WHITE v CULLEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, PRIESTLEY and MEAGHER JJA 21 March 1989, 11 May 1989 [1989] NSWCA 232 Contract — whether oral "do-and-charge" contract or improperly executed written contract — finding of fact appealed. Meagher JA In this matter the plaintiff, Mr Cullen, contracted to build a house for the defendant, Mrs White. He did so. It is not in contest that originally the parties contemplated that there would be a written contract. Mr Cullen prepared such a contract and signed it. He handed it to the defendant's husband, but Mrs White never signed it. The plaintiff, Mr Cullen, then sued for the price of the building on a "do-and-charge" basis. His Honour Judge Herron found in his favour. The defendant alleges that there was no "do-and-charge" contract, but that the written (although imperfectly executed) document governed the parties' legal relationship, and that the full amount payable under the written contract had been paid by her to Mr Cullen. As one would expect in such a contest, there was a wide gulf between the testimonies of the plaintiff and that of the defendant, each of whom gave completely different accounts of his or her dealings with the other. His Honour, on the question of credibility, expressed a clear preference for the version of the plaintiff. Not only did his Honour find for the plaintiff's version on the ground of his superior credibility and demeanour, but he also pointed to certain external features of the evidence which contradicted the defendant's version. Five of these features should be mentioned: First, the plaintiff gave evidence which was accepted by his Honour that the defendant had torn up the written contract. Secondly, whereas the written contract called for the work to be completed within six weeks, the undisputed fact is that the work was done piece-meal over a period of two years without any complaint from the defendant. Thirdly, the defendant in fact paid the plaintiff more money than was called for in the contract. Fourthly, in an affidavit in early proceedings between the parties the defendant swore in effect that there was no written contract but that the contract between the parties was oral. Fifthly, the defendant kept detailed accounts in a day book of the amount of time spent by him in completing the work. The defendant has appealed to this court. Her counsel, Mr Thomson, in a very able argument, did not underestimate the difficulty of his task in overturning findings of fact made by the primary judge and buttressed by a finding of credibility. That difficulty has been enunciated in a series of cases in England and Australia of which three should perhaps be mentioned: the decision of the English Court of Appeal in Coghlan v Cumberland [1986] 1 Ch 704, the decision 2 UNREPORTED JUDGMENTS of the High Court of Australia in Brunskill v Sovereign Marine and General Insurance Co. Ltd (1985) 59 ALJR 842 and the decision of this court in Chambers v Jobling (1986) 7 NSWLR 1. The high point of the defendant/appellant's case was to point to certain documents in the plaintiff/respondent's handwriting which on any view were extras not originally contemplated. These documents became exhibits 3,4 and 5. The appellant's case was that the amount owing by her was the sum which comprised the original agreed price as in the written contract together with these extras, which she alleged constituted variations of that original contract. To appreciate the strength of the appellant's argument reference should be had also to another document which became exhibit 8 in the proceedings. For ease of understanding I will set out in full:- ORIGINAL PRICE 16,389.00 EXTRAS AS LISTED 2,196.00 EXTRAS PLUS + PAGE A 7,251.00 EXTRAS PAGE B 2,000.00 GAZZ UP TILED ROOF 500.00 BLIND AND CARPET 2,500.00 16,389 2,196 7,251 2,000 2,500 17,600 The appellant submitted that this document constituted an acknowledgement by the respondent/plaintiff that the monies owing to him were regulated by the written contract plus the variations. The first item "original price" is clearly derived from the contract. The second item "extras as listed" is likewise to be found in the contract itself. The third item which refers to page "A" is clearly a reference to the extras listed in exhibit 4. The appellant, in these circumstances, submitted that at the time when this document was prepared (which it was agreed was at a time after the work had been substantially completed the plaintiff/respondent was relying fairly and squarely on the written document as varied. Moreover, as Priestley JA remarked during the course of argument, if there really was a "do-and-charge" contract it is odd that the plaintiff/respondent's document should not have calculated how many hours had been spent already, how many hours work was to be completed, what past costs URJ WHITE v CULLEN (Meagher JA) 3 had been involved and what further costs would be involved.. At the trial, the plaintiff's evidence was that the document was produced by him as an estimate for the defendant to enable her to know what the price would ultimately be. The plaintiff's evidence in this regard certainly seems a little strange, but I do not think it is so inconsistent with undoubted facts in the case as to show Herron DCJ was necessarily mistaken in accepting it. It is consistent with the plaintiff in effect saying to the defendant "it is too hard to work out how many hours I have to go, but I can give you a rough idea by taking the original price and adding on other bits and pieces, so that the end result will be something like the amount which a "do-and-charge" computation will work out at". His Honour's finding necessarily implies that he accepted that this was what the plaintiff was doing. The mysteries of elucidating this particular document are not made any easier by the fact that neither party could explain what was meant by the fourth item referring to "page B" nor why there was a reference to "blind and carpet" when the plaintiff was neither asked to supply these items nor charged any sum in respect of them. Nor is it made easier by the fact that seven items are listed but only six amounts are listed against them. It is made still more difficult when neither party can explain why the deduction of $17,600 was made. I merely point to these realms of uncertainty as indicating that the document does not seem on the evidence to fit easily into the version of either the plaintiff or the defendant. On the whole, therefore, I am of the view that whilst the appellant has successfully been able to point to certain factors which militate against the plaintiff/respondent's case she has not been able to demonstrate that those factors are of the requisite order to invoke the intervention of this court. I therefore propose that the appeal should be dismissed with costs. Counsel for appellant: J E Thompson Solicitors for appellant: Gillis Delaney Counsel for respondent: P A Regattier Solicitors for respondent: Nelson Keane and Co