Local Court of New South Wales CITATION: Oussama Ghani and Lila Moujaber v C & J Concrete Services Pty LimitedC & J Concrete Services Pty Limited [2010] NSWLC 11 JURISDICTION: Civil PARTIES: Plaintiff/ Cross Defendant: Oussama Ghani and Lila Moujaber Defendant: C & J Concrete Services Pty Limited FILE NUMBER: No. 999 of 2007 (Burwood) PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 05/06/2010 MAGISTRATE: Magistrate Pierce CATCHWORDS: Contract – implied terms – warning - construction problems workmanlike quality – quantum damages LEGISLATION CITED: Belgrove v. Eldridge, (1954) 90 CLR 613, W Jeffries Holdings v. Appleyard & Assoc. (1990) BC9002747 Turner Corp Ltd. (Receiver and manager appointed) v. Austotel Pty. Ltd., 1994, 13 BCL 378 Liverpool City Council v. Irwin, [1977] A.C. 239 Sim v. Rotherham Metropolitan Borough Council [1987] Ch. 216 B.L. Holdings v. Robert J Wood & Partners (1979) 12 BLR 3 CASES CITED: Chesham Properties Ltd. v. Bucknall Austin Project Management Services Ltd., (1996) 53 Con LR 1 Plant Construction plc v. Clive Adams Associates (a firm) [2000] BLR 137 Palermo Nominees v. Broad Construction Services (1999) 15 BCL 20 Sahib Foods Ltd v Paskin kyriades Sands [2003] EWHC 142 Tamarc Development Co Inc. v. Delamateur Co Fruend & Associates PA 675 P 2d 361 TE Eckersley v. Binnie & Partners [1988] CILL 388 TEXTS CITED: Mr. Castley of counsel for the plaintiffs/cross-defendants. REPRESENTATION: Mr. Kriss of counsel ORDERS: Judgment for the plaintiffs for $17,220.20, and for the plaintiffs/cross-defendants on the cross-claim Reasons for Decision This matter occupied nine hearing days. It is a claim by the plaintiffs for $27,651.99 for damages for defective concreting work. The work was outside work at a suburban dwelling. The defendant was initially retained by the plaintiffs to apply concrete to a rear rock wall, in effect to clad the wall from its top to its base where it came into contact with the rear path between the wall itself and the house, to clad an existing masonry wall at the front of the property and later to redo the path. The initial price agreed upon was $3,200.00. The defendant cross-claimed, essentially asserting, amongst other things, that the plaintiffs had not properly prepared the ground and the back rock wall. Mr. Castley and Mr. Kriss, both of counsel, appeared respectively for the plaintiffs and the defendant. There are a large number of areas of disagreement between the plaintiffs and the defendant. The most significant are the alleged poor quality of the work on the back rock/retaining wall, which it is claimed left it both porous and without definition, and the poor quality of the rear path. The path was also said to be porous, and according to the plaintiffs suffered from swirling yellow discolouration when yellow shotcrete from the rear wall was added to the white or grey path concrete. It's main problem however, was that it was said to have been laid at far too great a thickness (about 30cm or more in places, and 20cm elsewhere) and that it's levels were such that, being higher than the internal floors, it tipped rainwater inside the house. The path replaced a pre-existing and quite old concrete path. The plaintiff's claim ranged much more widely, including loss of definition in the cladding of the brick and stone front fence or wall, but the back wall and the back path remain the hottest area of contention. All these matters were the subject of intense dispute, and the evidence of the parties and their witnesses were in conflict with one another over virtually every aspect of the matter. A central plank of the defendant's arguments is that the plaintiffs had undertaken sole responsibility for completing the preparation and formwork for the back wall and for the path at the rear, which was inadequate and resulted, after the plaintiffs' insistence on proceeding with the work, in some of the defects which occurred. Issues The central and determining factor in this matter is that, contrary to an implied term that the subject work would be performed in a workmanlike manner, the defendant performed poor quality work, creating a much too thick path which was higher than the internal floor level and tipped water towards the house, and that it clad the two walls with thick and shapeless concrete, contrary to instructions. I found the plaintiff Sam Ghani to be believable, and some of the defendant's witnesses not to be so. The defendant submitted that it's workers had told Ghani he could not achieve what he wanted, whereupon they say he insisted on proceeding. I find that there is an implied term that, if that occurred, it was not enough and the defendant's people as expert tradesmen had an obligation to spell out with reasonable clarity what would be the consequences if they did proceed – the risk of tipping water into the house, the creation of shapeless front and rear walls, an unsatisfactory finish on the concrete and other things. As to damages, the contracted work was to have been done for $3,200.00, and the rectification costs came to just on $20,000.00. The defendant submitted that the plaintiffs really did more than rectify – that they created a structurally much bigger and better version of the work than had been contracted for, and that they should not be entitled to so much. I agree the correct principle is that a plaintiff is not entitled to such a windfall, but in this matter the plaintiffs had no option but to totally rip out and replace what had been done, and except for a small deduction caused by the plaintiffs' choice to go down a further 200mm when rectifying there was no windfall. It is convenient to deal first with the claim relating to the levels of the rear path and other problems associated with the path. CONCRETE TOO HIGH AT REAR The critical problem posed by the fact of the defendant having produced a very thick concrete path which allegedly ran the risk of tipping water into the house, really throws up not just one but quite a long list of questions - . Was the concrete in fact too high (above the internal floor level) and too thick, . were there inadequately marked levels, or levels not marked out at all, such that the defendant could not see how thickly to pour the concrete, and did its workers complain to Sam Ghani that they could not proceed with levels not marked, . as to the levels (and as to other difficulties as well, including whether the path area was properly prepared with form work and the like) whether as the defendant submitted it only recommenced the work after a dispute had occurred on the conditions that the plaintiff would supervise the work and take responsibility for the outcome, . whose responsibility was it initially to mark out the levels, . if the concrete was laid too thickly, did the defendant indeed run the risk that water would be tipped into the house, . if it would run that risk, was there an implied duty on the part of the defendant to expressly warn the plaintiffs of what might follow (the risk of water being tipped into the house), and related to that question, is this issue sufficiently enlivened by the pleadings or the way in which the matter proceeded to permit of it being agitated, . if there was such an implied duty, did the defendants discharge that duty by telling Sam Ghani they were going to walk off the job, as they say they did, . did Sam Ghani tell them to stay, in spite of the warning he had received, and . if he did, did that as a matter either of fact or of law absolve the defendant of any responsibility for laying the concrete in such thickness and in such a fashion that it created the risk of tipping any rainwater into the house. I determine all those issues in favour of the plaintiffs. (There are other questions as well, including whether the concrete itself was poorly laid, being too porous, and whether the preparation of the ground, to have been arranged by the plaintiffs, was inadequate with dirt showing through, a lack of adequate placement of 'chairs' and mesh and the like, and related to that whether Sam Ghani told the defendant's people to proceed anyway. But for the moment I focus more on the question of the unacceptable height and thickness of the concrete with its attendant risk of tipping water into the house). It is in my view impossible to avoid the conclusion that the concrete as poured by the defendant was too thick and too high. It was, as Walters, expert witness for the plaintiffs, pointed out, above the floor level of the kitchen on which it abutted, and it ought either to have been laid less thickly or there ought to have been excavation so that fresh concrete could have been poured at a low enough level to avoid the risk that it would tip water into the house. Concreting not done in a workmanlike manner It will become plain from what I have set out below that I have broadly accepted the plaintiffs' evidence over that of the defendant's witnesses. I think that the defendant was contracted to do the concreting work, and that it did not do it in a workmanlike manner, in that the concrete was laid too thickly and was of poor quality amongst other things. My view in this regard applies not just to the question of the levels but to the whole tenor of the plaintiffs' case (such things as failing to put in drains as requested and failing to retain definition in the front and back walls). I believe Mr. Sam Ghani, and because I accept his evidence I accept that the work was not properly done. But I think it is necessary to deal with the possibility that I am wrong and that Mr. Ghani did supervise the work and insist on it proceeding. If that occurred, as I explain below, I think the defendant failed to offer proper advice and warning to the plaintiffs as to the nature of the problems that might occur if they continued. I think there was to have been implied into their contract a term to that effect, and I say more about that below. If Ghani supervised it would have an effect on the plaintiffs' entitlement to succeed, but only if he took over from the defendant's people. In any case, I find that he did not supervise. The defendant responded to the plaintiffs' claim in relation to the too great thickness and height of the concrete in a number of ways. It alleged that Mr. Ghani himself should have marked out levels, and it said that he had insisted on proceeding even though told it would not work, and indeed that he supervised the work, only to complain shortly afterwards. The issue of the level of the old slab and whether water was going into the house was taken up in cross-examination. It was put to Ghani that water was running into the house from the path before the work was done, which he denied. I believe him when he makes that denial. The old concrete was a lot lower than that applied by the defendant. I do not believe water ran into the house before the work was done. Mr. Kriss made a good deal of rotten woodwork in the kitchen down at floor level, and moreover maintained that the boards had to be ripped out; but the evidence showed that damage could easily have occurred as a result of water coming down from the eaves. Ghani says he had to rip the boards out just because he was renovating the kitchen. Going with that suggestion put to Ghani that the water ran into the house before, was a suggestion that he was not interested in the work on the path being done to prevent such a thing, because he was really only interested in replacing the path concrete due to its age and because it would not have matched the work to have been done on the back rock wall. Believably, Ghani gave evidence that he would not have said such a thing because the wall and the path were two different colours. (The wall is a yellow colour, and the path the typical grey or white colour of concrete paths). Indeed, one of the things of which Ghani complained was that the excess yellow shotcrete from the wall was mixed in with the path concrete, discolouring it. Again, I accept his version. Deep excavation of soil said to create for the defendant difficulties with finding levels and to inflate the plaintiffs' damages by creating a better product than that contracted for. Mr. Mahaffey, expert witness for the defendant, made reference to a diagram at the back of his report, and sought to show that the soil level was about 50mm below the internal floor level. He pointed out that the lowest possible level of the concrete to have been poured by the defendant would have come to a point, indicated by a dotted line, 100mm above the soil level, and 50mm above the floor level. Mahaffey sought in that way to reinforce his view that the concrete therefore had to have been too high, and that was why it was necessary to dig a long way down, as Ghani later had to do to repair it. The diagram was also separately tendered and became exhibit 9. I can only conclude that he sought to show that Ghani would have had to have dug down to the lower level anyway, and that the plaintiffs' failure to mark out levels had in that way an adverse effect on the ability of the defendant to begin pouring concrete. Mahaffey also meant that as a result the plaintiffs' damages were not wholly capable of being sheeted home to the defendant. (That, at least, is what Mr. Kriss puts). Mr. Kriss took up that issue in cross-examination of Mr. Ghani. Particularly over pages 23 – 26 of the transcript of 12th March, he cross-examined Ghani extensively by reference to the levels, and he referred to Mahaffey's report. To understand this issue it is necessary to identify where the soil level was in relation to the floor level of the house. The soil level was originally about 50mm below the internal floor level. Parallel Lines, which did the rectification work, dug down a further 200mm before pouring its slab. Mahaffey's diagram shows and describes that 200mm as "Depth of Soil Removed". In the defence submissions it was said that rock had to be dug through, so it might not have been all soil. Insofar as the defendant submits that failure to mark out levels made life difficult for the defendant, the short answer is really that the defendant could have gone on the levels of the pre-existing concrete, and could have laid concrete up to and flush with the side path. In my view therefore, no particular difficulty was occasioned by the lack of marked levels. Mr. Kriss will, however, have also intended to convey by his submissions that it was not necessary for the plaintiffs to dig out the last 200mm of soil. Parallel Lines placed a new pavement 100mm thick, putting it 150mm below internal floor level. 100mm thickness is common, although the old path was obviously less. Kriss submitted that, quite apart from any difficulty the lack of marked levels might have posed, the plaintiffs sought by this excavation to provide for themselves something of a Rolls Royce standard of drainage, in that there was no need to have the top surface of the rectified slab as much as 150mm below floor level. It is presumably of this evidence that he speaks when at page 23 of his submissions he draws attention to Parallel Lines (the contractor which did the repair work for the plaintiff) having had to excavate up to 500mm "beneath the rock face", to achieve the correct level. At the top of page 23 he says that "It is the Defendant's case that the Plaintiff failed to provide levels because he was aware that if levels were taken, he would have to excavate beneath the rock face and that was a large and costly undertaking". It is quite true that the plaintiffs need not have excavated so far down. We know from Mr. Ghani's evidence that the previously existing slab did not tip water into the house. It would therefore have been possible to just replace that slab without placing it any lower down in the soil. It cannot be said that this slab would have been too thin, as Mahaffey plainly believes, because it was only for walking, and the old slab answered that need without being any thicker. It is also plain that if the defendant had constructed a 40mm slab it would still have left the top surface 10mm below the floor level. When the rectification work was done the plaintiffs obviously thought they should excavate deeper in order to ensure better drainage. I return to this difficulty below, in relation to quantum of damages, but Mr. Kriss's argument will be that the proper application of the principles relating to quantum meant that the plaintiffs should not seek to have the defendant responsible for the cost of that deeper 200mm excavation. To do so, he must be saying, would be to produce a much better path for the plaintiffs than that for which they contracted. There may well be a complete answer to that submission in that the extra work and expense occasioned by excavating the last 200mm of soil was perhaps not such as to produce a different product from that for which the defendant had contracted. The company conducting rectification was faced in any event with a need to jack-hammer out 200mm – 300mm of concrete laid by the defendant, and in one spot 500mm. It is not possible to be exact, but their further excavation of another 200mm might be fairly argued to have been marginal compared to that massive task. The further excavation might be seen as not of such a degree as to invest the new slab with the character of something entirely different from the replacement of the old one (after first removing the huge slab created by the defendant). And it might be thought that it was rather the case that the plaintiffs simply sought as a matter of prudence to go down further into the soil so that the latest slab would be some distance below internal floor level. They did not need to go that far down, but they chose to do so to be on the safe side. In my view, there is much to be said for such a response to Mr. Kriss's argument. The rectification work went down a further 200mm below old soil level. That is about eight inches in Imperial measurements. If Parallel Lines, which did the rectification, had gone down only an extra two or three inches I think it could be said that the plaintiffs should not be disentitled to so much of their claim as relates to the slab merely because they took the opportunity while removing the defendant's slab to excavate a little deeper for the sake of prudently placing the new slab well down below floor level. However, eight inches is I think far enough down that the new work was structurally different from what had been contracted for, and must warrant a reduction in damages, which I deal with at the end of these reasons when discussing quantum. Implied terms – term to be implied is the defendant would advise the plaintiffs of the consequences if they proceeded The thickness of concrete applied is a very large amount to place on a suburban house path. There can be no doubt in my view that a term ought to be implied by law in the contract between them that the defendant would not pour in those circumstances without advising the plaintiff of the problem. There are several types of implied terms in contracts. In our present matter, in addition to a term that the work would be done in a workmanlike fashion, we are concerned with those implied by the courts as a matter of law where the parties have not themselves fully stated the terms. There is a general principle that the courts will imply terms necessary to complete a contract, and there are authorities which allow of an implied term that a party, particularly an expert party, must warn the other party of dangers which may occur if work proceeds. There are two examples of the more general implication of a term needed to complete a contract cited in Chitty on Contracts, 26th edition, at page 556. One is instanced by Liverpool City Council v. Irwin, [1977] A.C. 239, where tenants took on "conditions of tenancy" which imposed conditions on the tenants but were silent as to the landlord's obligations. The House of Lords implied a duty to take reasonable care to keep the essential means of access and other communal facilities in reasonable repair. In the other, Sim v. Rotherham Metropolitan Borough Council [1987] Ch. 216, contracts under which secondary school teachers were employed were silent as to the teachers' duties as teachers. The Court implied an obligation on their part to cover for absent colleagues during non-teaching periods if requested to do so. As Chitty notes, at pages 556 and 557, the implication does not appear so much to depend on the intentions of the parties themselves, but resembles more closely an implication of law as a legal incident of the contract. There is also recognition in many authorities concerned with building cases that there is a duty to warn. That duty ranges in a wide gamut - from a duty to warn of physical dangers to life and limb through to an obligation to advise a contracting party of problems with the work if one were to proceed. Mr. Castley submits that the duty to advise (and presumably to warn) was an aspect of the implied duty on the defendant's part to proceed with due care and skill. A difficulty with that view is that the texts and authorities that I have been able to obtain do not seem to exclusively put it in that way. Mr. Castley might perhaps have been thinking of authorities dealing with the duty of a designer to warn, such as an architect. In Dorter & Sharkey, Building and Construction Contracts in Australia, 2nd edition, at paragraph 11.30 there is a reference to some authorities related to designers where the duty to warn is treated as part of the implied obligation to generally use due care and skill. One such case is B.L. Holdings v. Robert J Wood & Partners (1979) 12 BLR 3. When the defendant is a designer, such as an architect, as he was in that case, it is easy to understand how the usual implied obligation to use due care and skill would include a duty to warn, because it is perhaps an incident of design that one might be expected to warn against potential problems. It is not so plain when dealing with concreters who are laying concrete, not designing. However, authorities cited by Dorter & Sharkey include the implication of such a term as against others, even including sub-contractors who have such a duty to their principals. Whether the duty was just one part of the due care and skill implied term or something which stood in its own right, I have no doubt that there should be implied in law an obligation on the part of the expert defendant concreters to advise the non-expert plaintiffs of the consequences of proceeding with the concrete at the height and thickness at which they in fact proceeded. In my view, even though unlike architects and other designers the obligation to warn is not so readily seen as inherent in the nature of the work, it should be implied nonetheless. The term which should be implied is one which obligated a clear warning that concrete laid at the height at which it was laid would run a serious risk of tipping water into the lower-lying internal floors of the house. No such implication was formally pleaded, but the hearing was conducted on the basis that it was a live issue, and in the course of the hearing on 17th March, 2009, following a question from me, it was assumed between the parties that the matter would proceed on such a basis. Moreover, it was treated by the plaintiffs as part of the duty of the defendant to do the work in a workmanlike manner/with due care and skill. I think it stands in its own right, but not a great deal turns on whether it does or not. This is in any event not a court of strict pleading, and because of the way in which the manner ran I am prepared to consider whether there was such an implied term. I have reached the view that in an appropriate context there is an implied duty to warn. Dorter & Sharkey at paragraph 7,570, explores the extent of the duty. There discussing the duty of building work superintendents, the authors cite Chesham Properties Ltd. v. Bucknall Austin Project Management Services Ltd., (1996) 53 Con LR 1 for the view that "a broad duty to warn can fairly readily be found against a project manager; for example, about deficiencies in other parties' performance". They add that "Almost conversely, a subcontractor can have a duty to warn the principal's engineer: Plant Construction plc v. Clive Adams Associates (a firm) [2000] BLR 137." Significantly, relying on Plant Construction, the authors add that - "Indeed, even if a warning be given, there can still be liability if the warning be inadequate in the circumstances." In our own matter, in my view, even if a warning was given by the defendant, it was inadequate. It was not enough to simply tell Ghani that if he proceeded "it would not work" or words to that effect, as Mr. Con Poulianis said he did. The defendant's people needed to warn Ghani. The warning did not need to be very detailed but did need to be sufficient to explain the danger of what would happen if he proceeded. In the case of the thick concrete on the path, they needed to say that it would or might craze (as it did), and that it would or might tip water into the internal part of the house. In the case of the rear and front walls, they needed to warn that the concrete might craze and that the walls would lose their shape and definition. The duty extended also to the other breaches alleged by the plaintiffs, including improper provision of drainage, cracking in the path, discolouration of the path, etc. It is not my function to construct for the parties the precise form of the implied term, but the critical thing is that it requires a warning of what might go wrong and an indication of the consequences which might flow from that. There are several authorities, nearly all from overseas, which illustrate the duty to warn. In Palermo Nominees v. Broad Construction Services (1999) 15 BCL 20, a West Australian case, where a night club was built with poor acoustics, the project manager was held liable on an implied term that it would warn of the need for a specialist acoustic engineer. Sahib Foods Ltd v Paskin kyriades Sands [2003] EWHC 142 is authority for the view that "Even if a client knows of the risks, it is best practice for a designer to ensure that the client tacitly accepts the consequences of those design risks if the client still insists that the work should be undertaken." At paragraph 7,590 Dorter & Sharkey cite several overseas authorities, including Tamarc Development Co Inc. v. Delamateur Co Fruend & Associates PA 675 P 2d 361, a 1984 decision in Kansas, U.S.A. I have not been able to obtain the report of that case, but according to Dorter & Sharkey, it "extended a duty to inspect a grading operation so as to include an implied warranty that a precise result would be achieved, largely because of the higher standard of care expected of professionals." That is analogous to our own matter, in that the defendant's workers were professionals. Discussing the duties of designers, Dorter & Sharkey cite the U.K. Court of Appeal decision in TE Eckersley v. Binnie & Partners [1988] CILL 388, for the view that a designer "owes a duty in relation to the design, construction and reasonably foreseeable method of operation. It is a continuing duty to warn others (my italics), and it will be breached by leaving the testing to the contractor." In my view, if a designer (whose obligation might be thought to be primarily just to produce the design in the first place - although even in the case of designers the authorities make it clear that the obligation is ongoing) can attract such an ongoing obligation to warn - all the more so must expert contractors such as our own defendant, dealing with laymen plaintiffs. While those authorities, and quite a few more cited by Dorter & Sharkey, focus more heavily on project managers and on superintendents and architects, it beggars belief in my view that such a duty to warn would not extend also to contractors such as the present defendant. The defendant is an expert concreting company with decades of experience. The plaintiffs were completely unskilled. I find there was such a duty and that it was not discharged, and I now set out why I reach that view. I did not find it particularly easy to determine the factual question whether the requisite warning or advice, or any advice, was in fact given. On a limited basis Helen Woods admitted in her evidence that she had used her expertise to advise the plaintiff; she advised him in relation to form-work and in relation to using bricks and rocks as filling. She disavowed any sufficient expertise to advise him as to the levels of the concrete or how far down to dig for the preparation. Ghani claimed that she was supervising throughout, in the back area, while the defendant's case was that Mr. Con Poulianos was supervising for the defendant, and of course it claimed that Ghani himself was constantly supervising. (Poulianis is Ms. Woods's father). Plainly enough, either Ms. Woods is being untruthful when she says that Poulianos was supervising, or Ghani is being untruthful when he says that she was. He says in fact that "Poulianos didn't come up to the top during the work". (By the top, of course, he means the back). I point out below that I generally do not believe Poulianos, and for that reason tend to disbelieve Ms. Woods as well in relation to the question who was supervising. I find that Ghani was not performing any supervisory role himself. (The importance of the question who was supervising partly lies in considering the defendant's submission that Ghani should bear responsibility for the work. The defendant's argument is that he was told he could not achieve what he wanted to achieve, but insisted on going ahead anyway. Part of what the defendant submits is that he basically supervised the whole thing. If in fact he did not, it is less likely that he insisted on proceeding in the teeth of advice to the contrary). There seems no love lost between Ms. Woods and Sam Ghani – she says that at one point he grabbed her and pushed her down the path. A difficulty in this matter is that in her manner she seemed an honest witness. But Ghani was a very impressive witness, and because I have accepted him and because as indicated above Ms. Woods supports Poulianis, a less than credible witness who is in conflict with Ghani on some issues, particularly having supposedly told Ghani he could not achieve what he wanted if the defendant simply proceeded to do the work, I prefer Ghani's evidence to hers. It seems that Ms. Woods mis-estimated the amount of concrete required when it came to be ordered, which impacts on the question as to how excess concrete came to be dumped on the path. She had made a rough estimate based on the height of the workers standing next to the wall. She estimated 8m3, but Mr. Castley for the plaintiff put it to her that she told Ghani to get 9m3, and that her estimates of wall height were wrong. Some advice is said to have come from the defendant's workers. Con Poulianis was one of them. It is the defendant's position that he told Mr. Ghani levels were non-existent. He said that he started the job but told Ghani it would not be right, and that it was impossible to do what he wanted to do. There is a contest between them over this conversation, and Ghani said it did not happen. Ghani himself said that "there were no levels" (and I find that there were none marked), and that the concreters had said that they would follow the ground. If Ghani was indeed in sufficiently explicit terms told the work would not be right and did tell them to go ahead anyway, the plaintiffs in my view could not succeed in respect of so much of their claim as is affected by the levels question, since a client who insists on proceeding with particular work when warned that the result will not be satisfactory cannot be heard to complain when that outcome occurs (always provided that the warning is clear and explicit). It is therefore necessary to resolve the question whether the conversation did occur. When trying to determine whether that conversation did occur, I think it helps to explore a little what other advice was given to Sam Ghani and whether it was adequate as far as it went. (it will be seen not only that it was not adequate, but in the course of looking at the evidence related to that advice it becomes plain that Poulianis and others for the defendant are not credible. The evidence of Poulianis in particular being less than credible makes it more likely that he did not give Ghani the warning that he says he did that the work would not be right if they proceeded). An obvious first question, raised in the course of his submissions by Mr. Castley, if the defendant's workers thought there was no marking out of levels, is whether the levels could be gained from looking at the levels of the old concrete. It was put to Poulianis that once the steel was down one would cover it with 25mm of concrete and achieve the levels that way, when coupled with the ability, as the plaintiffs put it, to gain the required levels from the levels of the pre-existing concrete. Poulianis, however, was generally unreliable. When he said that some of the steel (the reinforcing mesh) was sitting directly on the dirt rather than on the black plastic base, it was put to him that George Dhinnis (Helen Woods's uncle, who arranged the ground preparation for the plaintiffs) did not leave any chairs on the ground. His answers were unresponsive. When repeatedly asked whether higher levels of concrete on the outside of the house, compared to the internal floor levels, would cause a problem, he kept saying that he couldn't understand the question. He refused to stop arguing with counsel even when I asked him not to. His evidence overall was less than satisfactory, and where he conflicts with Mr. Ghani, including on this question of levels, I prefer Ghani. I do also think that there is much to be said for the proposition that all the defendant had to do was to look at the level of the old concrete, go from it and be sure to cover the steel reinforcing. Poulianis thought that one couldn't do that, because there were chemicals in the shotcrete which had been used on the path, and that those chemicals would cause the steel to rust. I do not accept that. No-one else adopted that view, and Poulianis is simply too unreliable. In any case, the shotcrete, being a different colour from the path concrete, should never have been used on the path (and in this regard I do not accept what the defendant alleges, namely that Ghani had kept changing what he required, necessitating the defendant's workers walking on the wet concrete and so bringing up the yellow shotcrete from below the white or grey concrete). Further, I agree with Mr. Castley's submission that as the concrete came to be laid one could gauge the levels by observing where it abutted against the old concrete side path. Another unsatisfactory feature of Poulianis's evidence is that he said he had no idea he was supposed to pump normal concrete, and that it would have cost $500.00 to obtain the larger four inch lines compared with the two inch ones he had on the job to pump shotcrete. Even though he eventually offered the view that the smaller diameter lines could be used if small aggregate was used, the conclusion is hard to resist that he turned up with the wrong sized lines, that being the real reason excess shotcrete was dumped on the path, and therefore that it was not the advice of Ghani himself to use the shotcrete in that way. Finding as I do that Poulianis in particular was unreliable, I do not have much difficulty accepting that he did not warn Sam Ghani that what he sought to achieve was impossible. I prefer Mr. Ghani's evidence that no such warning was given. But even if Poulianis had said that much, it would not amount to a clear and explicit warning. He would have needed to identify what, precisely, was said to have been impossible, and more importantly, what would happen if the concrete was laid as thickly and as high as it was – ie: he or someone else needed to tell Ghani that the thickness and height might tip water into the house. I don't believe he gave any such advice, and cannot find any suggestion in the evidence that anyone else did either. While the defendant's workers were certainly in my view intending to walk off the job, and stayed after Ghani's and Helen Woods's intercession, their intended leaving was nothing to do with impossibility of achieving desired levels in the situation in which they found themselves, nor was it to do with an argument over GST payable on the concrete supply which the defendant argued. It was rather an accumulation of things, annoyance with Ghani over the amount of concrete supplied, a dispute over how much concrete was to be ordered and the contretempt over the lack of definition in the front wall as too much shotcrete was sprayed on it. As a result, I find that no warning was ever given to either of the plaintiffs that what Sam Ghani wanted was 'impossible', (whatever that might mean – the old concrete was laid alright, so plainly it was not likely to have been impossible to duplicate it), and no warning was given of the likely consequence that water would be tipped into the house. Other of the defendant's witnesses were also unreliable. Chris Felton for the defendant said that he too had no idea about the necessity for external levels not to be higher than internal floor levels. His credibility therefore is suspect. Frank Auwers was a defendant's witness who contradicted Sam Ghani in many different respects. An example of what I perceive to be the poor quality of his evidence appears from what he had to say about hot water pouring out of a tap. As Mr. Ghani said, the tap was an outside tap, a workman turned it on and water came out. But since the hot water system had been turned off and disconnected it was improbable that the water was hot. Ghani refers to numbers of conversations with Auwers, relating to everything from the dreadful appearance of the channel at the side of the house to the poor quality of the concrete finish, referred to over pages 6 and 7 of his affidavit in reply to Auwers. Ghani says that Auwers became rude and menacing. I accept that his evidence is to be preferred to that of Auwers where they are in conflict. For the foregoing reasons, particularly the poor credit of the defendant's witnesses, I am of the view that this general question must be resolved against the defendant. That is, not merely was there an implied term that a clear warning of consequences would be given, but no warning was in fact given. On the question of levels and the problem caused by the height of the concrete relative to the internal floor, it was suggested by the defendant that water would not in any event flow into the house, because of the lip or barrier shown in photo 49 of the photos handed up. I don't accept that. Mahaffey says the small wall or riser depicted in photo 49 will not prevent water getting into the house. Mr. Mahaffey, however, also suggested that one might simply rely on a higher level of concrete near the house to tip rain water away from the house towards a drain on the back retaining wall, a suggestion which I think is not practical. Mr. Kriss reiterates this argument in his written submissions. Yet, Nisbett, for the plaintiff, points out that it is both illegal to have concrete up against the wall of the house higher than the internal floor and that a higher level of concrete would have meant it would have been higher than the sewer gulley, which is obviously unacceptable. (Kriss submits that the defendant did not know it was a sewer gully, and that it was not so marked on the plan. I find though, that it was the defendant's duty and obligation to check what that drain was before proceeding). Notwithstanding that I find him generally to be an honest and competent person, I do not accept that Mr. Mahaffey's suggestion is a reasonable one. Finish of concrete generally While dealing with the question of the concrete and the levels it is just as well to consider this aspect of the claim also. Walters, expert for the plaintiffs, said in his oral evidence that the thickness of the concrete (more than 40mm above the reinforcing steel) created cracks. Similarly in relation to the two walls, front and back, he says the thickness of the concrete created cracks. I accept that. The cracks and crazing in the concrete finish throughout were unacceptable. Inadequate ground preparation and formwork It was the plaintiffs' obligation, not that of the defendant, to prepare the ground. The defendant says the preparatory work at the back path was inadequate, in that the steel fixing job was left in an unfinished state. According to Ghani, there was no formwork (by which he means wooden edging to contain the concrete), and he says that Helen Woods told him none was needed. He himself thought none was needed because the walls provided the edging. I should mention in passing that I do need to dispose of Mr. Ghani's complaint that the man who did the work was referred to him by Ms. Woods. As to the ground preparation work, the plaintiffs rely in part on the fact that that was done by George Dhinnis, an uncle of Ms. Woods, who completed the preparation before it was seen by the employees of the defendant. I am unable to accept that submission. Whether or not recommended by Helen Woods, the plaintiffs retained Dhinnis and are responsible for his work. The plaintiffs also submit that Helen Woods assumed responsibility for advising on technical aspects of the job, and twice called the steel fixer on the day before he did the formwork. While it is true that Ms. Woods did offer some advice, it adds nothing in my view that she called Dhinnis the day before the job. The fact remained that the plaintiffs retained him themselves, and they had to bear responsibility for the poor preparation, such as it was. Mr. Ghani did say in evidence that "we" prepared the ground, but that on 3rd July, 2007 Helen Woods inspected and approved what he and those who did the work for him had done. I am in some doubt whether she had enough expertise to approve it, but Ghani cannot be blamed if she approved the preparation, since he could not know the extent of her expertise. As I have said, I generally believe Ghani, and I accept that Ms. Woods did approve the preparation of the ground. There is no need, however, to rely on her approval in order to come to the view that the defendant is responsible for proceeding. Notwithstanding her approval, in my view, the real question in this regard is whether the work needed to be halted because the preparatory formwork, work which was the responsibility of the plaintffs, was inadequate, and whether the defendant should be held responsible for not advising the plaintiffs to abort the job. I have reached the view that it should. While I accept the preparation was not perfect (even the plaintiffs' own expert, Mr. Walters, did concede, in cross-examination, that the gaps in the plastic on the ground show that the ground was not properly prepared) there is I think enough evidence to decide that the work could properly proceed with the formwork as done by Dhinnis. The gaps in the plastic would have meant no more than that some of the moisture in the concrete would have been sucked up by the ground surface. But how much, and to what extent that would cause cracking or any other difficulty, is a little unclear. Examination of the photos in evidence show that there were quite a number of 'chairs' in place. However, assuming the work should not have proceeded, there was an implied obligation on the defendant to advise that the work should not proceed, implied and imputed in the way discussed above in relation to advice as to levels. I do not accept that the advice not to proceed was given. Generally, as appears from what I have said above regarding the inadequacies in the evidence of the defendant's witnesses, and my acceptance of the evidence of Mr. Sam Ghani who struck me subjectively as an honest man, I prefer his evidence that he received no such advice. It was put to Mr. Ghani in cross-examination that he failed in his duty to bring along a supply of sealant to seal against the house wall where the concrete abuts on it. Mr. Kriss put to him that the only obligation of the concreters was to lay the concrete, and not to provide or apply the sealant. That too, I do not accept. Unless Ghani had specifically been told to do so, it must be implied in any contract related to concreting of this type that the concreters would attend to any such necessary incidental things. I find that Ghani was not told to provide it. Shape of rear wall to be retained I find the issues surrounding the shape of the rear wall, and the need to retain its shape, to be somewhat perplexing. That wall was and is a rock wall, or mostly rock and partly soil. It is like a retaining wall to look at, and its top surface flattens out onto the back lawn. The unchallenged evidence was that Mr. Ghani wanted the shape of the wall retained. What I find puzzling to a degree is that it had very little shape to begin with. However, such as it was, the shape was plainly not retained, but instead the wall as worked on by the defendant was wavy and smooth and devoid of detail. It was the evidence of Craig Nisbett for the plaintiffs that the shape of the wall could have been retained, when cladding it with shotcrete. I agree with his view, and I agree that the wall as finished by the defendant was ugly. Much like the front wall, it presented as a wavy and shapeless structure which was not aesthetically acceptable. There was much criticism by the defendant of Ghani's role in its final shape. However, Nisbett, for the plaintiffs, offers a practical solution to the difficulties of spraying on the shotcrete in such a way as to leave an acceptable shape to the wall. He points out that one can insert steel pins into the wall and then to tie the steel mesh or the chicken wire to those. I can see no reason why that would not be practical. Helen Woods, one of the defendant's witnesses, claimed in her evidence that Ghani had insisted on large steel mesh instead of chicken mesh. As to demeanour and manner of giving evidence Ms. Woods impressed as an honest witness. But chicken mesh alone, as Nisbett pointed out, would be too weak to prevent shrinkage of the concrete on the wall, so that steel mesh was certainly needed as well - and was in fact used without any chicken mesh. Amongst other things, Mr. Kriss's submissions focussed on the large holes which existed in places in between the larger sandstone rocks in the back wall. He says that Helen Woods warned Ghani that if he used the larger steel mesh that was in fact used (70mm x 70mm), instead of chicken wire, they could not follow the current curvature and obtain the shape he wanted. Mr. Kriss relied on Ghani's evidence that he had used chicken wire on some earlier occasion, but that in this case the wall was too substantial and the stronger mesh was needed. I find Ghani was not told he needed to use chicken wire. Ghani specifically denied that Helen Woods had asked him who was going to do the formwork on the wall, saying there was no mention of formwork. Broadly, it was put to him that he was told he needed chicken mesh, and he denied that. It was also put to him that he gave instructions for the mesh to go "all the way to the top" and onto the grassed area. He denied that too, and said that he told the workers to follow the shape of the wall (whatever that might mean), and told them "roughly where to go". He did, however, concede that he told them to go past the top of the wall. To my mind that means that he did play something of a role in relation to the mesh on the rear wall. But if his requirements made for a problem of some sort there would be an implied obligation on the defendant's part to explain to him the problem and the consequences of proceeding, and there was no evidence that he was given any warning or explanation what the problem might be. Significantly, Ms. Woods also gave evidence that the defendant was forced to apply thicker concrete to the wall to avoid rusting of the mesh. It is difficult to avoid the conclusion that the defendant's workers rushed the job and sought to solve fundamental problems with ad hoc and inadequate solutions, including such things as spraying a large amount of concrete on the wall to avoid the risk of the mesh rusting. Mr. Mahaffey, who was the defendant's expert witness, said that one could use the thicker (steel) mesh on the rear wall rather than chicken wire, but that it became more difficult to bend to achieve the desired contours (something which one might think was self-evident). He thought that with more than one layer applied chicken mesh would do the job. He also agreed, after looking at the video of the concrete being applied, that there appeared to be more than 40mm applied (a level of thickness which he thought if applied first would have permitted retention of the wall's shape), and agreed that if the instruction was to retain the look of the wall (as it appears in ex. G in it's original form) you would be making life difficult for yourself with such a thickness applied. While I don't agree with the practicality of some of the things he said, I trust Mahaffey. He struck me as a very honest and straight-up witness. His suggestion of two layers sprayed on a chicken mesh formwork might work quite well, but the problem is that I do not believe Ghani was told to use chicken wire. Felton, another of the defendant's witnesses, said that the possible thickness of application of shotcrete to a wall is 40mm – 50mm, although often when applied in more than one pass it would come up to 100mm. It seems likely that one could use two applications totalling 40mm. One of the submissions of Kriss (at his page 11) is that "common sense would dictate that if the curvature of the rock wall was a required finish, the heavier mesh would not be recommended", and he submitted that Ghani's denial (that he was told by Ms. Woods to use chicken mesh) was "a cover up". I cannot accept this submission. I have already indicated that I prefer Ghani's overall credibility to that of Ms. Woods. But I take it that what Mr. Kriss means by this submission is that common sense shows one would not use the thicker steel mesh and still hope to retain definition. He must mean that I should therefore conclude that Ghani, exercising such common sense, would have realised of his own volition that the steel mesh would not do, and that he must be lying when he says he was never told to use chicken wire instead. But Ghani was not an expert. A householder, confronted with expert concreters with years of experience, would not necessarily override them because of such a "common sense" view. It seems quite plausible to me that he would follow advice to use the larger steel mesh, believing no doubt that the defendant's workers knew what they were doing and in some (perhaps unspecified) way could use that larger mesh yet still achieve the required definition. I am not willing to conclude Ghani is being untruthful merely because in Mr. Kriss's view common sense did not admit of a sensible view that the larger steel mesh could be used whilst still retaining definition in the wall. I tend to agree with him that common sense does militate in favour of such a view, but when dealing with experts we all tend to doubt our own common sense. Credit question of Helen Woods's visit to the site on or after 7th July The question of Ms. Woods's visit to the site becomes reasonably important as a general credit question, because Mr. Ghani denies that she turned up on the 7th. He says she was there on the 6th, and again in the following week. It is perhaps important also on a more substantive basis, because she says she told him organising the workers was his responsibility, and she said that he would lose the curvature of the back wall because of the large gaps in the mesh that he provided. She also asserted that on that day she told him the mesh on the wall and the walkway overlapped and hence the pre-fabricated drain could not be put in place. He denied all these things. In fact, as to the mesh, he says that Ms. Woods convinced him that the larger steel mesh would do the trick. In respect of this conversation, said to have occurred on the 7th, Mr. Ghani is in direct conflict with Ms. Woods. In their manner each of them presented as a believable witness. It might be that the conflict between them is to be resolved on the basis that each of them carried away a different impression of what was said (whether it was said on the 7th or on the 6th). However, if that explanation is not the true one, and if I must choose, I prefer Ghani. Overall, he struck me as an honest witness. Mahaffey's suggestion of a drain next to the house wall Craig Nisbett for the plaintiffs had doubts about Mr. Mahaffey's suggestion of a drain next to the house wall. He pointed out that it would have had to have been a lot lower than floor level, and if covered would have been a termite risk. He also pointed out that constructing the drain would have required coming out from the wall 400mm – 500mm, so that much of the excavation work done by the plaintiff to repair the defendant's work would have been necessary in any event, and would have had to have been 400mm deep (an unrealistically deep drain). He thought Mahaffey's fix would have been expensive. I think it must be rejected as a practical solution. Ghani's request for drain near rear wall So far as drains are concerned, and their effectiveness, such as it might have been, to take water away from the house, Ghani wanted an ag drain and a concrete dish drain at the base of the wall. Franciscus Auwers, for the defendant, said in his evidence that Mr. Ghani had wanted an exposed area at the base of the wall, for a few inches, and then to have the concrete path area begin. He said that Poulianis had told Ghani that this could not be done because the steel would rust out (as it obviously would – steel reinforcing protruding from the edge of the concrete, or even near the edge, would obviously rust and run the risk of concrete cancer. I take the view that I do not need evidence of that, as it is a notorious fact). According to Poulianis he told Ghani that he would take no responsibility for the job (something I do not accept). Auwers says he himself suggested a concrete drain. However, in his evidence Auwers is in conflict with Ghani. Ghani asserts that he sought an ag drain below the surface and a concrete drain above it, and I find him believable in that regard. Mr. Poulianos said in his evidence that he told Ghani the drain he wanted along the back wall would not work, because it was too long. In his submissions Mr. Kriss puts a different argument. He says (at pages 28 and 29) that it would have been impossible to create the spoon drain which the plaintiff wanted. That is because, as he puts it, that if the defendant were required to place 75mm – 100mm of concrete over the mesh, so covering the mesh by 25mm, it would not have been possible to put a spoon drain into the mesh. I have several difficulties with that argument. The first is that, looking at the photographs, annexures A, C and F to the plaintiff's affidavit in reply to Mr. Auwers, it seems that the mesh stops slightly short of the wall, which would leave enough room for the drain. The second is that Mr. Kriss suggests that the proposal was rather that the pathway would be formed up so that the water would run into the open ag line. If there were an open ag drain (something which strikes me as remarkably unlikely, as such drains are always below the surface), even for part of the length of the wall's base, that drain must itself interfere with the mesh (assuming the mesh does go all the way to the base of the wall). Instead I simply prefer what Ghani says, something which I think is much more plausible, that he wanted an ag drain under the surface at the base of the wall and a dish or spoon drain at the surface. In the course of his evidence, when asked whether he was aware of the need for concrete levels inside a house to be higher than outside (so that water will not come in), Mr. Auwers said that he found out in the course of this job. That is an extraordinary thing to say. One does not need to be a concreter to realise how unwise it would be to have outside levels higher than inside. What he says in this regard militates in favour of a view that he was not a competent concreter. However, his manner as a witness was very good. He presented as an honest witness. He does say that Ghani supervised all day and directed where the levels were to be. I am not prepared to accept that Ghani supervised all day. He says he didn't, and I believe him. No doubt he was there, and it might be that Auwers interpreted his presence as one of supervision, but I do not think he in fact supervised. As Mr. Ghani pointed out in his evidence, he would have been unlikely, inexperienced as he was, to have sought to direct expert concreters with forty years of experience. Suggested fix of spraying with sedimentious polymer It was the suggestion of Mahaffey for the defendant that such a spray would fix the water penetration problem. Craig Nisbett for the plaintiff had doubts, taking the view that it would not last. Regardless of whether it would last, it seems to me to be plain common sense that the real difficulty was simply that a concrete flooring outside higher than the internal floor is the problem. No householder would be content with a polymer spray fix. I agree that it was necessary to remove the concrete laid by the defendant and to excavate and relay at a lower level. Mahaffey said it could be done for one third of the cost of replacing the concrete, but with re-surfacing half to three-quarters of that cost. (However, that is hardly a practical matter if the concrete had to be replaced anyway because of excess thickness tipping water into the house). Ordering of too much concrete Craig Nisbett, expert witness for the plaintiffs, disagreed with the suggestion of the defence that as a usual practice one begins by ordering in more concrete than is necessary. Rather, he takes the view that one should order what is needed until at the end when ordering for the last load one orders just a little over. That makes sense to me. In any case, while Helen Woods subjectively impressed as an honest witness, I agree with the plaintiffs' submission that, contrary to her account that she first specified a nominal amount just to secure a booking on the day, she performed 'stride' estimations (pacing out distance) to obtain a more accurate estimate. Mr. Ghani's evidence was that the defendant "made him" order 9m3 for the two retaining walls (front and rear) and 4m3 for the path. This area of the evidence is a good example of the flat contradiction between the parties' witnesses which is such a feature of this matter. Mr. Kriss, for the defendant, put it to Ghani that he was told that he should take back excess concrete himself. He not merely denied that, but expressly said that the defendants agreed to take it back themselves. In re-examination he said that Helen Woods had told him that after the concrete was screeded the excess would be taken away. While Ms. Woods had a good, honest manner, I nonetheless prefer Ghani's version. When asked in re-examination why he took the video that he did of the concrete being poured he said that he had begun to become concerned at the volume of the pour. He said that "You can see it coming down like lava". That does not sound to me like someone who agreed to take the excess himself. I mention in passing that Mr. Ghani said that Helen Woods told him to order the concrete only from the company Westco. Mr. Kriss for the defendant put to him that his phone records showed that he rang a competitor, Hymix. His answer was that he rang several companies, but that Ms. Woods only recommended Westco, because, according to him, the stones were finer and came out of the pump better. I believe him, but it doesn't make a great deal of difference. What Ms. Woods said was just a recommendation, and not contractually binding. Need for sharply defined contours in front wall The plaintiff complained that the piers and corbells (corbells being square caps and other protrusions) on the front wall had lost definition. His complaint is a fair one in my view. As the plaintiff's expert Craig Nisbett pointed out, the definition could have been retained by using a cutting tool to reshape after spraying. Even more than the rear wall, it is not acceptable to turn the sharp edged piers and corbells of the front wall into a shapeless mass, as the defendants did. Sam Ghani said in evidence that he was watching when the defendant's workers sprayed the shotcrete onto the front wall. He says he did tell them that it was too thick and that he wanted the definition in the brickwork retained. It was put to him in cross-examination that he was told by Frank Auwers that he couldn't have a trowell finish on the front wall, and that if he wanted that kind of finish he should have used cement render, and Auwers himself said as much; Ghani categorically denies this having been said. I prefer Mr. Ghani. I think he was simply never told beforehand that the method of spraying on concrete used by the defendant would produce the shapeless and unacceptable result that it did. The result is simply not of workmanlike quality. The plaintiffs' claim is in part that the concreting work was not done in a proper and workmanlike manner, and they must succeed in this respect. Mr. Nisbett said in his oral evidence that it is indeed possible to apply concrete to the front wall while still retaining its definition. He says that would be achieved by using a cutting tool to cut the lines needed for the desired definition. That appears self-evidently correct to me. Overall view of the dispute What I find occurred in this matter generally, is that the plaintiff Sam Ghani, who was not an expert concreter, retained the defendant to concrete the walls and path. It offered to do it for a price which might have been too cheap to permit of the quality of work required by the plaintiffs (Ghani says $3,200.00). Initially only the back wall was to have been done. The total of the work on the rear wall and front wall, and the rear path, could likely not be achieved for the price that was quoted. In my view, it was not likely that for the price one could clad the rear rock wall, in such a way as to retain its definition, something which needed cutting of edges with a cutting tool to be achieved. It was unlikely that for the price one could remove the old concrete path and replace it with a new one at appropriate levels. It was similarly improbable that one could clad the front wall, something which again required the use of cutting tools to help retain definition. All those things could be done, but probably not for the price which the defendant quoted. I think the defendant's workers saw their role as doing whatever level of work could be achieved for the very small quote they gave. I think their approach in that regard can be gleaned from what was put to Mr. Nisbett, the plaintiff's expert, at page 26 of the transcript of 16th March. If they had fully appreciated that the work required by the plaintiffs included retention of definition in walls and other things, they would have had to quote a much higher figure. Yet, Mr. Ghani could not be blamed for accepting their low quote. While he did indeed want a good deal done, work which as it turned out would take time and cost quite a lot, he as a layman might be thought to have had no idea the quote was pitched at a level too low for work of the extent and quality he wanted. The issue became, quite simply, that the defendant's people should have told him. They were the experts, not he. Instead of coming firmly to grips with the extent of the work he wanted done and the quality of the work he sought, they went ahead to get the work done in a short time, putting in the amount of effort they thought appropriate for the price they were charging. The result, inevitably, was that the work was a mess, and had to be re-done. The repairs were expensive, but the necessity to do them arose from the fact that the defendant's people did not appreciate properly what was required of them, and they did poor quality work. They were contractually bound to provide concreting in a proper and workmanlike manner, and they failed to do so. The plaintiffs are entitled to damages sufficient to put them in the same position they would have been had the work been properly done in the first place. I have not dealt in any detail with the defendant's submission, appearing particularly at page 5 of the very lengthy written submissions of Mr. Kriss, that the plaintiff is estopped from claiming damages because, as it was alleged, when the dispute arose in the first place Mr. Ghani undertook to supervise and be responsible for the work. I accept the principle for which Mr. Kriss contends. There is no need to descend into detailed analysis of authorities to recognize such a principle. However, as I have made plain above, I do not accept that Ghani ever undertook such a responsibility, nor that he supervised the work. It is unnecessary to go any further than to say if Kriss were right and Ghani had in fact insisted on proceeding, proceeding when he would supervise in the teeth of explicit advice that he could not achieve what he sought to achieve, then of course he could not complain of the outcome. I find that Ghani did not supervise and did not indicate that he would take responsibility for the outcome. Defendant's application that the statement of claim be struck out At page 7 and following of his written submissions Mr. Kriss, for the defendant, cited several authorities for his view that the claim should be struck out. I do not take any issue with the correctness of the propositions he argues for. Especially in the superior courts, a statement of claim will sometimes be struck out if, for example, it does not allege the material facts to support an action. I also accept what he puts in relation to the limiting role of particulars. He relies on those principles to attack the plaintiffs' (erroneous) assertion in paragraph 5 of the statement of claim that the defendant did not in a workmanlike manner do the subject work in accordance with "the plans and specifications". It is true, as Mr. Ghani conceded in the course of his evidence, that there were no such plans or specifications. However, the matter proceeded over a long hearing on the clear basis that such an assertion was an error. It is much too late, especially in this Court (compared with courts of strict pleading such as the Supreme Court) to now argue for the Claim to be struck out. The submissions of Mr. Kriss fasten upon several aspects of the claim and particulars. At page 8 he picks up on the plaintiffs' letter of 19th July, 2007, in which the plaintiffs said they would obtain two quotes for defective work and would hold the defendant liable for that work. The letter is referred to in paragraph 6 of the Claim, which pleads that the defendant was asked to rectify the work. Mr. Kriss argues that the plaintiffs never did provide the quotes, and that as a result the defendant had no reasonable notice of what work required rectification. He submitted that the defendant was thus "at the mercy" of the plaintiffs as to what rectification work got to be done, because the plaintiffs simply went ahead and did it. He adds that this work included excavation, laying the correct meshing and providing the correct levels. I interpret Mr. Kriss's submission in this respect to be that I should strike out the plaintiffs' Claim, because the plaintiffs (unfairly in his submission) pleaded that they had said they would provide quotes, but never did, that they went ahead and did the rectification work, and that the mechanism by which this unfairness should be redressed is the striking out of the Claim (or perhaps just that part of it). I would not do that. Several things need to be said. First, if the Claim were to have been struck out at all that needed to have been done reasonably expeditiously and preferably before the hearing. Second, I do not believe any unfairness to the defendant resulted from not having access to the quotes. I mention this just in case it might be suggested that the defendant, having waited in vain on the provision of the quotes, might have lost the opportunity to look at the work in detail and obtain expert advice on it. The defendant went ahead and defended the matter, over a long hearing. It would have been possible, before continuing with the defence, to have sought to inspect the work, and to have its own experts assess what needed to have been done to rectify. To the extent that those physical aspects of the work which it's experts needed to look at to make their report might have been hidden under concrete or otherwise obscure, it could have obtained from particulars and other sources a description of those things that were hidden. If then confronted with areas of uncertainty, such as the depth or other dimensions of the concrete, the defendant's experts could have been asked to assume a range of such depths or as the case may be, and to have framed their reports accordingly. There was not irremediable unfairness. Since the defendant chose to go ahead with the hearing without attending to such things, it cannot now be heard to say that the Claim should be struck out. Third, as to the quotes for repairs which the plaintiffs promised, their failure to provide them had no effect, other than to prevent or to delay the defendant doing the rectification work itself. The defendant did not have an absolute right to do the rectification work itself. A person for whom work of any kind is done, which might be thought defective, is not obliged to use the person who did the defective work to repair it. If, as so often happens, the householder for whom the work is done has lost faith in the workers, it would be unfair to require that he must allow those same workers to do further work in rectification, for fear that they might muck it up even worse or even just because of a feared personality clash. If the defendant had provided evidence of the cost for which it would do the rectification work, being less no doubt than what the plaintiffs ended up spending, the plaintiffs would have been required to consider that cost as part of their duty to mitigate their damages. However, it did not provide to the plaintiffs any indication of what it would have charged to do such rectification work, and cannot now be heard to demand that the Claim or part of it be struck out merely because it was never given the chance to do the work itself. Mr. Kriss, for the defendant, mounted something of an attack on the plaintiffs' rectification costs. He cross-examined extensively on the full cost of concrete and labour, and wanted to know just exactly what was done to repair the bad work. However, although he began to show a semblance of a point in this respect, Mr. Kriss then moved off to another area of cross-examination, and did not press home his attack. To a limited degree he did return to the point, at pages 40 and 41 of the transcript of 2nd December, when Mr. Ghani said that some work was done on the curvature of the back wall, but without identifying what work. However, the extent of the plaintiffs' rectification work is set out in their statements, and I accept it. The onus is on the plaintiffs to show that it was reasonable, but it appears to be, and there is little or nothing to gainsay them. Plaintiff unlicensed The evidence was that the defendant was only licensed to construct swimming pools. Helen Woods, for the defendant, said that she was unaware of that and that the defendant did a great deal of ordinary work other than pools. If pleaded in the cross-claim, lack of an appropriate licence could well have been a problem for the defendant, but it was not pleaded and I pay no regard to it. Step instead of ramp Mr. Felton, one of the defendant's witnesses, claimed that he heard Sam Ghani ask for a step instead of a ramp. He said that that was difficult to do because the concrete was hardening. Mahaffey said that if Ghani had asked for a step instead of a ramp, just to use up concrete, that there would be a water penetration problem. However, I accept Mr. Ghani's evidence that he did not seek the construction of the step. (The plaintiffs did later cause a set of steps to be constructed, to avoid the need for a steep ramp, but that is not the same steps). Contributory Negligence and Apportionment Particularly in relation to the thick steel mesh used on the rear wall, Mr. Kriss fastens in his submissions upon contributory negligence. He rightly enough points out that in negligent breach of contract cases there can arise questions of contributory negligence and of apportionment. However, because his submissions depend upon acceptance of the defendant's version as to what happened (particularly whether Ghani was told he must use chicken wire on the rear wall, as well as many other things) and because I do not accept that version it becomes unnecessary to inquire into questions of contributory negligence. At page 18 of his submissions Mr. Kriss has it that "In any event, the defendant at no time made any positive representation that they would be liable for any preparatory formwork … It is argued that the Plaintiff should be liable for his own actions and should have conducted his due diligence by consulting a professional regarding any preparatory formwork that needed to be carried out." Because I have taken the view that there was an implied term in the contract between them that the defendant would advise the plaintiff of the risk that he faced with the rear wall and the other areas of dispute between them, a term which requires the defendant to have advised him both of the risk that he would not achieve what he wanted and the consequences which would follow if the defendant did continue, it becomes unnecessary for me to address this argument. However, if I am wrong, and if it should be the case that in the circumstances there would not be implied such a term, and of course if one accepted the defendant's assertion that Mr. Ghani had been told that he could indeed not achieve what he wanted with the steel mesh used on the wall and the allegedly poor preparation of the concrete path, and also the instructions he supposedly gave to proceed with the front wall in the teeth of warnings, then in that case I think the plaintiff's entire claim would be defeated. In my view, if that were to be the true position, it would not just be contributory negligence that defeats him, but rather the simple fact that the terms of the contract between the parties required the defendant to proceed in the (defective) way that he directed. This is a little analogous to the 'prevention' principle. The principle is that a party is disentitled from claiming damages where its acts have prevented performance of the contract. It is referred to by Cole J at page 5 of the internet copy of the judgment in Turner, referred to below. Quantum of damages Mr. Ghani explained in his evidence that he had sold the property, but at a reduced price. It seems to me that the plaintiffs could not establish quantum merely by pointing to a sale at a reduced price, because there is no evidence of what would have been a reasonable price if the work had been done correctly. In any case, in the case of a job like this a better guide to quantum of damages is the cost of repairs. In this regard, Walters, who is the plaintiffs' expert, conceded that he had not in his invoices included any to quantify what Mr. Kriss calls "materials", although in the next breath he did list some of the outgoings, saying that "from memory" most of those things were supplied by Mr. Ghani. I agree with Mr. Kriss's submission that the purpose of an award of damages is to put the aggrieved party in the same position as though the contract had been performed, so far as money damages can do that, and that it is not to put him in a superior position to that which he would otherwise have enjoyed. I agree also that as was ruled by the High Court in Belgrove v. Eldridge, (1954) 90 CLR 613, where a plaintiff was held entitled to the cost of demolition and rebuilding of a house, generally the measure of damages in a construction contract is the difference between the contract price and the cost of making the work comply with the contract, together with any consequential damages, provided the work was necessary and it was a reasonable course to adopt. Mr. Kriss also submitted that two other decisions were helpful, W Jeffries Holdings v. Appleyard & Assoc. (1994) 10 BCL 298 (an apparent error, as the case was decided in 1990 – it appears in Lexis Nexus as BC9002747), and Turner Corp Ltd. (Receiver and manager appointed) v. Austotel Pty. Ltd., (1991) 174 CLR 64. (In the latter case he submits that Cole J made certain observations at page 128. However, the case is not there reported, Cole J was never a justice of the High Court, and that must be an error. He is probably referring to a case with a similar name decided on 11th May and 2nd June, 1994, 13 BCL 378). Neither of those decisions help me. Jeffries was a case turning on defective design, and Turner was one concerned with the existence of a code agreed between parties which displaced normal principles of damages awards. The way in which Mr. Kriss sought to employ those two authorities is as follows: He says that Jeffries took into account additional construction cost which would have been incurred had there been no negligence in the original design. As he correctly puts it, the case ruled that failure to deduct the omitted initial construction cost from the present cost of performing that and other work would inflate the loss beyond that actually suffered. To understand what Mr. Kriss contends is the ruling in that decision it is necessary to very briefly describe the facts. In that case a factory was designed and built for W. Jeffries. Appleyard was the construction engineer. The plaintiff Jeffries took an active supervisory role (much as Kriss says Ghani did in our matter). The building settled more than it should have done, causing cracks in the walls. It settled because it came to be used as a carpet warehouse, a use which involved a heavier load than originally contemplated. Cole J pointed out that structural design was the problem, and that if the contract had been just to produce a particular building for a price the measure of damages would have been the total repair cost, but in the case before him it was a contract to use skill and diligence which attracted the normal principles for assessing damages – the plaintiff being entitled to be put in the same position as if the breach had not occurred, provided the loss was reasonably foreseeable (in tort) or within the contemplation of the parties (in contract). If the design by Appleyard had been done correctly, his Honour found, it would have cost another $80,000.00 to build the factory sufficiently strongly to take the increased load. The rectification work also included waterproofing the walls, which were originally not designed to be waterproof. Cracks had developed, but they could simply have been repaired. Strengthening and waterproofing the building produced a different structure altogether from the original. If the defendant Appleyard had to bear that cost it would be unfair, because the plaintiff would have obtained the windfall of a much sturdier building than that for which it had contracted. Consequently, from the total rectification cost one had to deduct the $80,000.00, bringing the loss down from the initial amount of about $120,000.00 to $45,100.00. (The slightly inaccurate arithmetic doesn't matter). In our matter, Mr. Kriss seems to be submitting that the work contracted for was not just to provide a piece of construction for a price. If it had been, the total repair cost would be the measure of damages (assuming diminished value was not appropriate, as it seems to me not to be – if there was any doubt about that the 2009 decision of the High Court in Tabcorp v. Bowen 2009 HCA 8 has put it to rest). Rather, what was done by the defendant was, so he would say, analogous to the professional design services provided by Appleyard. (I should say that I am not sure that it was. I think the contract might be argued to have been to provide a particular piece of work for a particular price. But I will consider the matter as though Mr. Kriss is correct to draw that analogy). Mr. Kriss submits that in our own matter the original state of the area was in a state of disrepair, in that levels were not in place, formwork not completed and steel mesh used in lieu of chicken wire, amongst other things. Because I have found that there was no agreement for the plaintiffs to provide levels, that they were not advised they needed to, that formwork was only marginally defective and because the plaintiffs were not told to use chicken wire, I do not need to consider this argument. Mr. Kriss further submits that, like the plaintiff in Jeffries, our present plaintiffs got through their repairs a much improved concrete infrastructure, which included steps and drains amongst other things, but in particular included a slab placed 200mm deeper than was strictly necessary, producing a better product but one different from that for which the defendant contracted, as I said at the outset of these reasons. However, except for his argument related to the depth of the slab, I do not accept that submission. The plaintiffs in our matter wanted two walls clad and a path laid to replace an old one. They wanted an ag drain near the back wall, and a spoon drain on top of it. The defendant clad the walls badly and built an extremely thick path that tipped water up against the house, with inadequate drainage. The plaintiffs did indeed have to rip all that out and have it re-done. Except for the fact that the rectifying work involved digging down 200mm below the old soil level, the replacement laying of concrete did not involve any significant additional expense beyond putting right what the defendant had done. And they gained nothing different in the end, in any substantial sense, from that for which they had contracted. There was no windfall analagous to Jeffries, and from their repairs they really only got the infrastructure they had sought originally. It is true, as I said at the outset, that in an obvious attempt at prudent avoidance of risk of water penetration the company which did the rectification work, Parallel Lines, removed 200mm of rock, which would have added a little to the rectification cost. I repeat that it might be a fair argument that that was a fairly minor incident of what in substance was simply a repair job on the work as a whole, and that it did not provide the plaintiffs in any real sense with a windfall In this regard, I suspect that the work which the plaintiffs wanted would have cost more to do than the $3,200.00 contracted for. But even if that were so, it might be thought that does not mean that the plaintiffs got a windfall by claiming a large amount for 'rectification' work. Unlike the facts in Jeffries, where the plaintiff, instead of just patching the cracks in the walls, rebuilt them in such a fashion as to make them waterproof (a feature not possessed by the original walls as designed) and so obtained a windfall, in our matter there could be argued to have been no structural feature of the work when rectified which differed in any real way from the structure of the work originally contracted for. However, the laying the new work at the 200mm of extra depth discussed above did produce a structural change. As Cole J pointed out in Jeffries, it is only such structurally different results which attract the principle for which Mr. Kriss contends. Mr. Kriss relies on Turner for his view that a proprietor has no entitlement to recover the cost of work performed by others (he will mean in our case the rectification work) unless prior to the work being performed the notice required by the contract is given. In Turner there was a code agreed between the parties, which required such a notice. Our matter does not include such an agreed code. The plaintiffs in our matter pleaded non compliance with a term that the work be done in a proper and workmanlike manner. They do not specifically plead the Home Building Act implied warranties. If there had been such an agreed code and if the Act had been pleaded, it might be doubted whether any such notice requirement could survive the prohibition on exclusion of warranties provided for by that Act. However, in relying on Turner, Mr. Kriss submits that Mr. Ghani went above and beyond rectification by asking the plaintiffs' repairer, Parallel Lines, to excavate beneath the original rock bed, and installing steps and drainage systems. That is an echo of the argument from Jeffries that the plaintiffs are not entitled to a windfall, to get by the rectification more than they had originally contracted for. I think that in the end he is right, and there must be a deduction from the cost of the rectification work for having had to dig down the extra 200mm. It is also necessary to apply overall the reasonableness and 'necessary' tests in Belgrove. In order to rectify the defective work the concrete laid on the path and sprayed on the walls had to be removed and replaced. Drainage systems were contracted for by the parties anyway, and the defendant failed to properly construct them. The steps were never sought by the plaintiffs. In my view, it follows that the plaintiffs were reasonable when having all those items attended to as part and parcel of the re-application of fresh concrete after ripping out the defendant's defective work. Indeed, what they did to rectify was generally reasonable and necessary. In my view, the correct amount of damages should be the figure indicated by Mr. Nisbett in his November report, with arithmetic corrected, $19,594.30, less the cost associated with the excavation of the extra 200mm, as below. The parties will notice that I do not allow the whole of the amount the plaintiffs had to pay Parallel Lines. Mr. Nisbett said the rectification cost of the path alone for which they were paid was too high (a little over $18,000.00). However, I think that in arriving at that view he has assumed that figure was just for the path. The quote from Parallel Lines included the front and back walls. The plaintiffs, of course, do not claim that much anyway. Just the same, I prefer Mr. Nisbett on the cost of rectification. I note that Mr. Kriss himself, in the hearing on 17th March, offered his view that removal and repair of the old path would cost $8,198.00, and in this regard he echos Nisbett's calculations. He also opined that, if his client were held liable, the maximum amount for which the plaintiffs could claim would be $17,000.00 (and I think he is very close to being right in that estimate). In paragraphs 9 and 10 of the Statement of Claim the plaintiffs set out how much they claim. Most of the items for which they claim are not sustainable. For example, what the plaintiffs paid the defendant for the work, $3,200.00, and their expenditure on materials and the like, are not capable of being claimed for. That is because the object of damages is to place the plaintiffs in the same position they would have been in if the work had not been defective. Had it not been defective, the plaintiffs would still have had to pay out to the defendant their fee of $3,200.00, and they would still have had to supply materials and the like and dispose of excess concrete. In fact, they would have outlaid in total a little more than $8,000.00, and in return would have had the concreting work completed as they now have. Now that the work has had to be rectified, on the proper application of principles applicable to award of damages, they should still be out of pocket for that amount, but should have damages for the cost of rectification. According to Mr. Nisbett the rectification cost was in fact just short of $20,000.00 ($19,616.30, he says, which is not quite identical to the amount in the Claim – I will have regard to what he says, as his evidence seems very believable, but would reduce the figure if needed to ensure it does not exceed the amount for which the claim is made. However, I think that in any case his arithmetic is incorrect, and that last figure should be $19,594.30, and that is the figure I will use). I also have to address the calculation of the amount to be deducted from the damages, the cost of digging out the extra 200mm of rock described above. Mr. Nisbett's calculations in relation to removal of concrete etc. from the path and re-working the path add up to $8,198.30. The first item is for jack-hammering and removing the paving put there by the defendant, and following that he lists hire of jack-hammers, removing waste and disposing via a waste bin, and pump hire. Some of those items are calculated on an hourly basis, at $32.00 per hour. Others are simply dollar expenditures. The total comes to $5,573.00. While Mr. Nisbett does not provide a break-down in sufficient detail to know how much of the time needed for the work related to ripping out the old concrete installed by the defendant, compared with the excavation, removal etc. of the 200mm of rock or soil below it, it can be roughly worked out. The original soil level, on which the defendant laid its slab, was 50mm below the internal floor level. Some of the defendant's concrete was 500mm thick, but most was between 200mm and 300mm. I average it out (not a perfect average, as the 500mm thick area was not identified as to its dimensions), as 270mm. Looking at Mr. Mahaffey's diagram, and and at the bottom surface of the rectified concrete as laid, it is plain that Parallel Lines, which did the rectification, went down a further 200mm. The proportion of the excavation of the last 200mm by Parallel Lines to the whole is therefore 200 divided by 470, or 0.426. It therefore seems to me that the deduction I should make in the plaintiff's damages occasioned by the unnecessary excavation of the last 200mm is 0.426 x 5,573, or $2,374.10. (All this includes GST). I note there is one other item in the Claim which should not be allowed. That is the cost of the Sydney Building Report, $1,043.36. That was a forensic expense, and not claimable as part of rectification. The final figure is therefore arrived at in by taking the rectification cost, $19,594.30 and taking from it the $2,374.10 cost attributable to the plaintiffs having dug down a further 200mm, giving $17,220.20 I will formally enter judgment for the plaintiffs for that amount plus interest. However, a point made in the cross-claim is that the original contract price of $3,200.00 was less GST. The parties' advisers can tell me if they believe any allowance should be made for it. If not, I will simply allow the sum of $17,220.20. As to the cross-claim, because I accept the plaintiffs' evidence it follows that the defendant cross-claimant must fail. The cross-claim was based on an alleged breach of the plaintiffs' obligations to prepare the ground and related things, and also on a claim that the plaintiffs delayed the work. However, the plaintiffs in my view did properly prepare the ground. The preparation was not perfect, but it was adequate. I do not accept that the plaintiffs delayed the work. Sam Ghani did have to pull the defendant's workers up from time to time, but that was because they were not doing the work correctly. As a result, there will be judgment for the plaintiffs/cross-defendants on the cross-claim. (W. G. Pierce) (Magistrate) IN THE LOCAL COURT OF NEW SOUTH WALES 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.