New South Wales Supreme Court CITATION : Mohammad v Local Court of New South Wales and Sleiman [2008] NSWSC 949 HEARING DATE(S) : 22 May 2008 JUDGMENT DATE : 15 September 2008 JUDGMENT OF : Smart AJ DECISION : See para 61 CATCHWORDS : Appeal from Local Court after extended hearing - Concreting work at Greenacre - No written contract - No contract of insurance - Non compliance with ss 7, 92 of Home Building Act 1989 - Application of ss 10 and 94 - quantum meruit claim - correct basis of assessing damages - must be principled and not at large LEGISLATION CITED : Building Services Corporation Act 1969 (now Home Building Act 1989) Local Courts Act 1982 CATEGORY : Principal judgment Balfour Beatty Power Construction Australia Pty Ltd v Kidston Goldmines [1989] 2 Qd R 105 CASES CITED : Brenner v First Artists Management Pty Ltd [1993] 2 VR 221 Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd [2002] 6 VR Gray (Constructions) Pty Ltd v Hogan 2000 NSWCA 26 Renard Constructions (MT) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 TEXTS CITED : Mason & Carter Restitution Law in Australia PARTIES : Tarek Mohammad v Local Court of New South Wales and Eli Sleiman FILE NUMBER(S) : SC 12989/07 COUNSEL : E Olsson SC & J E Rowe (P - CD) J Simpkins SC & A Giutarlis (D2 - CC)) Dib Lawyers (P - CD) SOLICITORS : Farah Lawyers (D2 - CC) I V Knight (Local Court - submitting) LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 914/2004 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SMART AJ Monday, 15 September 2008 12989/07: TAREK MOHAMMAD v LOCAL COURT OF NEW SOUTH WALES AND ELI SLEIMAN JUDGMENT 1 The Local Court of New South Wales, Burwood adopted the role of a submitting defendant except as to costs. The contest was between Mr Mohammad and Mr Sleiman. 2 In a hearing over 19 days before the Local Court this dispute concerned the concreting which Mr Sleiman performed for Mr Mohammad at the latter's property, 13 Greenacre Road, Greenacre. Mr Sleiman sought the payment of a further $45,000 in addition to the sum of $100,000 which he had already been paid. The Local Court on 18 May 2007 ordered that "there must be judgment for the plaintiff in the sum of $22,500 less the driveway rectification costs of $3000, $19,500 plus GST". I was told that the magistrate had ordered Mr Mohammad to pay Mr Sleiman's costs on an indemnity basis. 3 By his Amended Summons of 2 November 2007 Mr Mohammad sought that this order be set aside. Mr Mohammad relied in the first instance on errors of law and alternatively on errors of mixed fact and law. To the extent that he needed leave to appeal he sought that leave. He sought that judgment be entered for him in the Local Court proceedings. He also sought costs including costs of the Local Court proceedings. 4 Mr Mohammad's grounds of appeal included that the magistrate erred in law: (a) in finding that he could not revisit the amount of $100,000 already paid to Mr Sleiman in respect of the works (b) in finding any money was due to Mr Sleiman (c) in that having found the total value of the works on a quantum meruit basis was less than the amount already paid to Mr Sleiman, he nevertheless made an award of damages in favour of Mr Sleiman. 5 By his cross summons Mr Sleiman sought an order that judgment be entered for the cross-claimant in the sum of $25,691.68 plus interest and costs of these proceedings and those before the magistrate on an indemnity basis. 6 In about 2002-2003 Mr Mohammad embarked on the construction of a substantial new house on his land. There were associated structures which included a granny flat and dog kennels. Mr Mohammad had an owner-builder permit and intended to subcontract the various trades required to perform work to construct the new house and associated structures. 7 In either 2002 or 2003 Mr Mohammad entered into an arrangement with Mr Sleiman whereby the latter agreed to supply and place concrete for the project. The terms of the arrangement were not reduced to writing. Mr Mohammad contended that he agreed to pay Mr Sleiman the costs of the works, upon presentation of invoices and the difference between retail costs and trade discounted costs on materials, this latter amount representing Mr Sleiman's profit on the job. Mr Mohammad said that the work was quoted at about $90,000. Mr Sleiman said he quoted Mr Mohammad the sum of $130,000 to do the main part of the concreting and that they subsequently agreed a variation to the works in the sum of $15,000. 8 Mr Sleiman carried out the concreting. The magistrate found that the concreting on the driveway was defective but rejected the other claims of Mr Mohammad that the work was defective. 9 There was no compliance with the Home Building Act 1989 as to the contract being in writing (s7) nor as to Mr Sleiman holding home warranty insurance (s92). Thus Mr Sleiman was not able to sue on the contract but was limited to a quantum meruit claim (ss 10 & 94) or a claim in the nature of quantum meruit. 10 Mr Mohammad made progressive payments totalling $100,000 to Mr Sleiman between May 2003 and April 2004 and perhaps later. The Magistrate in his written reasons wrote: "I find there was no agreement on the price, and I pay no regard to what the parties might have agreed but simply attempt to assess what is a reasonable price for the work measured against the tests to be applied when a party seeks restitution." 11 At pp15-16 of his reasons the magistrate summarised the competing submissions of the parties. Mr Mohammad contended that the records of purchases showed that 137m³ of concrete were purchased and that allowing for the cost of the concrete and of fitting and finishing an amount of $194 per cubic metre was a reasonable charge. That results in a total of $26,578. At p16 the magistrate refers to $194 per cubic metre as the cost of supplying the concrete. 12 The magistrate wrote at p16 that counsel for Mr Sleiman was right to say that normally one looks to the value to the defendant of the work done and materials provided rather than looking at the cost to the plaintiff of supplying them. I would prefer to formulate the question as "What is a reasonable sum for or value of the work completed by the party who did the work?" 13 At p17 of his reasons the magistrate wrote that Mr Sleiman "has incurred cost in labour and materials less than a third of what he has already been paid. In cost of concrete and supplying and fitting he has notionally spent a little under $27,000 which on my calculations includes a little over $14,500 for actual cost of concrete (That is as the defendant calculates it. Parker, expert for the plaintiff calculates about $22,000 worth of concrete used but with reinforcement, hobs, finishing etc arrives at a very much higher figure which I discuss below)". The magistrate discussed Mr Parker's figures subsequently. From the schedules or tables attached to Mr Parker's report of 3 November 2005 and his measurements off the plans he includes the cost of formwork, concrete, reinforcement hobs, beams and associated items and arrives at a total basic cost of $69,632.01 and $76,595.22 including GST. 14 In cross-examination Mr Sleiman seemed eventually to agree (at T51 of 29 June 2006) that the cost of the concrete for Mr Mohammad's job was just under $20,000. He disagreed that the cost of the steel was about $4000 and suggested that the cost was over $12,000 or possibly over $15,000. I am not clear as to what was included in the cost of $194 per cubic metre. 15 It seems that there is a difference between the amount of concrete and the cost calculated from the purchase records and the amount of concrete and the cost as taken from the plans. To the latter is added the cost of associated items. It is not easy to follow the true position from the documents and the portions of the transcript provided to me. The magistrate, having heard the whole of the evidence had a better understanding than I have been able to glean. Overall, having regard to the other matters (including alleged errors of law) relied upon this may not matter to an appreciable extent. 16 The magistrate posed the question when Mr Sleiman had been paid $100,000 whether the apparent unfairness of awarding him a further large sum is fair or required by the application of the principles of compensation which required one to look not just at the $27,000 figure or even the higher figures put forward by Mr Parker, Mr Sleiman's expert, but also at the value to Mr Mohammad of the work done. (p17 of reasons) The magistrate added: "If it is indeed fair to give him more it will be largely because [Mr Mohammad] tacitly agreed to a higher rate." 17 The magistrate further wrote: "… I am only concerned with how much if any of the $45,000 claimed should be allowed. I do not intend to revisit the $100,000 already paid – in the sense that if I found only half[Mr Sleiman's] rate of charging was reasonable I would not simply allow $72,500 being half the total, conclude that he was paid more than that and hence allow nothing more." 18 The magistrate wrote: (at p18 of his reasons): "[Mr Mohammad's] conduct in watching the work done, tallying it up in his mind or in his records and paying that much for it strikes me as tacit agreement to pay at that rate [$100,000] at least for the work done up to the time of that payment." 19 The magistrate accepted (at p 22 of his reasons) that "the work did not at any point consist of discrete items of concreting for which separate payments were to have been made" and "that payment was made from time to time towards the whole of the work". Nonetheless, "$100,000 must be taken to have been payment for a certain (completed) amount of the overall work". He held at p 22 of his reasons: "… if I thought that a fair rate …was half the total (of) $145,000 … I would regard $100,000 as already paid and not capable of being revisited, and I would allow half of the $45,000, … , $22,500." 20 Mr Parker, an engineering and costs expert called on behalf of Mr Sleiman stated in his report of 3 November 2005. "Quantum Merit (sic) We have examined the design documents and have calculated an appropriate value of the work performed to be $120,000 including GST." Additional work having a value of $7000 should be added in his opinion. 21 At T59 of 23/10/06 Mr Price, the costs expert called by Mr Mohammad, agreed that in terms of the work carried out at the site the figures set out by Mr Parker were a reasonable costing of the work carried out at the site. After explaining (at T59/60) that in quantum meruit claims costings are based on the actual work done and not on the plans Mr Price stated, "Mr Parker's figures are quite accurate". Mr Price referred to different approaches to some items but the overall result was that he accepted generally the accuracy of the final result on costings of Mr Parker. 22 After reviewing the calculations of Mr Parker for Mr Sleiman and Mr Price for Mr Mohammad and without reducing Mr Parker's figures for suggested double counting, the magistrate held that Mr Parker's figures show that Mr Sleiman was entitled to $128,691.68 less $100,000 paid, leaving a balance of $28,691.68. The magistrate remarked that Mr Parker's valuation of the work was only one matter to consider and that in evaluating what was reasonable he had to consider a number of factors. 23 The magistrate concluded at p 24:8: "Overall, I value the work in the defendant's hands at half the full $145,000 claimed for the total job. In arriving at that view I have had regard to the much lower figure, $27,000 approximately, which represents a usual rate of charging for concrete work, to Parker's views of the value of the work taking into account Price's comments thereon, and to the defendant's acceptance of the work at the rate charged for which led him to pay $100,000 as outlined earlier. I apply a rate of payment equal to half that rate to the work for which payment has not yet been made, and allow $22,500. This figure is subject to consideration of the defects claimed by the defendant in his set off as discussed below." After considering the claims for defects the magistrate deducted $3000, being the driveway rectification of $3000, and entered judgment for $19,500 plus GST. The magistrate was confronted with a welter of factual material and each party argued its case at considerable length. The parties did not shorten matters. The approach revealed in the first quoted paragraph cannot be sustained. Mr Simpkins SC for Mr Sleiman did not adopt that approach 24 In Gray (Constructions) Pty Ltd v Hogan 2000 NSWCA 26 the referee held that the intended contract for building works was a "cost plus" contract. Work had commenced without a written agreement. As the contract was not in writing it was unenforceable in view of s 6(1) of the Building Services Corporation Act 1969 (now the Home Building Act 1989). Mason P, with whom Sheller and Heydon JJA agreed, stated: "The appellant submits and the respondent accepts that the correct approach is to determine a reasonable remuneration for the builder including remuneration which includes a reasonable profit element (see Renard Constructions (MT) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 276; B renner v First Artists Management Pty Ltd [1993] VR 221 at 262-3). " 25 The primary judge's approach in Gray that just restitution was to be assessed only by reference to the value to the recipient of the work performed was rejected, the parties agreeing the judge was in error. 26 The President subsequently acknowledged that the referee had emphasised that the builder was not entitled to its actual expenditure plus some margin. It was only to be allowed what it deserved ("quantum meruit") whether or not the builder had already spent a particular sum. (This explanation is added because in that case the initial unwritten contract was a cost plus contract) 27 Mr Mohammad submitted: 1. The magistrate either made an error of law or a mixed error of fact and law in deciding that he could not revisit the payment of $100,000 where he had found there was "no agreement on the price", had paid no regard to what the parties "might have agreed" but attempted to "assess what is a reasonable price for the work measured against the test to be applied when a party seeks restitution" (p2 of reasons). The magistrate misdirected himself as to the task he had to undertake, namely, the evaluation of Mr Sleiman's actual loss. 2. Having arrived at a valuation of the expert and other evidence, the magistrate ought to have then considered whether Mr Sleiman had suffered any compensable loss and found that he had suffered none. He had been paid $100,000 for work worth $72,500. 3. In accepting the amount of $100,000 that had been paid (as a yardstick), the magistrate rejected credible evidence as to the cost of the work to Mr Sleiman as a measure of its value and applied inappropriate criteria in an attempt to value the benefit of the work in the hands of Mr Mohammad. 4. The magistrate erred in applying the principles in Brenner v First Artists Management Pty Limited [1993] 2 VR 221, a case which was concerned with a contract entirely different from the one before him. The magistrate sought to explain that $100,000 had been paid for work the cost of which was $27,000 by ascribing it a value because "a friend and neighbour" did it. There was no evidence to support this valuation. 5. Having (correctly) identified the issue as whether or not having been paid already some $100,000 Mr Sleiman had been paid "as much or more than his work was worth, so that he must fail in his claim for more", the magistrate misled himself when he adopted the view that he could not revisit the payment of $100,000 notwithstanding finding that there had been no agreement. Further, in so doing, he failed to address the issue whether Mr Sleiman had suffered compensable loss. 6. The magistrate proceeded on the assumption (in places) that $100,000 had been paid in respect of certain work and that the dispute concerned additional work. However, since there was no agreement as to the price of the work the magistrate could not have been satisfied on the evidence that Mr Mohammad had not paid an amount which reflected all of the work performed. There was no justification for the magistrate taking the view that he could not revisit the payment of $100,000. 7. The magistrate found, inferentially, that the work was valued somewhere between $27,000 and $128,691.68 but neither the highest nor the lowest figure could be said to properly represent the value of the works to either party. Without reasons, the magistrate took the value of works to be half of the whole amount claimed by Mr Sleiman and halved the amount by which the figure claimed exceeded $100,000. Neither of the experts, Messrs Parker and Price gave evidence supporting the whole amount claimed by Mr Sleiman. The magistrate failed to properly consider the evidence and failed to provide any or adequate reasons for his decision (on this point). 28 Brenner was a different case on the facts and related to the performance of services in the relationship between a performer and his manager and the promotion of his talents and the arrangements of his engagement. That does not exist in the present case where the payment involved the more prosaic task of supplying and laying concrete. However, the general statements of principle of Byrne J at 263-264 are unexceptional. I comment further upon these later. 29 It appears from the affidavit of 4 November 2005 of Mr E Sleiman filed in the Local Court proceedings that Mr Mohammad initially told Mr Sleiman that he wanted Mr Sleiman to do the concreting work and formwork on the new house he was building. Mr Mohammad gave Mr Sleiman a copy of the plans and Mr Sleiman was to give Mr Mohammad a quote. However Mr Mohammad first had Mr Sleiman supply and lay a 100 square metre concrete slab so Mr Mohammad could live in the shed while the old house was demolished. This slab does not appear on the architectural plans or the structural plans. 30 Mr Sleiman said that on the same night on which he poured the concrete for the 100 square metre slab he told Mr Mohammad that he had priced the job according to the plans and it would cost around $130,000. 31 Mr Sleiman said that a few weeks after constructing the 100 square metre concrete slab Mr Mohammad asked him to do a suspended concrete slab and retaining wall in his backyard for a separate granny flat and a separate concrete slab for his dog kennels. Mr Sleiman carried out the extra work. 32 Mr Sleiman said that about June 2003, Mr Mohammad's structural engineer changed from the slab and footings originally specified to a raft slab. Mr Sleiman was supplied with amended engineering plans. Mr Mohammad wanted further changes. These appear to have been substantial. 33 Mr Sleiman said that up until completing construction of the first floor concrete slab he had received $100,000 from Mr Mohammad "in various instalments on various dates in the forms of cheques and cash". Mr Sleiman stated that about two or three weeks after completing construction of the first floor concrete slab he told Mr Mohammad that he wanted the rest of the money Mr Mohammad owed him. Mr Sleiman said he added, "There is still $30,000 left plus all the extras". Mr Sleiman said that he did not receive any further payments from Mr Mohammad who stated that he was having problems getting money but would pay. 34 Mr Sleiman said that subsequently Mr Mohammad told him that the bank would give him more money if he finished off the driveway and the front fence. Mr Mohammad asked him to do this work, stating "then I will be able to pay you." Mr Sleiman said that after he performed the work he told Mr Mohammad that for all the extra work he would charge only $15,000. Some days later Mr Sleiman told Mr Mohammad that he owed him $45,000 but Mr Mohammad declined to pay. 35 Ms Olsson SC, in addition to relying on Mr Sleiman's affidavit, referred to Mr Mohammad's affidavit of 10 October 2005, particularly the paragraph secondly numbered 5 where he sets out paying Mr Sleiman a deposit for the purpose of the latter purchasing preliminary materials. She contended that there was no way to gauge whether or not the payments were made for work actually performed and nothing to tie the deposit payment to any particular stage of work. See paragraph 6 which also suggests payments were made on account. Mr Olsson contended that on this point there was no substantial difference between the evidence of Messrs Sleiman and Mohammad. 36 Counsel for Mr Sleiman submitted that the issue on the appeal will be determined according to the view the Court takes about what the magistrate determined the factual position to be in respect of the payment of the $100,000, the competing alternatives being - (a) For Mr Mohammad, that amounts totalling $100,000 were paid on account of the whole work so that Mr Sleiman was seeking to recover the unpaid balance of work that had only been partly paid for; (b) For Mr Sleiman, that amounts totalling $100,000 were paid on account of the work performed prior to the date of payment, not in respect of the "whole work" (including any work still to be performed). 37 Mr Sleiman's affidavit suggested that the concreting job was done as one lot of work overall and was paid for on that basis and intended to be so paid. Some of the extra work was done initially and prior to any of the work the subject of the plans and some of the extra work seems to have been done after the work the subject of the plans. Mr Sleiman's complaint was that he had carried out work as requested by Mr Mohammad for which he (Sleiman) had charged $145,000 but had only been paid $100,000. He put the matter to Mr Mohammad thus: "The quote was for $130,000 plus $15,000 for the extras. You only paid me $100,000. You still owe me $45,000." 38 At p22 of his reasons the magistrate wrote, "… I would ignore the amount already paid (except as an indication of the tacitly agreed rate) and when working out what amounts if any which should still be ordered to be paid I would consider only the $45,000 still said to be owing. I do not intend to revisit work that has already been done and paid for and some work, charged at $100,000 has been done and paid for." 39 In the light of Mr Sleiman's approach and evidence the magistrate was not entitled to take this approach. 40 A further indication of the magistrate's approach is at p24 as previously quoted more extensively: "Overall, I value the work in the defendant's hands at half the full $145,000 claimed for the total job." 41 The better view is that Mr Sleiman was seeking to recover the amounts he had quoted for the whole job including extras, namely $145,000 and treated the sum of $100,000 as being paid on behalf of the job overall. That is the way he conducted his case before the magistrate. 42 Mr Sleiman submitted that Mr Mohammad was raising a question of fact and that the magistrate had determined that the $100,000 was paid for work which had been done. It was submitted that it was not a finding that $100,000 was paid on account and therefore not a finding that was considered in the context of working out how the payment related to an overall assessed just price for the work. 43 I disagree with this submission. As earlier mentioned, Mr Sleiman approached the matter on the basis of overall work of $145,000, payments totalling $100,000 on account and a balance due of $45,000 44 The magistrate took the figure of $145,000 and valued the work in Mr Mohammad's hands "at half the full $145,000". He next deducted $100,000 and halved the balance of $45,000 to determine the amount due. 45 In my opinion the magistrate has not approached the quantum meruit task he was set in accordance with the principle in Gray and the appeal should be allowed. He did not determine the commercial worth of the work done. Cross Appeal 46 The grounds of the cross appeal were: (a) That the Court erred in law or in mixed fact and law in holding that the quantum meruit was to be quantified at half the claimed rate in the absence of any evidence supporting the application of such a half rate; (b) That the Court erred in law or in mixed fact and law in rejecting the uncontradicted expert evidence that the work had an unpaid value of $28,601.68 prior to any deduction for defects ($3,000) without any or any adequate reasons; (c) That the Court erred in law or in mixed fact and law in failing to hold consistently with the uncontradicted expert evidence that the unpaid value of the work was $28,601.68 prior to any deduction for defects ($3,000). 47 Mr Sleiman submitted that the cross appeal only needed to be determined if the appeal was upheld. 48 Mr Sleiman submitted as to the cross appeal that the magistrate dealt with quantum by: (a) regarding himself as determining what was "fair" as opposed to what was the reasonable price for the work (b) in determining what was fair, rejecting the unchallenged and uncontradicted evidence of the experts of both parties which was not shown or found to be glaringly improbable or unreasonable. 49 Mr Sleiman referred to passages in the magistrate's reasons where there was reference to what was fair in arriving at the amount to be awarded. See pages 17.3, 17.4, 18.2, 8.7. He pointed to these further passages: Page 21.7 "… I think I should ask myself whether it is possible or not to whittle down what the defendant should pay by some amount whether arbitrary or not, looking at the cubic metre charge of a little under $27,000 comparing it with the $100,000 and in some way splitting the difference." Page 21.9 "… the question is whether I should value it at the full rate at which the parties valued it … or whether … I should strike a rate which reflects an amount somewhere between $27,000 and $145,000 and apply that rate to the $45,000 worth of work claimed for." Page 24.8 (See the passage previously quoted (para 23) 50 Mr Sleiman submitted that the magistrate undertook the task of determining an amount that he thought "fair", striking a rate that was arbitrary and in the nature of "splitting the difference" having regard to several matters. Mr Sleiman submitted that this submission was reinforced by the magistrate not explaining, even briefly, his rejection of the experts' evidence. Mr Sleiman further submitted that the magistrate adopted the role of a valuer not that of a judicial officer determining the value based upon the expert evidence of others. 51 In substance the issue raised by Mr Mohammad was that he had been markedly overcharged. The cost of the concreting work using standard cubic metric rates for supplying and laying concrete was in the order of $27,000. In effect, Mr Mohammad contended that this was the commercial value or worth of the work. While Mr Parker's calculations off the plan were of value they were not determinative. What mattered was the work done. They were at best a guide as were the comments of Mr Price. From a cost price of about $27,000 to an assessment of commercial worth of about $128,000 is a long journey. It was characterised by a number of multiplier calculations including 1.10% for preliminaries, 1.10% for minor items and 1.16% for a project less than $1.25m and 1.12% for the granny flat. The magistrate had reservations as to these last mentioned calculations, especially that using the granny flat cost. The magistrate did not accept a figure in the order of $128,000. He wrote that Mr Parker's valuation was only one matter to consider. The magistrate felt he had to consider a number of factors. He was troubled by the size of the quantum meruit figures suggested in view of the relatively low cubic metre costs of supplying and laying the concrete. The magistrate was attempting to strike a balance. There were troubling counter-balancing considerations. 52 I do not agree that the magistrate was bound to apply a figure of $128,691.68 as the commercial worth of the work done (the concrete supplied and laid). Consequently, he was not bound to enter a verdict for Mr Sleiman for $28,691.60. 53 Mr Sleiman referred the Court to Brenner where Byrne J remarked at 263-4, "the fair value of the work will ordinarily be the remuneration calculated at a reasonable rate for the work actually done." I agree. Byrne J also said "The assessment, then, must have regard to what the defendant would have had to pay had the benefits been conferred under a normal commercial arrangement. The enquiry is not primarily directed to the cost to the plaintiff of performing the work since the law is not compensating that party for the loss suffered." I agree with both these statements of principle. While regard must be had to what the defendant would have had to pay under a normal commercial arrangement that consideration is not decisive. While the enquiry is not primarily directed to the cost to the plaintiff of performing the work that cost should not be totally ignored. Of course, remuneration for overheads and a reasonable amount for profit cannot be overlooked. 54 Mr Sleiman also relied on these remarks of Dowsett J in Balfour Beatty Power Construction Australia Pty Ltd v Kidston Goldmines [1989] 2 Qd R 105 at 134-136: "In calculating a reasonable price, it is permissible to seek to show what a reasonable price for the physical work done would be, or alternatively to show what the actual cost is of the work in terms of hours and materials supplied. In this latter approach it may also be appropriate to take into account profit factors and overheads. However, what must be kept in mind is that it is a reasonable price which is to be calculated." 55 In Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd [2002] 6 VR 1 at [92] – [95], Charles Buchanan and Chernov JJA adopted this statement of principle from Mason & Carter, Restitution Law In Australia: "… although the Court must arrive at a 'just sum', the inquiry in every reasonable remuneration claim is a principled one. Assessment is not a discretionary process … a court is not free to award a discretionary sum in respect of an established unjust enrichment." 56 While the magistrate has tended to award what he regards as fair, rather than proceed with the assessment of the reasonable remuneration for the work completed, the magistrate was not bound to accept the assessment of Mr Parker and the comments of Mr Price especially having regard to the basis of Mr Parker's figures. The figures which appear from their reports and evidence are many times the cost of $27,000. I am not suggesting that the magistrate was limited to about $27,000. That may well have been an erroneous assessment. On any view he had to allow for overheads and a reasonable amount for profit. Supplying and pouring (or laying) concrete is not risk free. 57 Although the magistrate may have intended to determine what was reasonable remuneration, some of the language used in his reasons rather suggested that he was embarking on a general just and equitable and discretionary process. 58 UCPR 50.1 provides that that Part applies to an appeal to the Supreme Court except in certain immaterial exceptions. UCPR 50.16.1 provides that if the decision under appeal has been given after a hearing the appeal is to be by way of re-hearing. UCPR 50.16.2 sets out this Court's powers which include drawing inferences and making findings of fact. These provisions have to be read with ss 73(1) and 74(1) of the Local Courts Act 1982. Section 73(1) enables a party to appeal if the judgment or order is erroneous in point of law. Section 74(1) provides that a party may appeal to the Supreme Court on a ground that involves a question of mixed fact and law but only by leave of the Supreme Court. 59 Mr Sleiman, in particular was anxious that I uphold the cross-appeal and enter a judgment for him for $25,691.68 based on the evidence of Messrs Parker and Price. This would avoid further costs which were already prohibitive. I indicated that I was reluctant to do this as the magistrate had heard a wealth of evidence, only portion of which was before me and that in my opinion the magistrate was not bound to proceed on the basis of the evidence of either or both Messrs Parker and Price. I indicated that the matter should be remitted to the magistrate so he could decide the matter based on all the evidence which he had heard and any further evidence which he permitted to be led. The evidence led by the parties to date could, it seems, have been more direct and more satisfactory on the major issue of the commercial value of the work actually done. 60 At the heart of this appeal and the cross appeal there were substantial questions of law but it would be possible to contend that what was involved was a question of mixed law and fact. For more abundant caution I would grant leave to appeal and allow both the appeal and the cross-appeal. I would remit the matter to the magistrate to proceed and determine this matter in accordance with these reasons. 61 I make the following Orders: (a) Grant leave to appeal in so far as questions of mixed law and fact are raised. (b) Appeal allowed. (c) Cross appeal allowed. (d) Set aside the judgment of the Local Court of 19 May 2007. (e) Remit the matter to the Local Court to proceed and determine the matter in accordance with these reasons and according to law. (f) Costs of the proceedings in this Court may be argued on a date to be arranged with my Associate at 9.30am. ********** 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.