Colber Constructions Pty Ltd v Spicer [1991] QSCFC 131

10 20 50 60 IN THE SUPREME COURT OF QUEENSLAND FULL COURT I) OCT/13 91 No. 54 of 1990 BEFORE : The Acting Chief Justice (Mr. Justice McPherson) Mr. Justice Shepherdson Mr. Justice Williams BRISBANE. 24 JULY 1991 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter , Court Reporting Bureau.) 30 BETWEEN: COLBER CONSTRUCTIONS PTY. LTD. (Plaintiff) -and- WARREN GEORGE SPICER ( Defendant) ORDER Respondent Appellant 40 MR. JUSTICE WILLIAMS: The respondent to this appeal is a contractor who carried out engineering work at the request of the appellant. The circumstances giving rise to its engagement were somewhat unusual. The appellant obtained a quotation from another contractor, Techdesyn, with respect to the laying of 650 metres of sewerage line for a contract price of $35,000. Ultimately the respondent took over that work and it was agreed at the trial and on the hearing of the appeal that there was a specific contract which related to the laying of 650 metres of 150 millimetre diameter clay pipe for $35,500. In terms of that contract, the respondent was entitled to an extra if rock was encountered in the course of carrying out the work. Further, in the course of carrying out the work, the extent of the work was varied and it was the "//-=*/ 10 20 30 40 50 Govt. Printer, Qld. 60 [1991] QSCFC 131 -- 1 of 7 -- 1 respondent's contention that a total of 865.7 metres of 1 sewerage line was laid at the appellant's request. The appellant paid the $35,500 but did not pay anything for the extra work. In consequence, the respondent commenced an action in this Court claiming $20,836.99 for work and labour done and materials supplied plus interest. The matter was remitted to the District Court and came on for trial in that Court on 14 May 1990. That the claim was for the cost of the extra work was made clear in the pleadings; particulars set out in para. 7 of the statement of claim included a detailed description of the work done and the prices charged for the work. By para .4 of the defence the defendant denied that the plaintiff did any work for the defendant other than the work which was the subject of the lump sum contract and for which the plaintiff had been paid. The learned trial judge accepted, in essence, the evidence given by Mr. Berry, the principal of the respondent, and a quantity surveyor, Mr. Luckins, called to support the respondent's claim. On the hearing of this appeal it was argued that the learned trial judge was not entitled to find in favour of the respondent that extra work had been done because the respondent had not discharged the onus on it of proving the precise work that was done under the lump sum contract . In my view, there is no merit in the appellant's contention in that regard. It was for the respondent to prove that extra work was done and that could, in my view, be established without defining precisely the work which had to be done under the lump sum contract. In any event, the Govt. Printer, Qld. 10 20 30 40 50 60 2 -- 2 of 7 -- 1 10 20 30 40 50 60 1 10 20 30 40 50 60 evidence clearly establishes that an additional 215.7 metres of sewerage line was laid. One can obtain that figure by looking at the notations on the plans Exhibits 6 and 7. Further, that is established by the express evidence of Berry. I would refer in particular to Berry's evidence in chief at pp.17 and 18 where he deals extensively with the extra 215.7 metres of pipeline. In my view, there was ample evidence on which the learned trial judge could make a finding that the extra work claimed was carried out. Looking at the particulars in para. 7 (a) of the statement of claim, the 335 cubic metres referred to in para.(l) was established by the evidence of Luckins at p.122; the 48.38 cubic metres of rock referred to in para. (2) was established by the evidence of Berry at p.19; and the 22 extra metres of cast iron piping referred to in para. (4) was established by the evidence of Berry at p.33. The prices set out in para.7(b) were all confirmed by the evidence of Luckins from pp.122 to 124. In addition, so far as the cost of the cast iron pipe was concerned, further evidence relating to that was given by Berry at p.33. The only matter so far not dealt with is the quantum of sand bed referred to in para.7(a )(5). That paragraph refers to 38.83 cubic metres of sand bed and surround. Berry at p.33 gave evidence that the Maroochydore Shire Council as a standard practice required the piping to be laid on a sand bedding and surrounded with sand. Luckins at p.124 gave evidence that the reasonable cost of sand bed and surround was $26 per cubic metre. The evidence does not specifically establish that the sand bed and surround had to be of a depth Govt. Printer, Qld. 3 -- 3 of 7 -- 1 10 20 30 40 50 60 1 10 20 30 40 50 60 and width 600 millimetres by 300 millimetres. Further, at p.36 in the course of his evidence in chief Berry was specifically directed to the particulars alleged in para. 7 of the statement of claim and gave evidence that the quantities outlined in that paragraph were fair and reasonable estimates and that the charges made were fair and reasonable prices. In my view, in those circumstances, the learned trial judge was justified in concluding that the quantum of the claim for sand bed and surround had been established. Given that resume, there was, in my view, ample evidence to support the learned trial judge's findings. It should be noted that he did not accept the respondent ' s case that it was entitled to seven additional manholes which were said to have a cost of $4,837. In that regard, the learned trial judge said this: "I disallow, however, a claim made by the contractor for seven additional manholes at an average depth of 1.5 m - seven by $691, totalling $4,837.37. I consider that Mr. Berry was mistaken on this part of the claim and that that part of the claim should be regarded as being part of the original quotation between Techdesyn and Mr. Spicer." The mere recital of that passage in the judgment shows that at all times the learned trial judge was conscious of the appellant 's case and was taking care to ensure that he only allowed items which were truly extras. It was argued that there was some inconsistency between His Honour's conclusions with respect to the manholes and the other part of his judgment; but as the original contract was unclear as to the number of manholes involved and as Berry also made an error in initially identifying the seven manholes which he was claiming as an extra, it seems to me that the learned trial judge came to the conclusion that on Govt. Printer, Qld. 4 -- 4 of 7 -- 1 10 20 30 40 50 60 the evidence he could not be positively satisfied that the seven manholes claimed were truly an extra. Looked at in that light, there is no inconsistency. In any event, by disallowing that amount, His Honour made a finding which operated in the appellant's favour. In the result, His Honour allowed $17,907.09 for extras associated with the additional 215.7 metres of line. The learned trial judge accepted the evidence of Berry and Luckins that it was appropriate to allow a 15 per cent profit margin for the operator. The reasons for judgment record him saying that the quantum of that was $3,686.05, but that is obviously a typographical error for $2,686.05. The total recorded in the judgment of $20,593.14 is accurate for cost of work plus profit margin. Counsel for the appellant indicated that there was no challenge to the allowance of $218.53 for the additional cost of excavating through rock in accordance with the terms of the original contract. He also conceded that there was no challenge to the finding that the respondent was entitled to retention moneys withheld amounting to $1,775. It follows that, in my view, there was ample evidence on which the learned trial judge concluded that the respondent was entitled to the total sum of $22,586.67. His Honour allowed interest at the rate of 18 per cent per annum on the amount of the judgment for a period of four years from the date of issue of the writ; there is no challenge to that. In my view, the appeal should be dismissed. I agree with what is about to be said by the learned presiding judge with respect to the question of interest subsequent to the date of judgment. Govt. Printer, Qld. 5 -- 5 of 7 -- THE ACTING CHIEF JUSTICE: For the reasons delivered by my brother Williams, I agree that the appeal should be dismissed. I would also order pursuant to s.73 of the Common Law Practice Act that interest on the judgment amount be paid at the rate of 18 per cent per annum in respect of the period commencing on 14 May 1990 and ending on the date on which the plaintiff received the whole sum of $42,116.65 or (at the option of the plaintiff, to be signified to the Registrar) on 22 March 1991, there being deducted from that interest sum the amount,if any, accrued by way of interest on the sum that was paid into court, if and in so far as the plaintiff has received, or will receive, that amount of accrued interest. MR. JUSTICE SHEPHERDSON: On the evidence, the plaintiff did prove that the lump sum sewerage contract was for 650 metres of sewerage line at a total cost of $35,500. Bearing in mind that the defendant pleaded that, in effect, all work the plaintiff did was the subject of a lump sum contract and already paid for, the onus was on the defendant to prove this. He represented himself at the trial before the learned District Court judge and gave evidence. The learned trial judge gave an ex tempore judgment at the conclusion of the evidence. He preferred the evidence of Berry where it conflicted with the evidence of the defendant. At the outset of the appeal Mr. McHugh, for the appellant, abandoned all grounds of appeal in which findings of fact adverse to the appellant's case had been challenged. The plaintiff's evidence, as pointed out by my brother Williams, was such that the learned trial judge could properly find the plaintiff's case was proven in respect of l 10 20 30 40 50 60 Govt. Printer, Qld. 6 -- 6 of 7 -- 1 the matters for which he gave judgment against the defendant. I agree with the reasons of my brother Williams and the order he proposes . I agree with the order proposed by the learned presiding j udge . 0 THE ACTING CHIEF JUSTICE: The order of the Court is that the appeal is dismissed with costs. ' There will be an order for payment of interest in the form in which I have already expressed that order. 1 10 20 30 40 50 60 Govt. Printer, Qld. 7 -- 7 of 7 --