New South Wales District Court CITATION: Bellmarch Developments Pty Ltd v Kaine Simon Alcorn trading as Alcorn's [2006] NSWDC 51 HEARING DATE(S): 22/02/2006-23/02/2006 EX TEMPORE JUDGMENT DATE : 02/23/2006 JURISDICTION: Civil JUDGMENT OF: Neilson DCJ at 1 DECISION: Verdict and Judgment for the defendant against the plaintiff; Verdict and Judgment for the cross-claimant against the cross defendant; Plaintiff to pay the defendant's costs of the action and of the cross claim CATCHWORDS: Contract - Building sub-contract - Whether work done in "a proper and workmanlike manner" - Whether such work causative of loss PARTIES: Bellmarch Developments Pty Ltd (Plaintiff / Cross Defendant) Kaine Simon Alcorn t/as Alcorn's (Defendant / Cross Claimant) FILE NUMBER(S): 4990/04 COUNSEL: Mr S. Cairns (Plaintiff / Cross Defendant) Mr R.A. Cavanagh (Defendant / Cross Claimant) JUDGMENT 1 HIS HONOUR: On the 1 December 2004 the plaintiff Bellmarch Development Pty Limited filed a liquidated statement of claim, claiming a sum of $68,038.63 from the defendant. The claim arises from a number of allegations of breach of contract and in my view it was strictly not the proper subject for statement of liquidated claim. However nothing turns on that. 2 The defendant filed a defence on the 26 May 2005 and it was properly verified. The defendant has filed a cross claim against the plaintiff to which the plaintiff filed a defence on 10 November 2005, however it now appears to be common ground that the defendant has withheld from the plaintiff monies due to him under various contracts amounting to the sum claimed in the cross claim, namely $5295.62. 3 The plaintiff is a building construction company. The defendant was at the time a sole trader in the business of cleaning bricks. The defendant's experience in the brick cleaning business was for some two years, I assume, as an employee or sub contractor to another brick cleaner, and then he commenced his own brick cleaning business. During the period between 2002 and 2004 the defendant carried out brick cleaning work for a number of companies including Clarendon Homes. As a result of a recommendation from someone at Clarendon Homes the defendant was contacted by Mr Brian O'Donaghue of Bellmarch Developments Pty Limited and asked to do certain jobs for Bellmarch. Sometime in 2003 the defendant started doing brick cleaning work for the plaintiff, Mr Gerry Hindmarsh, a director of, and I infer a principal of, the plaintiff company, estimated that the defendant would carry out approximately two jobs per week for the plaintiff, that is cleaning two houses that had been constructed, each week. The plaintiff's claim is in respect of six jobs that the defendant performed for the plaintiff. 4 The statement of claim is a very poor specimen of the draughtsman's art. It is not clear whether the plaintiff's claim it in contract or in tort. In respect of each of the six properties it is alleged that the defendant failed to carry out his work 'in a proper and workmanlike manner.' In respect of the final job, namely lot 726 Bottlebrush Avenue Kellyville, it is also alleged that the defendant performed his work 'negligently.' Two particulars of negligence are provided. They are these; "(1)Using excessive water pressure when cleaning with a water jet; (2)Carrying out work in such a manner so as to cause damage to the masonry units and/or the adjacent joints." 5 The vast majority of the plaintiff's claim is in respect of work done at Bottlebrush Avenue, Kellyville. Of the total sum claimed in the statement of claim, $66,151.03 is attributed to the Bottlebrush Avenue property. However in the course of giving evidence another director, and I infer principal, of the plaintiff, Mr Ronald Campbell, made certain adjustments to the claim in respect of the Bottlebrush Avenue property, such that the total amount claimed in respect of that property ought be reduced by the sum of $1215.86. The 'arrangement' pursuant to which the defendant did work for the plaintiff was, I infer, an oral contract in each case. The evidence does not disclose any particular express term. For commercial purposes I am quite prepared to imply into the contract between the plaintiff and defendant for each of the jobs in question a term that the work would be carried out in a proper and tradesmanlike manner. I am also prepared to accede to the proposition that if work were done negligently causing damage or loss, that work was not done in a proper and tradesmanlike manner. 6 The first property or job which is the subject of the statement of claim is lot 82 Benson Road, Kellyville. It is alleged that the defendant's work caused acid damage to the guttering of the property, that rectification work was required at a total cost to the plaintiff of $324.50 inclusive of GST. About this job the defendant said this: "Damage to the gutter occurred in the manner I have already suggested. That is, I was required to stand on the roof without scaffolding or support. Some acid spilt into the gutter and I could not clean it up. Bellmarch deducted the amount of $324.50 from my invoice. I have thus already paid the amount referred to in paragraph 8 of the statement of claim." 7 In that regard Mr Alcorn was not challenged, so I accept that the amount claimed in the statement of claim has already been paid. The next claim is for the sum of $330 for damage to a property at lot 4 Victoria Road, West Pennant Hills. Neither Mr Campbell nor Mr Hindmarsh attended at that site and therefore could not give me any direct evidence of any damage that was carried out to that building site. On that the defendant says this: "I do not know anything about this site. I am unable to locate any invoice and do not recall any complaint or being asked to return to fix it up." The claim in respect of lot 4 Victoria Road West Pennant Hills must fail. 8 The next claim is in respect of Lot 3 Payten Avenue, Roselands where Mr Campbell said that a gutter was damaged as a result of the defendant's leaning his ladder on the gutter which accordingly needed to be replaced. There is no documentary evidence concerning that claim in the affidavit of Mr Campbell which is exhibit A. Mr Hindmarsh did not visit this site and his evidence relating to that site was struck out of his affidavit because he was not in a position to give such evidence. There may have been documentary evidence to support the claim in Mr Campbell's affidavit but if there were such evidence it was in Mr Hindmarsh's affidavit and has been struck out. On that issue Mr Alcorn, the defendant, said this: "I do not recall any complaint or being asked to return to fix up any problems. I do not know why Bellmarch paid someone else to fix the problem, if there was a problem, without contacting me." 9 For damage to the property at Lot 82 Benson Road, Kellyville, the plaintiff was quite prepared to deduct the cost of damage from Mr Alcorn's invoice. There is no suggestion that that was done in respect of the property at Lot 3 Payten Avenue, Roselands. I am wholly dependent for the allegation of damage upon the evidence of Mr Campbell and for reasons which will in due course become apparent I am able to accept Mr Campbell as a reliable witness. The claim in respect of Lot 3 Payten Avenue, Roselands fails. 10 The next property about which a claim is made is lot 9 Euroka Road, Westleigh. Neither Mr Campbell nor Mr Hindmarsh attended that site, so there is no direct evidence of any damage. On this claim the defendant said this: "I was not informed of any problem with the work following completion of the work. My total price for undertaking the work was generally well under $1000. If there was acid burn to any part of the property it could be removed by the application of a neutraliser. I did this on many sites without difficulty. It generally would only take less than an hour. I was not contacted by Mr Hindmarsh about this site and dispute that it would have required a cost of $478.50 managing to neutralise any acid burn." There being no direct evidence of any damage and no concession made by the defendant, the claim must fail. 11 The next claim is in respect of damage alleged at lot 3, Burunda Street, Como West. There is evidence from both Mr Campbell and Mr Hindmarsh concerning that site. Each of them said he attended the site and inspected damage. The words used in the affidavits of Mr Campbell and Mr Hindmarsh are identical. They are these: "Brick joints blown out due to what appears to be a combination of the use of excess pressure when cleaning the brickwork and to high a concentration of acid in the cleaning solution." 12 The use of the word 'appears' indicates that this was speculation by each of the deponents as to what was the likely cause of the alleged damage. There is documentary support for rectification work at this site annexed to the affidavit of Mr Hindmarsh which is exhibit C. That documentary evidence is a tax invoice from Mr Steven Common of Corlette and bears date 25 February 2004. The work done by the defendant according to the statement of claim was 'in or about January 2003.' In other words this rectification work was done some 12 months or more later than the original work performed by Mr Alcorn and was only done after a real dispute arose between the plaintiff and the defendant following upon work performed at lot 726 Bottlebrush Avenue Kellyville which is the substance of the plaintiff's claim. The invoice of Mr Common is this: "Pointed up mortar joints as needed; entire house; $240." To which sum must be added $24 for the GST. On this claim the defendant said this: "I was not contacted about this job after it was finished. I believe the work may have been undertaking by my sub contractor Brett Edwards. I do not know what rectification work was necessary and I was not afforded any opportunity to inspect or check on any damage which might have been caused by Mr Edwards." There is no dispute that Mr Edwards was a subcontractor to the defendant and that the plaintiff's contract was with the defendant rather than directly with Mr Edwards. Accordingly, if there was any default by Mr Edwards, Mr Alcorn would be still liable to the plaintiff and the question is, was there any damage done to the property for which Mr Alcorn is responsible? 13 The time lapse of a year causes me grave concern, especially when during that one year there has been a major dispute between the plaintiff and the defendant. Equally I must take into account evidence given by Mr Hindmarsh concerning blown brick joints. In para 14 of his affidavit sworn on 6 October 2005 Mr Hindmarsh said this: "It was not uncommon for blowouts to occur, being the mortar "blown out", and trades would be called back to rectify this." 14 That as I understand it from the evidence before me is a fairly common occurrence. It is clear that neither Mr Alcorn nor Mr Edwards was called back to rectify any blown joints immediately after brick cleaning in January 2003. All I know is that Mr Common did re-pointing work a year later. To affix liability for that work in or before 25 February 2004 to the defendant, I must rely on the evidence and opinions of both Mr Campbell and Mr Hindmarsh. 15 For reasons that I will come to in due course, I am not persuaded that either of those gentlemen is a reliable witness. If there had been a problem with blown joints after brick cleaning in January 2003, one would have expected, in the normal course, that Mr Alcorn and/or Mr Edwards would have been called back shortly thereafter to rectify any work or would have had the cost of rectification deducted from Mr Alcorn's invoice. There is no evidence to that affect. I am not satisfied on the balance of probabilities that there was any defective workmanship performed by the defendant or on his behalf at lot 3 Burunda Street Como West. 16 The remaining claim is in respect to the property at Lot 726 Bottlebrush Avenue, Kellyville. 17 The plaintiff company was erecting on that site a residential dwelling for Mr Darren Pennell and his wife. Mr Pennell is a real estate agent and one would think him to have some familiarity with at least the appearance of and constructional soundness of dwelling houses. According to Mr Pennell, construction work started in March 2004, the house was a two storey brick veneer home to be lined with plasterboard or gyprock. 18 The Pennells had chosen for the brickwork for the house a Balmoral premium sandstock brick manufactured by PGH. It would appear that the laying of the bricks at the Bottlebrush Avenue site was completed on 5 August 2003. Exhibit G is an internal record of the plaintiff company regarding payments to the bricklayers concerned. The first interim invoice bears the date 15 July 2003 and the final invoice bears date 5 August 2003. Between those two dates are two other invoices indicating that the bricklayer was submitting accounts on a weekly basis. 19 The inference to be drawn is that the erection of the brickwork commenced on or about 8 July 2003. As I said the final invoice suggests that the erection of the bricks was completed by 5 August 2003, the work being done over some four weeks. The cleaning of the bricks by the defendant was completed on 21 August 2003, the day on which Mr Alcorn dated an invoice for his work to the plaintiff. The evidence of Mr Alcorn is that he took two days to do the work, so that the brick cleaning work was carried out on 20th and 21 August 2003. 20 After the bricks had been cleaned Mr Pennell expressed what can be described as extreme disquiet to the plaintiff company. Mr Hindmarsh had gone on holiday to Queensland and the complaint was clearly made to Mr Campbell. Mr Campbell called in the services of Mr Barry O'Mara, a construction expert, who carried out a site visit on the morning of 28 August 2003, that is a week after the brick cleaning had been completed. Sometime in the interim Mr Campbell had put a 'stop work order' on the building site. Mr O'Mara's first report bears date 28 August 2003, the date of his inspection. The report commences thus: "I am instructed to visit the residence under construction at Lot 726 Bottlebrush Avenue, Kellyville for the purpose of inspecting the brick cleaning and providing an independent report on whether it have [sic] been done in a good and workmanlike manner." 21 In his oral evidence Mr O'Mara told me that his 'main brief' was to report on damage to the mortar joints in the brickwork. At the top of page 3 of his report Mr O'Mara said this: "An inspection of the external rate joints showed that the mortar joints had had their surface severely damaged from an excessive pressure used when cleaning with a water jet. While there is no Australian standard that covers Brick cleaning the building and construction industry requirements [sic] that it be done in a good and workmanlike manner and in such a way that it does not damage either the masonry units or the adjacent joints. The task is clear, defined and published by the Clay Brick Pavers Institute where they describe the method to be used and the maximum pressure recommended so as to perform the cleaning task and at the same time prevent damage to the finished mortar joint. (Annexure.) My inspection of the brick cleaning on this project clearly indicate [sic] that the recommended method has not been followed with a result that damage is evident to nearly all the joints around the complete project." 22 The rest of the report of 28 August 2003 is mainly photographs of various sections of the brickwork at the building site with captions thereon showing damage to the mortar joints. After those photographs and the captions on them, Mr O'Mara sets out a 'final conclusion.' The commencement of that section of the report is this: "After conducting my inspection, a record of which is contained therein [sic], it is my experienced opinion that the damage to the mortar joints is so extensive and wide spread that the complete masonry should be either; (1) Replaced; or (2) The complete masonry have its joints ground out so as to enable the exterior of the joints to be replaced." 23 The photographs and captions in the report in addition to showing or describing damage to the mortar joints describe two other phenomena. The first is 'chipped bricks' caused, in the opinion of Mr O'Mara, by the use of 'excessive pressure.' The other is some bricks being left with 'mortar spills' or 'mortar dags.' Of course the purpose of cleaning bricks is to remove mortar spills and mortar dags. 24 One must consider that if excessive pressure was being used why the mortar spills and the mortar dags had not been removed from all of the bricks that had been affected by mortar spills and mortar dags. One would think, using commonsense, that if a normal pressure was applied it ought do the job properly and that if excessive pressure had been used and that the mortar dags and mortar spills had not yet been removed that there was something wrong in the process of applying the mortar. 25 There is much substance in the criticism levelled by learned counsel for the defendant on the evidence of Mr O'Mara. Mr O'Mara merely expressed an expert opinion without providing any reasoning process to support it. Experts who provide an opinion must consider both their role and the role of the court. This is well known from the judgment of Lord President Cooper in Davie v The Edinburgh Magistrates [1953] SC34. At 40 his Lordship said: "The parties have invoked the decision of a judicial tribunal and not the oracular pronouncement of an expert". Of the experts the Lord President went on to say; "Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence." 26 Mr O'Mara appears to have acted somewhat as the provider of oracular judgments. It is to be noted that according to Mr O'Mara the reason for rectification work to be carried out was the damage to the mortar joints of the brickwork. He clearly was of the view that the extent of the damage to the mortar joints was so extensive that merely re-pointing would be insufficient. His report of 28 August 2003 does not suggest that the need for the rectification work was because of damage to the face of each and every, or the damage to the faces of most of the bricks due to the application of high pressure in the brick cleaning process. 27 At this stage it is important to consider the views of Mr Pennell and his wife. After the brick cleaning work had been carried out Mr Pennell said this in para 4 of his affidavit; "I observed that the mortar joints were blown out in several places. The face of the bricks had also been ruined as well. The bricks that my wife and I had chosen did not look the same at all. Our dream home was a disaster." 28 The next paragraph in Mr Pennell's affidavit refers to his arranging a meeting with Mr Campbell, as to when it occurred, that is shortly after the brick cleaning had been completed, and of the complaint made by Mr and Mrs Pennell to Mr Campbell. The fifth paragraph continues thus; "The damage to the home consisted of the mortar joints being blown out in many areas to the extent that daylight was clearly visible from inside the house and the existing mortar joints had a honeycomb appearance to them. At that stage the gyprock had not been fixed to the internal walls so we could see daylight through the brickwork from the inside of the house. The bricks themselves had been destroyed as the face of the bricks appeared to be eaten away or dissolved in some way." 29 The first thing one should note is the hyperbole of the real estate agent. Some damage to the faces of the bricks caused them to be 'destroyed.' This of course is mere exaggeration or puffery. However it has been noted that Mr Pennell was concerned about the damage to the mortar joints and then his next concern was of damage to the face of the bricks. Para 9 of Mr Pennell's affidavit is also of moment. It is this: "As a licensed real estate agent for some fourteen years, I knew the value of the home would be greatly reduced had this problem not been addressed. Years of experience with residential home selling had taught myself that any professional building inspector would pick up on every issue if we had to sell the property. Besides that, the overall appearance was sickening and I could not live there let alone for someone else to buy our home in that state. Our only solution to the problem was to ask for our home to be built and finished in accordance with the building agreement with Bellmarch. My wife and I insisted that this be the course of action and whilst we did experience delays we were pleased that it was eventually done in this way." 30 It is important to note that, as far as Mr Pennell was concerned, the reduction in value of the house that had been constructed up to that time was reduced because of problems that a building inspector would pick up. Those problems were the damage to the mortar joints. Mr Pennell was then concerned on a secondary basis about the appearance of the bricks, that is their cosmetic appearance. The evidence shows that the bricks were still structurally good, it was just that they did not look very nice. 31 Documentary evidence before me indicates that the existing brickwork was demolished between 25 September and 4 October 2003. A fresh load of bricks was delivered to the site on 22 October 2003, and the bricklayers' first invoice bears date 27 October 2003. I infer that the laying of the second lot of bricks commenced on or about 22 October 2003, the day the bricks were delivered or very shortly thereafter. The relaying of the bricks was completed on 18 November 2003, again a period of some four weeks. 32 The documentary evidence before me suggests that the second lot of brick cleaning was not carried out until 5 January 2004, some six weeks later. That brick cleaning work was carried out by Omega Service (Australia) Pty Limited. According to the evidence of Mr Campbell the 'rectification' work was completed on or about 4 February 2004. According to Mr Campbell the house was finally constructed some eight weeks after that time. One can see therefore that the construction took approximately one year. According to Mr Campbell the scheduled time for the construction of the dwelling was some time in November of 2004. The 'rectification' work therefore appears to have caused some three months' delay. That delay of course was exacerbated by the close down of the building industry over the Christmas/New Year period. 33 The defendant does not deny that the mortar joints were damaged in the process of his cleaning the bricks. Much to my surprise the defendant did not deny, in fact volunteered, that the surfaces of the bricks were also damaged by his cleaning of the bricks. Mr Alcorn conceded in-chief that if the house had been owned by him he would not have accepted it, which is exactly the position taken by Mr and Mrs Pennell. 34 The real dispute in the current action is why did the cleaning of the brick work by Mr Alcorn cause the damage and who was responsible for it? 35 The process of cleaning bricks after a building has been constructed is clear from the evidence. The first thing to be done is that all large mortar particles are removed with hand tools. Mr Alcorn used a paint scraper and a chisel. There is also reference in the evidence to the use of a wooden paddle and to the use of what I infer is a chipping hammer. After manually removing large mortar particles the bricks are wetted so that they will not be damaged by the application of acid. Acid is then sprayed on to the bricks at normal mains pressure. The acid used by Mr Alcorn was hydrochloric acid. Once the acid has been sprayed then it is allowed to stand for between three and six minutes. The wall is then washed down with high pressure water from top to bottom so that all dissolved mortar particles will be completely flushed from the wall's surface. 36 According to an annexure to Mr O'Mara's report, the force of the water jet on the wall should at most be approximately 1000 psi to prevent damage to the masonry units, that is the bricks and the mortar. According to Mr Alcorn, from materials that he had used, and from his own practice, the force to be applied was approximately 1200 psi. The pressure used by Mr Alcorn was described by him in evidence in some detail. It could apply pressure up to 3000 psi and have a flow rate of 15 litres per minute. Mr Alcorn said that if the gun or wand or lance being used was held eight to ten centimetres distant from the wall, that the pressure would be reduced from 3000 psi to 1200 psi. 37 Mr Alcorn had available to him three types of nozzle to put on the end of the hose attached to his high pressure unit. The first was an ordinary or average nozzle, which is approximately two inches long. The next nozzle was a jet nozzle which was some three inches long. The final one was a turbo nozzle which was four inches long. The use of a turbo nozzle could increase the maximum pressure from 3000 psi to 4500 psi, that is to increase maximum pressure by fifty per cent. The turbo nozzle applies the jet in a rotating manner such that it is more difficult to constrain the flow of the water under pressure to the surface of the brick, and thus making it more difficult to spare the direct application of the water jet on to the mortar. Mr Alcorn admits using the turbo jet on the work at Bottlebrush Avenue. 38 There appears to be little doubt that the use of the turbo jet was responsible for the damage to the façade of each brick by reason of a scouring action, abrasion, erosion, call it what one will, and was also responsible for blown joints in the mortar. Essentially the defendant says that he had to use the turbo jet to clean these bricks because of the excessive amount of mortar that had been left adhering to the face of the bricks and by the excessive hardness of the mortar. 39 Not only does Mr Alcorn say that but he also says he did so with the knowledge of, and express approval of, the plaintiff, both through its servant or agent, Mr Hindmarsh. Mr Hindmarsh's position is that he did not know of the use of the turbo nozzle, that he did not know of any actual or potential damage to the façade of bricks and he certainly did not direct Mr Alcorn to clean the bricks with the turbo nozzle such that he was aware that damage was being done to the façade of bricks. 40 Before I go to that issue I should go back one stage in the description of the process of cleaning bricks. The first issue to be considered is when should the brick cleaning be done? The annexure to Mr O'Mara's first report is an extract from the Clay Brick and Pavers Institute "code of practice." The first stage of the brick cleaning process referred to in that publication is this: "Allow mortar to harden. Cleaning with high pressure should not start before mortar is at least three days old." 41 There is a second report from Mr O'Mara which is part of exhibit F which comments on a report of Dr Hutcheson of 15 September 2005, which report has not come into evidence. The inference I draw is that the report was made at the request of the defendant and the reason why it has not come into evidence is for tactical reasons bearing in mind the way this case has been conducted and the way the evidence has been presented. 42 Mr O'Mara, in his supplementary opinion, refers to Mr Hutcheson commenting on the code of practice to which I have referred, and Mr Hutcheson is quoted as saying it was, "not a standard nor is it widely promulgated in the Building Industry. As a practising civil engineer, I am of the opinion that the three days sitting proposed in para 1 is wrong. Mortar takes seven days to reach its first strength." 43 Mr O'Mara's comment on that was that the provision by him of the CBPI code of practice was not his presentation of it as "Standard." Mr O'Mara then goes on to say, "it has been available for at least fifteen years. The attachment is but a section from the current publication by the Clay Brick and Pavers Institute." 44 Mr O'Mara then goes on to quote from other sections of Mr Hutcheson's report. It should be noted that Mr O'Mara does not disagree with the proposition offered by Mr Hutcheson that the three days' setting is wrong and that mortar takes seven days to reach its first strength. What is postulated therefore is that the brick cleaning should not be carried out until at least a week after the final laying of the bricks. Here the lapse of time between the final laying of the bricks and the commencement of brick cleaning work was fifteen days. That is two weeks and one day, and when one looks at when the bricks were first laid, some of the brickwork had then been erected over six weeks previously. In other words there was more than sufficient time in which the mortar between the bricks had cured. 45 This leads me to a conflict in the evidence between the witnesses called in the plaintiff's case, a conflict in the evidence of Mr Campbell and Mr Hindmarsh. The conflict in the evidence must be seen in the context of facts raised in the defendant's defence. The defendant says that the mortar was exceedingly hard, fully cured and very difficult to remove. Indeed, from what is quoted by Mr O'Mara, Dr Hutcheson reached the view that the mortar mix was the fundamental cause of the defect that led to the damage. 46 The evidence discloses that mortar is made up of a mixture of sand, cement and lime. The use of too much cement creates a mortar which is harder than normal, once a mortar is harder than normal and fully cured, it is more difficult to remove than normal mortar. Common sense tells one that. 47 I return to the conflict between Mr Campbell and Mr Hindmarsh. Mr Campbell asked me to accept that the brick cleaning process was carried out 'immediately' after the of the brick work. He was most insistent that it be done, 'immediately' after the laying of bricks, to the extent that I had to inquire of him what he meant by the word 'immediately.' The inference I drew from his evidence was that it would be within a couple of days of the brick laying having been finished. It was put to Mr Campbell that the brick cleaning work was carried out two to three weeks after the bricks had been laid. 48 That was denied by Mr Campbell. At that time there was no documentary evidence to suggest when the brick work had been completed, so that by some objective means one could ascertain the time lapse between the completion of the brick laying and the commencement of the brick cleaning. 49 Mr Campbell was asked by me whether he could bring to Court the following day documents which would establish when the brick laying was complete. He did not bring the documents with him the next morning and offered as an explanation a misunderstanding of what I had asked him to do. However some documents were eventually provided by facsimile transmission and found their way into evidence. That document, exhibit G, clearly shows that the brick laying was completed on 5 August 2003 and we do know that the brick cleaning was carried out on 20 and 21 August 2003, a gap of more than two weeks. 50 Furthermore when Mr Campbell had finished giving his evidence at the first day of the hearing, Mr Hindmarsh commenced giving evidence and Mr Campbell remained in Court when Mr Hindmarsh gave his evidence. Mr Hindmarsh's evidence as to the delay between the bricklaying and the brick cleaning was at complete odds with that of Mr Campbell. When Mr Campbell returned to the witness box he offered a further version, or revision, of his views as to when the brick cleaning ought be done. 51 It now appears to be the only possible finding on the evidence that the brick cleaning should be done at least a week after the brick laying has been completed, and it would appear to be the plaintiff' practice to have waited some considerable time between the brick laying and the brick cleaning. There is evidence to that effect from Mr Hindmarsh, from Mr Alcorn the defendant, from an unchallenged statement of Mr Andrew Adair, and of course in the code of conduct referred to by Mr O'Mara, and in that section of the report of Dr Hutcheson quoted by Mr O'Mara with which Mr O'Mara did not cavil. I formed the distinct impression that Mr Campbell was seeking to minimise the time between the completion of brick laying and brick cleaning in order to have me draw an inference that the mortar was still soft and could easily be removed from the completed brickwork. 52 There are a number of other ways in which I have found the evidence of Mr Campbell to be unsatisfactory. If I may be so bold as to say so, it appears to me that Mr Campbell is the office manager, the financial manager of the plaintiff's business, while Mr Hindmarsh appears to be the hands-on building manager – of the plaintiff's business. 53 The way of making out the actual damage suffered by the plaintiff was through Mr Campbell. It became clear that there were unwarranted claims made by Mr Campbell in his affidavit which unwarranted claims were also reiterated in the affidavit of Mr Hindmarsh. Mr Campbell was asked to reconsider the claims and to make adjustments to the plaintiff's claim, which adjustments were made on the following day but those adjustments were minor and in the process of making adjustments downwards Mr Campbell managed to find some ways of making some countervailing upward adjustments. 54 In other words, at the time of swearing his affidavit Mr Campbell had not put deep and diligent thought to the claim being made and was prepared to swear to something which was approximately correct and not actually correct. Furthermore generally as a witness Mr Campbell was exasperating. He would answer many questions with a speech when a yes or I no or do not remember would have been adequate. He did this in order to avoid questions and he did it as a means of confession and avoidance but usually managing in the process of omitting the confession and just providing the avoidance. I am afraid, with the utmost respect to him, that I cannot accept Mr Campbell's evidence unless he be corroborated by a reliable witness. 55 Indeed not only was there conflict between Mr Hindmarsh and Mr Campbell on the issue of when should the brick cleaning have been done, there was also an issue between Mr Campbell and Mr Hindmarsh on issues of damage. Mr Hindmarsh conceded that some of the claims for cleaning up of the site after the remedial brickwork had been carried out were not properly part of the claim. Nevertheless Mr Campbell persisted with keeping all those items in the claim perhaps with one exception which was made reluctantly, even after he had heard Mr Hindmarsh make the concessions. 56 I return now to what happened on 20 August 2003. There is no version of what occurred on that day in the primary affidavit of Mr Hindmarsh sworn on 20 June 2005 which is exhibit C. Mr Hindmarsh's version of the events of that day is given in an affidavit of 7 October 2005 in which Mr Hindmarsh comments on statements that had been prepared by the defendant and by Mr Andrew Adair, either a subcontractor to, or employee of Mr Alcorn. 57 Mr Alcorn's version of what occurred on 20 August 2003 and immediately thereafter needs to be considered in full. It is this: "I was engaged by Bellmarch to undertake brick cleaning on site. I undertook the work in company with Andrew Adair, in or about August 2003. I was contacted by Mr Gerry Hindmarsh as usual, a couple of days before I was required. When I attended the site I immediately noticed that the brickwork was poor. It was rough and was not as level as it should be. There was mortar over all the walls. It was very hard. It was a double storey house and the roof and gutter had been completed. There was no scaffolding. The brickwork had been undertaken three to four weeks earlier. Andrew Adair and I immediately started work. After a short period Andrew Adair said to me: 'I can't get the mortar off, it's too hard.' I then told him to use the turbo nozzle which applied much greater pressure. After about twenty minutes after working an area of around four metres on one side of the house, I observed that the turbo nozzle was causing some damage. I told him to stop immediately. I then called Gerry Hindmarsh and had a conversation with words to the following effect: I said to him: 'The mortar is hard. We can't get it off. We are damaging the bricks and I can't continue.' He said: 'Just wait there. I'm around the corner. I'll be there in a few minutes.' I then told Mr Adair to stop and go and have a smoko. I saw him go to the vehicle. In the minutes I was waiting I kept chiselling and then Mr Hindmarsh turned up. I showed him the wall where we had been working. I said to him: 'The brickwork is terrible and we can't get the mortar off.' He said: 'The brickwork's atrocious.' I demonstrated that what we had been doing by trying to scrape off the mortar and then use the high pressure machine with a turbo nozzle on the wall. I showed him the effect of the turbo nozzle on the bricks. I said to him: 'We can only get it off using the turbo and it's doing some damage.' He said: 'be careful but the job needs to be done. Go ahead and the brickies can come back and fix any problems and respond to any blow-outs.' After this discussion I went to the vehicle and told Mr Adair that we were to start work again. Because of the difficulty in doing the job it took into the second day to complete which was much longer than normal. I did not hear any further from Mr Hindmarsh or anyone associated with Bellmarch until around two to three weeks later I rang Mr Hindmarsh and asked him what was happening with my pay that had not been paid for that month. He said I should contact Ron, his partner. I had not met Ron but I called him. Ron said: 'You made a mess and we may have to rip down the bricks.' I said: 'The brickwork was disgusting in the first place.' He said: 'I know but you should have walked away.' I said: 'No I called Gerry and he instructed me to keep going.' He said: 'No, you're the professional and it was up to you.' I then said I would call Gerry. I then called Mr Hindmarsh and said: 'What's going on? You came and told me to keep going on the job.' Gerry said: 'I don't recall being there.' A short, heated argument then ensued as I was angry that Gerry was simply denying even speaking to me. I then called Ron back and I said: 'Do you know Gerry's denying that he came to the job?' He said: 'It doesn't matter whether he was there or not, you're responsible. You were using the turbo nozzle.' I said: 'Yeah I was and I told Gerry that was the only way I could get it off and he told me to go ahead.' Bellmarch didn't pay me in the amount of around $5000 which I was owed for a number of jobs. Some time later I again spoke to Ron in words to the following effect: I said: 'I am chasing up payments of my accounts. He: 'You can pay us around $60,000 in respect of the Bottlebrush job. You can't take us to Court and if you try and do so you will quickly run out of money.'" 58 In his oral evidence Mr Alcorn confirmed that that was what occurred, although he was not definite as to the actual words used in the conversations recorded with Mr Hindmarsh. For example he was unsure that Mr Hindmarsh used the word 'atrocious' but he thought it was that word or a words to a similar effect. 59 As was observed archly by learned counsel in the course of addresses that, this being the real world in the building industry one expects that several expletives have been deleted from the conversation and the word 'atrocious' may represent a more obscene term. 60 The gist of Mr Alcorn's evidence is that the mortar was very hard to remove. He needed to use the turbo nozzle to remove it. He and Mr Adair noted that the brick facings were being damaged. They stopped work. Mr Hindmarsh was called to the job. Mr Hindmarsh was shown the problem, was shown what the turbo nozzle was doing to the bricks and told them nevertheless to go ahead and do it, using care but in the expectation that damage could be repaired by the bricklayers. 61 In his statement Mr Adair confirms that the brickwork was poor and there was a large amount of mortar remaining on the surface of the bricks. He also states that after starting to use the turbo nozzle he noticed that it was causing some 'blow outs' and some 'minor damage to the bricks.' And that Mr Alcorn told him to stop work whilst he made a phone call to Mr Hindmarsh. He was not present during the conversation between Mr Alcorn and Mr Hindmarsh but he confirmed that Mr Alcorn told him that after a break they were to continue to do the work and that the work was slow and it took much longer than a normal job took. 62 Mr Alcorn is thus corroborated on the fact that he and Adair observed damage to the face of the bricks. 63 The quotation I have made from Mr Alcorn's evidence is part of what is contained in para 18 of his statement. In relation to that paragraph, Mr Hindmarsh swore this in his affidavit: "In regard to paragraph 18 I do not agree that the brickwork had been completed three to four weeks earlier. The timeframe was akin to one to two weeks after the brickwork was completed, which was our standard building schedule. In regard to the conversation there was no mention by Kaine Alcorn that the bricks were being damaged. Had this been the case I would have immediately said to stop all work. All I recall is that Kaine Alcorne said words to the effect, 'I am having difficulty cleaning the job.' I do not recall saying that I was 'just around the corner.' I do remember saying that Kaine Alcorne did show me the wall that he had been working on. I recall saying 'the brickwork is very dirty,' referring to the amount of mortar that had been left on the bricks. I do not recall using the word 'atrocious' and I state that it would not have described the condition of the bricks. At no stage did I know that Kaine Alcorne was using a turbo nozzle. Kaine Alcorne did show me what work he was doing but there was no mention of using a turbo nozzle. There was mention of damage to some of the mortar joints. I said words to the effect, 'go ahead, the job needs to be cleaned, any blow-outs we can point up later.' It was not uncommon for blow outs to occur, being the mortar 'blown out,' and trades would be called back to rectify this. There was no evidence at that stage that there was any defacing of the brickwork, in that the face of the bricks themselves were being damaged as a result of the method of cleaning adopted by Kaine Alcorne. Only the mortar joints had slight damage. I told him to keep cleaning the job not to damage the brickwork and certainly not to blow the face off the bricks." 64 In his oral evidence Mr Hindmarsh said that he did not deny being at the site in a subsequent telephone conversation with Mr Alcorn but he may have told Mr Alcorn that he could not remember the conversation. If, at that time which would appear to be September of 2003, he could not remember the conversation with Mr Alcorn then how, I ask myself, could he recall at the time of swearing his affidavit or giving oral evidence what had occurred in the conversation with Mr Alcorn on 20 August 2003? 65 There is clearly a factual and credit issue arising when one considers the evidence of Mr Hindmarsh and Mr Alcorn. I have seen and heard both gentlemen in the witness box. 66 The first thing to note is that Mr Alcorn is insured for the liability which is currently in dispute. Although he stands, if accepted, to recover, on his cross claim, a sum of approximately $5000 he does not stand to personally pay out the sum of some $60,000 if the plaintiff is successful in the principal claim. He did not appear to me to be a partial witness and the fact that he is insured indicates that he was not in a position to wish to be partial. 67 The description of what occurred given by Mr Alcorn was much more convincing than the description given by Mr Hindmarsh. For example Mr Hindmarsh was very coy in telling me what the problem was that he and Mr Alcorn discussed, firstly on the telephone and then on the job site on 20 August 2003. 68 Mr Hindmarsh said that there was no damage to the brick surfaces when he saw what work had been performed by Mr Alcorn but that is contrary, not only to what Mr Alcorn said but to what Mr Adair says in his statement and Mr Adair was not cross-examined. Furthermore there is nothing in the report of Mr O'Mara to suggest that some discrete part of the work had no damaged brick surfaces whilst other parts did have damaged brick surfaces. There is no evidence from anyone that the half of the left hand side of the house that had been cleaned prior to the stoppage of work by Mr Alcorn had no brick surface damage, whilst the rest of the building did. 69 I accept therefore that there was brick surface damage prior to Mr Hindmarsh's attending the site on 20 August 2003. If he saw the work he must have seen the damage. Furthermore Mr Hindmarsh says that he did not see the equipment being used by Mr Alcorn, that he did not see the turbo nozzle and he did not know it was being used. That it was being used antecedent to his visit is clear from the evidence of Mr Alcorn and Mr Adair. There is no suggestion by either of those gentlemen that the turbo nozzle was removed and replaced prior to Mr Hindmarsh's attending the site. Mr Alcorn was confident that he not only told Mr Hindmarsh that the turbo nozzle was being used but he actually demonstrated its use. 70 I much prefer the evidence of Mr Alcorn in that regard to the evidence of Mr Hindmarsh. Mr Hindmarsh has, according to his primary affidavit, 38 years' experience in the building industry. He must have been aware that from time to time brick cleaners used turbo nozzles. Indeed, according to Mr Alcorn there were now some brick cleaners who used high pressure units that are much more powerful than the high pressure unit that he uses, that is units that can generate much more than 3000 psi. If my recollection be correct he gave evidence of some brick cleaners using high pressure units that develop 4000 psi. 71 There was no suggestion that Mr Alcorn moved his cleaning equipment from the site prior to Mr Hindmarsh attending there and if Mr Hindmarsh did not observe the high pressure cleaning unit being used he must have been a very inobservant man. He must have attended the site with his eyes wide shut. 72 The subsequent dealings between Mr Alcorn and Mr Hindmarsh make no sense unless the version of Mr Alcorn be correct. I have no hesitation in accepting Mr Alcorn's version of subsequent telephone conversations with each of Mr Hindmarsh and Mr Campbell. 73 Mr Hindmarsh's denying that he was even at the site of course is an attempt by him to deny giving Mr Alcorn permission and direction to continue doing the work, as Mr Alcorn said he was doing it with the results Mr Alcorn had shown to Mr Hindmarsh. It may have also have granted Mr Hindmarsh some accommodation with his 'partner' Mr Campbell. The distinct impression I formed was that Mr Campbell was eager to recover the cost of the remediation work and it may have been easier for Mr Hindmarsh to deny giving the permission to Mr Alcorn to continue to do the work to keep good faith with his 'partner' Mr Campbell. Where there is conflict between Mr Campbell and Mr Alcorn I clearly prefer the evidence of Mr Alcorn. 74 I accept that Mr Alcorn did notice that the façade of the bricks as well as the mortar joints were being damaged in his attempt to clean the brickwork, but he stopped, called Mr Hindmarsh, showed him what was occurring as well as how he was doing work, and that Mr Hindmarsh directed Mr Alcorn to continue doing the work as he was doing it. 75 The end result of Mr Alcorn's doing the work was the blowing of a large number of mortar joints in the building under construction and also damage to the façade of the bricks which was cosmetically not acceptable to the owner, Mr Pennell. 76 As I said at the commencement of these reasons I accept there is implied term of each contract that the work be carried out in a proper and tradesmanlike manner. I accept that damage to the façade of the bricks was not in conformity with that implied term. 77 However, when Mr Alcorn realised that the façade of the bricks was being damaged he stopped work. He called upon the other party to the contract, through its servant Mr Hindmarsh, to give further direction. I accept that Mr Alcorn showed Mr Hindmarsh that cleaning the bricks was damaging the façade of the bricks as well as the mortar joints. 78 Nevertheless, as Mr Alcorn said, Mr Hindmarsh said the work had to be done and instructed Mr Alcorn to continue. That in my view is either a variation of the contract or a waiver, or one can look at it another way, as some form of estoppel; that it was brought to Mr Hindmarsh's attention the fact that cleaning the bricks in this fashion would cause damage, but Mr Hindmarsh accepted that that such would be the case and instructed Mr Alcorn nevertheless to continue cleaning the bricks. 79 The evidence before me persuades me that the effective cause of the damage suffered by the plaintiff was the use of excess mortar on the brickwork and the excess hardness of that mortar. That indeed is the substance of the evidence of the defendant Mr Alcorn and is also consistent with the observation of Mr O'Mara on 28 August that notwithstanding the use of excessive pressure there were still mortar dags and mortar spills left on the brickwork after it had been cleaned with a high pressure hose by Mr Alcorn. 80 This, to an extent, was acknowledged by Mr Hindmarsh who, although he would not go as far in describing the work of the bricklayers in pejorative terms as did Mr Alcorn, described it only as "average" and did not hire the original team of bricklayers to do the remedial work. He hired a team of bricklayers with whom he had a long association and who he regarded as good tradesmen. The original bricklaying was done by Wright Construction Pty Limited, and the second lot of brickwork was carried out by a team of Mr Erasmo Capolino, Mr John Da Prato, and Mr Jason Simmons, one of whom was the bricklayer's labourer. The evidence does not enable me to say who were the bricklayers and who was the bricklayer's labourer. 81 The matter can be looked at in another way. Although the house, after the brick cleaning, was unacceptable to Mr Pennell and unacceptable to Mr Alcorn, the house prior to the brick cleaning was certainly unacceptable to Mr Alcorn, and I hazard the observation it would have been unacceptable to Mr Pennell as well. In other words, that the bricks had to be cleaned, that the job had to be done, was self-evident. 82 Learned counsel for the plaintiff submitted that Mr Alcorn should only have done an ordinary or usual job of brick cleaning and then, when that had been done, to repeat that a number of time until all the excess mortar had been removed. Whether that would have achieved a good result or not, the evidence does not disclose. Whether five of six "normal cleanings" would have removed the mortar dags and the mortar spills that were not removed even by high pressure cleaning I do not know. 83 In any event as learned counsel for the defendant has submitted, the question of the facades of the bricks, the cosmetic damage, is a red herring. Here the need for the remediation work, the renewal of the brickwork, was the damage to the blown mortar joints which, even on Mr Hindmarsh's own evidence, was an acceptable outcome to the problem faced by Mr Alcorn. 84 There is some evidence from Mr Alcorn that in any event the mortar laying had not been done well but on that issue I do not need to make a decision. It is clear from what Mr Pennell says about building inspectors that the mortar joint damage had been picked up by a building inspector. Whilst cosmetically the result may not have been good, the real need for the work to be re-done was the damage to the mortar joints which was clearly something Mr Hindmarsh was prepared to accept on his own view of what happened at the time. 85 There was no attempt here to suggest that, if there had been no mortar joint damage, that the second form of remedial work suggested by Mr O'Mara, the grinding out of all the masonry and its replacement would have been much cheaper than the complete rebuilding actually undertaken. 86 In my view that does not arise in any event because the owner was entitled to insist of a re-doing of the brickwork because of the blown mortar joints which caused a structural problem and in any event the blown mortar joints were something that the defendant was prepared to accept, even accepting prima facie what Mr Hindmarsh had to say. In my view the claim in respect of damage at the property at Bottlebrush Avenue Kellyville must fail. 87 The remaining claim is the defendant's cross claim. As I said at commencement, that is for the sum of $5295.62. The only defence that may have been available was a defence of set-off and perhaps a defence in respect of the work at Lot 726 Bottlebrush Avenue Kellyville before a total failure of consideration. 88 However on my findings on the primary issue that defence is not available. I have inquired of the solicitors for the parties whether any further reasons for judgment are required. None is. 89 For those reasons there will be a verdict and judgment for the defendant against the plaintiff. 90 Verdict and judgment for the cross claimant against the cross defendant for $6487.13. 91 I order the plaintiff to pay the defendant's costs of the action and of the cross claim. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.