Branko Paic v Alexandros Peter Stefopoulos and Kay Stefopoulos [1989] ACTSC 26 (9 June 1989)

SUPREME COURT OF THE ACT

BRANKO PAIC v. ALEXANDROS PETER STEFOPOULOS and KAY STEFOPOULOS
S.C. No. 1122 of 1985
Building Contract

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Building Contract - original contract price - additional work - counter-claim for defective work - question of fact - no new question of principle

HEARING

CANBERRA
9:6:1989

ORDER

There be judgment for the plaintiff in the sum of $12,845.08.

DECISION

This is an application for recovery of moneys for labour done and materials supplied by the plaintiff to the defendants pursuant to a building contract entered into in about February 1985. At all material times the plaintiff was a licensed builder in the Australian Capital Territory and the defendants were the registered proprietors and occupiers of a residential Crown lease at Block 9, Section 9, Fisher in the said Territory.

2. The plaintiff's case is that early in 1985 the plaintiff, who had been acquainted with the male defendant (hereinafter referred to as Stefopoulos) for some time, was asked by Stefopoulos whether he would carry out certain building work at the defendants' home. The plaintiff and Stefopoulos thereupon continued their discussions at the defendants' home with Stefopoulos giving a general indication of the building work which he wished the plaintiff to perform. It was necessary for plans of the work to be prepared and for this purpose the plaintiff introduced Stefopoulos to a draftsman who undertook the preparation of those plans. The draftsman duly completed a plan and when it was shown to the plaintiff, he told Stefopoulos that the construction work set out in the plan would not be approved because certain piers were not shown on the plan and the approving authority would require them to be shown on the plan. The plan was duly submitted and was rejected. A copy of this plan was in evidence as Exhibit 2.

3. Working from this plan, the plaintiff submitted an all up contract price for the work and materials of $35,000. His price was accepted by the defendants. Another plan was then prepared incorporating certain additional work and that plan, having been submitted to the appropriate authority, was approved. There was additional work involved in the renovation work pursuant to the second plan. The plaintiff's case is that that additional work formed no part of the original agreed price of $35,000.

4. The plaintiff commenced the work in February 1985 and completed it in August 1985. In the course of the work certain variations were made by agreement between the parties and the plaintiff has costed those variations out at $17,320.66. The total value of the work, according to the plaintiff, is $35,000 plus the additional work valued at $17,320.66, making a total of $52,320.66. It was common ground that the defendants have paid to the plaintiff the sum of $31,850 and on the pleadings the plaintiff claims the difference, being $20,470.66 plus interest.

5. The substantial contest between the parties on the hearing of the action revolved around the terms of their contract, which was wholly oral. The secondary contest was about the value of the variations to the work contemplated within the original agreement. There was further contest about the quality of the plaintiff's work.

6. By their defence the defendants admitted that there was an agreed contract price of $35,000 and said that, if there were any variations which involved extra work on the part of the plaintiff, it was agreed that the defendants would pay for the extra work at a price to be agreed upon between the parties. It was also common ground on the pleadings and on the evidence that there were a number of variations which the plaintiff did at the request of the defendants, for which there was no charge by the plaintiff.

7. By their defence the defendants contend, however, that the total cost of the agreed variations was $3,850 and that they had paid that amount to the plaintiff. As to the other variations the defendants claimed that they were not really variations at all but were part of the original contract price. The defendants also raised a counterclaim based upon an implied term that the plaintiff would carry out the work in a good and workmanlike manner and claimed that there had been a breach of that warranty. The defendants claim the sum of $18,897.75 for rectification of the defective work, the cost of labour supplied to the plaintiff by members of the defendants family and the cost of purchase and supply of new and secondhand materials used in the completion of the work.

8. By way of reply the plaintiff has relied upon a quantum meruit.

9. Both parties engaged the services of different building consultants after the action had been instituted. Their common approach to the resolution of the conflicts between the parties was to make independent estimates of the value of the work originally agreed upon, then to value such variations to that original work in accordance with the instructions from their respective clients and make any other appropriate allowances in all the circumstances.

10. There is a reasonable consensus between the two building consultants on the value of the work as originally agreed and depicted in the first plan (Exhibit 2). Their estimates for that work were, in the case of the plaintiff's expert, $47,215 and, in the case of the defendants' expert, $46,600. There was not the same consensus in relation to the value of the variations for the fundamental reason that, on the one hand the plaintiff instructed his building consultant about the variations he claimed under the contract, and on the other the defendants instructed their building consultant that many of those variations were included in the original contract work.
Original Contract Price

11. The plaintiff's claim as pleaded was that the plaintiff offered to do the work set out in the original plan (Exhibit 2) for $35,000. Particulars of the work covered by the sum of $35,000 were set out as particulars in the statement of claim. When he gave evidence the plaintiff said that during the course of discussions with Stefopoulos he had promised that one member of his family would be available every day to assist the plaintiff in the performance of the work. He said that Stefopoulos had guaranteed that in accepting the price of $35,000. He said that notwithstanding that promise very little assistance was provided by Stefopoulos or other members of his family. He gave details of the amount of work which was done pursuant to that promise.

12. In his address counsel for the plaintiff argued that the sum of $35,000 was fixed by the plaintiff and accepted by the defendants on the premise that the labour promised by the defendants would be supplied and that it was not supplied in any material sense. Accordingly, so it was submitted, the plaintiff is entitled to the value of the work done under the original contract, which on the evidence of the experts was in the order of $47,000.

13. On the other hand, it was submitted on behalf of the defendants that the plaintiff's claim had never been pleaded that way and accordingly the plaintiff is not entitled to recover on that basis. It was further noted that the defendants have made no claim for the value of their labour.

14. In my judgment the defendants' argument should prevail, particularly in the light of the plaintiff's evidence in cross-examination that, if his original price was only $35,000 yet the value of the work was in the order of $47,000, that was good luck to Stefopoulos. I proceed therefore on the basis that the starting point is the plaintiff's entitlement to $35,000 and no more for the original work.
Additional Work

15. It was agreed between the parties that additional work was carried out by mutual agreement. The dispute revolved around the particulars of that extra work. As previously stated the plaintiff claimed for extra work which totalled, on his figures, $17,320.66. The work claimed for by the plaintiff was costed out by his building consultant and the figure arrived at was $14,543.60. The same work was costed out by the defendants' building expert at $11,398.80.

16. Of the various items claimed by the plaintiff as additional work the defendants conceded:
(1) The construction of a front fence and

letterbox and concrete path along the
front of the house $ 850.00
(2) new concrete slab in driveway 1,300.00
(3) new concrete slab at rear of house 1,000.00
(4) concrete path along side of garage 400.00
Total $3,550.00

The defendant also conceded that he had agreed to pay the plaintiff the sum of $800 towards the cost of bricks.

17. In the course of counsel's address, counsel for the defendants also conceded about $110 for paint to the ceilings of the garage, ensuite and laundry and $75 for wall plastering to the ensuite and laundry, but nothing otherwise.

18. I allow item (1) above and $800 on the defendants' concessions.

19. Having considered all the evidence, I think that further allowance should be made to the plaintiff for extra work in addition to the items conceded by the defendants.

20. I think it is reasonable on the evidence to allow for all concrete paths, driveways and verandahs, not only (2), (3) and (4) set out above. The plaintiff has claimed the sum of $8,264 for this work, but it has been costed out at $5,283 by his own expert and $4,783 by the defendants' expert. In the circumstances I adopt a figure of $5,000, of which the defendants have conceded only $1,700.

21. I allow the cost of the double brick wall in the garage. The experts have costed $1,191 and $1,047 respectively for this additional work. I allow the sum of $1,100.

22. There was a dispute about whether the installation and painting of the ceilings in the garage, ensuite and laundry, and wall plastering to the garage, ensuite and laundry, were part of the original contract. In my judgment they were not. I allow the amounts costed by the plaintiff's expert, being $774.80, $148.71, $331 and $75 respectively, and not only the amounts conceded.

23. I also allow the following items at the amounts costed by the plaintiff's expert:

Floor and wall tiles to ensuite $631.91
Vanity unit and shower screen 460.00
Electrical work 100.00
Amended plan 100.00
Survey certificate 106.66
The total allowed for extra work is $8,828.08, to which has to be added 15%

for overheads and profit, yielding $10,152.08. To that I add item (1) above and $800 for bricks. The total is $11,802.08.
Defective Work

24. I am satisfied on the evidence that some of the work was defective and needed rectification. Those items were set out in a handwritten list handed up by counsel for the plaintiff during final addresses and I adopt those items and the amounts conceded in that handwritten note, totalling $4,850.
Additional Materials Supplied by the Defendants

25. These materials were likewise set out in the handwritten note handed up by counsel for the plaintiff during final addresses. I adopt those items and the amounts conceded, totalling $1,757.

26. The total of the cost of rectification of defective work and materials supplied by the defendants to the plaintiff is $6,607. I subtract that sum from the total of the cost of the original work, $35,000, and the cost of the extra work which I have totalled at $11,802.08:
Contract price and extra work $46,802.08 Defective work and materials supplied 6,607.00

$40,195.08

27. It is common ground that the sum of $31,850 has already been paid by the defendants to the plaintiff. Accordingly, the amount payable to the plaintiff for all work is $8,345.08 plus interest at 14% from August 1985, which is approximately $4,500.

28. There will be judgment for the plaintiff in the sum of $12,845.08.

29. I shall hear counsel on the question of costs.