ANDREWS t/as PSA CONSTRUCTION -v- SCHMIDT [2026] WADC 40

[2026] WADC 40 [2026] WADC 40 [HC] Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL LOCATION : PERTH CITATION : ANDREWS t/as PSA CONSTRUCTION -v- SCHMIDT [2026] WADC 40 CORAM : MIOCEVICH DCJ HEARD : 22-31 MAY, 1 JUNE, 18-29 SEPTEMBER & 22‑23 NOVEMBER 2023 DELIVERED : 18 MAY 2026 FILE NO/S : CIV 2799 of 2020 BETWEEN : PETER ROBERT ANDREWS t/as PSA CONSTRUCTION Plaintiff AND DANNY TROY SCHMIDT Defendant DANNY TROY SCHMIDT Plaintiff by counterclaim PETER ROBERT ANDREWS t/as PSA CONSTRUCTION Defendant by counterclaim -- 1 of 98 -- [2026] WADC 40 [2026] WADC 40 [HC] Page 2 Catchwords: Contract to build described as 'complete full house build' - Parties agree contract ambiguous as to whether it includes disputed works - Disputed works found to be separate work agreements not forming part of written contract - Suspension of works related to separate work agreements not forming part of the contract - Suspension of works under contract unlawful Legislation: Evidence Act 1906 (WA) Home Building Contracts Act 1991 (WA) Result: Plaintiff entitled to payment of disputed works found to be separate work agreement not forming part of the contract Defendant entitled to damages on counterclaim for unlawful suspension of works under contract Representation: Counsel: Plaintiff : Mr C P K Russell SC Defendant : Mr W G Vogt Plaintiff by counterclaim : Mr W G Vogt Defendant by counterclaim : Mr C P K Russell SC Solicitors: Plaintiff : Benz Legal Defendant : Vogt Legal Plaintiff by counterclaim : Vogt Legal Defendant by counterclaim : Benz Legal Case(s) referred to in decision(s): Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 -- 2 of 98 -- [2026] WADC 40 [2026] WADC 40 [HC] Page 3 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544 Electricity Generation and Retail Corporation t/as Synergy v EIT Kwinana Partner Pty Ltd (ACN 115 348 171) [2022] WASCA 3 Elvidge v BGC Construction Pty Ltd [2006] WASCA 264 Gunn v Meiners [2022] WASCA 95 -- 3 of 98 -- [2026] WADC 40 [2026] WADC 40 [HC] Page 4 Table of Contents Introduction ................................................................................................................................ 6 The issues to be determined........................................................................................................ 9 General observations about the plaintiff, defendant and other witnesses................................. 13 Peter Robert Andrews ........................................................................................................... 13 Danny Troy Schmidt ............................................................................................................ 13 Mrs Brooke Alicia Schmidt .................................................................................................. 14 Christopher Lee Jones .......................................................................................................... 16 Chronology ............................................................................................................................... 16 The evidence ............................................................................................................................. 16 2 July 2018, 4 pm - Meeting at Schmidt residence in Gibbs Street between the plaintiff, the defendant and Mrs Schmidt .................................................................................................. 17 2 July - 2 August 2018.......................................................................................................... 22 31 July 2018 - Meeting at Schmidt residence in Gibbs Street attended by the plaintiff, the defendant and Mrs Schmidt .................................................................................................. 24 2 August 2018....................................................................................................................... 25 2 - 24 August 2018 ............................................................................................................... 26 24 August 2018 - Meeting at Ken Wibberley's house attended by the plaintiff, the defendant, Mrs Schmidt, Mr Dorn, Mr Wibberley and his partner Janine ........................... 27 27 August 2018 - Meeting at Schmidt residence in Gibbs Street attended by the plaintiff and the defendant .................................................................................................................. 28 27 August - 2 September 2018 ............................................................................................. 32 2 September 2018 - The defendant sent updated tracker to the plaintiff .............................. 32 2 - 27 September 2018 .......................................................................................................... 35 27 September 2018 - Signing of contract ............................................................................. 37 Commerciality of the contract .......................................................................................... 38 Issue 1 - Were the disputed works within the scope of the plaintiff to provide under the building contract? ..................................................................................................................... 39 The contract .............................................................................................................................. 40 Issue 2 - Was there compliance with cl 16 of the building contract to bring the disputed works within the contractual scope? ................................................................................................... 46 Evidence as to additional works ........................................................................................... 46 Mezzanine and studio fit out ............................................................................................ 48 Other works ...................................................................................................................... 53 Continuing chronology ............................................................................................................. 57 28 September - 13 November 2018 ...................................................................................... 57 Changes to drawings ......................................................................................................... 59 -- 4 of 98 -- [2026] WADC 40 [2026] WADC 40 [HC] Page 5 13 November 2018 - Meeting attended by the plaintiff and the defendant .......................... 60 14 November 2018 - 16 January 2019.................................................................................. 60 16 January 2019 - Email from the plaintiff to the defendant regarding labour costs (including shed) .................................................................................................................... 63 16 January - 6 March 2019 ................................................................................................... 64 26 April 2019 - Meeting at Bevan Loop attended by the defendant, Mrs Schmidt and the plaintiff ................................................................................................................................. 70 Issue 3 - Non-compliance with cl 16 of the building contract.................................................. 77 Issue 4 - Did the parties agree to be bound by the work agreements? ..................................... 78 Issue 5 - Terms of any work agreements and/or variation/s ..................................................... 80 Issue 6 - Do the plaintiff's payment claims give rise to liability on the part of the defendant? 81 Issue 7 - Was the plaintiff entitled to suspend the works? ....................................................... 81 Issue 8 - Was the defendant entitled to terminate the building contract? ................................. 83 Issue 9 - Did the defendant validly terminate the building contract? ....................................... 85 Issue 10 - Invoice IV291 .......................................................................................................... 85 Unjust enrichment ................................................................................................................ 85 Estoppel ................................................................................................................................ 88 Duress ................................................................................................................................... 89 Issue 11 - Defective works ....................................................................................................... 90 Are there defective works? ................................................................................................... 90 Defective works conceded by the plaintiff ....................................................................... 90 Works conceded by the defendant to not be defects ........................................................ 90 Issue 12 - What is the defendant's liability to the plaintiff (if any) arising under the payment claims? ...................................................................................................................................... 91 Issue 13 - What is the plaintiff's liability to the defendant? ..................................................... 92 Items 23 - 24 - Doors ............................................................................................................ 92 Items 64, 130, 132, 141 and 181 .......................................................................................... 93 Items 26 and 30 .................................................................................................................... 93 Item 22 - Tiling ..................................................................................................................... 94 Items 79, 80, 179 and 183 .................................................................................................... 94 Items 84, 93 and 195 ............................................................................................................ 95 Items 1, 2 and 3 .................................................................................................................... 96 Items 104 and 118 ................................................................................................................ 96 Margin, Goods and Services Tax and supervision ............................................................... 96 Summary................................................................................................................................... 97 -- 5 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 6 MIOCEVICH DCJ: Introduction 1 This trial was originally listed for two weeks. The plaintiff's opening written submissions were 43 pages in length. The defendant's opening written submissions were 78 pages in length. 2 The court heard opening submissions and numerous documents were tendered from 22 May 2023 to 25 May 2023. Evidence was taken over five days from the plaintiff, Mr Andrews, from 26 May 2023 to 1 June 2023. 3 The matter came back in September and went a further nine days and involved taking evidence from the defendant, Mr Schmidt, from 18 September 2023 to 29 September 2023. 4 The matter came back on 22 November 2023 and evidence was taken from a Mr Christopher Lee Jones, an expert called by the defendant in relation to estimation and quantity surveying. 5 The last witness called was Mrs Brooke Alicia Schmidt, the wife of the defendant, on 23 November 2023. 6 The matter was adjourned to 16 February 2024 for counsel to file written closing submissions and for oral arguments to be given on that date. The defendant filed 211 pages of closing submissions on 23 January 2024.1 The plaintiff filed 141 pages of closing submissions on 10 April 2024.2 Neither party requested the matter be relisted to supplement their written submissions with closing arguments. 7 There are approximately 2,700 pages of trial transcript. The original trial bundle of documents comprised 562 documents. The papers for the judge were 179 pages in length. The matter book was 1,561 pages in length. 8 The dispute before me relates to the defendant, an owner, contracting the plaintiff, a builder, to build a home at Bevan Loop, Roelands. They had worked together in the past and could loosely be described as friends. 1 Defendant's Outline of Closing Submissions dated 23 January 2024 (DCS). 2 Plaintiff's Closing Submissions dated 10 April 2024 (PCS). -- 6 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 7 9 There was a home building contract (HBC) entered into between the parties dated 27 September 2018, consisting of 25 pages.3 Given the friendship and trust between the parties no lawyers were engaged to prepare the HBC. The works to be completed were described in page 8 of the HBC as: 10 The contract price to complete the works was $385,000. 11 Both the plaintiff and defendant agree the HBC is ambiguous in relation to what works were to be included in the HBC. The plaintiff says the HBC is to build the main residence. The defendant says the HBC includes what has been referred to as 'the disputed works' (except for the mezzanine and studio fit out in the shed which the defendant agrees was not included in the original HBC): • a bore and holding tank • a shed • solar panels to be installed on roof of shed (Solar Work) • a mezzanine and studio fit out in shed • a water tank • site power and electrical works • an aerobic treatment plant (ATU). 3 Exhibit 49. -- 7 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 8 12 The plaintiff originally relied on a reconstructed written quote as forming part of the HBC. The defendant originally relied on a spreadsheet given to the plaintiff titled 'Home Sweet Home Tracker' (the tracker) as forming part of the HBC. At the beginning of the trial both sides agreed neither document could form part of the HBC as they were not referred to in the written contract; however, they could be used to help interpret the HBC as the HBC was ambiguous in relation to what was agreed. 13 Some months after signing the HBC, both the plaintiff and defendant admitted being involved in creating a false document to a bank, in terms of works done, to get further finance for the build. Both the plaintiff and defendant want me to accept them as witnesses of the truth and find the other to be a witness of untruth. 14 The plaintiff's case theory is the plaintiff/builder was a friend of the defendant/owner. He entered into a HBC to build the defendant's home which did not include the disputed works. He agreed to do the disputed works by way of oral variation of the HBC or as a separate oral agreement to the HBC. He did not put this variation or agreement in writing as he trusted the defendant and knew he was short of money. He did not invoice the defendant till over a year for the disputed works when he started to suspect the defendant would not pay him and there was a falling out between the parties. 15 The defendant's case theory was set out by Mr Vogt in his opening:4 This is a matter in which an inexperienced builder has underestimated the cost to complete an agreed set of works for the owner. Having realised that the amount of money he was receiving under the building contract was not keeping pace with the amount of money he was expending to carry out the works, the builder constructed a narrative characterising some works as being variations in order to justify further payment claims to the owner in order to recover his losses. 16 Both plaintiff and defendant want me to unravel the knot they have tied. 17 The pleadings are put in a number of alternatives. The main issue is whether the disputed works formed part of the fixed price contract or not. For the reasons that follow I find the disputed works did not form part of the HBC and were separate agreements to perform work. They were not variations to the original HBC. 4 ts 1262. -- 8 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 9 18 Flowing from this decision is the next major issue as to whether the plaintiff lawfully suspended work under the HBC. For the reasons that follow, I find that the plaintiff unlawfully suspended work under the HBC and the defendant is entitled to compensation to complete those works. The issues to be determined 19 The parties could not agree on the issues for determination. 20 MFI 1 is a document renamed 'Plaintiffs issues arising for determination' which was handed to the court in the plaintiff's opening on 22 May 2023. 21 The defendant filed a separate document dated 15 September 2023 titled 'Defendant's outline of issues for determination'.5 22 The differences in the documents are not determinative and more a matter of form. For convenience sake I set out the issues for determination as set out by the defendant:6 1. Were the items claimed as variations in these proceedings (Disputed Works) within the scope of Mr Andrews to provide under the Building Contract [TB49]? 1.1. What surrounding circumstances can be taken into account in construing the Building Contract? 1.2. What, on its proper construction, was the Plaintiff obliged to construct under the Building Contract? 1.3. What, on its proper construction, are the terms of the Building Contract? 2. In the event that the Disputed Works were not within Mr Andrews' scope to provide under the Building Contract (i.e. Issue One is answered in the negative), was there compliance with Clause 16 of the Building Contract to bring the Disputed Works within the contractual scope? 3. In the event that the Court finds that there has not been compliance with Clause 16 of the Building Contract, is Mr Schmidt estopped from relying on non-compliance with Clause 16 to deny that the Disputed Works have been brought within Mr Andrews' scope to provide under the Building Contract? 5 Defendant's Outline of Issues for Determination dated 15 September (Issues for Determination). 6 Issues for Determination, pars 1 - 13. -- 9 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 10 4. In the event that the Court finds that Mr Schmidt is not estopped from relying on a failure to comply with Clause 16 to assert that the Building Contract has not been varied, did the Parties agree to be bound by the Work Agreements? 5. In the event that the Parties did enter into the Work Agreements, what are the terms of the Work Agreements and/or the Variation/s to the Building Contract? 6. Do the Plaintiff's payment claims (Payment Claims) as follows: 6.1. February Payment Claim; 6.2. First 18 June Payment Claim; 6.3. Second 18 June Payment Claim; give rise to liability on the part of Mr Schmidt and if so, on what basis? 7. Was Mr Andrews entitled to suspend the Works? 8. Is Mr Schmidt entitled to terminate the Building Contract? 9. If Mr Schmidt was entitled to terminate the Building Contract, did Mr Schmidt validly terminate the Building Contract? 10. In relation to Invoice IV291, was the Plaintiff unjustly enriched in the sum of $66,000.00? 10.1. Is the Defendant estopped from asserting that the Building Contract was not complied with in relation to the issuing of IV291 and its payment? 10.2. Was the Defendant operating under duress when he agreed to pay the $66,000.00 to the Plaintiff? 10.3. If the Defendant was operating under duress, what is the effect of that duress? 11. Regarding alleged defective works: 11.1. Are there defective works? 11.2. Is Mr Andrews liable to rectify those defective works? 11.3. What is the appropriate scope of remedial works needed to rectify the identified defects? 12. What is the Defendant's liability to the Plaintiff (if any) arising under the Payment Claims? -- 10 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 11 13. What is the Plaintiff's liability to the Defendant (if any) in respect of: 13.1. the costs of rectification of the alleged defects; 13.2. the cost to complete the Works in accordance with the scope proposed in the Report of Prescient Consulting? (original emphasis) 23 The first and major issue for determination is whether the disputed works formed part of the HBC. The parties agree the HBC is ambiguous and I can have regard to the surrounding circumstances including contemporaneous documents, emails, texts and the parties' sworn testimony as to what they say they discussed prior to entering the HBC to determine what the HBC means. 24 I remind myself of what Sir Anthony Mason said in the case of Codelfa Construction Pty Ltd v State Rail Authority of New South Wales:7 The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will presumed. 25 Where the surrounding circumstances take the form of a discussion, I bear in mind the legal principles as outlined by the defendant:8 3.77.1 Where a party seeks to rely upon the spoken words as a foundation for a cause of action, the conversation/s must be proved to a reasonable satisfaction of the Court, the Court must feel an actual persuasion of its occurrence or existence.20 3.77.2 The words spoken must be proved with a sufficient degree of precision sufficient to enable the Court to be reasonably satisfied that they were said in the proved circumstances.21 7 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 352. 8 DCS, pars 3.77.1 - 3.77.7. -- 11 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 12 3.77.3 The fallibility of human recollection in the context of oral evidence in litigious proceedings is well-recognised.22 For this reason, it will be necessary for the Court to assess the oral testimony of the witnesses in the context of:23 (a) contemporary materials; (b) objective facts; and, (c) the apparent logic of events. 3.77.4 Contemporaneous documents and statements will be a more accurate reflection of events.24 3.77.5 In considering whether an oral agreement was reached as alleged, the Court must consider:25 (1) the conversations said to constitute the agreement; (2) the contemporaneous and subsequent written communications; and, (3) the records of the party/ies themselves. 3.77.6 Where an oral agreement is alleged to have been made on or by a certain date, the conduct of the Parties, including subsequent conduct may be considered in deciding whether a contract has concluded or been formed.26 3.77.7 Conduct of the Parties subsequent to the alleged making of the contract may be regarded for the purpose of ascertaining whether or not there is a concluded contract.27 (FN20: John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451, [94]; Warrington Management Pty Ltd v Kingslane Property Investments Pty Ltd [2019] WASC 2, [39]) (FN21: Warrington Management Pty Ltd v Kingslane Property Investments Pty Ltd [2019] WASC 2, [37]) (FN22: Watson v Foxman (1995) 49 NSWLR 315, 318-319) (FN23: Fox v Percy (2003) 214 CLR 118, [31]) (FN24: Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No. 6] [2019] WASC 5, [26]) (FN25: Williams v Andrews [2021] WADC 25, [27]) 26 To this end I will need to make findings of credibility in relation to the plaintiff and the defendant. As indicated earlier both the plaintiff and the defendant made admissions to the creation of false documents. They have both shown a preparedness to lie when it suits them. I remind myself that I can accept part of a witness' testimony and reject -- 12 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 13 other parts. This is a case where contemporaneous correspondence between the parties is a more accurate reflection of the parties' intentions and beliefs rather than the sworn testimony in court over five years after the event. Both parties in their evidence have tried to recollect and then reconstruct what was said prior to the HBC being signed. I am mindful that both parties will, whether deliberately or inadvertently, colour their evidence to suit their case. General observations about the plaintiff, defendant and other witnesses Peter Robert Andrews 27 The plaintiff was a registered builder. He was what could be loosely described as a friend of the defendant in the sense that they knew each other prior to entering into the HBC. This was his first build. For the most part I found the plaintiff to be an honest witness. He struck me as a builder who was prepared to take on tasks and carry debt to get the job done for the defendant. He was not a builder who was trying to extract whatever he could out of the defendant. He acknowledged some work took longer than expected given his and his team's inexperience and was prepared to discuss his invoices and try to come to some arrangement where both sides would be happy. The defendant does not contend otherwise but suggests it was this inexperience which led the plaintiff to enter into a HBC where he underestimated the cost to complete the works, and he should be bound by the terms of that HBC. Danny Troy Schmidt 28 I was less impressed with the defendant as a witness. I do not expect the defendant to recall in detail conversations he had over five years ago, however when confronted in cross-examination with documents conflicting with his sworn evidence, the defendant was careful to continually refer back to the tracker as the agreement between the parties. It was not. When specific matters were put to him in cross-examination about how that would work, the defendant's answer would for the most part be, that is the plaintiff's problem. He was generally distrustful of people doing work for him. His finances were limited and he was actively involved in the build to keep costs down. In a general way I found the defendant more likely than the plaintiff to colour his evidence to suit his case and in a general way preferred the evidence of the plaintiff over the defendant. -- 13 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 14 29 My impression of the defendant was that he was an owner/builder who was happy to engage the plaintiff to do work for him. He was happy with the work done until it came time to pay for that work. He did not want to pay for the work if he could argue he was not liable. The defendant took advantage of the plaintiff's trust that the defendant would pay him for work requested by the defendant. The best example of this is the evidence in relation to the mezzanine and studio fit out in the shed. The defendant conceded (as he had to) this work was requested by him and could not arguably fall within work required to be performed under the HBC. The cost of the work was at a minimum $10,000. The defendant gave evidence the plaintiff agreed to do that work for free on a background of the plaintiff demanding the defendant get further loans to complete the build and the build being over budget. This evidence is at best fanciful and at worst a deliberate lie. Mrs Brooke Alicia Schmidt 30 Mrs Schmidt also gave evidence on 23 November 2023. I was generally impressed by Mrs Schmidt as an honest witness. She was there at the initial meeting on 2 July 2018 at Gibbs Street. She gave the following evidence:9 You spoke about Mr Andrews and quotes. Can you be very specific about what you recall Mr Andrews said?---My recollection is that Mr Andrews said he would go away and get quotes from tradesmen who he has contact with for specific tasks in the build, to see if any of the tradesmen that he was already working with or familiar with, could come in at a lower price to the quotes that we had gotten that were on that spreadsheet. And did he say what he would do if he found a tradesman with a lower quote for an item of work?---That he would manage them to do that part of the build. When you say that part of the build, what do you mean?---So if it was a grano work, concreter, then he would manage the concreter. If it was a plumber, he would manage the plumber. What was your understanding in relation to the - what Mr Andrews was saying about the entirety of the works?---Yes. What was your understanding?---That he was happy to manage people putting in the bore, people putting in the shed, people putting in the rainwater tank, ATU. 9 ts 2633 - ts 2634. -- 14 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 15 31 This evidence confirms that the meeting was just a planning stage with the understanding that the plaintiff would go away and get quotes. The evidence of Mrs Schmidt does not help in relation to whether the disputed works formed part of the HBC. 32 The next meeting was on 24 August 2018 at the offices of Ecologic (the architect). Mrs Schmidt gave no relevant evidence that anything was said at this meeting that would help me interpret the HBC. 33 Mrs Schmidt also gave evidence in relation to whether she witnessed a signature on the HBC. Although much evidence was taken up with this point, it was irrelevant apart from to potential credibility or reliability issues. I accept the evidence of Mrs Schmidt that the signature on the HBC was not hers; however, I place no weight on that fact as both parties agree the HBC is binding. Further Mrs Schmidt gave evidence that she did in fact see the plaintiff and the defendant sign the HBC.10 34 Mrs Schmidt gave evidence in relation to their financial situation and confirmed that there was no equity in Gibbs Street11 and that in fact there was a loss of approximately $270,000 owing to the bank in mid-2019.12 This evidence is in keeping with the bad financial position of the defendant. 35 The relationship between Mr and Mrs Schmidt is best summarised by her:13 As I previously mentioned, he's not very good at listening. And when I say something and he tries to tell me what to do, yeah, it's the vice versa for both of us. So if I said, 'I don't want to owner-build,' he would say, 'Well, I - I'll decide when we don't owner-build.' All right?---It's his - it's his work. It's his money. Yeah. 36 In the end Mrs Schmidt accepted the following submission in cross-examination:14 - - - it's possible that certain things that you now recall as having happened at that meeting may have been told to you by Mr Schmidt. And you may not have an independent recollection of those things?--- That's entirely possible. 10 ts 2655. 11 ts 2663. 12 ts 2666. 13 ts 2682. 14 ts 2715. -- 15 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 16 37 So, although I find Mrs Schmidt to be an honest witness, her evidence and potential for not having an independent recollection, does not help me to interpret the HBC or the contractual relations between the plaintiff and the defendant. Christopher Lee Jones 38 Mr Jones was a quantity surveyor called by the defendant. His evidence was in relation to losses suffered by the defendant and are uncontentious. Chronology 39 The parties could not agree on a chronology. 40 The plaintiff and defendant each filed a separate chronology. For convenience sake the defendant marked up the plaintiff's chronology which became MFI E. The defendant does not agree with the items highlighted red on MFI E. Those items marked red relate for the most part to the dispute between the parties as to what was discussed at meetings. I am prepared to accept that those items marked in black on MFI E are agreed facts between the parties.15 I propose to follow the chronology and then deal with individual meetings and documents in that chronological order. The evidence 41 The plaintiff and the defendant worked together on the FMG Solomon Hub Project between February 2013 and February 2014. 42 The defendant contacted the plaintiff by text16 on 13 July 2017 to see if the plaintiff would be his builder to sign off while the defendant managed the build. The plans were sent to the plaintiff the next day. 43 The defendant did not engage the plaintiff at this stage and the defendant made preparations for the building of the house. 44 On 28 June 2018, nearly a year later, the defendant sent an email to Tim Edgerton-Green regarding earthworks and stated:17 … we are 'owner building' using a small builder to manage contractors. 15 ts 1815 - ts 1816. 16 Exhibit 1. 17 Exhibit 5. -- 16 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 17 45 Mr Edgerton-Green was the earthworks subcontractor. The plaintiff relies on this email to show that the defendant's intention at this stage was to owner build. 46 On 2 July 2018 at 9.16 am, the defendant emailed the plaintiff18 and attached Issue 1 of the site plans,19 for the proposed build prepared by Solar Dwellings, dated 19 February 2018. These have been referred to as the CDC plans (complying document certification) and I will refer to them as the CDC plans. 2 July 2018, 4 pm - Meeting at Schmidt residence in Gibbs Street between the plaintiff, the defendant and Mrs Schmidt 47 It is not disputed and is clear the purpose of the meeting was to discuss the proposed build. The plaintiff could not recall if Mrs Schmidt was at the meeting.20 48 The plaintiff's evidence was that they discussed what the plaintiff would quote on being the main structure, structural items and the straw bale side of it, and the ecological side which would be hard to quote for. The plaintiff understood the main structure to mean: • the main concrete pad • the timber framing • the windows • all the interior items, including cabinets • the colour bond roof. 49 The plaintiff understood he was to get quotes to make the main residence liveable minus the straw bale side of it. 50 The plaintiff gave evidence the defendant mentioned he was going to do some external works to the build that he, (the defendant), would be managing and that would happen alongside the building of the main residence. The defendant said those works would be a shed, water tank and an ATU at that stage. 18 Exhibit 7. 19 Exhibit 562A. 20 ts 1046. -- 17 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 18 51 The plaintiff gave evidence that the defendant said he wanted to be involved to try and keep costs down and he would look at his own subcontractors as well.21 52 The defendant gave evidence that:22 Yeah, so the CDC included the whole works for the property, which was a proposed residence, power connection, holding tank, proposed shed, rainwater tank and ATU. 53 The first page of the CDC plans show the following: • proposed residence • proposed carport • proposed shed • rainwater tank • proposed studio. 54 The second page includes reference to 'TAYLEX AWTS system to manufacturers specifications', which I understand is a reference to the ATU system. The remaining pages contain detailed plans for the residence, carport and studio. There are no plans for the proposed shed and the proposed shed is not shown on sheet 3 of the CDC plans. I take the above to mean that the shed was not part of Solar Dwellings' brief to provide architectural drawings to build. This is not surprising as sheds are commonly bought from and built by third parties. 55 The defendant denied he said he was going to do the external works. 56 Prior to the meeting the defendant had created the tracker. He says this was shown to the plaintiff on 2 July 2018. Given the reliance placed upon this document by the defendant it is important to set out his evidence in relation to its creation and what it was to be used for. The defendant gave evidence the tracker was to ensure the following:23 21 ts 605. 22 ts 1389. 23 ts 1392. -- 18 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 19 So, my due diligence as coming from my role and my experience in my trade, it was to ensure that cost materials, labour, was going to suit the budget for the house, so I'd looked into what it costs, the square metre, to build a house, how much my quotes were coming in at and what my budget was, so I've understood that I could go forward to him and ask for the build to happen and I'd already done the preplanning to know that it could fit inside the budget for all the works as per the drawings. 57 When asked by Mr Vogt about what he explained to the plaintiff about the tracker at the 2 July 2018 meeting the defendant gave evidence he told the plaintiff:24 So it's a planning tool to ensure that we capture everything we need to to make sure we can hit a target on time and complete a job. So this spreadsheet was based on a front end loading, a planning design for us to get the quotes together, in the planning stage only, get the quotes together, we get the information together and to understand due diligence around can we build the house? Can it meet a budget? Have we captured everything so we don't miss anything out. I explained that everything on that sheet as per - as per the July meeting and also on the sheet on 2 August, that this was the front end loading, the planning, in the execution for this work to be looked after by the builder executing the work. And:25 That this sheet is a planning sheet and the quotes are - on here are to due diligence and move forward to ensure we can build the house, (1) with all the trades and everything we need and under the budget which is - which we have. So this was a planning tool to move forward and we needed to get the quotes to ensure that we would - we would come under budget. And further:26 So he knew that this was a quoting tool to get - to go forward for the diligence and the planning of the house. … … he was happy with the work that had gone into that. He was willing to lean on that. The quotes were done, the planning. So he didn't have to do it. He could jump on the back of and he was happy to - to take that information away and work with it to move forward into creating what would be the contract. 24 ts 1395 - ts 1396. 25 ts 1400. 26 ts 1400. -- 19 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 20 58 The defendant gave the following evidence in relation to what was discussed at this meeting:27 VOGT, MR: And what if anything did you, Brooke and Mr Andrews discuss at the 2 July meeting?---That we'd done the pre-planning and we were putting together the plans and the CDC to have the full house build and a builder would take on that build and looking to get a contract, fixed price, so we could build the house. And:28 … Can you go through the elements of what the full house build was? ---Yeah, so the three bedroom straw bale house with tin roof, power connection to that property, the holding tank and bore pumps, the shed, the solar power, the rainwater tank and the ATU. … … And did you discuss with Mr Andrews the use of the spreadsheet tracker to be used when the parties are going to be entering into any building contract?---Yes, correct. What did you say?---I said that the tracker would perform a full - full contract of the complete house build and we'd be looking at a builder to take that on on a fixed price contract using that tracker where they saw fit to build the contract. At the 2 July meeting, did you ask Mr Andrews to provide you with a quotation for the main residence?---No. 59 When questioned further by me the following evidence was given:29 That everything in this planning tool was the responsibility of the builder?---On execution, yes. And those were the words that you said to him?---Yeah. Okay. And what was his response to that?---He was happy. He was happy to move forward. Well, what did he say? He was happy to move forward?---Yeah. And that was also confirmed on the - at the email sent on 2 August where everything looks good and he'll work towards a contract which was TB13. So the conversation was started verbally - - - Sorry - - - ?--- - - - in the July 2 meeting. Sorry, what am I looking at?---So TB13. 27 ts 1404. 28 ts 1405. 29 ts 1401. -- 20 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 21 VOGT, MR: He said TB13?---Second line down: I will work on all quotes and get the building permit happening for you. MIOCEVICH DCJ: Okay. And are you saying that confirms that he was accepting that he was responsible - responsible for everything that was on the planning tool?---Sorry, I can't hear. That screen is in the way. It's blocking - - - Sorry?--- - - - noise. Put that down (indistinct). THE WITNESS: Thank you. MIOCEVICH DCJ: So what, in your mind, what do you say that means to you?---That he's happy that all that work is going to fit in the building scope or that work is captured to do a full house build which regarded to everything on the - on the spreadsheet, everything within the CDC which is everything that's captured on that. So he's happy. He saw - he's seen that and he's seen the stages. He's seen all the work and he's happy to move forward and put the building contract together and take on the build. 60 I do not accept the above evidence of the defendant that the tracker recorded all of the works to be performed under the HBC. The tracker was, as he described, just a tool. At various times in his evidence the defendant said they discussed building the house and then would later expand that the house included the disputed works. This was the first meeting between the two. 61 Although unclear as to when the tracker was first given to the plaintiff, it is clear a version was provided by email on 2 August 2018.30 I will come to this later in more detail; however, the defendant in essence gave evidence this was a planning tool to get quotes together to see in effect what they could afford to build. It makes sense that if you are going to build a house you will make some preliminary plans as to what things will cost and how much money you will need to borrow from the bank. 30 Exhibit 12. -- 21 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 22 62 The defendant best sums up his evidence for the tracker as follows:31 My intention was for Mr Andrews to review this sheet to see what was suitable, what he wanted to match and what feedback he'd give me to make this sheet - well, this front end loading, the planning, correct. So he was in charge of getting the contract sorted. So he could have used this info in whichever way he liked. He could disregard it. And he could use it. He could give me feedback towards it. It's a planning tool that he - he utilised as far as I know to build his contract. 63 Even allowing for delays in time, slips of the tongue, not being careful in answering the question, this evidence is still in keeping with the defendant's earlier evidence as to the tracker being a tool for the plaintiff. The evidence does not fit in with the defendant's evidence that the tracker sets out what the plaintiff was contracted to build. If it was understood the plaintiff was obliged to construct what was detailed in the tracker, then the plaintiff could not use it in any way he liked nor could he disregard it. 64 I accept the defendant's evidence that the plaintiff could disregard the tracker. That is the plaintiff's evidence as well. That leaves me still to construe whether the plaintiff contracted to supply or construct the disputed items. 2 July - 2 August 2018 65 The plaintiff gave evidence that whilst in his office he wrote notes on sheets 4, 6, 8, 9, 11 and 12 of the CDC plans32 setting out some rough calculations for the build which were to go into the plaintiff's quote template. On sheet 9 of 12 a note is made under the heading Appliances with the following: Rangehood standard = $500 Cook top standard 900 mm = $1500 Oven standard 900 mm = $4000. 31 ts 1928. 32 Exhibit 562. -- 22 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 23 66 The plaintiff gave evidence that the defendant at one of the meetings provided those figures.33 That is not disputed by the defendant; however, the defendant denied ever seeing the notes the plaintiff is said to have made on the CDC plans. 67 Other notations of calculations appear to be based on size and quantity of items ie:34 Gyprock = Ceiling = 295 m2 = $12087 Door + frame Standard - 9 = $9000. 68 The plaintiff gave evidence these calculations did not include Goods and Services Tax (GST) and agreed that the figures were effectively costing out the works that the plaintiff was going to carry out by reference to the CDC plans. 69 The CDC plans included drawings for the studio and carport but no calculations were done by the plaintiff in relation to these. 70 The plaintiff gave evidence that he did not do calculations in relation to the disputed works as he was not requested to do that work.35 The fact the plaintiff has calculations on Exhibit 562 just relating to the house adds nothing to his evidence that he did not agree to do the disputed works. All those calculations show me is that he was doing his costings for the house. 71 The calculations were not challenged by the defendant as to being inaccurate or exorbitant in terms of costings for work to be performed. As a matter of common sense, one would expect calculations to be done by the plaintiff in relation to costings. I am prepared to accept the plaintiff's evidence as to those costings. 72 The plaintiff during this period contacted a number of contractors to get quotes attaching the construction specifications and the drawings36 and stating, 'please see attached plans for quoting'. The construction specifications give the building description as 'Single Storey Dwelling, Studio, Carport, Shed & Water tank', however, the plaintiff's evidence was he was simply seeking a quote for the residence which he says was the main building and which the quotes he received related to.37 33 ts 587. 34 Exhibit 562, sheet 4. 35 ts 1052 - ts 1056. 36 Exhibits 8A, 10, 10A, 10B, 11, 11A, 11B and 562A. 37 ts 591 - ts 601. -- 23 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 24 31 July 2018 - Meeting at Schmidt residence in Gibbs Street attended by the plaintiff, the defendant and Mrs Schmidt 73 It is not disputed this meeting was to catch up and go through the quotes and prices. 74 The plaintiff recalled the defendant having his laptop open with a version of the tracker38 on it and that this was the first time he had seen it. The plaintiff's evidence was: … Okay, so he - and so Mr Schmidt showed you it on his laptop and he told you that he was tracking things for the - for the build on there. What else did he tell you about it if anything?---That's about it. That's - that's all we touched on was it was a tool for him to keep tracking. Sorry, you said - can you speak up?---Yeah. Can you say what you said then again?---He just said that it was a tool for him that he was tracking everything on that tracker and he would - yeah. Okay, all right, so that's the conversation that you had on 31 July during the meeting?---Yeah. And then you received this email together with the tracker and you had - you had said or your evidence was that you didn't think much of it?--- No, no. What - when you say you didn't think much of it, what - what do you mean?---Well, I - I run my eyes over it but my main focus was to get a price for that build, that residence, not - I was just going through my motions - - - Okay?---To get my price - - - All right?---On what I needed to do. 75 This evidence is close to the defendant's own evidence that this was a tool which the plaintiff could do what he wanted with, he could disregard it. 76 The plaintiff gave evidence he told the defendant he had a number of quotes and needed to obtain more. They spoke about some allowances for straw bales and appliances. They both agreed the straw bales were an unknown and they would have to get an expert to show them how it was going to run. The defendant mentioned he may source windows and cabinets from China to get more value for money. 38 Exhibit 12; ts 607. -- 24 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 25 2 August 2018 77 The defendant emailed the tracker and further quotes to the plaintiff.39 At the start of the email the defendant said: i have refreshed the Tracking / Quote / Build Sheet and attached. writing colours mean Black - complete Blue - PSA to Quote / supply Green - D&B to confirm quote Orange - D&B and PSA to compare quotes (the lines highlighted Orange are to be considered later depending on funds) He also asks: … please work on getting the plans submitted to shire so we can get that rolling and action any issues while i am home while we finalize building contract? 78 The plaintiff's evidence was he just read the tracker quickly, did not think much of it and his main focus was to get a price for the build. He agreed he responded to the above email saying 'All looks good. I will work on quotes and also get this building permit happening for ya'.40 79 I asked the defendant what that meant to him:41 MIOCEVICH DCJ: So what, in your mind, what do you say that means to you?---That he's happy that all that work is going to fit in the building scope or that work is captured to do a full house build which regarded to everything on the - on the spreadsheet, everything within the CDC which is everything that's captured on that. So he's happy. He saw - he's seen that and he's seen the stages. He's seen all the work and he's happy to move forward and put the building contract together and take on the build. 80 So despite the defendant's evidence earlier that this was just a planning tool which the plaintiff could disregard, the defendant believed that by the plaintiff responding to the email on 2 August 2018 39 Exhibit 12. 40 Exhibit 13. 41 ts 1401. -- 25 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 26 in the way he did, the plaintiff was agreeing to complete all the works as set out in the tracker and the CDC plans despite a number of items (such as carpentry) having no figure attached to them. I do not accept that evidence. It does not make sense to think that attaching the tracker meant that all those items would be included in the HBC. The tracker still was, as the defendant described, just a tool that could be used or disregarded by the plaintiff. 2 - 24 August 2018 81 During this time both parties continued to move matters forward. The defendant organised his finances and sent an email to the plaintiff attaching a pre-approval from Westpac Bank in the sum of $500,000.42 That letter was needed for the building permit. 82 On 9 August 2018 the plaintiff emailed the defendant a copy of Form BA143 asking the defendant to fill in the owner's details.44 The description of the works is 'Single storey dwelling, studio, carport, shed and water tank'. Whilst this may favour an interpretation that the described works were going to be the responsibility of the plaintiff as he was the builder, it is not determinative of that issue. 83 The defendant sent a letter45 to Gary Dorn (the straw bale consultant) on 13 August 2018. The plaintiff says this letter is important as it sets out the defendant's intention at that time as to how the build was going to proceed. It says: … Myself and my wife are looking to building our Straw Bale Home, we are currently in the process of having our builder draw up a contract for the Build (he will manage the build on a owner builder style set up) … 84 The importance of this email is that Mr Vogt opened the defendant's case on the basis that as of the 2 July 2018 meeting the defendant had:46 … departed from their initial vision of conducting the works as an owner/builder with a small builder to manage contractors, having realised the enormity of that task. 42 Exhibit 14. 43 Exhibit 628. 44 ts 1413. 45 Exhibit 17. 46 ts 1267. -- 26 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 27 85 When cross-examined on this the defendant did not agree entirely that was his position at the time and gave further evidence he would still be involved in confirming quotes and supporting the builder and revisions of drawings.47 In essence it was still his home and he would be involved in the planning phase. The defendant also gave evidence he supported the plaintiff because the plaintiff was struggling. 86 The defendant was further cross-examined on why he described the situation as an owner-builder style set-up and in explanation the following exchange occurred:48 … That's the state of play. Do you accept that could be true, that was the state of play at the time? This was an owner-build set-up?---I know I was going away from that ideology. I don't know exactly if it was that time when that email was sent or not. So it's hard - Gary was a very eccentric person, so why I've written it that way, I'm not sure. It - it - it is being written that way, yes. I'm not sure why I wrote it that way. So it's not set-up to lie or misguide Gary, other than I'm not sure why the content - content is written like that. I don't know why I did it. 87 The importance of this email is that it conflicts with the defendant's evidence that when he sent the tracker to the plaintiff on 2 August 2018 he understood the plaintiff was agreeing to do all the work in that tracker and it would form part of the HBC. In cross-examination the defendant could not explain why he wrote it that way. He denied that was his intention at the time. The defendant was evasive in his answers and lacked honesty knowing the description did not fit in with his earlier evidence. The words in the email are clear and unambiguous and simply mean what they say ie the defendant was looking to build on an owner/build basis with a HBC being prepared for the plaintiff to manage the build. Again, this is not decisive as to whether the disputed works were in the HBC. 24 August 2018 - Meeting at Ken Wibberley's house attended by the plaintiff, the defendant, Mrs Schmidt, Mr Dorn, Mr Wibberley and his partner Janine 88 Mr Dorn was the expert in straw bales and Mr Wibberley was the draftsman of the CDC plans. It is not disputed the purpose of the meeting was to get together everyone who was involved to make sure they were all on the same page, in particular the straw bale 47 ts 1876 - ts 1890. 48 ts 1890 - ts 1891. -- 27 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 28 construction side. It is agreed in the chronology that the following was discussed:49 − window reveal details;how strawbale construction would work eg bale coursings and bottom footing setup; − internal wall finishes; − the corner window in the scullery. 89 The above changes were ultimately taken up in Issue 6 of the CDC plans.50 27 August 2018 - Meeting at Schmidt residence in Gibbs Street attended by the plaintiff and the defendant 90 The plaintiff's evidence was he had done his work-ins, his allowances and had his builder's quote template filled out.51 He also had the hardcopy of the original drawings with his workings out on it.52 91 Exhibit 21 is not the original quote template the plaintiff had with him on 27 August 2018. He gave evidence the original was lost. The original was also stored on a hard drive which was lost/broken in early 2019. The quote was recreated by the plaintiff. Some of the quotes that postdated the meeting were excised from the exhibit. 92 The plaintiff gave evidence Exhibit 21 was different from the original quote in two ways: 1. The description of 'Concrete Patio (exposed agg)' in Exhibit 21 should read - 'Paving amount' and the figure of $6,495.50 should be less, but the plaintiff initially could not recall how much less. 2. The description 'MAIN RESIDENANCE [sic] - $385,000.00' in Exhibit 21 should not be there. 93 He estimated a round figure of about $400,000 to do the work set out in his quote. The quote does not include the disputed works. The quote was based on the plaintiff's workings out in Exhibit 562 and 49 MFI E, Item 20. 50 MFI E, Item 20. 51 Exhibit 21. 52 Exhibit 562. -- 28 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 29 quotes he had received, some of which were attached to Exhibit 21. The costings in the quotes are not challenged by the defendant. The quote total came to $399,481.50. 94 The plaintiff said they went through the workings out and quotes line by line. It was discussed and agreed that the defendant would do the Solar Work, ATU, water tank and bore; however, the plumbing, as per the plumber's quote, would include running pipes to those positions but not hooking them up. 95 The plaintiff said the defendant was comfortable with the $400,000 total but the defendant would still try to get his contractors and source materials from China to save costs. The general agreement was the plaintiff could build the house for $400,000 and the defendant would seek approval for a loan in that amount. The defendant would also speak to the bank about making payments higher in the earlier stages to cover the costs of manufacturing off site.53 96 The plaintiff said he showed the quote to the defendant54 and explained he did not give a copy of the quote to the defendant because:55 … that was a tool for me, for the builder, to get my quotes and my price. So it was a tool for myself to make sure I could build that - that house for that price. 97 It was put to the plaintiff that he agreed at this meeting to absorb any cost increases associated with the 24 August 2018 meeting56 which the plaintiff denied. 98 The defendant gave evidence that the meeting was:57 … It was basically confirming around the details that I was happy for the changes to take place, if it suited the build and it suited him for the build, making the build easier for him and more understood. 99 The plaintiff had with him Issue 3 of the CDC plans,58 the tracker and a notebook. He left these items at the defendant's house. The defendant texted him the next day to say he had left paperwork behind and he would leave it in the letterbox. The defendant's evidence 53 ts 633. 54 ts 1221. 55 ts 631. 56 ts 1005. 57 ts 1421. 58 Exhibit 563A. -- 29 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 30 was: there was no handwriting on the Issue 3 drawings; there was no document entitled 'Contract Quotation'; the plaintiff did not have a bundle of quotes; the plaintiff never provided a quote; and he never gave the defendant the quotes from other people.59 100 The defendant was clear no such quote was ever provided to him and any suggestion by the plaintiff that it was, was untrue. He maintained it was a fabricated document and he had never seen it. 101 The defendant was clear that the first time the term 'main residence' was used was when the litigation started. He had never heard that term before.60 There is evidence to the contrary. 102 Discussions were always around full build. 103 Evidence was given and a text confirms the plaintiff left some paperwork at the defendant's house after the meeting;61 however, the exhibit does not say what the paperwork was. 104 The defendant also gave evidence that he was not told a price by the plaintiff to do the overall build as the plaintiff was still getting his quotes together.62 105 I do not believe the plaintiff's evidence that he had a quote with him on this day. Despite my generally preferring the evidence of the plaintiff over the defendant and that it would be normal for a quote to be requested and given, I found the defendant's evidence in this regard to be true. There was a definiteness about the defendant's evidence that was not the same in relation to his other evidence. There was a hesitancy in the plaintiff giving his evidence on the quote that was lacking in his other evidence. I am fully conscious that I am referring to my observations and that I am not fully acquainted with either the plaintiff or defendant, however there was, for my mind, a distinct difference in their evidence on this point. Other reasons for finding there was no written quote at this time are: 1. I found the plaintiff's explanation for not giving the quote implausible. A quote is a document you give to the person you are quoting the work for. It sets out what work you are quoting for and what it will cost. It is not just a tool for you to use. 59 ts 1425. 60 ts 1426. 61 Exhibit 1, page 8. 62 ts 2022. -- 30 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 31 If a quote had been prepared at that stage it would as a matter of common sense have been given to the defendant. There would be no reason not to. 2. I also find it implausible that in all the documents presented in this case, the one missing and having to be recreated is the quote the plaintiff says he prepared. If this quote had been given to the defendant there could be no doubt the disputed works were not included in the contract price. 3. The quote included quotations from other parties that postdated the 27 August meeting. Whilst this is an obvious error, it shows the plaintiff preparing a document that was demonstrably inaccurate. 106 On the balance of probabilities, I find the plaintiff to have lied about having a written quote of a similar nature as that contained in Exhibit 21. He lied because he wished to bolster his evidence as to what was and was not included in the HBC. His lying does not determine the ultimate issue for me, but it does severely affect his credibility as to other conversations he says occurred between him and the defendant. 107 I note that the figures as set out in the quote are figures as to the cost of the build.63 The defendant in general gave evidence he could not recall discussing the quotes with the plaintiff at this meeting. The defendant's evidence was it was not a budget meeting, and he did not discuss how much money he was going to get from the bank, but there were discussions around the spreadsheet.64 108 Although I find the quote did not exist at the time, it is a matter of common sense that the two parties would have discussed prices and quotes. The defendant was wanting an HBC that was to be a fixed price contract. The plaintiff had to make an HBC and know in general terms what he believed it would cost and what the budget of the defendant was. Again, in general terms the amounts in Exhibit 21 are not disputed as to the costings, just that the defendant says it was not discussed and there was no actual quote. The defendant was cross-examined extensively on the figures and the quotes attached. So, although I find the written quote was not in existence on this day, I accept that the figures and costs of the build were discussed and the quote accurately reflects those figures and costs. 63 Exhibit 21. 64 ts 2024. -- 31 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 32 27 August - 2 September 2018 109 Exhibits 23 and 24 show correspondence between the parties and Samuel at Reaching Windows from 28 April to 31 August 2018. This correspondence shows the defendant actively involved in getting quotes for supply and order of windows. Again, nothing turns on this except to show it fits in with the defendant being actively involved in the obtaining of quotes after the 27 August meeting. It does not fit in with his evidence that it was understood at the earlier meetings that this was a fixed price contract that included all the work as set out in the tracker and these would be the responsibility of the builder, the plaintiff. 110 Exhibits 25 and 26 set out correspondence regarding the defendant sorting out his finances for the build, which fits in with the plaintiff's evidence that that is what the defendant told him. The figure of $400,000 for the construction loan is confirmed in those exhibits; however, I do note the defendant's explanation in re-examination that he was not approaching the bank for a $400,000 loan but rather went to the bank to find out what the bank would be prepared to lend for construction, and in this case it was $400,000.65 Whilst this is a plausible explanation for the figure of $400,000, the defendant in his email to the bank dated 31 August 2018, said:66 'the valve [sic] of the build when complete will be approx. 730k+ when complete (i am sure you are onto this figure already?)'. The value of the land was put at $330,000 with construction put at $400,000 in the earlier email from the bank. The importance of this email is that it shows that at the very least the defendant estimated the build, whether including the disputed works or not, to be $400,000 plus. 111 I also note that the defendant informs the bank that the plaintiff does not require a deposit for the construction. The importance of this is that it fits in with the general characterisation of the plaintiff assisting the defendant and trying to help him with his build. 2 September 2018 - The defendant sent updated tracker to the plaintiff 112 On 2 September 2018 the defendant sent the updated tracker to the plaintiff with a covering email.67 The email said: 65 ts 2485 - ts 2489. 66 Exhibit 25, page 2. 67 Exhibit 28. -- 32 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 33 Please find attached Tracker for the Schmidtys Eco House - [**] Bevan Loop. (Smiley Face Emoji). I have cleaned it up a bit, (and will some more when we go from planning to execution) 113 In the email the defendant: • guestimates draw down stages and order of work required. • advises he has added a column C to indicate who he thinks will organize that scope. • notes they need to add chippy cost. • mentions his finances and an estimate of $345,000 - $400,000 for construction. It specifically states: … with the building contract, i will give you any details of allowances from ME bank tomorrow, otherwise, can we 'round up' scopes that will read better for them i.e. power connection - include solar into this) and any items that may require 'generalizing'. (they all actually look pretty good too me!) i would like to get the ball rolling so we can get the concrete down and shed up asap so we can move into the shed, reno gibbs, sell gibbs to lower the mortgage. And further: my Dad has just put his house on the market in Perth, and is definently [sic] considering building the Studio 'apartment'. are you keen to quote for this when the dust settles on the house? pretty if you are we will work it out. 114 The plaintiff gave evidence he skimmed through the tracker so he could prepare the HBC. 115 The top right-hand side of the tracker was important as it set out the payment stages which he needed for the HBC. The plaintiff says he did not look at the balance of the spreadsheet or check the amounts in there as he was just focussed and worried about his part of it, -- 33 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 34 the residence.68 As to the first page of Exhibit 28, he just paid attention to where the defendant said he was going to get $400,000 from the bank. 116 If the document and cover page had been read it would appear that the defendant at first glance thought he would get all the items listed in the tracker for $345,000. The tracker has question marks for: • Chippy • Bricks • Doors • Fittings lights taps etc. 117 Payments do not include GST. 118 On the tracker the payment structure is colour coded and numbered 1 - 6. It states: Payment Stages (Payment stages below as spoken about, these are HIA standard, but your builder might have different stages, or extra stages in the contact [sic], which our credit team will look at and normally approve.) The key to the colour coding is as follows: • Deposit (Grey) • Base (Blue) • Frame (Yellow) • Lock up (Green) • Fit out (Orange) • Completion (Light Blue). 119 The colour coding in the tracker does not match the items listed ie in the deposit section there are a number of items listed under Item 1 which are not required for the deposit to be paid. Item 6 is to be paid after the HBC is completed and yet the items listed in the tracker say later depending on funds. In summary, the tracker does not accurately relate to the payment of funds. 68 ts 633. -- 34 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 35 120 In the added column C the defendant has put the ATU, water tanks, shed and solar in the scope of D&B (him and his wife). I understand the defendant's evidence to be that this is just him helping the plaintiff; however, it does not fit in with his general description of what happened at earlier meetings that it was understood by the parties that this was a fixed price contract where all the items as listed in the spreadsheet were the responsibility of the plaintiff. It more fits in with the plaintiff's evidence that he was quoting for the house and that the defendant, in an attempt to save costs, was actively involved in the build and would take on works himself to save money. 2 - 27 September 2018 121 There is correspondence between the parties as to the upcoming build and finance.69 The correspondence shows the defendant actively involved in the resubmitting of plans, building permits and the way in which the construction should proceed. By email on 17 September 2018, the defendant confirmed to the plaintiff that the bank had approved a $385,000 construction loan. From correspondence it appears both parties were happy that the cost of construction would be $385,000. The evidence of this correspondence conflicts with the defence pleadings,70 that the defendant communicated his available budget of $385,000 to the plaintiff at the meeting on 2 July 2018. I accept the plaintiff's submission that this pleading is inconsistent with the contemporaneous documents, and also inconsistent with the evidence given by the defendant at trial. The importance of the difference is not in relation to credibility. The defendant could be forgiven for such a mistake. The importance is that the original estimate of costs at the 2 July meeting was $400,000 and this changed to $385,000 after the defendant got approval from the bank on 17 September 2018. This was a $15,000 difference which would need to be accounted for. This fits in more with the plaintiff's evidence that the defendant would be actively involved in the build to try and save money than the defendant's evidence, which was in effect, there was a fixed price contract for $385,000 which included everything on the tracker and that was the plaintiff's problem. 69 Exhibits 34, 38 and 39. 70 First Further Amended Defence, Set Off and Counterclaim (Pursuant to the Orders of His Honour Judge Gething made on 30 November 2022) dated 14 December 2022, par 2C (SOD). -- 35 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 36 122 On 13 September 2018 the plaintiff emailed the defendant to say as soon as he gets back, we will get the HBC signed. Due to the friendship and trust between the parties, trades were being organised for the work to be performed without a written contract. 123 Specific discussions were had regarding the shed. Exhibit 32 is an email from the defendant to the plaintiff saying: can you please put your Builders reg an [sic] signature on the shed BA2 please (if you are happy too otherwise i can get southern city to action?) 124 Exhibit 33 is the BA2 form which is for a steel shed. 125 The builder's name was put in as PSA Builders, however, it was signed by the defendant. Exhibit 41 is an email dated 21 September from Chris Macri at Southern City Building Group to the defendant indicating the defendant wanted to discuss the proposed shed. 126 The defendant was cross-examined on this.71 The defendant maintained the plaintiff was responsible for the shed at this stage. He was then asked if the plaintiff was responsible for the shed, why was the plaintiff given the option to sign the building permit? The defendant's response was:72 I have manners. It's a nice way of asking someone to - I'm not going to force him or tell him to do what he has to do. It's a request nicely to sign a permit that was missed that needed to be put on - put into the shire. 127 This shows the defendant still actively involved in arrangements for the shed and again fits in more with the evidence that the shed was not the responsibility of the plaintiff. 128 There is nothing in the correspondence to clearly state what was going to be constructed for the $385,000. It was agreed between the parties that the plaintiff would drop the HBC in the meter box at Gibbs Street. The plaintiff's evidence is he did that on or about 22 or 23 September 201873 and that once signed by the defendant it would be returned to the plaintiff. 71 ts 2297 - ts 2300. 72 ts 2298. 73 ts 640. -- 36 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 37 27 September 2018 - Signing of contract 129 There is no dispute the HBC was signed by both parties on 27 September 2018. There is a dispute as to whether Mrs Schmidt witnessed the plaintiff's signature. Both parties agree that nothing turns on this and that the HBC signed was a valid contract between the parties. 130 The plaintiff gave evidence that it was on 27 September 2018 that he spoke to the defendant, and it is then that the defendant asked the plaintiff to take on all the disputed works (excluding the mezzanine and studio fit out). The defendant denies this and maintains the disputed works (excluding the mezzanine and studio fit out) were always in the scope of the build. 131 At 9.24 am that day the plaintiff sent an email to the defendant saying:74 I can't seem to find the electronic format of the shed design and specs. Do you have it handy to email to me? Just want to flick it off to the concreter for quoting. 132 The defendant then sent the approved plans and specifications for the shed. The plaintiff could not recall if he saw this email before the HBC was signed.75 133 Again, although not determinative of the issue, this correspondence fits in more with the plaintiff's case theory than the defendant's. If the defendant is correct and the shed is already included in the contract price, the plaintiff has signed a fixed price contract not knowing the costs of concreting for the shed. The plaintiff gave evidence that he had not asked for a quote for the concreting of the shed prior to the 27 August 2018 meeting.76 I note this evidence is not definitive of whether the shed was included in the contract price as the amount involved for the concreting for the shed may not be great and it may be the plaintiff is just not a good businessman; however, to my mind it favours the interpretation that the shed was not included in the fixed price contract. 74 Exhibit 47. 75 ts 643 - ts 644. 76 ts 648. -- 37 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 38 Commerciality of the contract 134 The plaintiff sets out his arguments as to the lack of commerciality of the HBC (if the disputed works are included in the contract price), in the PCS.77 The plaintiff accepts that it is not the role of the court to re-write agreements merely to give them a more commercial operation and that where the terms of the agreement are clear, that is the meaning that ought to be given. That is, if this is a clear contract that includes the disputed works then the plaintiff is bound by its terms and the uncommerciality of the HBC is irrelevant. 135 Both sides, however, agree the HBC is ambiguous. Where the contract is ambiguous, I can look at the commerciality of the contract as one of the factors in determining what the contract means. In interpreting the contract, I repeat the paragraph referred to by the plaintiff in the PCS:78 At [57] of Willis, the Court referred to an important paragraph from Jireh International Pty Ltd Trading as Gloria Jeans Coffee v Western Exports Services Inc [2011] NSWCA 137 at [55] which is worth setting out in full: In my view the primary judge erred in taking this approach. So far as they are able, courts must of course give commercial agreements a commercial and business-like interpretation. However, their ability to do so is constrained by the language used by the parties. If after considering the contract as a whole and the background circumstances known to both parties, a court concludes that the language of a contract is unambiguous, the court must give effect to that language unless to do so would give the contract an absurd operation. In the case of absurdity, a court is able to conclude that the parties must have made a mistake in the language that they used and to correct that mistake. A court is not justified in disregarding unambiguous language simply because the contract would have a more commercial and business-like operation if an interpretation different to that dictated by the language were adopted. 136 The plaintiff elicited in evidence that the estimate of costs for the residence and the disputed works was between $449,397.28 and $482,567.21. If the HBC just included the building of the main residence (as contended for by the plaintiff), the cost of the build would have been between $371,297.28 and $404,467.21. 77 PCS, pars 271 - 280. 78 PCS, par 265. -- 38 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 39 137 The defendant was cross-examined about these estimates. When questioned on the estimates the defendant did not agree with the figures and the following evidence was given:79 So Mr Schmidt, what I will submit to his Honour at the end of the trial is that the proper - the - the argument or the suggestion that the contract, the fixed price contract of $385, could not have included all of your - all of the shed, the ATU, the water tanks, the solar, the studio, all of those external matters because it would be uncommercial. That is, it was going to cost $482,567.21 to do those works if they were included on the high case and $449,397.28 on the low case. So do you have any comment about that?---Yeah, I don't agree with your figures. I think they're manipulated - - 138 Apart from the statement that the defendant thought the figures were manipulated, there was nothing in the evidence before me to suggest they were wrong or inaccurate. The evidence on the balance of probabilities suggests that to interpret the HBC in the way suggested by the defendant is commercially unviable. If the language of the HBC was clear and those disputed items were included in the contract price, then the plaintiff would be bound to provide the disputed works even if it was uncommercial. Issue 1 - Were the disputed works within the scope of the plaintiff to provide under the building contract? 139 Both the plaintiff and defendant have helpfully set out the law in relation to how I should make findings of fact and interpret an ambiguous contract.80 140 For convenience sake I repeat what counsel for the plaintiff set out in the PCS:81 228. When the law requires proof of any fact, the tribunal must feel actual persuasion of its occurrence or existence before it can be found: Briginshaw v Briginshaw (1938) 60 CLR 336. 229. In Palmer v Dolman [2005] NSWCA 361 at [41] the NSW Court of Appeal noted the following principles which were applicable in determining whether circumstantial evidence is sufficient to lead to an inference of fraud (which was at issue in that case, although the principles are of general application): 79 ts 2253. 80 ts 248. 81 PCS, pars 228 - 229. -- 39 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 40 Certain principles have become well-established in determining, in a civil case, whether circumstantial evidence leads to an inference of fraud. The following are presently pertinent: (a) The jury must consider 'the weight which is to be given to the united force of all the circumstances put together' (per Lord Cairns in Belhaven & Stenton Peerage (1875) 1 App Cas 278 at 279 - quoted with approval by Gibbs CJ and Mason J in Chamberlain v R (No 2) at 535). (b) The onus of proof is only to be applied at the final stage of the reasoning process: '[i]t is erroneous to divide the process into stages and, at each stage, apply some particular standard of proof. To do so destroys the integrity of [a] circumstantial case' (per Winneke P in Transport Industries Insurance Co Ltd v Longmuir at 129). (c) The inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful. (d) Where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved: Bradshaw (emphasis added). The contract 141 The HBC sets out what the builder is required to build under the HBC. What is required to be built is defined as 'Works'. Works is defined under cl 38(a) as:82 'Works' means the Works described in the Contract Documents to be carried out by the Builder. 142 Clause 38(a) defines contract documents as: 'Contract Documents' means this Agreement, Conditions, Particulars of Contract, Appendices, Drawings and Specification and any incorporated documents. 82 Exhibit 49, page 25 (page 24 of the HBC). -- 40 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 41 143 The Particulars of Contract describes the works as follows:83 144 The documents that form part of the HBC are the above documents. Clause 3(d) states:84 If there is any ambiguity in the Contract Documents the following order of precedence must be used to resolve the matter: (i) The Agreement and the Conditions (ii) the Specification (iii) the Drawings 145 It is not disputed the ambiguity arises from the inconsistency between the HBC, the construction specifications and the Issue 3 drawings for the reasons explained in the plaintiff's opening submissions85 and the DCS.86 146 In simple terms, the argument of the defence, is that the contract documents include the descriptions:87 3.18. … single storey dwelling, carport, shed & water tank [in the CDC]. 3.19. The Drawings depict the following structures in addition to the Main Residence: proposed shed, proposed rainwater tank, Taylex AWTS (ATU) power supply, proposed carport and proposed ancillary accommodation (footnote omitted). 83 Exhibit 49, page 8 (page 7 of the HBC). 84 Exhibit 49, page 13. 85 Plaintiff's Opening Outline of Submissions dated 3 May 2023 (POS), par 57. 86 DCS, pars 3.11 - 3.20. 87 DCS, pars 3.18 and 3.19. -- 41 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 42 147 I accept the plaintiff's submission that to accept the defendant's submissions, the words in the HBC 'Complete full house build as described in the following Contract Documents'88 requires the language in the HBC to be applied inconsistently in that:89 (a) the Specifications include the 'Carport', but the Defendant does not contend that the carport was included in the scope of the Building Contract; (b) the Revision 3 Drawings include the 'Carport' and the 'Proposed Ancillary Accommodation', but the Defendant does not contend that either of these structures were included in the scope of the Building Contract. 148 I understand the defendant to rely on the tracker to overcome this inconsistency, that is, the tracker does not refer to the ancillary accommodation being built and the carport is not included in the tracker. 149 If the tracker was part of the HBC, then I would agree with the defence's submission. It is not. The tracker was, as I have already said, and as stated by the defendant, just a tool that the plaintiff could use or disregard. He disregarded it. It is not part of the HBC. I must look at the HBC itself, the words employed and decide whether the disputed works form part of the HBC. 150 The legal principles regarding the construction of contracts are set out in the POS.90 It is convenient to restate them as they are not in dispute: 19. As the Court of Appeal observed in Electricity Generation and Retail Corporation v EIT Kwinana Partner Pty Ltd [2022] WASCA 3 [230] (Electricity Generation), 'the principles applicable to the construction of written contract established by the High Court are well known. … Those principles include: (a) The construction of a contract involves a determination of the meaning of the words of the contract by reference to its text, context and purpose. The starting point for the proper construction of a clause is the language used in the clause. In particular, one starts by identifying the possible meanings that the words chosen by the parties can bear; 88 PCS, par 236. 89 PCS, par 240. 90 POS, pars 19 - 24; See also: Electricity Generation and Retail Corporation t/as Synergy v EIT Kwinana Partner Pty Ltd (ACN 115 348 171) [2022] WASCA 3; Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544. -- 42 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 43 (b) The process of construction is objective. Ascertaining the meaning of terms in an instrument requires a determination of what a reasonable person would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract, and the commercial purpose or objects to be secured by the contract; (c) The commercial purpose or objects sought to be secured by the contract will often be apparent from a consideration of the provisions of the contract read as a whole. Extrinsic evidence may nevertheless assist in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding of the genesis of the transaction, its background, the context and the market in which the parties are operating; (d) The instrument must be read as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed to have some operation; and (e) The general principle applicable to the construction of commercial contracts is that they should be given a businesslike interpretation. Absent a contrary intention, the court approaches such contracts on the basis that the parties intended to produce a result which makes commercial sense. This requires that the construction placed on the term or terms in question is consistent with the commercial object of the agreement. However, it must also be borne in mind that business commonsense may be a topic on which minds may differ. 20. The Court of Appeal in Electricity Generation, at [239]-[246] discussed the decision of the High Court of Australia in Ecosse Property Holdings Pty Ltd v Gee Dee Nominees [2017] HCA 12; (2017) 261 CLR 544 concerning a lease which suffered from poor drafting. The Court of Appeal observed at [246] that it can be a finely balanced matter of judgment as to the extent to which the text and grammatical structure of a contract can bear the meaning that will give effect to its evident contractual purpose. It also underscores the importance of commerciality and purpose, from the perspective of the reasonable business person, when faced with a provision that itself suffers from poor, or confused, drafting. -- 43 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 44 21. As to what can be taken into account as context, the Court of Appeal in Electricity Generation at [249]-[250] referred to the cases of Maggbury Pty Ltd v Hafele Aust Pty Ltd [2001] HCA 70; (2001) 210 CLR 181 and Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251 with approval and observed at [252] that it is necessary as with any surrounding circumstances, attention must ultimately be directed to the meaning of the contractual provisions that a reasonable businessperson, having regard to [in that case the Market Rules], would attribute to the contract. 22. The 'true rule' expounded by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352 'is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has plain meaning.' 23. Accordingly, the law allows for admission of extrinsic evidence if: (a) the language in dispute is ambiguous; and (b) the evidence is of objective background, not merely of subjective intention. 24. There are authorities that discuss the admissibility of extrinsic material as part of the 'context element' of contractual construction. It is not necessary to analyse those decisions given that the parties agree that the Building Contract by itself [TB 49] is ambiguous as to its scope. This is relevant ambiguity that permits resort to extrinsic evidence: see Bisognin v Hera Project Pty Ltd [2016] VSC 75 at [148]-[157] and Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd (2014) 48 WAR 261; [2014] WASCA 164 at [73]-[74]. (original emphasis) (footnotes omitted) 151 The description in the HBC is 'Complete full house build'. That term has no particular industry meaning. This is a term employed by the parties and each has given different evidence as to what they understood that term to mean. A natural interpretation of those words are they are words of limitation. As the plaintiff submits,91 they limit from the specifications and drawings, what is included in the works agreed to be performed. 91 PCS, pars 404 - 405. -- 44 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 45 152 Whilst it may be arguable that the water tank, ATU, site power, pump and holding tank may relate to the house, it is clear that the shed and Solar Work do not. I have already formed the view that the tracker did not set out what the works to be performed were as it was just a tool which the plaintiff was free to disregard. I have already discussed the problems with the carport and ancillary accommodation being referred to in the contractual documents, which the defendant says should be interpreted as including all those works, yet it is agreed the carport and ancillary accommodation are not part of the works. To further interpret what is and is not included in the HBC by reference to the contractual documents and then whether those works are arguably related to the house is tortuous and would not have been in the contemplation of either party. 153 There is a simple and natural meaning to those words 'Complete House Build' which lends itself to a simple and natural interpretation of the HBC. 'Complete House Build' relates to the house and the house alone. The use of the words 'Complete House Build' limit the works to be performed under the HBC to what is described as the main residence and single storey dwelling in the contractual documents. To interpret them in the way suggested by the defendant: (a) is not commercially viable; (b) is not internally consistent with the carport and ancillary accommodation being excluded from the works to be performed; and (c) is contrary to the natural meaning of the words as limiting the contractual documents to the building of the main residence/single storey dwelling. 154 The only way in which the words could mean otherwise is by: (a) using the surrounding circumstance of the tracker to set out what was included in the HBC; and (b) preferring the defendant's evidence as to what was agreed with the plaintiff as to the works agreed. 155 For the reasons already given, I have rejected these arguments and find that the disputed works were not part of the HBC. 156 A separate issue arises in relation to the mezzanine and studio fit out which I will deal with in Issue 2. -- 45 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 46 Issue 2 - Was there compliance with cl 16 of the building contract to bring the disputed works within the contractual scope?92 157 Given my finding the disputed works were not part of the HBC the next issue is whether the additional works formed: (a) part of the HBC; or (b) were separate contracts for work performed. 158 The plaintiff pleads both alternatives. In deciding this issue, I need to look at what the plaintiff says the agreement was. The defendant denied any such agreement (save for the mezzanine and studio fit out). Given my finding that the disputed works were not part of the HBC, I find as a matter of common sense that the plaintiff would not do additional works without recompense. Evidence as to additional works 159 Six dates are pleaded as to the request for additional work. They are: 1. 27 September 2018 - (a) bore and holding tank; (b) shed work; and (c) Solar Work. 2. 1 October 2018 - (a) water tank work; and (b) ATU work. 3. 8 October 2018 - Site power works. 4. 22 October 2018 - Mezzanine work. 5. 16 December 2018 - Electrical work. 6. 26 April 2019 - Studio fit out work. 92 Issues for Determination, par 2. -- 46 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 47 160 In relation to the mezzanine and studio fit out, the defendant accepts in his defence an oral agreement that the 'Works and Spreadsheet Works be varied' to include these works.93 I take the admission to be in relation to a variation to the HBC as that is where 'Works' is described in the HBC. On 25 May 2023, Mr Vogt confirmed the plaintiff's pleaded position that the studio and mezzanine work was not part of the original HBC.94 He also confirmed a question from myself that,95 there's no dispute from the defendant that in relation to what is now exhibit 225, where it has the list of the employee, it has the amount of hours worked and the job they were working on, that the defendant accepts that is the work done and that is the work that they did it on. So that's the person who did it. That's the hours they worked and where it's got a description of the job, that is the job that they did. VOGT, MR: Yes. There's no issue. 161 So, the defendant admitted through Mr Vogt a request for variation and that works were performed as requested for the mezzanine and studio fit out. 162 The defendant however maintained it is not liable for the variations agreed because: 1. The plaintiff said he would include the cost of the mezzanine and studio fit out in the contract price. 2. The plaintiff did not comply with cl 16 of the HBC in respect of variations. 3. The requirements of s 7 of the Home Building Contracts Act 1991 (WA) (HBCA) were not complied with. 163 Given the admissions of the defendant in relation to the request for a variation of the HBC to include the mezzanine and studio fit out, I will deal with these first. 93 SOD, pars 31 - 41. 94 ts 408. 95 ts 420. -- 47 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 48 Mezzanine and studio fit out 22 October 2018 - Mezzanine works and 26 April 2019 - Studio fit out 164 The defendant admits in his SOD a request for additional work by way of a mezzanine on 22 October 2018 the cost of which would be approximately $10,000. The mezzanine was described by the plaintiff as:96 So the mezzanine was a timber frame with a chipboard floor so they could store materials on top of the studio that was going to go underneath in the shed. 165 The defendant admits in his SOD a request for additional work by way of a studio fit out on 26 April 2019 the cost of which would be approximately $10,000. 166 The studio fit out was described by the plaintiff:97 ---One room and then a en suite. Right. Okay. So it's - and what was in that one room?---So there was a couple of windows - there's was a window and a sliding door, and then there was a kitchenette in there as well. And then there was a doorway into an en suite, did you say?---Sliding door into an en suite. Sliding door into an en suite, okay?---Yeah 167 It was put to the plaintiff:98 VOGT, MR: Mr Andrews, in relation to the agreed variation for the mezzanine and the studio to the shed, the defendant says that the agreement between you and he is for the costs to be agreed at $10,000 for those works. Do you accept that?---No. 168 Mr Vogt had not put to the plaintiff the defendant's pleaded position that the plaintiff agreed to do the mezzanine and studio fit out under the contract price of $385,000. After the matter was adjourned Mr Vogt advised the court:99 VOGT, MR: Thank you, your Honour. I've taken instructions and conferred with my instructor in relation to the issue regarding 96 ts 709. 97 ts 710. 98 ts 1241. 99 ts 1245. -- 48 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 49 the mezzanine and the studio fit-out works which are pleaded by the plaintiff at paragraph 22 and 26 of the statement of claim and the [defendant] at paragraphs 31 and 35 of the defence. MIOCEVICH DCJ: Yes. VOGT, MR: The defendant will not give any evidence in respect of the mezzanine and the studio issue contended by the plaintiff and therefore Mr Schmidt will not give evidence on the point and - - - MIOCEVICH DCJ: Well, he may be cross-examined on it. VOGT, MR: We make no issue of - - - MIOCEVICH DCJ: So you're accepting it. RUSSELL, MR: Is there a concession? VOGT, MR: No. Certainly not. And further:100 MIOCEVICH DCJ: If you don't put any contrary argument then I'll be bound to accept what this witness says. VOGT, MR: Yes. And further:101 VOGT, MR: This dispute will not lead - I will not lead from Mr Schmidt evidence on the issue about the mezzanine and the studio. MIOCEVICH DCJ: But that means he's accepting what has been put forward by the plaintiff. VOGT, MR: No, your Honour. And I'll make submissions on that. 169 The defendant's evidence on the mezzanine and studio fit out was confusing and contradictory to his pleaded position. At times he conflated the two works together and gave evidence he thought they were the same thing.102 He in fact gave evidence (when referring to the studio fit out) in accordance with his pleaded position, that the plaintiff would absorb the costs of the variation into the HBC.103 I take the defendant's evidence to mean that he understood the cost for both the mezzanine and studio fit out was $10,000 and the plaintiff agreed to, in effect, do this work for free and it would be covered under the $385,000 HBC. 100 ts 1246. 101 ts 1247. 102 ts 2360. 103 ts 2133, ts 2362. -- 49 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 50 170 I do not accept the evidence of the defendant. It does not make sense that a builder with a fixed price contract for $385,000 (whatever those works included) would simply agree to do work, the value of which on the pleaded position of the defence is $20,000, or the defendant's evidence $10,000, for free. So, I reject the defendant's evidence and pleaded position that the plaintiff agreed to absorb the costs of the agreed variations, into the HBC. 171 Unfortunately, that does not end the matter. I still need to be satisfied as to the plaintiff's pleaded position and whether the variation is unenforceable. 172 The plaintiff, conveniently summarises the defendant's position that:104 … because Mr Andrews did not expressly state during his evidence that the mezzanine and the studio fit out works were discussed at the meeting on 13 November 2018 and 26 April 2019 that his claim for these variations must fail. 173 Without repeating, I accept the plaintiff's answer to this contention at pars 471 and 472 of the PCS. In particular, I note that the argument of the defendant ignores the evidence of the defendant whereby he admits the request for the variation and the cost of at least $10,000 for the mezzanine and studio fit out and the defendant's reason he did not have to pay is because the plaintiff agreed to absorb that into the cost of the $385,000 HBC. I note the defendant in his submissions refers to conversations and correspondence that occurred after the dates of variations to support his contention there was no such agreement. I will deal with some of those matters later, however, none of the matters raised leads me to reject the evidence of the plaintiff as to what he says the agreement was. His evidence fits in with my general observations of him as a builder trying to do the right thing by the defendant to get the build done for him in the best way possible. 174 I note the defendant's argument that there is a less internal logic in which the defendant would agree to pay the plaintiff for disputed works on a cost plus basis where there is no potential upper limit to the defendant's potential liability. This ignores the fact of the trust between the two parties in the early parts of the build. On his own evidence the defendant wants me to accept that the plaintiff is such a good person he simply agreed to do the mezzanine and studio fit out for free. That is 104 PCS, par 471. -- 50 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 51 even less probable than the defendant agreeing to a cost plus contract. The defendant in his submissions continually says it is implausible that the plaintiff would not put the variations in writing and carry the debt for the defendant when he did not have to do so yet then ask me to accept he does substantial work for free. Whilst I do not accept that the plaintiff agreed to do the work for free, I do accept the plaintiff was willing to take on tasks and do everything he could to assist the defendant. Given the trust between the two I would accept the defendant was agreeable to take on a cost plus basis for the extra work. He wanted the work done and he trusted the plaintiff to do the work and not overcharge him. The plaintiff in fact sent his worksheets to the defendant and there is no dispute the work was performed. The cost of those works has been summarised in the PCS as having been invoiced together in the amount of $65,612.07 including GST as of 2 July 2020. So, the actual work is substantially more than $10,000. The defendant's evidence on this point is further evidence of the defendant not wanting to pay for works he admittedly requested. 175 The plaintiff has pleaded both a variation to the HBC and a separate work agreement in the alternative.105 The defendant admits a variation to the HBC and denies a separate work agreement for the mezzanine and studio fit out.106 176 Whilst the defendant has conceded a variation to the HBC, I find as a matter of law and fact there is a separate work agreement (as pleaded by the plaintiff) and not a variation to the HBC (as conceded by the defendant) for the mezzanine and studio fit out. I am mindful making a finding contrary to the concession made by the defendant; however, this is not a case where my finding was not pleaded by the plaintiff.107 177 The evidence does not support a variation to the HBC. It was not in writing as required under the HBC. The terms of the variation for the studio fit out and mezzanine work are in the same terms as the variations I have found for the other disputed works. It would seem incongruous on the facts to find the mezzanine and studio fit out varied the HBC and the other disputed works did not. 105 Plaintiff's Minute of Proposed Amended Statement of Claim dated 14 October 2022 (Plaintiff's ASOC), par 28. 106 SOD, pars 31 and 35. 107 See Gunn v Meiners [2022] WASCA 95. -- 51 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 52 Clause 16 and s 7 Home Building Contracts Act 1991 (WA) 178 The defendant argues that as there is non-compliance with cl 16 of the HBC (it was not produced in writing and signed off by the parties), the plaintiff cannot make a claim for variation. As I have found all the disputed works were a separate work agreement, cl 16 of the HBC has no application. If I was wrong in this, I note the plaintiff's argument at pars 78 - 79 referring to the case of Elvidge v BGC Construction Pty Ltd108 as authority for the propositions that:109 (a) notwithstanding that clause 5 of the contract provided that variations must be made by a variation order signed by the Proprietor, the building contract could be varied by conduct: see [10], [30]-[31]; (b) the failure to follow a contractual procedure does not prevent a finding of a variation agreement by conduct or otherwise, at most it is a relevant consideration in determining the parties' intention: see [35] citing GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1 at 62. However, the failure to follow the manner and form requirements prevents it from being a variation under cl 5: [35]; (c) section 7(1) of the HBC requires a variation of a home building contract to be in writing and signed by the parties. A builder who is a party to such a variation must ensure the s 7 requirements are complied with and failure to do so attracts a maximum penalty of $500, (s 7(3)). However, a breach of s 7 does not render the contract or a provision of the contract illegal, void or unenforceable (s 27(1)). This matter does not alone, or in combination with the other particulars, prevent a finding of variation by conduct: [36]. 179 As I understand the case of Elvidge, the fact that there is non-compliance with cl 16, and that the variation be in writing, does not prevent a finding of a variation agreement by conduct and that such a variation is enforceable. 180 The plaintiff conceded that there was a breach under s 7 of the HBCA.110 Despite the admitted breach, the case of Elvidge makes it clear that non-compliance with s 7 of the HBCA does not render any HBC illegal, void or unenforceable, it just results in a potential monetary penalty. I understood the defendant to have conceded this point early in the proceedings.111 108 Elvidge v BGC Construction Pty Ltd [2006] WASCA 264 (Elvidge). 109 POS, par 79. 110 ts 254. 111 ts 260. -- 52 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 53 Other works 181 In relation to the other additional works, the plaintiff gave evidence he spoke to the defendant by phone on 27 September 2018. The defendant said he was going to be full on at work and Mrs Schmidt would be busy with her pilates studio. The defendant asked the plaintiff to take on the external works part of the project. These works included the shed, water tank, ATU, bore pump and holding tank.112 Discussions were had as to how the defendant was going to fund the extra work and the defendant said he would move funds and sell Gibbs Street. The shed was to be the main priority because he wanted to sell Gibbs Street to free up funds and once the shed was built he could move in there. 182 Discussions were also had as to whether the extra work would need to be quoted113 but it was agreed to be a cost plus job consisting of a 10% management fee on materials plus the hourly rate of the plaintiff's workers/labourers. Evidence was also given by the plaintiff the rate would be $55 an hour and not $65 per hour as stated in the HBC for tradespersons. They discussed subcontractors and the plaintiff asked if the defendant could send their information.114 The defendant denied any request for additional work. 183 I am mindful that this was a significant change to the contractual relations between the parties which involved additional works not contemplated for in the HBC. The failure of the plaintiff to send a quick email to confirm the additional works now required of him weighs against his evidence that this conversation occurred. However, there is correspondence, including Exhibits 71 and 72 showing the defendant gave subcontractors' details to the plaintiff. This fits in with what the plaintiff says the true situation was. 184 The site power is the connecting of the property to power and the evidence of the plaintiff was that was the responsibility of the owner.115 The plaintiff argues that cl 10(a)(iv) of the HBC116 confirms it was the landowner's responsibility to provide site power. I do not accept that argument. This clause sets out the date for commencement of the HBC, which includes the provision of electricity supplies. It does not deal with who is responsible for the provision of electricity supplies. 112 ts 641. 113 ts 641 - ts 642. 114 See Exhibits 71 and 72. 115 ts 662. 116 Exhibit 49. -- 53 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 54 185 The plaintiff also relies on Exhibit 70 as a request by the defendant to connect the site power. The defendant's submissions rely on me accepting the site power was part of the HBC. I have already found the HBC just relates to the construction of the main residence. To my mind that does not include getting site power. The correspondence contained in Exhibit 70 is dated after the HBC had been signed. The defendant's evidence was that this was a fixed price contract which included all the disputed works and the site power. They were all the responsibility of the plaintiff and had all been accounted for in the fixed price contract. The emails of 8 October 2018 do not read that way. The emails show a general plan of the plaintiff as to how the works were going to be performed, in particular the earthworks and concreting. Mention is made of meeting with 'Phil and Tony this week to get all info we need for ATU and Water tank'. Although not decisive, this correspondence in relation to the ATU and water tank fits in more with the plaintiff's evidence that he had just been asked to do this work rather than it already being part of the HBC. 186 I accept the failure to invoice the additional works as and when they were performed tells against the plaintiff. 187 Ordinarily one would expect the additional works to be invoiced as and when they were completed. 188 I queried the plaintiff on this:117 MIOCEVICH DCJ: So had all the work - so not just what was contained in that quote - all the work to complete had been done by 21 March 2019?---I believe it would've been, yeah. You believe it would've been?---Yep. Okay. So I think the question then is why didn't you include the variation in your progress claim?---Because Danny was reviewing our spreadsheets and making sure he was happy with all the works that we'd charged for. All right?---That's the only reason. But you understand the question - you could've done that?--- We could've invoiced, yeah, if we wanted to, yeah. 117 ts 1108 - ts 1109. -- 54 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 55 189 The plaintiff accepts he could have invoiced the defendant at any time. The plaintiff at times said some of the works were not complete but did accept they were substantially complete and could have been invoiced. 190 The plaintiff was further cross-examined on his failure to invoice the disputed works until February 2020:118 VOGT, MR: Just to finalise the question it was only after Mr Schmidt gave you the notice of proposed complaint on 12 February complaining about the suspension of the work, incomplete work and defective work that you issued on 17 February 2020 invoice 343 alleging for the first time an oral agreement for the extra works, that's correct, isn't it?--- That's when that work got invoiced, yep. And so to be clear your point is - correct me if I'm not - that you put yourself and your family and your business to financial expense - somewhat significant financial expense to complete works which were not within your scope under the building contract, firstly, as you put in evidence the other day, to keep Danny happy, and today both to keep Danny happy and to keep the works moving?---Correct. And when you say the works you must mean the entirety of the works both what you distinguish between the main residence and the external works, to keep the works, entirely, moving?---To keep the external works - yeah, the project moving forward. To keep the external works moving?---Yep. And further:119 And you would agree that for a registered building practitioner like yourself the common practice is to do the variation work and then claim payment for those works as soon as possible at the next opportunity?--- Yeah, once the client's happy, yep. It's not the ordinary building practice to wait for the client to be happy to be entitled to make the claim for payment, isn't it?---Well, for a cost plus. Even for a cost plus?---Yeah. You still got to make sure your client's comfortable and happy with those invoices before you invoice them out. You've got to let them look over your hours and your materials and make sure that they're comfortable with that. 118 ts 1109. 119 ts 1111. -- 55 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 56 191 The plaintiff gave the explanation that he had sent spreadsheets to the defendant for the shed in January 2019 and then there was further correspondence regarding the shed. It was an ongoing process. 192 Ordinarily such evidence would be dubious because, as suggested by Mr Vogt, one would expect a claim for payment as soon as the work is done. It is not good business practice to carry such debt and pay for invoices out of your own pocket. However, in this case, it fits in with my general impression of the plaintiff and his evidence that he was always trying to do the right thing by the defendant and keep the build going. This included paying invoices that even the defendant admits were not the responsibility of the plaintiff. 193 Despite the failure of the plaintiff to put in writing the oral agreement for the disputed works and his failure to invoice for those works as and when they were completed, I find this conversation of 27 September 2018 to have occurred in the way described by the plaintiff. The reason for this finding is: 1. I preferred generally the evidence of the plaintiff over the defendant. It fits in with the plaintiff's generally easy-going manner and wish to help the defendant in his build. 2. Soon after this conversation the shed details were sent to the plaintiff which fits in with the plaintiff's evidence the shed was not his responsibility. 3. I would not expect the plaintiff to perform works that were not contained in the HBC without recompense. 194 I also find the oral agreement for the disputed works is not a variation to the HBC. The words used by the plaintiff to the defendant was a separate and distinct contract to perform those works. The words said to have been spoken do not suggest a variation to the HBC. The plaintiff therefore did not have to comply with cl 16 in terms of varying the HBC as it was not a variation, it was additional separate and distinct works to be done separate from the HBC. I do not accept the plaintiff's pleaded case of a variation to the HBC for the disputed works but accept the alternative pleaded case that the disputed works are separate work agreements from the HBC to perform those works. -- 56 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 57 Continuing chronology 28 September - 13 November 2018 195 The parties had just signed an HBC and works were proceeding. There was correspondence between the parties in relation to works to be performed and paid for. That correspondence shows the defendant actively involved in the building process and which contractors should be used. By way of example, the plaintiff emailed the defendant on 28 September 2018 and said:120 Let me know if you book the earthworks guy in and I can meet him onsite for a catch up. Even if you want to forward me his details and I will ring and touch base. I will get these quotes back from the concreter asap and get them to you so you can make your decision who you want to run with then we can book them and the plumber in. 196 The defendant's response was the earthworks guy was Mr Edgerton-Green and that he was pretty sure he would use the plaintiff's concreter. The plaintiff on the same date said in an email: Just looked at your roof sheeting quote and it would come in around the 20k mark or even a little bit less for just the residence. We could get this down even cheaper if my boys did the install and I did the cut list and put it to Krystal and my Suppliers to quote. 197 On 3 October 2018, the defendant sent an email to the plaintiff with the contact details of his subcontractors for external works. It is noted in relation to the ATU the following:121 ATU Tony Johansen - [phone number] - Elutriate Systems (Brookey has dealt with Tony a lot) he will allow us to do as much as possible to save costs - will need to discuss with him more. - we will do (gray water) 120 Exhibit 50, pages 1 and 2. 121 Exhibit 67. -- 57 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 58 198 On 8 October 2018 the defendant emailed the plaintiff and said:122 [I] would like to sit down with you and chat about the other tradies and who we will use, as we have to book the tiler 3 months advance if we use him etc. And further: [I] have spoken to a retic guy too to get a water plan (bore, rain, Grey) 199 Exhibit 99 shows the invoice for the shed from Action Sheds going to the defendant, which he then passed onto the plaintiff for payment. 200 On either 4 or 5 October 2018 there was a meeting on site. Present were the plaintiff, the defendant, Mrs Schmidt and Mr Edgerton-Green. This was to discuss the earthworks and the connection of power to the site and moving forward with the tradies to be used. 201 On 15 October 2018 the pump and holding tank work was completed. On 30 October 2018 the plaintiff paid the cost of the connection to site power. 202 On 26 October 2018, Mrs Schmidt was sent the invoice for the Solar Work totalling $8,766 after discounts and rebates. This was forwarded to the plaintiff on 4 November 2018. As I understand the tracker, the Solar Work had a figure of $5,000 assigned to it. The defendant was ultimately invoiced by the plaintiff the amount of $8,885.71 including GST on 28 February 2020. The difference in cost was approximately $100 which is negligible. What can be seen from this is the plaintiff had simply charged the defendant the near cost of the invoice. The way in which the solar panels were ordered does not fit in with the defendant's description of the contractual relationship between the parties. It would not make business sense for the plaintiff to allow the defendant to order a solar system costing $8,766, $3,766 over budget, and expect the plaintiff to wear this cost. This is in keeping with my earlier decision that the costs of the disputed works were not part of the HBC and that there was a separate work agreement in relation to these disputed works. 122 Exhibit 70. -- 58 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 59 203 In summary the correspondence up to 13 November 2018 does not fit in with the defendant's evidence that all the disputed items were included in the contract price and were the responsibility of the plaintiff. The correspondence aligns with the plaintiff's description of the true relationship between the parties, that the defendant had asked him to do these disputed works in addition to the HBC and they were working together to try and keep costs down. Changes to drawings 204 On 1 October 2018 the defendant forwarded revised drawings (Issue 4),123 to the plaintiff.124 205 Amendments to the new drawings included: • detailing of straw bale coursings • ceiling heights for windows • rammed wall part deleted • storeroom deleted • pelmet added • cavity sliders for some doors instead of swing doors. 206 The change to the ceiling heights was the biggest increase in costs. 207 On 8 November 2018,125 Structerre Engineering sent the preliminary design of the new stud layout (due to the height of the stud frame and ceilings)126 to the plaintiff.127 The plaintiff gave evidence that the changes meant he had to install a ring beam to run around the whole perimeter of the house to take the load of the roof, which was referred to as a merbau ring beam. This change would result in an additional cost of around $45,000.128 In cross-examination the plaintiff was asked where in the drawings it showed the need for a ring beam.129 The plaintiff gave evidence the ring beam is shown in Issue 6 of the drawings.130 The Issue 6 drawings were given to the plaintiff on 26 November 2018.131 123 Exhibit 564. 124 Exhibit 55. 125 Exhibit 133. 126 Exhibit 566. 127 ts 674. 128 ts 680. 129 ts 704. 130 Exhibit 567, page 7. 131 Exhibit 174. -- 59 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 60 208 The plaintiff said he raised these changes with the defendant about a week later on 13 November 2018 at the plaintiff's place in Hastie Street. 13 November 2018 - Meeting attended by the plaintiff and the defendant132 209 The plaintiff gave evidence the disputed works were discussed and confirmed at this meeting and they were both comfortable with the arrangement. The plaintiff gave evidence he would help with the solar panels to get them on before a certain date to get a rebate. It was agreed the cabinets and windows would be sourced from China. As I understood the evidence and the pleadings the extra costs for the merbau ring beam were covered in the $66,000 invoice from the plaintiff dated 11 June 2019,133 which was paid by the defendant. 210 Whilst the defendant agreed a meeting occurred, he denied any conversations regarding the disputed works or that there were discussions around the structural changes to the house. 211 There is no evidence before me to contradict the evidence of the plaintiff as to the requirement of a ring beam as a result of the structural changes. There was no challenge to the estimate of price put on this variation. There is no dispute the work was done. The defendant says it was not discussed at the meeting. The plaintiff says it was. Given the requirement for the ring beam, the cost of the ring beam and the fact a ring beam has been installed, I find it implausible that the plaintiff would not discuss this with the defendant or the cost involved. To accept the defendant's evidence, I would have to accept that this is yet another example of the plaintiff simply doing substantial work, that is clearly additional work, without discussing it with the defendant or seeking recompense. I do not accept this. 14 November 2018 - 16 January 2019 212 Between these dates it can be seen that the plaintiff and the defendant were working together to get the building moving forward. The contemporaneous documents and correspondence continue to show the defendant actively involved in the build and making decisions as to which people should be employed and in what order work should be done. It is clear the defendant is anxious to get into the shed so that he can save money. Some examples are: 132 ts 682 - ts 690. 133 Exhibit 389. -- 60 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 61 • 16 November 2018 email from the defendant advising the plaintiff of the need for extra roof batons for the shed for the Solar Work.134 • 20 December 2018 email from the defendant to Ryan Chennell:135 … Please put a hold on any other work until further notice. (other than Kale installing the solar) I will re-evaluate how i want to move forward. 213 On 19 November 2018 the defendant forwarded a revised tracker to the plaintiff.136 214 This tracker updated the work done to date and where paid. Some items had gone over quote and some under. The defendant's evidence was that where the bill rendered was under quote that was to the plaintiff's benefit, but where it was over quote, that was to his detriment. It was a fixed price contract. Doors, bricks and fittings still had a question mark next to them. The chippy was now quoted at $30,000. 215 Some other differences to the new tracker were: • Inclusion of $9,000 for kitchen appliances paid by D&B at Harvey Norman (It is not suggested by the defendant that this formed part of the contract price). • Insurance reduced from $7,000 to $5,000 and paid. • Power connection complete but cost $1,500 not $2,000 quoted. • Earthworks complete but cost $6,835 not $10,000. • ATU and concrete completed on budget. • Water tank complete but cost $16,500 not $15,000. • Solar Work increased from $5,000 to $8,000. • Tiling install increased from $15,000 to $20,000. 134 Exhibit 148. 135 Exhibit 212. 136 Exhibit 155. -- 61 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 62 216 The grand total not including bricks or fittings was now at $376,000 on the tracker. This figure did not include GST. 217 If this was a fixed price contract, the defendant could not just unilaterally increase the cost of the tiling install from $15,000 to $20,000. Yet that is what he has done in this document. This update to the tracker again is in keeping with my original finding it was a tool to keep track of costs and not part of the HBC. 218 Further this tracker confirms the evidence that an invoice from Solar Dwellings for drawings in the sum of $2,000137 was paid for by the plaintiff on 18 November 2018. It was conceded by the defendant that he sent the invoice to the plaintiff and that the plaintiff was under no obligation to pay this bill as it was not part of the HBC and was not put in his tracker as the responsibility of the plaintiff.138 The defendant did not know whether the plaintiff would pay for this invoice out of the progress claims or his own pocket, but it is clear he used the plaintiff to pay a bill the defendant was responsible for. 219 I accept the argument of the plaintiff that this is further evidence of the true relationship during the course of this build. It was a fluid arrangement whereby the plaintiff would do extra works and pay bills he was not responsible for. The parties had a loose arrangement whereby the HBC was a contract to build the house. Anything related to the house was to fit within the $385,000 budget. The plaintiff was the builder and had ultimate control over what trades or materials could be used in the construction of the house, including the windows. 220 On 14 January 2019 the defendant was corresponding with the window supplier Reaching Windows and Doors in relation to the shipping for the windows.139 Even though the contracting of the supply of the windows was the responsibility of the plaintiff, the defendant gave evidence he did this because the plaintiff was struggling to keep his finances under control and because of the duress of what was happening at home with the plaintiff not managing his budget very well and trying to reduce some fees.140 The plaintiff allowed the defendant to make decisions regarding which trades to use and the supply of materials. None of the correspondence supports the defendant's contentions as to being under duress or the plaintiff not 137 Exhibit 66. 138 ts 2309 - ts 2314. 139 Exhibit 222. 140 ts 1526. -- 62 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 63 managing the build at this stage. By his conduct the plaintiff had agreed with any decisions made by the defendant and implicitly accepted that any decisions by the defendant in relation to the house would fit within the $385,000 budget. If they did not then it was incumbent on the plaintiff to say to the defendant, that is not within the budget. Any trades or materials not related to the house would be paid for by the defendant. 16 January 2019 - Email from the plaintiff to the defendant regarding labour costs (including shed) 221 Exhibit 225 is an email from the plaintiff sending a spreadsheet to the defendant as to hours worked. The covering letter makes specific reference to the shed. Hey mate, Have a look through the attached spread sheet and call me to go through it when your free. Obviously the shed one we will look at and come to an agreement of what to do there. Maybe we can go halves in the difference in labour between the quote and the final figure. The numbers below take this into account. I'm happy to lose on that one as my boys were learning from it but also had the Kale factor in there to consider! 222 The cost of the hours worked on the shed was $10,632.50, as of 11 January 2019.141 The defendant gave evidence this was the first time he had anything like the tracker from the plaintiff. What must have been obvious to the defendant at this time was that he was going to be billed for the shed, and it was not in the fixed price of $385,000. The defendant in fact refers to the cost of the shed on 14 March 2019.142 He did not complain then or on 16 January 2019 that the shed was included in the fixed price. This is another example of contemporaneous correspondence fitting in with the narrative of the plaintiff. 141 Exhibit 225, page 7. 142 Exhibit 298. -- 63 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 64 16 January - 6 March 2019 223 The build continued and the straw bales arrived on site around 30 January 2019. No concerns were raised in the correspondence in relation to work done, being over budget or the cost of the shed. The first time budgetary concerns were raised by the defendant was in a text dated 5 February 2019 where he says,143 'hopefully we can sort the budget out over email and phone in the next few days'. The plaintiff responded, 'Ok mate too easy', and on 7 February the defendant texted that he would hit the bank up for an extra '50k' if he was lucky. 224 The defendant was asked about this in examination-in-chief:144 VOGT, MR: Why would you do this if the contract between you and the builder was a fixed price contract?---Again, the house was in a - a condition where it could get damaged by the elements or by vermin. It was incomplete. It was coming into a change of season. So I had concerns when building my house that it was getting mismanaged which was going to affect the way the build was either complete or finished. So I'd already knew that he was struggling with his finances, so it was a thought of mine in a text message at that time maybe I need to get some more money to get - at least get - get him over the line to - in - in retrospect - - - In retrospect - - -?---In retrospect, fixed price contract right there and then, the alarm bells should have been ringing, and I should have been reaching out to whoever - the hard one, to work out - so whoever - who could fix the issue that the builder was lacking money to finish the build which he'd agreed to, the money had been supplied. 225 This explanation does not make sense. The contemporaneous documents do not support it. 226 The defendant gave evidence he arrived back from Barrow Island, saw the site was empty, which prompted him to write to the bank seeking more funds.145 He was uncertain as to the date he returned; however, believed it was the date he wrote to the bank. On 20 February 2019 the defendant emailed the bank enquiring whether he could loan another '70k' for his mortgage.146 He acknowledged he was at a stretch last time. The explanation for the extension was that there were unforeseen items that had caused excess costs, being: 143 Exhibit 246. 144 ts 1534. 145 ts 1556 - ts 1558. 146 Exhibit 278. -- 64 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 65 1. earthworks 2. structural engineering changes (a good pick up by the builder, that has required new/ extra engineering /build) 227 The defendant admits lying in this email:147 You state in the email that there are unforeseen items that have caused excess costs, earthworks and structural engineering changes?--- Mm hmm. Is that true?---No. 228 The defendant summarised his position as follows:148 Yes, okay?---In retrospect I should have gone to the relevant agencies then and said, 'This builder has walked off site. We have a fixed price contract.' In - in my time in that stress going - come back from work and go, 'What's going on? He was gone. Maybe I can get some more money to get him back.' The house was left in a condition that I had to action - make an action and make a decision pretty quickly. If it rained or been left for a - a amount of time, the house would have probably been condemned due to the - the walls collapsing or going mouldy or along those lines. And further:149 You again - you - you don't state there's extra work. You - you again refer to the engineering upgrades. Was that true?---I refer to those items that - which were untrue, because of - there was no other option. Everything else that you're speaking about was already part of the contract. There was no extra - - - So what - what threat are you referring to?---The extras or the - the - the things that aren't extra, (indistinct) the shed, all these items that Mr Andrews claims were outside the contract, they were not. And they were always in the contract and they were supplied to the bank as part of the contract. So I did not add that on there, because it - to me, it was not outside the contract, although it was part of the contract. 229 The defendant created the impression he was under duress at the time he returned from Barrow Island as the plaintiff had left the site, no one was working, the plaintiff was requesting more money and there was a problem with straw bales not being sealed or the walls sealed to the roof. He said in evidence that the plaintiff said he would not return until he got more money. The defendant's evidence was he got that impression from an email, being Exhibit 286 (which does not show this), and a phone call he had with the plaintiff when he left the site. 147 ts 1559. 148 ts 1563. 149 ts 1565. -- 65 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 66 230 Exhibit 286 contains email correspondence between the parties from 28 February to 4 March 2019. In this correspondence the defendant was asked whether he was happy to pay the invoice from KW Electrical for the Solar Work. The defendant asked to pay in two months and said he would like to check the original quote to make sure he had not added stuff on. The plaintiff said they needed to catch up to go through the budget as they were running low on funds. 231 The plaintiff gave evidence he had been carrying the costs for the extra works up to this stage to keep the client happy. It was important to sort out the priorities of work done as the build involved straw bales that needed to be protected so they did not deteriorate. The defendant had told him he was still trying to get more money from the bank and that if they could renovate and sell Gibbs Street that would free up some funds. 232 On 12 March 2019 the defendant emailed his bank confirming the plaintiff would not return to site until there was an outcome from the bank. The documentary evidence shows the plaintiff had not left the site and was continuing to work. 233 On 14 March the parties emailed each other, regarding progress and budget.150 234 These emails set out work being done including future work. The defendant asked the plaintiff if he could the carry costs of render and cabinets. The defendant said he was already $120,000 over budget and confirmed he had gone to the bank to get more money and hoped for a response the following day (meaning 15 March 2019). 235 The plaintiff responded that it would stretch him big time but he was happy to carry the costs in the short term if he got some sort of guarantee that the bank was looking good to at least cover the costs: We will just wait and see what they say and go from there. I will cover as much as I possibly can for you guys to keep the project moving forward. Let me know what they say tomorrow. 150 Exhibit 301. -- 66 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 67 236 The plaintiff gave evidence that all the progress payments had already been spent at this time, and he understood this email to be the defendant asking him to carry the costs moving forward until funds came through from the bank. 237 This correspondence again fits the evidence of the plaintiff and contradicts the evidence of the defendant that the disputed items were part of the fixed price contract. It also contradicts his evidence that he was under duress and the plaintiff was effectively holding a gun to his head. The correspondence shows the plaintiff was still doing work and agreeing to carry costs to keep the project moving forward. What is clear is that the defendant's financial situation was coming to a head and he was running out of funds. He was not suggesting at any time to the plaintiff that they had a fixed price contract including all the disputed works. He was accepting he was at least $120,000 over budget and was desperately trying to get finance, and the plaintiff was agreeing to cover costs to keep the project moving. 238 There was substantial evidence given in relation to the email dated 18 March 2019 from the defendant to his bank requesting further funds.151 Under the subject of 'Re: Refinance of Land and Construction Home Loan enquiry' it says: Hi Sue i have listed the best case scenario for myself, 1 being my best option any figure from option 1 down would be great, and i can re plan the completion of the home from there. 1 - 120k gets me living in the house as per scheduled (approx July) 2 - 60k gets me living in the house about 1 year late. 3 - 0k gets me living in the house in…. Years. i have included my latest 2 pay slips. i have put close to 100k into the build / block of my money outside of the Construction loan. i am not sure if this will add to the evaluation of the property? (Shed, Bore, Solar power, Grey water recycle) Thanks Danny 151 Exhibit 291, page 4. -- 67 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 68 239 On a simple reading of the email, the defendant is telling the bank the shed, bore, solar power and grey water recycle is not part of the HBC. The defendant begrudgingly accepted that was the impression the email gave. His evidence on his reasons for writing the letter were evasive and unconvincing.152 He tried to suggest this was part of a plan hatched with the plaintiff on 6 March 2019 to get more money from the bank. That just does not make sense because these items (shed etc) could not add value to the fixed price contract if they were already included in the HBC. I find the defendant made this evidence up to try to explain the unexplainable. This is another example of the contemporaneous documents contradicting the evidence of the defendant and affecting his credibility. 240 The bank on 19 March 2019 requested a letter from the builder as to what remained to be completed.153 In response to this letter the defendant drafted a response to the bank154 and sent it to the plaintiff in which he said:155 Hi Pete i just sent you a word doc i prepped for the bank to request more funds. can you please review, modify, return and i will add it to an email i am sending them which i will bring up cash money spent and valve [sic] added to the property with shed, tank and bore etc. 241 Both parties admit the letter to the bank contains false information in that Item 1.1, detailing changes to earthworks costed at $25,000 is false. The plaintiff says Items 1.2 and 1.3 are true and that Item 1.2 referred to the ring beam costed at $45,000. The defendant says all the items listed as extra are false. The importance of the document is that both parties admit to the creation of a false document to deceive the bank. This reflects poorly on both parties who want me to accept them as witnesses of truth. 242 I granted both parties a s 11 certificate (pursuant to the Evidence Act 1906 (WA)) in relation to their evidence on the creation of this document to the bank. At the time I considered it to be in the interests of justice to do so. Again, this documentation fits in with the evidence of the plaintiff and not the evidence of the defendant being under duress from the plaintiff. The defendant was under pressure, but it was his 152 ts 1573 - ts 1576. 153 Exhibit 317, page 1. 154 Exhibit 316. 155 Exhibit 304, page 1. -- 68 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 69 financial pressure in relation to his funding of the build. This pressure was now increasing as the build was, as indicated in Exhibit 301, $120,000 over budget. There is nothing in the correspondence between the parties to show the works had been suspended or that the plaintiff was threatening the defendant in any way. The correspondence continues to show the plaintiff assisting the defendant in his build in the knowledge that the defendant was having financial difficulties. Importantly the defendant acknowledges this in the correspondence between the parties and in none of the correspondence does he state that the disputed works are part of a fixed price contract. 243 Matters started to come to a head when it became clear the bank was likely only to lend another $60,000. The correspondence between the parties begins to show the defendant starting to query where money had been spent by the plaintiff. The plaintiff set out in an email dated 19 April 2019,156 a spreadsheet showing costs to get to occupancy estimated at $157,124.59. The defendant responds to the estimate of costs in an email dated 23 April 2019 that:157 Sorry about the slow response. 160k to lock up blows my mind, I will have to sit down and have a good look at what is going on. This is a long way off the original quote. I will look at the hours tracker you sent too. We will need to get the cost of the shed agreed on and that taken out of the tracker too. The shed will need the windows and door installed which was part of my original quote of $6200. 244 The defendant's evidence is that he needed the $66,000 to get the plaintiff back to site. In relation to him forwarding the request for further monies to the plaintiff ,158 the following evidence was given:159 VOGT, MR: So why in this email are you discussing the need to obtain further money outside of the construction loan for those items? Why didn't - why did you not say to Mr Andrews to the effect, 'I have a fixed price contract. If you have run out of money, that's your issue'?--- There was discussions around that over that time period of us - we were trying to work out what was going on, and it was quite evident that he had no interest of holding up his end of the contract, in regards to he's not returning to site unless I get him more money. The fixed price side of the contract I knew was what he needed to uphold, but in that position I was left in, my options were limited. 156 Exhibit 344, pages 2 - 4. 157 Exhibit 344, page 1. 158 Exhibit 335. 159 ts 1656. -- 69 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 70 And further:160 Because the effect of the evidence - the only reason I'm clarifying it, the effect of your evidence, as I understood it, was you made it clear to him, in no uncertain terms, this was a fixed price contract and that you said it on a number of occasions and it's - and to use your words, it's fallen on deaf ears so I stopped raising it, is that a fair description of your evidence?---Yeah. Okay. Well - so there must have been a point in time, so how long did you keep on telling him, 'This is a fixed price contract' and reminding him he had to do this work. He was obliged to do it?---I can't recall the exact details, I apologise. Okay. How many times would you have said that to him?---Off the top of my head I'm not sure how many times I said it to him. Once? More than once? Twice?---More than once, I'm not - - - Sorry?---More than once but not a heap of times. It would have been under five times. Under five times. Okay?---From what I can recall. And then:161 All right, but - well let's go back, so you'd say, 'What about the contract?' And he says, 'I need more money' and is that the extent of the conversation? Did you ever say to him, 'I've got a fixed price contract, why aren't you complying with this fixed price contract? This is your problem, not my problem'?---I had discussions but I can't tell you when and I apologise, I can't recall that detail. 245 There is nothing in the correspondence to support that evidence. The correspondence is to the contrary. Further, the defendant pleads and gave evidence that on or about 26 April 2019, the plaintiff agreed to do the studio fit out for no cost. This does not sit with the above evidence. 26 April 2019 - Meeting at Bevan Loop attended by the defendant, Mrs Schmidt and the plaintiff 246 The plaintiff gave evidence that this meeting was to discuss priorities in moving forward to get to occupancy. The main priority was to get the studio liveable so the defendant could renovate Gibbs Street to put it on the market. The straw bales, render and colour were discussed. 160 ts 1658. 161 ts 1659. -- 70 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 71 247 Notes were taken at the meeting by the plaintiff and sent to the defendant by text on 30 April 2019, listing the priorities as:162 Directions from here on − Get shed liveable. − Sell gibbs st. − Get main living area complete for cabinets. − Second coat of render. − Sealing of eaves − gutter guard on back gutter. 248 The defendant corresponded with the bank and confirmed in writing that he would take the loan of $60,000,163 and in referring to the plaintiff stated:164 he does want to be sure that when I sell my investment property that ME bank will allow me to increase lending to complete the home is total. 249 This correspondence fits in with the evidence of the plaintiff that the defendant indicated to him that he would sell his investment property to cover the extra costs of the works. 250 To get the additional loan the defendant required a letter from the plaintiff setting out the costs to get to occupancy. The plaintiff provided a letter on 1 May 2019, setting out the costs to complete the build to council occupancy acceptance.165 The cost totalled $66,000. It was also noted the project was at lock up and all internal fittings and fixtures had been purchased. 251 Cost pressures continued to increase and further invoices for transport became due.166 The plaintiff queried the defendant as to whether he had savings to cover the costs if the bank loan did not come through, to which the defendant responded he did not have the money in savings and would have to repay all outstanding costs over a few months,167 and that 'last week the bank said verbally it would give the 60k then allow more after gibbs st was sold'. 162 Exhibit 346. 163 Exhibit 345. 164 Exhibit 345, page 1. 165 Exhibit 348. 166 Exhibit 355. 167 Exhibit 355, page 1. -- 71 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 72 252 Again, this correspondence fits in with the evidence of the plaintiff and not that of the defendant as to the contractual relationship between the parties. 253 The works continued and after a bank valuation on 20 May 2019, the plaintiff issued Invoice IV271 to the defendant in the sum of $66,000 (incl GST),168 under the description of: Progress Claim - Extra's/fit out/certificate of completion- [**] Bevan Loop Meadow Landing 254 The plaintiff accepted in cross-examination that he did not mention the variations he claims for the disputed items in that invoice.169 255 On 13 June 2019 the defendant requested the plaintiff put a letter the defendant had drafted on PSA Construction (PSA) letterhead.170 The letter was to the bank and set out a table of the draw down of monies paid so far to allow the extended loan of $66,000 to be approved. The plaintiff agreed and prepared a letter on PSA letterhead.171 256 The plaintiff explained he merely copied the letter the defendant asked him to put on letterhead for the bank. The plaintiff agreed he did not take the opportunity to add the extra costs to that letter to the bank and that the defendant was dealing with the bank and this letter referred to extra costs for the residence not the extra works.172 257 The works again continued. Contrary to the evidence of the defendant, the correspondence between the parties shows the defendant was happy with the work being performed and in Exhibit 432 which contains photos of some of the work completed on 1 July 2019, the defendant says 'Wowwwwwee, great, thanks man' and 'Awesome looks great, thanks'. By mid-July the Schmidts had moved into the shed. The studio fit out works in the shed were completed by 28 August 2019. 168 Exhibit 389. 169 ts 1188. 170 Exhibit 392. 171 Exhibit 394. 172 ts 1195. -- 72 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 73 258 On 5 July 2019 the plaintiff sent the defendant another tracker of work performed. This tracker showed the total spend on the project was $441,298.49 less progress claims paid of $365,750, leaving PSA carrying a debt of $75,548.49 as of 29 June 2019. 259 Invoice IV271 was reissued on 3 September 2019. On 12 September the bank assessor inspected the property and approved payment of $66,000,173 which was paid the next day. 260 The plaintiff confirmed the works were suspended on 29 September 2019.174 What is clear from the correspondence is that matters were then coming to a head in terms of the future of work being performed and how or if it should be paid for as evidenced by: 1. An email from the plaintiff to the defendant on 17 September 2019 attaching a total breakdown of costs and showing a shortfall of $124,472.56 to which the defendant replied by way of an angry text 'there is surely no chance we are 125 k over budget on an incomplete house'.175 2. An email from the plaintiff to the defendant on 29 September 2019 attaching a further breakdown of costs.176 3. An email from the defendant to the plaintiff on 8 October 2019 regarding his thoughts on getting the build completed, in which he estimates the build is 90% complete and that final works will cost $30,000 - $40,000,177 and states he is happy for PSA to complete all outstanding works bar tiling, and mentions approaching the bank for more money:178 Why are you discussing approaching ME Bank for more money for the works?---My house was still incomplete, my house is still open to the elements. My - all the money that - the last completion stage is $20,000, so yeah, it's $430,000 of mine on a house that we quoted for $385,000. That house is still not complete so there are materials on-site but nobody was on-site, there was no work being done. At that stage, all I can think of is I need to get money to get this house finished, I still couldn't live in it, it was at occupancy as per agreed and the release of that money. So my comments there is I might try and get more 173 Exhibit 476. 174 Exhibit 512. 175 Exhibit 478; ts 1725. 176 Exhibit 483; ts 1725. 177 Exhibit 488; ts 1734. 178 ts 1735. -- 73 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 74 money and may be able to get more money, not guaranteed, but I can't approach the bank until at least the house is finished, because they see it as a - not as a complete asset if it's not finished. 4. Emails between the plaintiff and the defendant from 14 - 17 October 2019 discussing how to move forward with the build.179 The defendant agreed they did not meet to discuss the issues raised in their correspondence. The defendant's view was:180 What he's saying here, he wants me to agree to pay for his mismanagement and his overspend. 5. An email dated 25 October 2019 from the defendant to the plaintiff questioning the financial situation they are in and querying some of the costs. The email starts:181 We send this email with abundant respect and gratitude as to what you have done and the way you have done it in regard to building our home at [**] Bevan loop meadow landing. In no way do we underestimate/underappreciate what you have done to support the build and make it better for us i.e. the toilet, the scaffold etc. In summary, the defendant's position in the email was: • He is looking to resolve the financial situation given the budget blowout. • The original agreed budget was $380,000 (GST not included) which the defendant accepts he has to wear. • The only additional work above scope was the studio in the shed which was a verbal quote of $10,000 charged at $19,000 (noting of course that the defendant now says this $10,000 was going to be absorbed by the plaintiff). • Total over budget is $215,000. • The build was not a cost plus. 179 Exhibit 489; ts 1736. 180 ts 1737. 181 Exhibit 492; ts 1739. -- 74 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 75 • The defendant highlights his concerns regarding costings on the Bevan Loop labour breakdown of costs supplied by the plaintiff.182 6. An email from the plaintiff to the defendant on 6 November 2019 suggesting they meet up and talk things through to ensure a happy outcome for all.183 7. An email the defendant sent to the plaintiff on 12 November 2019 querying whether the insurance was up to date and a further email on 21 November 2019 stating:184 I am very happy for you to respond via updating the spread / email. … By you updating the spread sheet and sharing your thoughts/ position we will be able to get a good idea what costs psa are willing to absorb. Which will then inturn be able to work out if psa want to finish the build. Hope you can provide info so we can move forward soon, otherwise I will [advise] you when I am home again in December. 8. The plaintiff responding on 25 November 2019 to the defendant's email of 25 October 2019.185 His responses are highlighted in yellow and attach his comments to the Bevan Loop breakdown of costs. In summary the plaintiff said: • The build has been a challenge and thanked the defendant for his appreciation of the work done. • He has tried to keep costs down but everything costs money. • He has used his funds to keep the build going forward but that situation can no longer continue. • There was always a verbal agreement. 182 Exhibit 492A. 183 Exhibit 496; ts 1740. 184 Exhibit 501; ts 1741. 185 Exhibit 502. -- 75 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 76 Of particular note was that the defendant in the original email said 'The original agreed budget was 380k',186 to which the plaintiff responded:187 In hindsight there was noway [sic] this could happen with the shed, studio, solar included in the build price. If this was left out of the build it would be complete but I respected your decision to complete these works as the plan was to move from Gibbs st and live in the studio/shed and sell to move forward. I was just trying to capture everything in the build price but it just hasn't played out in that way. This response gives the impression that the works for shed, studio and solar were included in the HBC price of $385,000. This is similar to the defendant's email to the bank giving the impression that the shed, bore, Solar Work and grey water were not part of the HBC.188 So, a document created by the plaintiff, being Exhibit 502, supports the defence case that the shed, studio and Solar Work were in the original HBC and a document created by the defendant189 supports the plaintiff's case that the shed, bore, Solar Work and grey water were not part of the HBC. As both documents were created after the HBC was signed they are irrelevant in my interpretation of the HBC as to what was included or excluded. These documents go to my assessment as to the credibility of the witnesses. These documents leave me unimpressed with both witnesses; however, the plaintiff did give the following evidence in explanation:190 Now, the way that reads is as if everything was meant to be done for $380,000. What - is that not - was that what you were meaning? Or what - what were you meaning?---No, what I meant was do those external works alongside the build you know while he - while Danny went back to the bank after doing Gibbs Street, selling it, to go get the extra funds for the extra works. I should have never have taken those works on in line with the build. I should have waited until he secured his funds and then we could have done it. 261 The parties never met and on 12 February 2020 the plaintiff received a notice of complaint. 186 Exhibit 492. 187 Exhibit 502. 188 Exhibit 291, page 4. 189 Exhibit 291. 190 ts 758. -- 76 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 77 262 On 17 February 2020, the plaintiff issued Invoice IV343, totalling $127,538.15,191 for what the plaintiff says were the variations. The defendant gave evidence that:192 Before receiving the February progress claim did Mr Andrews ever alleged to you that you had agreed to pay for the variations referred to in this invoice?---These have never been called variations, they're part of the scope and part of that scope was agreed to be paid as per the 385 in the contract so, no, we did not. 263 On 23 February 2020, the plaintiff sent to the defendant an email formally suspending all works.193 264 On 23 April 2020, Vogt Graham Lawyers sent a letter to the plaintiff on behalf of the defendant issuing a notice of default pursuant to cl 21(a) of the HBC.194 265 On 18 June 2020, the plaintiff sent Invoice IV384 to the defendant for $24,644.33 for further variations not included in Invoice IV343.195 266 On 17 July 2020, the defendant through Vogt Graham Lawyers sent a letter to the plaintiff terminating the HBC.196 Issue 3 - Non-compliance with cl 16 of the building contract 267 The issue to be addressed is:197 In the event that the Court finds that there has not been compliance with Clause 16 of the Building Contract, is Mr Schmidt estopped from relying on non-compliance with Clause 16 to deny that the Disputed Works have been brought within Mr Andrews' scope to provide them under the Building Contract? 268 I have found the disputed works were not variations to the HBC and were in fact separate and independent work agreements for the performance of those works on a cost plus basis as agreed between the parties. Given I have found there were separate agreements for those disputed works to be provided, the issue of estoppel falls away. 191 Exhibit 511. 192 ts 1757 - ts 1758. 193 Exhibit 512; ts 1758. 194 ts 1760. 195 Exhibit 517; ts 1767. 196 Exhibit 520. 197 Issues for Determination, par 3. -- 77 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 78 Issue 4 - Did the parties agree to be bound by the work agreements? 269 The question here is:198 In the event that the Court finds that Mr Schmidt is not estopped from relying on a failure to comply with Clause 16 to assert that the Building Contract has not been varied, did the Parties agree to be bound by the Work Agreements? (original emphasis) 270 Both parties agreed in their closing submissions that to reach this point I would have to accept that:199 6.2.1. the Disputed Works were outside Mr Andrews' scope of works to provide under the Building Contract; 6.2.2. Mr Schmidt made a request for the Disputed Works to be carried out on the Site; 6.2.3. Mr Andrews agreed to perform the Disputed Works in consideration for remuneration on terms pleaded, which was then accepted by Mr Schmidt; 6.2.4. Mr Andrews' estoppel claim in respect of the Disputed Works was rejected and/or, strict compliance with Clause 16 of the Building Contract was required. 271 The agreement was the plaintiff would charge costs plus 10% for the materials, with labour being charged at the rate of $55 an hour. Those extra works are claimed in invoices dated 17 February 2020,200 and 18 June 2020.201 272 I note the plaintiff's arguments in the PCS from par 517 onwards, that a finding the agreement to do the extra works are outside of the HBC is counterintuitive; however, to my mind where: (a) nothing was put in writing for the HBC to be varied to include those works, as required by the HBC for variations; (b) the hourly rate was less than what could have been charged under the HBC; 198 Issues for Determination, par 4. 199 DCS, par 6.2; PCS, par 512. 200 Exhibit 511. 201 Exhibit 517. -- 78 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 79 (c) the works themselves were separate and distinct from the building of the main residence; and (d) no invoices were issued for those works until nearly a year after their completion and were not included in the progress payments, these factors lead me to conclude on the balance of probability that these extra works were not a variation to the HBC but rather a separate work agreement. 273 Such a finding has ramifications for the plaintiff as he could not suspend work under the contact for non-payment of those invoices and cannot claim interest of 20% under the HBC. 274 Given that finding, I adopt the PCS as to the liability of the defendant to the plaintiff in respect of those disputed works given there has been no challenge by the defence to the figures relied on by the plaintiff for those works: 521. … (a) the pump and holding tank work agreement pleaded at paragraphs 7 to 11 of the SOC PJ p10-11, the Defendant is liable to pay to the Plaintiff $6,188.98 including GST plus interest on that sum at the rate of 6% from 28 February 2020; (b) the shed work agreement pleaded at paragraphs 12 to 16 of the SOC PJ p13-15, the Defendant is liable to pay to the Plaintiff $42,633.04 including GST, together with interest on that sum from 2 July 2020 at the rate of 6% per annum; (c) the solar panels work agreement pleaded at paragraphs 17 to 21 of the SOC PJ p17-19, the Defendant is liable to pay $8,885.71 including GST, together with interest on that sum from 28 February 2020 at the rate of 6% per annum; (d) the mezzanine work agreement pleaded at paragraphs 22 to 25 of the SOC PJ p20-22 and paragraphs 30 to 32 of the SOC PJ p25; and as to the studio fit-out work agreement pleaded at paragraphs 26 to 32 of the SOC PJ p23-25, the mezzanine work agreement and the studio fit-out work agreement were invoiced -- 79 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 80 together and together the amount the Defendant is liable to pay to the Plaintiff is $65,612.07 including GST, together with interest on that sum from 2 July 2020 at the rate of 6% per annum; (e) the water tank work agreement pleaded at paragraphs 33 to 37 of the SOC PJ p27-29, the Defendant is liable to pay to the Plaintiff $14,984.53 including GST, plus interest on that sum from 28 February 2020 at the rate of 6% per annum; (f) the site power work agreement pleaded at paragraphs 38 to 42 of the SOC PJ p30-31, the Defendant is liable to pay to the Plaintiff $1,145.53 including GST, plus interest on that sum from 28 February 2020 at the rate of 6% per annum; (g) the electrical work agreement pleaded at paragraphs 43 to 47 of the SOC PJ p33-35, the Defendant is liable to pay to the Plaintiff $6,941.25 including GST, plus interest on that sum from 28 February 2020 at the rate of 6% per annum; (h) the ATU work agreement pleaded at paragraphs 48 to 52 of the SOC PJ p36-38, the Defendant is liable to pay to the Plaintiff $15,400.00 including GST, plus interest on that sum from 28 February 2020 at the rate of 6% per annum. 5.22 The total of those amounts is $161,791.11 and interest amounts will need to be calculated up until the date of judgment. (footnote omitted) Issue 5 - Terms of any work agreements and/or variation/s 275 I now turn to address the following question:202 In the event that the Parties did enter into the Work Agreements, what are the terms of the Work Agreements and/or the Variation/s to the Building Contract? 276 This issue now just relates to the work agreements. The terms of the agreements were again as set out by the plaintiff:203 (a) each item of the disputed works was to be carried out by the plaintiff; 202 Issues for Determination, par 5. 203 PCS, par 523. -- 80 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 81 (b) the cost of performing the works would be paid for by the defendant on the basis that materials would be charged on a cost plus 10% basis and labour would be charged at the rate of $55 per hour; and (c) these costs would be payable by the defendant on completion of the works. Issue 6 - Do the plaintiff's payment claims give rise to liability on the part of the defendant? 277 The issue to be resolved here is:204 Do the Plaintiff's payment claims (Payment Claims) as follows: 6.1. February Payment Claim; 6.2. First 18 June Payment Claim; 6.3. Second 18 June Payment Claim; give rise to liability on the part of Mr Schmidt and if so, on what basis? 278 Given my findings the disputed works formed part of a separate work agreement, the issue as to compliance with the HBC and estoppel fall away. The defendant was liable to pay the above claims on presentation of the invoices on the basis of the separate work agreements referred to in Issue 5. Issue 7 - Was the plaintiff entitled to suspend the works?205 279 On 23 February 2020, the plaintiff sent the defendant the notice of intention to suspend the works.206 That notice stated: Danny, I'm writing to advise you that PSA Construction intends to formally suspend all works at [**] Bevan Loop Roelands. Various emails were sent to yourself (Danny Schmidt) on 29/09/2019, 22/10/2019, 06/11/2019, 20/11/2019, 11/12/2019, 21/01/2020 and 31/01/2020 as well as phone contact on 06/02/2020 requesting a meeting to discuss variations for works at [**] Bevan Loop Roelands. Each time a response from yourself was given, you stated a meeting would happen in the near future, however this has been to no avail. 204 Issues for Determination, par 6. 205 Issues for Determination, par 7. 206 Exhibit 512. -- 81 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 82 Due to avoidance from yourself (Danny Schmidt) to formally meet in person to agree and complete a signed variation, approved by both parties, PSA Construction suspended all works at [**] Bevan Loop Roelands on 29/09/2019 due to the variation dispute. Once an agreement has been signed by both parties, completion can proceed as planned. Please advise me within 10 days working of your intentions moving forward. Regards, Peter Andrews 280 The notice confirms the works had in fact been suspended on 29 September 2019. The suspension of works on 29 September 2019 could not relate to the disputed works as they were already complete and on the evidence of the plaintiff no invoice was issued in relation to those works until February 2020. 281 The basis of the suspension was that the defendant in effect failed to meet the plaintiff to agree and complete a signed variation. The pleaded position of the basis for suspension is:207 64 The defendant has failed and refused to pay the February Progress Claim, the 1st June Progress Claim and the 2nd June Progress Claim (together Progress Claims). 65 By notice dated 23 February 2020 the plaintiff gave the defendant 10 working days written notice of the plaintiff's intention to suspend Works. 66 On 23 February 2020, the plaintiff suspended Works in accordance with the Building Contract and gave the defendant notice in writing of his intention to terminate the Building Contract. 282 What is readily apparent is that the pleaded position does not reflect the basis of suspension in that: 1. The basis for suspension in writing is a refusal to meet but the pleaded position is a failure and refusal to pay progress claims. 207 Plaintiff's ASOC, pars 64 - 66. -- 82 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 83 2. The pleaded position includes the defendant failing and refusing to pay June progress claims which were invoiced some months after the suspension. 283 The power to suspend works is contained in cl 20 of the HBC which states:208 If the Owner fails to pay, or cause to be paid, any progress payment under clause 25 or commits any other breach of the Contract, then without prejudice to the right to terminate the Contract under clause 22, the Builder may give 10 working days' written notice of the Builder's intention to suspend the Works. If the Owner's default continues for 10 working days after notice, the Builder may suspend the Works and must promptly give written notice of the suspension to the Owner. The Builder must lift the suspension within 15 working days of the progress payment being made or the breach being remedied and the time in which to bring the Works to Practical Completion will be extended by the period equivalent to the delay during which the Works were suspended and any consequential delays. The Builder is entitled to be paid loss and damage arising from any suspension of the Works. 284 Variations to the HBC are contained in cl 16 of the HBC. Clause 16 deals with how variations are to be managed under the HBC including that they must be in writing. There is no power to suspend works under the HBC for a failure to meet and agree variations already performed. 285 I find the plaintiff did not lawfully suspend the works he was required to perform under the HBC. The separate work agreements did not form part of the HBC. The plaintiff could not suspend the works he was required to perform under the HBC as a result of a disagreement over separate work agreements or a failure to pay invoices issued for those separate works. Issue 8 - Was the defendant entitled to terminate the building contract?209 286 By letter dated 17 July 2020,210 the defendant sought to terminate the HBC on the basis of: (a) a contractual right under cl 21(a)(i) - cl 21(a)(iv) of the HBC; and (b) an alleged repudiation of the HBC. 208 Exhibit 59, page 7. 209 Issues for Determination, par 8. 210 Exhibit 520. -- 83 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 84 287 To terminate an HBC a notice of default must be issued specifying the default. It is not in issue that such a notice was issued on 23 April 2020, and that the default specified was:211 (a) the builder has unlawfully suspended the work; (b) the builder has demanded, and received, payment for the sum of $66,000.00 in Invoices 291 and 271 in breach of the Building Contract; and (c) the builder has issued Invoice 343 (Ex 511) in respect of the works alleged to be variations in breach of the Building Contract. 288 Given my findings that: (a) the extra works were not part of the HBC; (b) those extra works had been completed prior to any suspension; and (c) the only works left and suspended were works required to be performed under the HBC, the plaintiff could not suspend those works he was required to perform under the HBC for a failure to pay for works performed outside of the HBC. The plaintiff could not suspend the work for a failure by the defendant to meet and agree variations already provided which were not part of the HBC. 289 I accept the plaintiff may have believed he was entitled to suspend works under a mistaken belief that the extra works were part of the HBC, but he was wrong in that belief. 290 The plaintiff in the PCS reminded me that even if he was not entitled to suspend the works pursuant to cl 20, the termination by the defendant must be without reasonable cause.212 I accept that the plaintiff attempted to meet and resolve the extra costs with the defendant and that the defendant failed to meet with him. In one sense one can say the plaintiff was being reasonable in his attempts to resolve the matter and the defendant was unreasonable in failing to meet him. However, the basis of the claim for suspension is the failure to agree a variation and non-payment of works not forming part of the HBC. 211 PCS, par 562. 212 PCS, pars 563 - 569. -- 84 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 85 Given that finding, no matter how reasonable the plaintiff may have been in trying to resolve the dispute between the two parties, it was unreasonable to suspend works under the HBC because of non-payment of works not related to that HBC. 291 The plaintiff further argues that because the defendant was not able to pay for variations he was not ready, willing and able to perform the HBC and therefore could not terminate the HBC. Again, this argument falls away as the variations did not form part of the HBC and were separate work agreements. Issue 9 - Did the defendant validly terminate the building contract? 292 Further to Issue 8:213 If Mr Schmidt was entitled to terminate the building contract, did Mr Schmidt validly terminate the building contract? 293 For the reasons above in Issue 8, I find the defendant validly terminated the HBC. Issue 10 - Invoice IV291 294 The questions in respect of Issue 10 are as follows:214 In relation to Invoice IV291, was the Plaintiff unjustly enriched in the sum of $66,000.00? 10.1. Is the Defendant estopped from asserting that the Building Contract was not complied with in relation to the issuing of IV291 and its payment? 10.2. Was the Defendant operating under duress when he agreed to pay the $66,000.00 to the Plaintiff? 10.3. If the Defendant was operating under duress, what is the effect of that duress? Unjust enrichment 295 There is no dispute that: (a) the defendant was running short of money to pay the plaintiff and sought a loan from the bank; 213 Issues for Determination, par 9. 214 Issues for Determination, par 10. -- 85 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 86 (b) the bank before lending any further money requested a letter from the builder setting out what was required to get to occupancy; (c) the plaintiff prepared a letter setting out what work was required to complete the build to council occupancy,215 and the value of that work was put at $66,000 inclusive of GST; and (d) the plaintiff issued Invoice IV291216 in the sum of $66,000 which was paid. 296 The plaintiff was cross-examined on this and agreed the items required to get to occupancy as outlined in the letter were not variations and were included in the contract price but emphasised the purpose of the letter was to set out what was required to get to occupancy.217 297 Invoice IV291 does not claim $66,000 for the works as set out in the letter for occupancy.218 The description for the claim of $66,000 is:219 Progress Claim - Extra's/fitout - [**] bevan Loop Meadow Landing 298 As the amount in the letter for occupancy and the invoice were the same ($66,000), on first glance one might think there could have been some genuine confusion on the part of the defendant that he was agreeing to get a loan for an extra $66,000 for work the plaintiff was required to perform under the fixed price contract. Regard must however be had to the correspondence between the defendant, the plaintiff and the bank on 13 June 2019,220 where the defendant requested the plaintiff put on his letterhead a revised table of the draw down on Bevan Loop. The letter, drafted by the defendant, which the plaintiff adopts said:221 To whom it may concern Below is a revised table of the required draw down for [**] Bevan Loop Meadow Landing 6226 (Danny Schmidt). … 215 Exhibit 348. 216 Exhibit 472. 217 ts 1206 - ts 1208. 218 Exhibit 348. 219 Exhibit 472. 220 Exhibit 392. 221 Exhibit 392. -- 86 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 87 The new table has been confirm by the client and the client has confirmed this with his home loan specialist. Deposit - $25015 (PAID - previous loan) 1 - Base $96250 (PAID - previous loan) 2 - Frame - $96250 (PAID - previous loan) 3 - Lock up - $115500 (PAID - previous loan) 4 - Fit Out - $32725 (PAID - previous loan) 4.5 - Fit Out / Certificate of Occupancy - $66000 (required now from new loan) 5 - Completion - $19250 (require next from new loan) please contact me as required thanks Pete the solar passive home building guru [Smiley face emoji] (Items in bold were in red in the original email) 299 The total paid as at the date of this letter was $365,740. If one adds Figure 5, $19,250, the total amount is $384,990 which is just $10 short of the contract price of $385,000. 300 What is clear is that the defendant in his own writing sets out that a further $66,000 is required above the contract price of $385,000. 301 Prior to this, the plaintiff and the defendant caused to be sent to the bank a letter requesting further funds under the description variation/costs.222 The total figure in variations was put at $135,092.10 inclusive of GST. The defendant says all those variations were false. The plaintiff changed some of the extra costs in the defendant's letter.223 The plaintiff gave evidence that Variations 1.2 - 1.4 in his letter,224 were correct. He admitted in cross-examination Variations 1.1 and 1.5 in his letter were false. In summary, the evidence of the plaintiff was that there were actual variations being: 222 Exhibits 316 and 320. 223 Exhibit 316. 224 Exhibit 320. -- 87 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 88 • Variation 1.2 - Third party engineering recommendations (in particular what was referred to as the merbau ring beam which had to run around the whole perimeter of the house to take the load of the roof)225 - $48,788 plus GST • Variation 1.3 - Unexpected import costs - $17,898 plus GST • Variation 1.4 - Upgraded specifications of some building products - $16,784 plus GST, and that Variations 1.2 - 1.4 totalled $83,470 plus GST. 302 On the evidence before me I am prepared to accept on the balance of probabilities that Variations 1.2 - 1.4 were true extra expenses. The basis for that finding is that I generally preferred the evidence of the plaintiff over that of the defendant. In particular, I note the evidence of the plaintiff in relation to Variation 1.2 and him being able to go through the CDC plans to explain the requirement to install the ring beam the cost of which was around $45,000. When cross-examined on those variations he was able to justify his claims. He also readily admitted Variations 1.1 and 1.5 were false. 303 Given those factual findings and the evidence that the defendant was aware that in March 2019 representations had been made to the bank that there were variations that were true to at least the value of $83,470, the factual basis for the plaintiff being unjustly enriched in the sum of $66,000 falls away as there was benefit provided as outlined in Variations 1.2 - 1.4 which increased the costs of the HBC. Estoppel 304 The defendant also argues that the issuing of the invoice for $66,000 was in breach of the HBC as there was non-compliance with cl 25 and cl 16 of the HBC. 305 Clause 16 of the HBC sets out how variations to the HBC are to be conducted and dealt with between the parties. Clause 25 relates to the requirements by the owner to make payments to the builder when certain requirements are met. 306 It is not disputed that there was non-compliance with cl 16 and cl 25 of the HBC. It appears the work was simply done because it had to be done. The plaintiff should have put in writing the additional costs 225 ts 678 - ts 680, ts 704. -- 88 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 89 before they were performed. Because of the friendship and trust between the parties in the early stages of the build I infer the plaintiff believed the defendant would recompense him for those additional works. The defendant did in fact recompense him for those works by the payment of the $66,000. If the defendant wanted to take issue with those extra costs above and beyond the contract price as there was non-compliance with the HBC, then the time for doing so was on the issue of the invoice. He had full knowledge of those extra works before payment, drafted the letter to get the extra money for additional costs in the sum of $66,000, and paid that invoice which is entitled 'Extra's/fitout'. I agree with the plaintiff that the defendant is estopped from now insisting on compliance with cl 16 and cl 25 of the HBC. Duress 307 The defendant in the DCS sets out his arguments as to why he says he was acting under duress.226 In summary, his evidence was that: 1. In late February 2019 the plaintiff suspended the works as there was no money left. 2. The house was in a precarious position with the straw bales being unsealed and the risk of damage from rain. 3. He had to get the plaintiff back to avoid the works being damaged by rain and other deleterious matters. 308 At trial the defendant gave evidence that:227 That's correct, the - the house was left in a position where it put me under duress, there wasn't continued to be worked on, there would be issues with the straw bale not being sealed, there's issues with the roof not being sealed to the walls. It was left at a spot, for someone to walk off and leave it in that position knowing there's going to be damage to it, they needed to do something to stem that damage. The house would have been condemned if it had rained and those straw bales got wet without the render on them. 309 For reasons already given, I do not accept the defendant was acting under duress at the time. The contemporaneous correspondence does not support his contention. Whilst he was under financial pressure to get further funds for the build to continue at the time, the defendant, by his actions accepted he needed further funds above and beyond the contract price and was prepared to falsify documents to get such funding. 226 DCS, pars 13.31 - 13.54. 227 ts 1559. -- 89 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 90 Issue 11 - Defective works 310 The questions arising in relation to this issue are:228 Regarding alleged defective works: 1. Are there defective works? 2. Is Mr Andrews liable to rectify those defective works? 3. What is the appropriate scope of remedial works needed to rectify the identified defects? Are there defective works? 311 The parties filed an amended aide memoire229 and were able to agree the following. Defective works conceded by the plaintiff 312 Items 3,16, 65, 67, 68, 143, 146 and 197. Works conceded by the defendant to not be defects 313 Items 104, 118 and 159 - Total $1,936. 314 Items 17 and 107 were not the subject of agreement in the aide provided by the parties. The plaintiff in the PCS,230 concedes a defect in Item 107. The cost of that defect is put at $800 by the plaintiff and $1,444 by the defendant. 315 Unfortunately, despite what was thought to be an agreement as to the costs of the defects there is now dispute.231 From my reading of Annexure 'C' in the PCS and adding the total of the defective works conceded by the plaintiff, I get to the figures agreed by: • the plaintiff of $3,952 • the defendant of $4,789.10. 316 The differences are largely due to the defendant adding GST to the agreed amounts. The difference is $837.10, and in the scheme of this trial a nominal amount. Accepting for the sake of argument that these 228 Issues for Determination, par 11. 229 MFI I, Amended Aide Memoire to Joint Expert Report dated 14 March 2023 (Amended on 21 November). 230 PCS, par 620. 231 PCS, par 632. -- 90 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 91 were agreed amounts and the defendant's solicitor should have made it clear that GST was going to be added, given the nominal difference, I would have allowed the amount $3,952, as stated by the plaintiff. I note the plaintiff in the PCS says the costs to remedy those defective works is $5,011.05 as set in Annexure 'C'.232 That figure of $5,011.05 appears to be incorrect as the items listed under the heading 'Corrections' do not add up to that amount. They add up to $3,102 and do not include Item 107. There is a further discrepancy of $50 (likely to be Item 197) not being included in that correction column. Given that concession, which is greater than the amount I have calculated, I will make an order in that amount of $5,011.05. If I have made some fundamental error in my calculations or understanding of the parties' position, then the parties can rectify my error by agreement or return the matter to court for correction. 317 This leaves Item 17, the water tank and whether a filtration system was required. Both experts agree no filtration system is on the water tank. If the tank is going to be connected to the house, then a filtration system must be installed. Given my findings that the water tank did not form part of the HBC, any requirement to install a filtration system would be a cost recoverable by the plaintiff against the defendant, therefore there are no losses to the defendant. Issue 12 - What is the defendant's liability to the plaintiff (if any) arising under the payment claims?233 318 The defendant in the DCS said:234 If the Court is satisfied that the Plaintiff has discharged his onus in relation to the burden he bears to make the Court feel an actual persuasion in respect of the Work Agreements, including, the terms as to Mr Andrews' remuneration for the Disputed Works, it then follows that there may be a legitimate basis to issue and enforce payment of the Payment Claims. (original emphasis) 319 My findings above show I am persuaded there are separate work agreements including the terms for remuneration and that on the issue of an invoice, the defendant would pay that invoice. The defendant appears to accept that such a finding would 'be a legitimate basis to issue and enforce payment'. If I am wrong in my interpretation of the 232 PCS, pars 631and 669(a). 233 Issues for Determination, par 12. 234 DCS, par 15.8. -- 91 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 92 above, then it is my view the mistaken belief of the plaintiff that the works formed part of the HBC did not render the invoices actually issued null and void. Issue 13 - What is the plaintiff's liability to the defendant? 320 Finally, I turn to the question of:235 What is the Plaintiff's liability to the Defendant (if any) in respect of: 13.1. the costs of rectification of the alleged defects; 13.2. the cost to complete the Works in accordance with the scope proposed in the Report of Prescient Consulting? 321 This issue arises as I have determined the defendant validly terminated the HBC as a result of the plaintiff unlawfully suspending works when he was not entitled to do so. As a result, the defendant is entitled to recover costs for items that I find to be incomplete and that were required to be performed by the plaintiff under the HBC. 322 There is dispute between the parties as to what is incomplete and the costs attributable to those works. The defendant in Annexure 'F2' of the DCS provides a schedule for the liability to the defendant for incomplete works totalling $201,870.68. The plaintiff in the PCS admits some but not all incomplete works and disputes some of the costs attributable to them.236 As I understand Annexure 'F2' of the PCS, the plaintiff agrees that if liable it is for the sum of $154,374,50. The plaintiff helpfully sets out the areas in dispute in the PCS. The defendant has not sought to respond to the plaintiff's assertions which include what it says have been errors in the defendant's calculations. Despite this, it is necessary to go through those areas in dispute as detailed by the plaintiff.237 Items 23 - 24 - Doors238 323 Under Item 23, the defendant claims 11 solid core doors, at $185 per door with a 25% discount totalling $1,526.25. Only seven hollow core doors were needed under the HBC at $85 a door, which is $595.239 I allow a deduction of $931.25. 235 Issues for Determination, par 13. 236 PCS, pars 635 - 670. 237 PCS, pars 635 - 670. 238 PCS, par 637. 239 ts 2609. -- 92 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 93 324 Under Item 24, the defendant claims 11 sets of door hardware ($463.64) and only seven sets of hardware should be allowed for the seven doors required under the HBC. At $42.16 per set the amount should be $295.12, resulting in a deduction of $168.52. 325 The total deduction for Items 23 and 24 is $1,099.77. Items 64, 130, 132, 141 and 181 326 It is agreed between the parties that further deductions for the defendant's claim totalling $1,000 can be allowed for:240 Item 64 $400 Items 130, 132, 141 and 181 at $150 an item $600 327 I note the defendant in Annexure 'F' of the DCS does not refer to Item 132, however, the defendant did make that concession at trial,241 and it should be included. Items 26 and 30 328 Item 26 relates to plywood window reveal linings and whether they were required to be performed under the HBC. The defendant accepts this matter arose in drawings after the HBC was signed,242 but submits that as the plaintiff partially carried out some of this work, he should have completed it all. I reject that submission and allow a deduction of $3,200. 329 Item 30 relates to the issue of window nosings and whether they were required under the HBC. The defendant identifies what it says is a dispute between the experts as to the requirement for window nosings under the HBC.243 The defendant accepts the plaintiff's expert says 'there does not appear to be a requirement for nosings identified "on the design"'. The defendant asks me to imply its expert (Mr Machell) says there was a requirement for nosings, by reference to the contract documents. The view of Mr Machell is said to be contained in Exhibit 553 at page 5. The reference to nosings in that exhibit simply states: k) Window nosings not installed 240 PCS, par 642. 241 ts 550. 242 DCS, pars 16.53 - 16.55. 243 DCS, pars 16.56 - 16.59. -- 93 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 94 330 What is clear is this is not evidence as to a requirement for nosings to be installed under the HBC but just a simple statement that they are not installed. The defendant was put on notice that these items were not part of the HBC,244 and I can see no basis to draw the inference the defendant asks me to draw. I would allow a deduction of $875. Item 22 - Tiling 331 The plaintiff accepts that the tiling of the wet areas on the drawings was within the scope of the HBC.245 The wet areas are on the CDC plans which show tiling marked by shaded lines.246 The rest of the plans have no shaded lines on the floors. The defendant argues that he intended the whole house was to be tiled and that formed part of the HBC. The basis of that assertion is his evidence that he thought the whole house was being tiled, a belief he claims is supported by a tiling quote sent to the plaintiff on 2 August 2018.247 The defendant's belief is based on the quote and the tracker provided by him to the plaintiff.248 The square meterage of the tiling quote was above that required to tile the wet areas and more in line with tiles being ordered to tile the whole of the house. The drawings clearly do not require anything other than the wet areas to be tiled under the HBC. The defendant does not dispute this. I am being asked to read into the HBC that it includes the tiling of the whole of the house. The HBC is clear that the only areas requiring tiling are the wet areas not the other areas. I am not prepared to read into the HBC something that is clearly not included in the drawings. Floor coverings are something that people do change their minds about. An area can be carpeted, left blank or tiled. Quotes can be obtained for both carpeting and tiling and a decision made after a house is built as to what coverings to put in. 332 I would deduct $20,040 for the claim for tiling of the whole house. Items 79, 80, 179 and 183249 333 The plaintiff accepts items agreed to be incomplete and in scope as outlined in the DCS at par 16.67, save for Items 79, 80, 179 and 183. 244 PCS, par 644. 245 PCS, par 645. 246 Exhibit 563, page 4. 247 Exhibit 12. 248 ts 2109. 249 PCS, par 654. -- 94 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 95 334 I agree with the plaintiff's submissions that the experts are in agreement as follows:250 Item Status Cost Item 79 The works are constructed in accordance with cabinet drawings. $960 Item 80 There is no requirement for overhead cupboards in the kitchen. $330 Items 179 and 180 The construction is consistent with cabinet drawings. $100 335 Given the above, I will allow a deduction from the defendant's claim for these items totalling $1,390. The plaintiff says these deductions are in Annexure 'F1' to the PCS. Annexure 'F1' does not set out deductions for the above items, however, I do allow for them. Items 84, 93 and 195251 336 The defendant has conceded that the following items can be removed from the defendant's claim: Item number Amount Item 84 $275 Item 93 $125 Item 195 $250 337 I would allow these deductions totalling $650. 338 The total deductions for the above items therefore are $25,905. 339 I must also deduct the claim for the water tank ($3,080) as I have already decided that the filtration system was not required to be installed under the HBC. The above deductions from the defendant's claim total $28,985.252 250 Figures as set out in PCS, par 665(c). 251 PCS, pars 656 - 659. 252 PCS, par 666(b)(i). -- 95 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 96 Items 1, 2 and 3253 340 The plaintiff also claims a deduction of $34,365 from the Damages Aide. In Annexure 'A' the defendant agrees an adjustment for removal of agreed out of scope costings in the sum of $34,365. Items 104 and 118254 341 The parties agreed a deduction of $800 each for Items 104 and 118, resulting in a total deduction of $1,600.255 342 The plaintiff also claims a further deduction of $1,000 for items listed in Annexure 'F1'. Annexure 'F1' lists the items as Items 64, 130, 132, 141 and 181; however, these items have already been deducted in the calculation of the figure $28,985.256 Hence, I would not allow a further deduction for Annexure 'F1', as those figures have already been taken into account. 343 The total figure the plaintiff admits owing to the defendant is $100,316, to which I add $1,000 for what appears to be a double claim for Items 64, 130, 132, 141 and 181. If I am wrong in this, I will amend the final amount allowed to the defendant. Margin, Goods and Services Tax and supervision 344 The plaintiff accepts that to the amount of damages ($101,316) for the defendant, the following must be added: A margin of 30% $30,394.80 10% GST charged on the sub total $13,171.08 Supervision of the works to be performed should be five weeks not 10 weeks. I accept that given the reduced scope of works I have found the appropriate time period the plaintiff is liable for the appropriate time period is five weeks. $3,750.00 Preliminaries of 5% $7,431.60 253 Aide Memoire to Defendant's Further Amended Particulars of Damage dated 21 May 2023 (Damages Aide); PCS, par 666(b)(ii). 254 PCS, pars 666(iii) and (iv), and Annexures 'E' and 'F1'. 255 DCS, Annexure 'E'. 256 PCS, par 666(b)(i). -- 96 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 97 345 Therefore, the total costs to complete the works is $156,063.50 (rounded up). The plaintiff sets out the calculation of damages in Annexure 'G' of the PCS which I accept, bringing the total damages owing to the defendant in the sum of $111,604.50 (if I am correct and there is a double claim for $1,000). Summary 346 I calculate the plaintiff is entitled to payment as follows (noting all figures are to be plus interest at 6% per annum):257 In respect of Issue 10 - the unjust enrichment claim that was conceded by the defendant $6,931.31 In respect of the pump and holding tank $6,188.98 In respect of the shed $42,633.04 In respect of the Solar Work $8,885.71 In respect of the mezzanine and studio fit out $65,612.07 In respect of the water tank $14,984.53 In respect of site power & electrical works $8,086.78 In respect of the ATU system $15,400.00 Total (rounded down) $168,722.40 347 The plaintiff is entitled in his claim to the sum of $168,722.40. 348 The defendant is entitled in his counterclaim to the sum of $111,604.50. I will hear from the parties as to whether interest is payable on that sum and if so, from what date. 349 Subject to corrections in calculations I ask the parties to prepare a minute of orders in line with my findings and agree (if possible) the calculation of interest for both the claim and counterclaim. 350 The question of costs is reserved for hearing or agreement between the parties. 257 PCS, par 674. -- 97 of 98 -- [2026] WADC 40 MIOCEVICH DCJ [2026] WADC 40 [HC] Page 98 I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. DD Associate to Judge Miocevich 18 MAY 2026 -- 98 of 98 --