing the building work at all or in a timely way, and by performing that work in a defective manner and not in a proper and workmanlike manner, and by having work performed by non-licensed persons. In his Defence the defendant said that “an account of the cost of completion of the work and rectification of the defective work should be taken and set-off against the value, if any, of the work undertaken by the plaintiff”. He sought orders removing the caveat and dismissing the plaintiff’s claim.
The Trial
When the matter came on for trial the plaintiff was unrepresented by a legal practitioner. He appeared before me in person and indicated that he wished to personally present his case. He was accompanied by an interpreter in the Serbian language. However, as the case proceeded there were times when the plaintiff gave his evidence in English and other times when he gave it through the interpreter. It was not in issue at the trial that all the dealings between the plaintiff and the defendant had been conducted in English.
In “opening” his case the plaintiff told me that he wanted me to order that the defendant perform the contract, so that Lot 12 is transferred to him. He was not able to identify what damages he sought me to order against the defendant.
I told the plaintiff that there were two options open to him in relation to the trial. I told him that the first was to run the trial himself and the second was for him to ask me not to start the trial until he had obtained a lawyer. The plaintiff then replied:
I had a lawyer. He asked me to pay $30,000 for this trial, for the barrister, for the legal costs and so on, and I simply don’t have that much money. And that’s why he left the case.
The plaintiff later told me that he wished “to go ahead without a lawyer because if I need to pay $30,000 for costs, I cannot afford that. Yeah, let us do that”. I then asked the plaintiff to proceed to present his case. When Mr Keith, of counsel for the defendant, asked me to invite the plaintiff to indicate the witnesses he proposed to call, I did so. The plaintiff responded: “I have no witnesses. Why do I need witnesses?”. The plaintiff and the interpreter were then sworn and the plaintiff gave evidence.
The plaintiff first asked me if he could give a short statement about the contract and what he did in the defendant’s house in English. This is what he said:
AIt was three months before Christmas, September – September/October, he called me and asked me did I want to buy a block of land from No. 1 Farne Terrace, Marion. I say “All right”. He asked how much. 132,000. We signed 132,000. Three weeks after – in the meantime he asked me to do some renovation in his house and asked me to give the price – painting, patching, this and this. And I give the price, 18,000. Three weeks before Christmas 2006 or 2007, before Christmas, 2007, yeah, it was agreed to start the renovation in his house. He take everything back he got in the house, bed, chair, TV – everything. He go to somewhere hotel, motel, I don’t know, for two weeks, until I done 95% of the painting and the renovation in the house. Week before Christmas, he start to shift everything down by professional. I’m the painter and I’m the builder. He start to shift back before Christmas. That’s what I like, that’s what he like. What was not finished, one feature wall, seven way door is not complete finish because the old door has got a different fitting. We put in the rubbish the old fitting and he supplied a new fitting. But new fitting is different than old one. I tried to fix up, not by myself, I’m not a second fixer. I tried to call two or three second fixer to fix up, because if can attaching the door I can finish the job. That was how I know, left inside of the house to finish. Feature wall, and painting the door. Any maybe small bits and pieces somewhere touch up. That’s all inside. Anyway, he shift in the house before Christmas. Get a friend, or relative celebrate. He call me for the party and I say, “Oh, by myself is no good to go and I’m not drinking”. In the meantime he say he’s got somebody from Victoria, some friend or from here, a friend or relative, or I don’t know, and they tell him they never see better job done than this one. I was happy. How come now nothing properly done? Christmas is passed and I tried to organise second fixer to finish this door and I can – I mean, to install properly, latches or catches or how they calling, the different fitting than the old one, and try to get two or three, nobody won’t touch. And take time, fair enough. Nobody won’t touch. And then I decide to do, to patching this new door handle, or how they calling, to patching and I want to finish the inside. That is what February, I think, I think February, I’m not sure. I done half a dozen, and still needed another three or four. He haven’t got it. And I say “All right, waiting for tomorrow when you get a new one, I can come in and try to patching and do the – paint this door and what is left”. I think he buy, but they haven’t got it in the stock, he have to buy in from that store somewhere to come into the shop, and he can pick up, call me and I can go and finish this job. This was maybe a week or two, I’m forget. Later – in the meantime I start to prepare block, levelling block. That was February, I think. And that’s where he stopped me to finish the job and he no want to settle. Why?
QWhat block were you levelling.
INTERPRETER: I beg your pardon?
XN
QWhat block were you levelling or starting.
AThis one, lot No. 12. 11 prepare because I think the plan in my name, approval, sewage, water, subdivision and I think that’s mine to settle, but he don’t want to settle. Why? Because I didn’t finish few things in his house but I say door- sorry, when I talk I’m loud but no mean bad. No mean bad. Door, feature wall, and few touch up and that’s all. And he stopped me. He not want me to finish this. Is my fault. What the reason? And he no want to settle. That’s all what I can say about this case. I mean, what is what left to finish, that’s nothing. I mean, door and few touch up. But to stop me to finish and not going to settle -
Eventually the contract of sale of what was to be Lot 12 was tendered. The plaintiff told me that the Annexure B works were agreed to be done by him for $18,000. When it was pointed out to the plaintiff that the sum of $18,000 was not on Annexure B he replied: “Not on this one. However, my lawyer should have that. Or perhaps I have it somewhere.” He then said that there was another document with $18,000 on it but he didn’t have it with him. He said it probably was with his lawyer, “or could be in my house”. He believed that document was signed although he could not say for sure.
When I asked the plaintiff whether he intended to put before me documents that were relevant to his pleading in paragraph 9 of his Statement of Claim to the effect that he had obtained all necessary consents and paid all costs in relation to the sub-division, which costs were said to total not less than $16,959.70, he said that perhaps his lawyer has documents relevant to that sum. He said that he did have evidence that he paid approximately $16,000 for everything. He added: “There is proof from the broker”. No documentary evidence was ever offered in relation to these costs.
When I discussed with the plaintiff that his lawyers had sought damages as an alternative to specific performance of the contract plus damages, he said: “Damages – however, I have to be asked what sort of damages and how much. I do not understand this”. This exchange then occurred between me and the plaintiff:
QPart of those damages might be the costs that you paid to get the subdivision through.
AThat is not enough.
QAnother measure of damage is whether the lot 12 is now worth a lot more than you contracted to buy it for.
AI do not know about that. However, why didn’t he allow for settlement to take place at that time?
I then asked the plaintiff whether any valuations had been obtained for Lot 12 that indicated its current value. He said that he had never asked what the current value was, he was never interested in that.
Later, upon my questioning, the plaintiff told me that he “believe(d) that contract states that I paid $5,000” by way of deposit. That is the only evidence there was as to the payment of a deposit.
There was some questioning of the plaintiff concerning Annexure B to the contract. The plaintiff agreed that that annexure did not have any sum of money on it. He asserted: “I am sure that I have a different piece of paper which shows the sum and I believe that my lawyer has it too. And me too.”. The plaintiff told me that the defendant typed the typing on Annexure B and that he believed the handwriting on Annexure B was the defendant’s handwriting. He agreed that his (the plaintiff’s) initials appear in the bottom right hand corner of that page. When asked if he had given the defendant a price “before the additions in handwriting or the changes in handwriting, or after”, he answered: “I agreed for $18,000, whatever it was, whatever is included in this paper”. He said that he gave the defendant the price first and then the defendant copied it onto Annexure B. He said that the document that he is referring to which is not Annexure B has a sum of $18,000 on it. He said he was pretty sure that it does. He said that the total of everything he was supposed to do by Annexure B was going to cost him (the plaintiff) $18,000. He then added that he had given the defendant a very low price. He said that the whole job would have been approximately $30,000.
When questioned about how it came about that work he was to do on and around the defendant’s house was under a special condition in the contract and why one was conditional on the other the plaintiff replied: “I have nothing to hide. He asked initially for 155,000 for the block – or 50-155. I’m not sure … I think 150 … Block of land was 150, or that’s what he asked for. Then he asked me to give him a price for renovations. That came up to 18,000. So 150 minus 18 is 132 – in the contract”.
The plaintiff told me that he had said to the defendant “that I will complete the works by Christmas, that he will be able to celebrate Christmas in his house, and that’s what he did”. He said he had completed the works “apart from what I said this morning, those doors and the feature wall, and I am not sure whether the kitchen top or the bench arrived at that time …”.

I then took the plaintiff through the works itemised in Annexure B to the contract. During that the plaintiff referred to a number of oral agreements allegedly made between he and the defendant as to some items as to who should pay for what and who should arrange what. When adjourning for lunch on the first day of the trial I told the plaintiff that I would be taking him through Annexure B item by item after lunch, and seeking evidence from him as to which items he had performed and which he had not by Christmas 2006. He answered: “This would be very difficult to answer to all”.
After lunch I asked the plaintiff to answer what I had foreshadowed before lunch. He answered:
AAs I said previously, I completed 95% of all the work inside. And there is some work to be done on the outside but he stopped it.
QYou can’t indicate which number you did and which numbers you didn’t.
AIt is hard to do that. I cannot do that because this list shows both some jobs that are combined inside and outside.
QSo you can’t help me at all.
ANo. 1 okay.
We then went through the items of work one by one. I will not go into detail here but I shall make some findings about what I am satisfied the plaintiff had done and what he had not done before Christmas 2006 and after.
During this evidence the plaintiff produced what became Exhibit P2. He told me that he had found the document “that we talked about this morning. A list of jobs that should be done, which he later on copied to the one we just read”, referring to Annexure B. The document looks like a carbon copy from an invoice book. It contains a list of items, some of which are similar to the items for works to be done on Annexure B. He said he wrote the list. At the foot of Exhibit P2 is a handwritten sum of $18,500. During his cross-examination of the plaintiff Mr Keith took the plaintiff through the items on Exhibit P2 and matched up all of them that co-incided with certain items on Annexure B. The items on Exhibit P2 were fewer than even the typed items on Annexure B and certainly fewer when one took into account the extra three items handwritten by the defendant on Annexure B. None of the handwritten items on Annexure B appear in Exhibit P2.
The plaintiff told me in his evidence (in chief) that the defendant copied from Exhibit P2 and made some language corrections and added what is handwritten at the bottom of Annexure B. He told me that he had taken Exhibit P2 into the defendant’s office and the defendant had made a proper list like Annexure B. The plaintiff said that the price was agreed. That, presumably, was the sum of $18,500 written on the bottom of Exhibit P2 which the plaintiff said he wrote there, and not the sum of $18,000 he had mentioned earlier in his evidence.
When cross-examined by Mr Keith the plaintiff said that he had known the defendant for a long time. He had sold houses using him. They were houses on which he had done building work.
The plaintiff said that when he talked to the defendant about buying the land that was part of the defendant’s house property they spoke in English. He said that when he first spoke to the defendant that was either at the defendant’s house or at his office. The defendant asked him if he was interested in buying part of that land, he (the plaintiff) did not ask the defendant. The plaintiff said that he did not remember the defendant saying that he had an appraisal for the land if it was sub-divided for a value of $185,000. He remembered that the defendant was asking $150,000 for the land and he agreed to that. The sum of $18,000 was to be deducted from that sum for the jobs that he agreed to do. He then said that the defendant offered the block to him for $155,000 and the defendant then came up with the idea that he (the plaintiff) would do renovations for him.
The plaintiff said that when he looked at the work that had to be done he told the defendant that the work inside the house would be completed before Christmas, but not the outside work. He said that he believed that it was in the middle of December when the defendant removed everything from the inside of the house. He denied that the defendant had moved out of his house for two months. He said it was just for two weeks.
The plaintiff agreed that when the defendant went back into the house for Christmas in 2006 there was no water connected to the kitchen. He disagreed that the house was dirty with dust and rubbish at Christmas time. He said everything was very clean. He could not remember whether he spoke to the defendant before Christmas to say that he would be back early in the New Year. He did not remember whether he told the defendant when he rang him on or about 9 January 2007 that he would be able to resume work the following week. He said that perhaps he started in January doing bits and pieces.
The plaintiff said he did not remember the defendant telephoning on 19 January 2007 asking him when he would resume work, and he saying he would start on 1 February. The plaintiff denied that he spoke to the defendant on 31 January 2007 when it was suggested that he was working on his (the plaintiff’s) houseboat and that he did not have the funds to keep working at the defendant’s house. He said that he did not remember the defendant telephoning him on 6 March 2007 to find out when he would be coming back to his house.
The plaintiff said that he did not know when the sub-division was expected to be completed. He could not remember discussing with the defendant that the sub-division would be finished by March 2007. He said that he remembered making an Affidavit in his lawyer’s office and that a Notice of Default dated 2 April 2007 was referred to in that Affidavit. He did not remember receiving the notice but he could have. That was a Notice of Default dated 1 April 2007 that became Exhibit D3.
The plaintiff was asked whether he could recall meeting the defendant at the property on about 3 May 2007 when it was discussed when he might be able to finish the work. The plaintiff said that whilst he did not remember that, he added: “That perhaps would have been when he stopped me from doing further work”. He said that he did not remember saying that he could finish by the end of May 2007 and said that it was not true that he said at that time that he (the plaintiff) was prepared to pay more for the land because the time had blown out from the original estimate.
The plaintiff denied that a couple of weeks after that conversation he (the plaintiff) had told the defendant that his carpenter had fallen off a ladder and that was why he wasn’t able to return to finish the work. When asked whether he also said that his painters were on another job he replied that he had to organise first “the texture coat, so that I could come with my painters and do the rest”. The plaintiff added that the defendant stopped him at that time and he couldn’t go back in, I inferred to either the property or the house.
Mr Keith put to the plaintiff that there was an occasion when the defendant came to the site and he (the plaintiff) was working on the block to be purchased by him using a bobcat. He said that he remembered that he had gone there with a bobcat to level the ground and on that day the defendant stopped him from doing further work. He agreed that the excavator had broken water pipes and he said that he had fixed the pipes by bending them over to stop the water coming out of them. He said that he had planned to bring the plumber to reconnect the pipes, but that was when the defendant stopped him and he couldn’t do any further work.
Most of the remainder of Mr Keith’s cross-examination of the plaintiff was from a report apparently prepared by Mr Peter Jankovic for the plaintiff’s solicitor. That report followed an inspection of the plaintiff’s work on the defendant’s house and property that apparently occurred on 18 July 2008 in the presence of the plaintiff and his solicitor. The plaintiff was cross-examined from an Appendix “A” to the report prepared by Mr Jankovic. That appendix referred to each of the item numbers on Annexure “B” of the contract of sale. That appendix indicated which of the various items were complete and which were incomplete, or not done. The plaintiff agreed that Mr Jankovic had concluded that work, both inside and outside the house, had not been completed. When asked about the item requiring him to remove an existing reverse cycle air conditioner from the roof cavity the plaintiff agreed that he had not done that. He was planning to have it removed but the defendant had stopped him from completing the work.
At that time the trial was adjourned to the following morning. The plaintiff asked me if he could have a building inspector the next day as a witness, at ten o’clock. He said that he was “not a witness, he’s a building inspector”. He said he was interested in getting a building inspector to give evidence or to say something the next day. He said he would ask him and if he was not busy, he asked whether I would permit that he comes to court. I indicated that he could call a building inspector to give evidence after he had finished his own evidence.
When the trial resumed the next morning Mr Keith continued his cross‑examination of the plaintiff on the list of items on Mr Jankovic’s Appendix “A”. I will not go into the detail of each item. The plaintiff said that where Mr Jankovic referred to a defect he said he would accept to repair it. He did not agree with some of the comments of Mr Jankovic. He said that the defendant had not let him finish some items which were not completed or not done at all. As to the new kitchen, he said that the defendant wanted a particular range hood and flue which he (the plaintiff) had not allowed for. That was why that was not installed. As to the built-in robes he agreed that they were not fitted with shelves or hanging rails because the defendant had said he would organise for that to be done. He said the defendant had also specified that the robes be 450mm deep rather than 500mm or 550mm deep. That is why he installed robes which were only 450mm deep. As to the item referring to a garden shed he said that he had only arranged with the defendant to shift the existing garden shed and to put it where the defendant indicated. If it was put over a neighbour’s boundary then that was where the defendant asked him to put it.
The plaintiff denied in cross-examination that he had said to the defendant on 17 July 2007 that he had spent too much money on the house and would not be doing any more work. He denied saying that he would not be doing any more work “no way”. He denied saying to the defendant that the house was good enough and nothing more needed to be done to it. He denied that when he told the defendant he would not be doing any more work that the defendant asked him to leave the property. He said that he was actually coming to complete the job but the defendant wouldn’t allow him to.
When I then asked the plaintiff whether he thought that he had spent too much money on work on the defendant’s house he replied: “Yeah. … It is correct that I spent lot of money paying his bills, electrician, plumber, sanding the floor, kitchen. It is correct that I spent around 8,000 because it was expected of him to pay me that money back because it’s not in the contract that I pay electrician, plumber, sanding the floor and kitchen. But that I said that I do not want to do any more work, that it not correct. … Thank God I didn’t pay the air condition to be 5,000, 6,000”.
The plaintiff told Mr Keith that in the period leading up to trial he could not continue paying his lawyer. His lawyer wanted him to deposit $30,000 and he didn’t have that money. So the lawyer “gave up”, by which I infer the lawyer ceased to act.
The plaintiff agreed with Mr Keith that he was required to do more work by virtue of the works listed in Annexure B to the contract than he (the plaintiff) had listed in the document Exhibit P2. The plaintiff said that Exhibit P2 “was only approximate” and that the other things were added later on. Mr Keith then identified through the plaintiff which of all the items on Exhibit P2 corresponded with which of the items in Annexure B.
Following the completion of his evidence the plaintiff informed me that he wanted to call the inspector to give evidence. He said he had booked the inspector to give evidence “but to call the others, plumber and electrician and the others, it’s too late to call them now”. I asked the plaintiff what the inspector’s name was. He replied that it was Peter Jankovic. He said “his name is on the report”.
The plaintiff then called Peter Jankovic and his report dated 14 October 2008 was tendered as Exhibit P7. I was informed by Mr Keith that there was one page of that report that had not been supplied to his instructor. A copy of that page had not been provided before the exhibit was tendered. The fact that his instructor did not have a copy of that page came to their attention the previous week but his instructor had been unable to get any response from the plaintiff’s former solicitors. That page was marked for identification but was later tendered as part of the report. It became Exhibit P7A. It appears as part of Appendix “A” of Mr Jankovic’s report and is headed “Indicative Estimate Only of Costings”. It appears to be an estimated cost of completing the items on Annexure B to the contract. The total sum is $6,822.50.
After a shaky start by the plaintiff to examination-in-chief of Mr Jankovic, Mr Keith indicated that he would be prepared to cross-examine Mr Jankovic whilst the plaintiff had reserved to him an extensive right of re-examination if that were necessary. The plaintiff agreed. Mr Keith cross-examined Mr Jankovic.
Mr Jankovic said that he spoke with the plaintiff at the site during his inspection of the house and property in English.
Mr Jankovic agreed that he had costed the item regarding painting the roof at nothing because the roof had been painted. He agreed that he had not included painting to the gutters, posts, woodwork, verandah and verandah floor, all of which he agreed were in the Annexure B works.
Mr Jankovic agreed that his cost estimate in relation to the garden shed did not incorporate the cost of a new shed which he agreed appears in the relevant item in Annexure B.
Mr Jankovic agreed that his cost estimate for item 7 - painting was not done on the basis of repainting the inside of the house.
Mr Jankovic agreed that he had not given a cost estimate for painting in the laundry. He agreed that he had suggested at the time of his inspection that the plaintiff provide the defendant with a credit for the installation of a standard range hood, and that the defendant then bear the cost of a non-standard one.
Mr Jankovic agreed that his costings were done as at July 2008, and that there had been movements in the cost of labour and building services since then.
Mr Jankovic was asked to comment on a report prepared for the defendant’s solicitors in August 2009 that ultimately became Exhibit D8. Mr Jankovic agreed that the costing of some of the items compared to his costs would largely be influenced by the scope of works assumed to be done. He referred to a cost for texture coating of the two “fronts” of the defendant’s house where an estimate of a cost of $8,000 appeared in Exhibit D8. Mr Jankovic said that he had estimated a cost of $1,790 for rendering to the front of the house, although he agreed that his cost for rendering was only for about half of the total “frontage” of the house because the plaintiff had indicated to him that it only related to about half of the bold line in Annexure ‘C’ to the contract. Mr Jankovic said that texture coating and rendering were completely different processes. A texture coat was very expensive whilst a render coat simply comprised sand and cement.
At the conclusion of Mr Jankovic’s evidence the plaintiff closed his case.
Mr Keith first called a director of Carumag Corporation Pty Ltd which had prepared a report on the defendant’s house and property. That report was tendered as Exhibit D8. Before I deal with that report I refer to the defendant’s evidence at the trial.
The defendant told me that he was a consultant in the real estate industry and that he had been employed in that industry for about seven to eight years. He purchased the property at Marion because he considered it had potential for sub‑division. He always intended to reside in the residence on it.
The defendant said that he met the plaintiff about four years before he gave evidence. He had represented him as a sales consultant for new homes that the plaintiff had constructed. That had happened in respect of about six to seven homes.
The defendant said that the plaintiff came to his house and asked whether he would consider selling part of the land to him. He told the plaintiff that it was his intention to sub-divide the land and sell the block. They discussed what the defendant thought the property was worth at that time. He said he told the plaintiff that if he (the defendant) incurred the costs of sub-division he would be looking at $185,000 for the block. The plaintiff responded that that was too much money. The plaintiff mentioned “about having the house renovation maybe as a cost for it”. I infer that the defendant was saying the plaintiff raised the question of he (the plaintiff) doing some work on renovating the house as part of the contract price.
The defendant said that he had previously got quotes from painters and electricians and plumbers and cabinet makers to renovate the home. He therefore had a figure in his own head which was about $30,000 or $40,000.
The defendant said that negotiations followed as to whether he could sell the land to the plaintiff at a reduced price if the plaintiff was to do certain works that had to be carried out on his property “as per his (the defendant’s) requirements” for renovation of the house. The defendant said that he went to the plaintiff’s house where he thought there were “verbal negotiations of exactly what work was to be done”. The plaintiff had said that he would have to work out a few costings and he would get back to the defendant. He did so shortly after. The defendant thought that was by phone.
The defendant said that the plaintiff told him that he was interested in going forward and that there needed to be a face to face meeting to discuss the matter further and to put anything in writing. They had a meeting in his (the defendant’s) office. That was the day they signed the contract.
As to the contract price, the defendant said that he deducted a figure that he had in his head as to how much it would cost to renovate his home and what the sub-division costs would be from the figure of $185,000. He said he came up with a figure of $135,000. The defendant said that he and the plaintiff negotiated down another $2,500 and agreed on the sum of $132,500. He said that he was not going to argue about $2,500 and agreed on the lower figure as the contract sum. He said that the plaintiff was to pay the sub-division costs. He said that the plaintiff said that he needed at least the best part of two months to complete the inside of the house and he made it clear to the plaintiff that he (the defendant) needed to have the work completed by Christmas 2006. The plaintiff agreed to that and that the sub-division would take place approximately around March 2007. The defendant said that those time lines were not written into the contract by him. He said that that was by his oversight.
The defendant said that he typed that part of Annexure B that was typed at his office. He did that personally. It was done either on the day the contract was signed or the day before. He said that he and the plaintiff had discussed the detail of the work that was to go into Annexure B before he typed up the document. Those discussions occurred firstly at his house and then at the plaintiff’s house and then at his office. He said that Annexure B developed over those three meetings. The defendant said that the handwritten text on Annexure B was his handwriting. He put all the handwriting on Annexure B at the same time and he said that all the handwriting was done on the same day as the contract was signed and prior to it being signed.

The defendant said that he had never seen the document which is Exhibit P2. He said that the figure of $18,000 or $18,500 was never mentioned to him by the plaintiff.
The defendant then gave evidence of the sequence of events after the signing of the contract, including Annexure B. He gave evidence of the sequence of events by reference to his appointments diary, and some entries made in that diary concerning meetings or appointments with the plaintiff. He used that diary to refresh his memory of the sequence of events.
The defendant said that he moved his furniture out of the house and checked into a motel on 27 October 2006. He checked out on 8 December 2006. He refreshed his memory of those two dates from his diary.
The defendant said that the plaintiff did not start work until about the early part of November 2006. He said that on 27 November 2006 he made a diary entry when he went past the property. He wrote in his diary “not much happening”. He later phoned the plaintiff and asked why work wasn’t being done and he indicated that completion time for the inside of the house was getting close. He said that the plaintiff reassured him that everything was going to be all right and he would be finishing on time. The plaintiff told him not to interrupt him from his work or to hassle him.
The defendant said that on 6 December 2006 he went to his house in the early morning. There was a bobcat in his front yard doing some work. He saw that the bobcat had hit the corner of the slab of the house and had damaged it. The plaintiff told him that he would fix it.
The defendant said that on 13 December 2006 he again went to his house and a cabinet maker was working on the installation of the kitchen. He said that the kitchen was not able to be used when he returned to the house for Christmas. He had to host a Christmas meal by using the barbeque and have his mother make food at her place and bring it down to his. Before that he had to clean the house up. It was covered in debris and rubbish and dust. He said that on 21 December 2006 he spoke to the plaintiff about when the rest of the work would be completed after Christmas. The plaintiff told him that some of his people would be going on holidays and that it would resume in mid to late January the next year.
The defendant said that on 9 January 2007 he went around to the plaintiff’s house and the plaintiff told him that he would probably start in the next couple of weeks. The plaintiff assured him that he would start the following week or by the end of the month.
The defendant said that he again spoke to the plaintiff on 19 January 2007 concerning when work would recommence. The plaintiff had not come back to the property at all. The plaintiff said that he would finish the work by 1 February 2007. The defendant doubted very much that that was possible. He told the plaintiff that and the plaintiff said that it was only “just touch-ups” to do.
The defendant said he next spoke to the plaintiff on 31 January 2007 when he went to the plaintiff’s house. There the plaintiff said that he was not carrying out work at the moment because he did not have funds available to pay people and that he had a lot of money tied up in his houseboat that he was building at Mannum. The defendant told the plaintiff that that was unacceptable. The plaintiff did no work during February 2007.
The defendant said that he next contacted the plaintiff on 6 March 2007. He said the plaintiff “was getting very aggressive with me and telling me to stop hassling him to do the work and he would finish it eventually.”
The defendant contacted the plaintiff next on 8 March 2007. There was no answer to the phone. The defendant said that no work was done at his house during March 2007.
The defendant said he next spoke with the plaintiff on 29 March 2007. The plaintiff was very abrupt and told him that he could not talk, he was too busy and he would ring him back. No work took place at his property during April 2007.
The defendant said that during that month of April 2007 he asked a conveyancer to send a Notice of Default to the plaintiff. He did that because he was exasperated and frustrated by the plaintiff. He wouldn’t come back to do the work as they had agreed. They were supposed to have settlement on the land in March 2007, let alone the property not having been finished by then.
The defendant said that on 3 May 2007 he went through his house with the plaintiff and showed him all the faults and defects. The plaintiff told him that he could finish by the end of that month and settle as well by that time. The plaintiff referred to a “blow-out” in costs.
The defendant said that he spoke to the defendant again on 16 May 2007. He asked him when he was going to come back to the house. The plaintiff told him that his carpenter had fallen off a ladder and his painters were all on other jobs, and he didn’t have anyone to come to the house to finish off the work. The plaintiff told him that he (the plaintiff) was very depressed himself.
The defendant said that also in May 2007 he found the plaintiff working with heavy equipment on the lot to be sub-divided that was the subject of the contract of sale to the plaintiff. There were people working on that lot and were “ripping all the trees down with the excavator” and had fractured a water pipe. The defendant said that he had to pay $220 to have that pipe repaired. They appeared to be working to prepare foundations for a house on the lot to be sub‑divided.
The defendant said that on 17 July 2007 he had another conversation with the plaintiff about when he was going to finish the work on the house. He told him not to worry about work on Lot 12, he needed to finish off the first part of the contract. The defendant said that the plaintiff told him “that he (the plaintiff) had spent too much money on my house and he wouldn’t be doing any more work, no way, and he told me that the house is good enough and that’s it. And he spent too much money and he just wants the land”.
The defendant said that after 17 July 2007 he sought legal advice and so did the plaintiff. There was correspondence between solicitors and a Caveat was lodged on his land on 23 July 2007. That led to these court proceedings.
The defendant said that prior to July 2007 when the Caveat was lodged there was no occasion when he prevented the plaintiff from doing work on his house. He said that he was more than welcome to come back and finish. He said he was desperate for him to come back and finish.
The defendant said that he has been paying council rates for Lot 12 since 1 July 2007. He has also paid land tax in relation to Lot 12. He also has paid water rates in relation to Lot 12. As far as he is aware there has been no water usage at Lot 12. He has to pay water rates because the metre has been installed. If it had not been there would be no charge at all. He said that had he been able to settle on Lot 12 he would have applied the proceeds of the sale to the borrowings that he had taken to purchase the property.
Under cross-examination by the plaintiff the defendant denied that he had ever seen Exhibit P2 before, and he denied that he agreed to a figure of $18,500 for the work to be carried out by the plaintiff. The defendant said that there was no talk of any sum of money as to what it would cost the plaintiff to do that work.
When the defendant was asked how he worked out the price for the block, if it was not by deducting $18,000 from $150,000 (said to be the value of the block), the defendant replied that that did not take into account the sub-division costs. The defendant said that he worked out a figure on an appraisal of the property of approximately $185,000, quotations he had previously received for renovating his home which totalled up to approximately $35,000, and a quotation he had to sub-divide his allotment, which estimation was around about $12,000. He said that the plaintiff had negotiated him down to $132,500. He said he had no idea what the cost to the plaintiff would be to do the works that he had agreed to do.
Mr Minas Makridis was called by Mr Keith to give evidence in the defendant’s case. Exhibit D8 was tendered through him. That exhibit contains a single page headed “Budget for Rectification Works as at 8/5/09”. Mr Makridis said that that document, as it was first prepared, related to items which were considered before they had access to Annexure B to the contract. Mr Makridis said that the ticks next to the items indicate those items that were in Annexure B’s scope of works, and that “N/A” indicate those items that were excluded from the Annexure B scope of works and therefore were deleted from the budget page. The revised budget totalled $25,550.
Mr Makridis said that if the garage floor did need to be painted as in the Annexure B scope of works the sum of $500 would need to be added back in. He said that he had not built into the budget for relocating the existing shed the cost of a new shed. He said that the then current location of the shed did not comply with regulations and was illegal.
Findings and Conclusions
I have tried to make such allowances as I think that I can in my findings for the fact that the plaintiff partly gave his evidence through an interpreter, and for the fact that English is not his first language. I have also tried to make such allowances as I can for the fact that the plaintiff likely did not understand all of the court procedures and rules of evidence. As appears in my summary of the evidence it is probable that the plaintiff called Mr Jankovic without having full regard to whether or not his evidence would assist his case. It is also probable that the plaintiff failed to prove what monies he spent to effect the sub-division of Lot 12 from Lot 11 of the defendant’s land as a result of his limited understanding of what he was doing in representing himself.
At the end of his cross-examination of the defendant the plaintiff appeared intent on proving the contract that he had with the defendant by getting the defendant to identify his signature and initials on the contract. Having done that the plaintiff asserted: “That is sufficient proof for the contract of 132,000”. I said to the plaintiff that the defendant was not disputing that he signed the contract with him for the sale of Lot 12 for $132,500. The plaintiff then asked: “Then why doesn’t he do the settlement?”. I then pointed out that there was a dispute as to whether the special condition that required the plaintiff to carry out certain works had been fulfilled. The plaintiff then asserted that that was because the defendant stopped him from completing the work. He said that he had said that many times during the trial. There is no doubt that the plaintiff was not aware of the law as to specific performance, and of other legal principles that arose for determination by me following the trial.
I was and am aware, however, that trial judges cannot and should not run the case of a litigant in person in a trial. There are a number of reasons for that. Two important ones are that judges do not know what evidence is available to litigants in person, and that judges must decide a case after a trial where fairness has been accorded to both parties. I did and shall do the best I can.
I am satisfied and find that the plaintiff approached the defendant sometime before 19 October 2006 about the prospect of the defendant sub-dividing land he had purchased earlier that year and selling part of the land to him. I am satisfied and find that the plaintiff was in the business of erecting houses on vacant land for resale. I am satisfied and find that at the time he purchased the subject land the defendant intended to sub-divide it, to sell the sub-divided vacant land and to use the proceeds to minimise borrowings he was required to take to purchase all the land. I am satisfied and find that he would then renovate and live in the residence on what was to be Lot 11.
I am satisfied and find that the plaintiff and the defendant negotiated as to a price at which the plaintiff would purchase the sub‑divided Lot 12 from the defendant. I am satisfied and find that both parties had in their minds sums that would make a sub-division profitable and suitable for each. I am satisfied and find that what the defendant told me about his considerations during his negotiations with the plaintiff were both accurate and reliable. I find that he considered that it was suitable for him both practically and financially to sub‑divide his land and to sell part of it to the plaintiff for the sum of $135,000 provided that he did not have to pay the sub-division costs and provided further that significant renovations to what would be his residence would be carried out by the plaintiff.
I am satisfied and find that independent of the defendant’s consideration the plaintiff considered that $132,500 was a sum that would make the deal profitable for him if he paid the sub-division costs and he effected the work that the defendant wanted to be done on the defendant’s residence. I do not know and cannot find what the plaintiff had in his mind as to the costs of sub-division although I am satisfied and find that he would have had some idea of such costs because he had previously engaged in dealings with land and in building properties on sub-divided vacant land.
I am satisfied and find that during the negotiations the plaintiff did not inform the defendant of a sum of $18,500 for the works to be performed on the defendant’s house, nor did he inform him at any time of any sum for those works. I am satisfied and find that the plaintiff did not show Exhibit P2 to the defendant during their negotiations, or at any time thereafter. I am unable to find that the plaintiff wrote the sum of $18,500 on the bottom of Exhibit P2, at least before the contract was signed. I am unable to find that he ever wrote that sum on Exhibit P2. I am satisfied and find that such a sum was not in the plaintiff’s mind when he was negotiating with the defendant as the cost that he expected to incur in doing the works which ultimately became the subject of Annexure B. I do not believe that the plaintiff could have come up with such a sum just by having written down the items on Exhibit P2. In any event, those items form only part of what was ultimately the Annexure B works and, accordingly, such a sum could not have been contemplated by the plaintiff at the time Annexure B and the contract was signed by him. Whatever sum the plaintiff had in mind at the time he signed the contract and Annexure B, if he had one, I am satisfied and find that he considered then that he could do the Annexure B works and do the sub-division where the costs of doing both would allow him profitably to buy the defendant’s Lot 12 at the contract price and to sell it after erecting a dwelling on it.
I am satisfied and find that the contract of sale, including all annexures to it, was signed by both parties following negotiations which I am satisfied and find occurred as described by the defendant, and not as described by the plaintiff.
I find that, by oversight, the defendant did not include in the contract any dates or times by which the two special conditions of the contract were to be fulfilled.
I am satisfied and find that both before and after the signing of the contract the plaintiff indicated to the defendant that the works that were required to be done by him as part of the renovations inside the defendant’s residence would be completed by him before Christmas 2006. I am unable to find whether or not the plaintiff expected to complete those interior works by that date. I am satisfied, however, that the plaintiff probably expected them to be completed at least by March 2007, when he expected all the works he was required to do under Annexure B to be completed. I am satisfied and find that he also expected that the sub-division would be completed at least by the end of March 2007.
I am satisfied and find that the defendant moved out of his residence and into a motel for the period of time of which he gave evidence. I am satisfied and find that the Annexure B works required to be done inside the house were not completed by the plaintiff before Christmas 2007. I am satisfied and find that the plaintiff left the premises in the condition described by the defendant when he concluded working on the premises before Christmas Day 2006.
I am satisfied and find that the defendant did not say to the plaintiff that he wanted built-in robes that had no shelves or hanging rails, and that he did not say to the plaintiff that he wanted them only 450mm deep. I am satisfied and find that the robes installed by the plaintiff were defective and incomplete as referred to by Mr Jankovic. I am also satisfied and find that the defendant did not instruct the plaintiff to move the existing shed to a place where it encroached over a neighbour’s boundary. I do not believe the plaintiff’s evidence as to the built-in robes and the shed. On the evidence before me I am unable to make findings as to who said what concerning the rangehood and flue for the kitchen.
I am satisfied and find that what happened after Christmas Day as to the conversations between the plaintiff and the defendant is as described to me by the defendant. I reject the plaintiff’s evidence as to what happened in 2007 where it is inconsistent with the defendant’s evidence.
I am satisfied and find that the plaintiff did no further work to the defendant’s house and around it in the calendar year 2007. I find that the plaintiff told the defendant at various times that he had already spent too much money on the house and that what he had done was good enough. I am satisfied and find that in the new year of 2007 the plaintiff had determined for himself that if he spent any more money on and around the defendant’s house he would unlikely be able to develop Lot 12 and sell it for a profit. I find that he determined to delay the work on the defendant’s house as long as possible so that he could do other jobs, including work on his houseboat at Mannum. I find that the plaintiff made up excuses for why he could not return to the defendant’s property to complete the Annexure B works as contracted, and to rectify defective work already done by him.
I am satisfied and find that on 17 July 2007 the plaintiff informed the defendant that he would not be doing any further work on the defendant’s house and property and that what he had done was good enough. I am satisfied and find that he indicated to the defendant that all he wanted then to happen was for the defendant to settle on the contract and transfer Lot 12 to him for the contracted price of $132,500.
I am satisfied and find that at no time before 17 July 2007 did the defendant refuse to allow the plaintiff to return to his house and property to complete and rectify the Annexure B works. I do not believe the plaintiff’s evidence on this topic. I believe the defendant’s evidence.
I am unable to be satisfied and cannot find that in July 2007, or at any time thereafter, the plaintiff had the financial means to effect a settlement on the transfer of Lot 12.
I am unable to be satisfied and cannot find that at the time of the trial the plaintiff had the financial means to settle on the transfer of Lot 12 from the defendant to him. The only evidence I have that may bear on this topic is the plaintiff’s evidence that he could not afford to pay his solicitors $30,000 for this trial because he did not have that amount of money.
One important question I need to consider on the findings I have made concerns the issue as to the Annexure B works that the plaintiff contracted to do for the defendant. I have already referred to some findings on that topic. I am satisfied and find that those works have not been completed by the plaintiff and that some of those works that have been done are defective. During his address Mr Keith provided to me a schedule headed “Annexure B Items”. I am satisfied and find that that schedule accurately sets out the position as to each item of the Schedule B works as at the end of July 2007, as appears in the column headed “Jankovic”. I am satisfied and find that the plaintiff left the defendant’s premises in July 2007, leaving it in the state as described on that schedule under the “Jankovic” column. There is one qualification to that finding. That concerns Item 15 - the kitchen, in respect of which I am unable to make findings concerning the rangehood and flue. I am further satisfied and find on the basis of that schedule and Mr Jankovic’s report and evidence that the plaintiff has not substantially completed the Annexure B works.

As I have already indicated the contract did not expressly provide for the time by which the plaintiff was to complete the Annexure B works. If no time for completion is agreed and set out in a written contract it will be implied that work is to be executed within a reasonable time (see Dunedin Water Works Co v Bassett (1868) 1 NZCA 141; Gold Coast Oil Co Pty Ltd v Lee Properties Pty Ltd (1984) 1 BCL 63 at 66). I have also indicated that the plaintiff told the defendant that he expected to complete the internal building works before Christmas 2006. I find that he did say that before and after the contract was signed. I have set out the findings I have made regarding the conversations between the parties in 2007. I consider that a reasonable time to complete all the Annexure B works would have been by the end of March 2007. I also consider that by the same time it was reasonably to be expected that the sub-division would have been effected. I find that it was effected by 1 July 2007 because I find that is when the defendant started to incur liabilities for land and other taxes. It is agreed that by 2 August 2007 separate titles had been issued in respect of Lots 11 and 12.
If I am not correct in implying a reasonable time to be by the end of March 2007, I find and imply that a reasonable time was certainly reached by the middle of July 2007, particularly as I have found that from the beginning of that year until then the plaintiff had performed no work at all on and around the defendant’s house.
I am satisfied and find that in the middle of July 2007 the plaintiff indicated to the defendant that he would be doing no further work on and around the defendant’s dwelling pursuant to his contractual obligations to perform the Annexure B works. I reject the plaintiff’s evidence to the effect that he was at that time, or at any time before then, prevented by the defendant from completing the works. I find that by the middle of July 2007 the plaintiff did not intend to complete the Annexure B works and informed the defendant of that fact.
I conclude that the plaintiff repudiated his contract with the defendant by his failure to perform the Annexure B works and by his indication to the defendant that he did not intend to complete them. I am satisfied and find that by that indication to the defendant the plaintiff indicated that he did not intend to bound to perform his obligations under the contract. I am satisfied and find that by the defendant indicating to the plaintiff that he should leave his premises and not come back the defendant accepted the plaintiff’s repudiation of the contract dated 19 October 2006.
If I am wrong in those findings and conclusions, and if the contract of sale was in force in mid-July 2007 and thereafter, I would not have ordered that the defendant specifically perform the contract so as to transfer Lot 12 to the plaintiff.
I have found that the plaintiff has not performed all the work required by the contract, and that some of the work done is defective and is of poor quality. I am satisfied thereby that the plaintiff is substantially in breach of the contract between he and the defendant. The defendant has not had all the benefits of the bargain he struck with the plaintiff. The plaintiff cannot succeed in obtaining an order to enforce in his favour some stipulation of the contract when he is at the time in breach of his own obligations (see Lord Ratcliffe in Australian Hardwoods Pty Ltd v Commissioner for Railways [1961] 1 All ER 737, 742). I am also not satisfied that the plaintiff has proved his readiness and willingness to perform that part of the contract that is to his benefit. He has not established that he has the means to pay the contractual purchase price for Lot 12. I am further satisfied that it would be completely inappropriate in the circumstances to order the plaintiff to complete and rectify the Annexure B works. Apart from the practicalities of the parties dealing with each other, I do not even know if the plaintiff is now appropriately licensed.
For these reasons I would have refused the plaintiff specific performance of the contract. I would also have refused the plaintiff damages in the alternative to specific performance because I have found that the he has been in substantial breach of the contract he signed with the plaintiff on 19 October 2006, and because of what now follows.
What does follow from findings and my conclusions, if anything?
Part of the bargain under the contract of sale was that the plaintiff would perform certain works for the defendant. On my findings, he has not done that, even substantially. I have also found that some work he did was defective, and I find that the defects were not minimal or slight, but significant, particularly, but not limited to, the built-in robes which I find cannot be rectified except by removing what the plaintiff did and making and installing new robes with shelves and hanging rails, and ones that are at least 500mm deep.
I am satisfied and find that the parties did not agree on any sum which might have represented the value of the Annexure B works. There was no contractual sum agreed upon or included in the contract that could be said to put a value on those works. I have rejected the plaintiff’s evidence that he put a value of $18,500 on them, or on some of them. The defendant said that the value of renovations he wished to be done by others had been appraised at between $30,000 and $40,000. I have no evidence before me as to the value of the work the plaintiff did do. I only have evidence as to costings to complete the works and put their defects right. These costings are $6,822.50 (Mr Jankovic, Exhibit P7A) and $25,5550 to (Mr Makridis, Exhibit D8). Even for those both authors made significant qualifications in their oral evidence.
Further to this, I rather got the impression, and it was only an impression, that the experts thought that the work done by the plaintiff was so poorly done and so incomplete that it could not reasonably be said that the defendant received much value, if any, for that work. As this was only an impression, I do not rely on it.
As I refuse to order specific performance of the contract the question of the cost of rectifying and completing the Annexure B works does not strictly arise. It is not as if the defendant has paid or promised to pay a certain sum for work done or work left undone. It is not possible for me to assess the value, if any, of the plaintiff’s work.
In addition the defendant has made no counter-claim against the plaintiff. As an alternative claim the defendant “says that an account of the cost of completion of the work and rectification of the defective work should be taken and set-off against the value, if any, of the work undertaken by the plaintiff”.
There is possibly one sense in which the defendant has received some benefit by what is alleged by the plaintiff to have been paid by him. It was alleged in the plaintiff’s Statement of Claim that the plaintiff had paid all costs in relation to the sub-division, “which costs totalled not less than $16,959.70”. That sum, and the payment of it by the plaintiff, has not been proved. Against it is the evidence that is before me that the defendant has paid significant taxes and made significant interest payments on his borrowings as a result of the sub-division being approved and the sale not proceeding and a Caveat being on his property since August 2007.
I am satisfied, on the basis of the final submissions made to me by Mr Keith on behalf of the defendant, that even if the plaintiff thought that the work that he did do on the defendant’s house and property was worth $18,500, the defendant has not received work to that value, or anything like that value from the plaintiff. I am satisfied on the evidence of Mr Jankovic and Mr Makridis that the cost of making good the plaintiff’s defective work and of completing the Annexure B works would likely be at least $15,000 and probably much more, up to $25,000. This later sum is substantially greater than what the plaintiff says his work was to be valued at, even if I was to accept his evidence as to that, which I don’t, and even if I considered that that sum represented a value for the whole of the Annexure B works, which I don’t. Neither of these matters are consistent with the plaintiff’s own evidence.
Furthermore, I am satisfied and find that what the defendant has incurred by way of interest payments by virtue of the plaintiff’s repudiation of the contract of sale and by the placing a Caveat on the land and what he has incurred by way of land and other taxes as a result of the sub-division exceeds what the plaintiff alleged he spent to effect the sub-division, if he had proved that he had expended the sum alleged. That is so even if one brings into account in favour of the plaintiff the $5,000 deposit allegedly paid by him. On the conclusion that I have reached as to the plaintiff’s repudiation of the contract, however, I find that that deposit is forfeited to the defendant by the plaintiff’s breach, and I would, if necessary, so order.
As I indicated earlier the defendant sought as alternative relief for an account to be taken of the cost of completion of the work and rectification of the defective work to be set off against any value of the work undertaken by the plaintiff. Because of the matters to which I have just referred I do not order that an account be taken. I do not do so because first there is no basis for an account in light of the findings that I have made; secondly, I am satisfied that any account would almost inevitably be in favour of the defendant rather than in favour of the plaintiff; and thirdly, I am not satisfied that an account can properly be taken in the circumstances of this case.
I conclude that the appropriate relief is to dismiss the plaintiff’s claims, order that the Caveat on the defendant’s land be removed, and make no orders as to damages or for an account.
I shall hear the parties as to the orders reflecting these reasons and conclusions.