Alta Building & Developments Pty Ltd v Brendan Jay McAllery and Tracey Catherine Margaret McAllery

Quantum Meruit 13The issue of whether a party who has entered into a contract may make a claim in quantum meruit for work carried out under the contract was dealt with by Mason P., with whom Priestley and Handley JJA agreed, in Trimis & v Mina [1999] NSWCA 140 (18 May 1999) when he stated at paragraph 54: 'The starting point is a fundamental one in relation to restitutionary claims, especially claims for work done or goods supplied. No action can be brought for restitution while an inconsistent contractual promise subsists between the parties in relation to the subject matter of the claim. This is not a remnant of the now discarded implied contract theory of restitution. The proposition is not based on the inability to imply a contract, but on the fact that the benefit provided by the plaintiff to the defendant was rendered in the performance of a valid legal duty. Restitution respects the sanctity of the transaction, and the subsisting contractual regime chosen by the parties as the framework for settling disputes. This ensures that the law does not countenance two conflicting sets of legal obligations subsisting concurrently. As Deane J explained in the context of the quantum meruit claim in Pavey & Matthews (at 256), if there is a valid and enforceable agreement governing the claimant's right to payment, there is "neither occasion nor legal justification for the law to superimpose or impute an obligation or promise to pay a reasonable remuneration". See also Update Constructions at 275n; Ansett Transport Industries (Operations) Pty Ltd v Alenia Aeritalia & Selenia Spa (1991) 105 FLR 169; Brenner v First Artists Management Pty Ltd [1993] VicRp 71; [1993] 2 VR 221. This principle is applicable to other restitutionary claims (see, eg Foran v Wight [1989] HCA 51; (1989) 168 CLR 385 at 413, 432; Baltic Shipping Co v Dillon (The Mikhail Lermontov) [1993] HCA 4; (1993) 176 CLR 344 at 355-6, 385).' 14By reason of what was stated by Mason P. as quoted above, I dismiss the builder's alternative claim as pleaded in paragraph 7 of its points of claim. There is no legal basis for concurrent claims under a contract and on a restitutionary basis.

Progress claims 15The owners filed and served a defence to the points of claim on 25 January 2011 in which they stated that the builder's progress claims 9, 11 and 22 were properly valued at marginally less than the amount claimed. The differences between the parties in connection with these progress claims is ($848.25).The owners admit that that they did not pay progress claims 24 and 26 claimed by the builder in the amounts of $14,242.33 and $29,291.28 respectively, but deny that they were liable to pay those progress claims. In connection with progress claim 26, the owners deny ever having received that claim. 16The factual background to the builder's and the owners' claims was complex, requiring four days of hearing. Due to the complexity of the combined proceedings, I am left with the impression that the builder concentrated more on the defence of the cross application than the establishment of its claim in these proceedings. 17The builder instructed Mr Lloyd Austin of L.F. Austin Pty Limited to prepare expert reports which were tendered as part of the builder's case in these proceedings and in the cross application. 18Mr Austin's undated report prepared in August 2012 was exhibit 7 and his 3 June 2013 report was exhibit 8. I accept Mr Austin as an expert capable of giving expert opinion in the Tribunal. There was no challenge to his expert status. 19Mr Austin's report dated 3 June 2013 states in paragraph 2 that he has been instructed by the builder 'to provide a report in support of a claim for Quantum Meruit for building work at 4 Emperor Place, Kenhurst'. Mr Austin concludes that the total due to the builder is $54,020.79. 20I will not take Mr Austin's report dated 3 June 2013 into account since it seeks to quantify the builder's quantum meruit claim which I have dismissed for the reasons stated above. 21The first report to deal with quantum issues was the report prepared on behalf of the owners by Mr Michael George Sturgess dated 4 June 2012 which is exhibit H in the owners' case. In paragraph 2.5 of his report Mr Sturgess states 'By my calculation the monies claimed against the Builder's claims 1 to 25 totals $13,919.13, being the aggregate of Claims 24 and 25.' 22Mr Austin's undated report prepared in August 2012, exhibit 7, responds to Mr Sturgess's report. 23I will commence by considering Mr Sturgess's report. The first point to note is that Mr Sturgess has not considered the builder's progress claim 26 in the sum of $29,291.28. In Mr Sturgess's opinion, the owners do not owe the builder any money at all. Mr Sturgess has set out three methods of calculating amounts due by the builder to the owners. In his method 3 where the basis of his calculation is 'Against Builder's Invoiced Costs', Mr Sturgess states that the sum of $72,018.27 is due from the builder to the owners. This calculation method takes a contract scope, as varied and then deducts from that figure defects, direct payments by the owners and amounts paid by the owners to the builder. 24Defects are addressed in the owners cross application and are excluded from my consideration of the money, if any, owing by the owners to the builder. 25Based on Mr Sturgess's own figures for the contract scope as varied, $520,391.07 less direct payments by the owners $205,828.97 and amounts paid by the owners, $307,968.37, an amount of $6,593.73 will be owing to the builder ($520,391.07 - $205,828.97 - $307,968.37 = $6,593.73). In addition there is the question of whether the owners are liable for progress claim 26 in the sum of $29,291.28. 26Mr Austin's undated report, exhibit 7, provided in the main a response to the owners' allegations of defective work. Paragraphs 10, 11 and 12 of the report responds to Mr Sturgess's report tendered by the owners concerning the overall costing of the work. These paragraphs address a number of issues including the actual cost of the works, direct payments, variations and delays. 27Mr Austin comes to a conclusion that the total amount payable by the owners to the builder is $39,865.92. This amount is made up of the 'adjusted invoice amount on claim 24 less the cost of rectification'. Mr Austin values that amount at $13,919.13. He then allows a deduction for defects of $846.52 and adds to that amount the sum of $26,793.31 for an adjustment of the builder's fee which gives a total of $39,865.92 ($13,919.13 - $846.52 + $26,793.31 = $39,865.92). 28The experts have taken different approaches to the calculation of money allegedly payable by the owners to the builder. 29As stated above, I will not take the value of defective work into account in that calculation as that issue is considered and dealt with in my reasons for decision in HB 11/04507. 30There seems to be some common ground in connection with the builder's progress claim 24 which is in the sum of $14,242.33. The owners admit that they have not paid it. On that basis there should be an order in the builder's favour in the sum of $14,242.33. I will return to this progress claim and any adjustments that are to be made later in these reasons. 31The next issue is the question of the builder's progress claim 26 in the sum of $29,291.28 which the owners state they did not receive and which Mr Sturgess has not taken into account.

Extra Builder's fee 32I have had regard to Mr Sheppard's first statement and the annexures to it which are exhibits 1 and 2 respectively. Paragraph 208 refers to progress claim 26 as a calculation of extra fees. The builder's letter dated 21 December 2009 is Annexure 43 of Mr Sheppard's first statement. It is a letter of termination which concludes by making a claim for $29,291.28 for extra fees. 33Having regard to Paragraph 208 of Mr Sheppard's statement and the builder's letter dated 21 December 2009 I have formed the conclusion that progress claim 26 claim is not a claim for the cost of building work but is a claim for an additional building fee. Therefore both annexures A and B to the builder's points of claim contain a claim for an additional fee. This is confirmed in Annexure B to the builder's points of claim where there is a deduction of $29,291.28 in the re-calculation of the builder's fee. However I find that the best approach is to reject the builder's progress claim 26 in annexure A of its points of claim and to take its calculation of the additional fee to be $40,190.37, as stated in annexure B of its points of claim. 34The builder's case has two different calculations of the builder's fee. First, in the points of claim in the sum of $40,190.37. Secondly, in Mr Austin's statement in the sum of $26,793.31. 35Schedule 1 Part B of the contract provides for a lump sum fee of $45,000.00. Sub-paragraph (iii) states in connection with the fee 'if the construction period is extended pursuant to the provisions of the contract the fee payable will increase on a pro-rata or proportionate basis to reflect the increased construction period.' 36Clause 11 of the contract deals with Delays and extensions of time. I do not propose to set the clause out in detail. However, clause 11(a) identifies causes of delay which will entitle the builder to an extension of time to the construction period. Clause 11(b) provides for notices which are to be given in the event of delay. Importantly, clause 11(d) states 'Delay in notifying a failure to notify the Owner of a delay or matter causing delay will not of itself prohibit an extension of time being granted or allowed provided the cause of the delay is shown to cause delay to the works being carried out.' 37The builder will only be entitled to an increase in its fee of $45,000.00 'if the construction period is extended pursuant to the provisions of the contract'. 38The original construction period was for 218 days commencing on 25 July 2008. Mr Austin calculates this period expiring on 26 June 2009 allowing for public holidays and rostered days off. I accept his evidence in this regard. 39The period in issue is 27 June to 21 December 2009, 118 days excluding weekends, public holidays and rostered days off. 40The evidence discloses that the parties did not agree to extensions of time for this period. In annexure B of its points of claim, the builder claims 177 working days extensions of time. For 145 days the builder does not attribute a cause of delay. 32 days of delay have a cause attributed to them. 41In his expert report Mr Austin puts the claim on a different basis. He deals with the claim in clauses 11.7 - 11.13 of his report. He states that there have been delays to the work being carried out due to the owners not allowing work to proceed while they were not present on site. He also states that there were other delays such as raising of the floor height and variations to the structural design. 42Mr Austin has then calculated the additional fee at $206.42 per day (45,000.00/218 = $206.42). The 118 day delay that he refers to equates to the sum of $26,793.31 (118 x $206.42 = $24,357.56 + GST) 43While the discussion in the preceding paragraphs demonstrates that an increased fee is contemplated under the contract subject to the issues discussed, the owners have raised an issue which, if decided in their favour, will be a complete answer to the builder's claim for an additional fee. 44In their cross application HB 11/04507 the owners allege that there was a meeting on site between Mr McAllery and Mr Sheppard representing the builder on 25 August 2009. It is alleged by Mr McAllery that at this meeting certain matters were discussed and agreed in connection with the amounts that the builder would charge for the work remaining to be carried out. Mr McAllery's evidence is also that at this meeting it was agreed by Mr Sheppard on behalf of the builder that the original builder's fee of $45,000.00 would not be increased. 45The conversation between Mr McAllery and Mr Sheppard was heard by Mr Mclean who was working for Mr McAllery in the area of the premises where the conversation in issue took place. Mr McLean has provided a witness statement in these proceedings in which he corroborates Mr MacAllery's version of the agreements reached at the meeting. 46Mr McAllery and Mr Sheppard have also given evidence about this meeting and what was said. Mr Sheppard denies Mr McAllery's account of the meeting and the agreements that he says were reached. 47Mr Sheppard had the opportunity to cross-examine Mr Mclean. I was impressed by Mr Mclean being a careful and honest witness. I accept his evidence and that he has not prepared a statement and given evidence for the purpose of conferring a benefit on his employer. 48Mr Mclean in his evidence states that an element of the agreement reached at this meeting was that Mr Sheppard 'would complete his project manager's role without any increase in his original fee' and that if costs over-ran the estimates set out on a spreadsheet printed out at the meeting, those costs would be absorbed by the builder. 49I have accepted the owners' version of this meeting in cross application HB 11/04507. I also accept that version in these proceedings. It follows from my findings that the builder is, by virtue of the matters agreed at the meeting of 25 August 2009, prevented from increasing its fee under the contract. On that basis I dismiss that part of its application which seeks an increase of the fee of $45,000.00 as referred to in the contract.

Finding on progress claim 50I have previously found that the owners failed to pay the builder progress claim 24 in the sum of $14,242.33. There needs to be an adjustment to this amount of $323.00 as provided for in the builder's progress claim 25. This will reduce the amount of the claim to $13,919.33 as referred to by both Mr Sturgess and Mr Austin. 51There is also the matter of the adjustments alleged by the owners in their points of defence, namely that they stated that the builder's progress claims 9, 11 and 22 were properly valued at marginally less than the amounts claimed. The difference between the parties in connection with these progress claims is ($848.25). The builder has in Annexure A to its points of claim acknowledged the need for a credit of $764.75 in connection with progress claims 9 and 11. I will allow a deduction for that amount leaving a balance of $13,154.58. The owners have not produced evidence supporting their claim for an adjustment to progress claim 22. On that basis no adjustment will be made. 52I therefore will make an order that the owners must pay the builder the sum of $13,154.58 being the balance due in connection with progress claims.

Interest 53The builder has claimed interest in the sum of $5,277.46 and also on an ongoing basis. Its points of claim do not state the basis on which an entitlement to interest is claimed. 54Clause 17(g) of the contract in conjunction with Schedule 2 (e) of the contract allows the builder to claim interest at the rate of 12% pa if it does not receive payment from the owners of a payment by the due date. 55Progress claim 24 was dated 29 September 2009. It sent to the owners on 8 November 2009 according to Mr Sheppard at paragraph 192 of his first statement. Schedule 1 Part B (c) of the contract required the owners to pay progress claims within 5 days of receipt. Payment was therefore due to the builder on 13 November 2009. 56Given that the owners have not paid progress claim 24, the builder will be entitled to interest at the rate of 12% on the amount of $14,242.33. I will allow interest on that amount until progress claim 25 dated 9 December 2009 when the adjustment of $325.00 will take effect. I will then allow interest on the balance of $13,919.33 until the date of the builder's points of claim when the further adjustment referred to should take effect. I will then allow interest at 12% on the sum of $13,154.58 from that date to the anticipated date of this decision. 57The calculations of interest in the builders favour are therefore as follows: (a)13 November - 9 December 2009 - 27 days at $4.68 per day = $126.36; (b)10 December 2009 - 24 November 2010, 350 days at $4.57 per day = $1,599.50; and (c)25 November 2010 - 23 June 2014, 1304 days at $4.32 per day = $5,633.28. 58The total interest determined in the builder's favour is $7,359.14.

Variation claims 59Although not pleaded, the builder's claim includes a claim for $145,099.08 for extra work that it alleges was carried out. A scott schedule was prepared and lodged in the Tribunal by the builder. A copy of the builder's scott schedule is annexure 36 to the first statement of Mr Sheppard lodged in the Tribunal on 2 August 2011. An expert's conclave was held in 2013, with little progress being achieved. 60The owners' expert has competed the builder's scott schedule and has agreed to work to the value of $9,354.80. 61The items claimed in the builder's scott schedule are set out below. Item No. Extra Work Amount claimed 1 Engineer's requirements wall and footings $29,294.00 2 Alterations to stair design $1,135.31 3 Larger footings for future sandstone wall $5,446.00 4 New structure for roof solar panels and clear ceiling space $39,184.43 5 New structure of walls to support new roof structure $9,139.23 6 New stormwater line to Creek line $3,205.40 7 Re-design of Breezeway roof $5,351.00 8 Re-design of main roof eaves at western end $9,917.62 9 French doors $7,772.00 10 More expensive columns $7,672.00 11 Stop work for Christmas $908.25 12 Stop work for holiday $4,541.24 13 Alterations to building level and concrete work to accommodate tennis court level $13,733.42 14 Plaster setting of jamb linings to windows in place of timber jamb linings $1,800.00 15 WC Portaloo hire $2,528.20 16 Steel round wire $2,562.73 17 Inclement weather $908.25 Total $145,099.08

62The evidence in connection with the builder's variation claims is contained in the statements of Mr Tobias Sheppard, Mr McAllery and in the expert reports of Mr Austin and Mr Sturgess on behalf of the owners. 63Mr Austin's report provides little support for the builder's claims in that he states that he has not dealt with variations in detail because he would be repeating the builder's claims. Mr Austin makes 3 brief comments in relation to variations 3, 8 and 13. 64The builder's obligation under clause 1(a) of the contract was to execute and complete the works required by the contract. 65The works to be constructed by the builder were described in the contract as 'the work that the Builder is or may be required to carry out and complete under the contract, and includes variations and rectification and includes the provision of materials'. Schedule 3 of the contract described the work and documents detailing the contract work. This description included the work shown on architectural drawings EP/100 1-12 Revision 2 dated August 2007 and on final structural drawings S08-S01 dated July 2008. 66The contract provides for variations in clause 14. The parties have not addressed the specific requirements of clause 14 as it relates to variations. 67I will deal with each of the variations in turn.

Engineer's requirements wall and footings - amount claimed $29,294.00 68Annexure 36 to the first statement of Mr Sheppard lodged in the Tribunal on 2 August 2011 which relates to the builder's scott schedule states that the engineering requirement for footings and retaining walls were more complex and required more steel, excavation and concrete than initially estimated. 69Mr Sheppard's first statement does not address this variation specifically. 70In my view, without specific evidence which addresses this item, it is not clear whether the work described above comes within the definition of a variation in clause in clause 14 of the contract. 71Mr Sturgess addresses this issue in some detail in his report. He points out that Schedule 3 of the contract described the work and documents detailing the contract work, including the work shown on the final structural drawings S08-S01 dated July 2008. In short Mr Sturgess concludes that the work the subject of this variation was part of the works as defined in the contract. 72Mr Sheppard has replied to Mr Sturgess's report in paragraph 22 of his further statement. His evidence is more in the way of submissions than evidence of relevant factual matters. In my view the builder has not fully appreciated that its contractual obligations included constructing the works in accordance with the engineer's structural drawings referred to in the contract. 73I prefer the evidence of Mr Sturgess in connection with this claimed variation. I am not satisfied on the builder's evidence that the work claimed was a variation as opposed to being part of the contractual works that the builder was obliged to execute and complete as required by clause 1(a) of the contract conditions. 74For these reasons, this variation claim is dismissed.

Alterations to stair design - amount claimed $1,135.31 75The basis for this variation is found in annexure 36 to the first statement of Mr Sheppard lodged in the Tribunal on 2 August 2011 where it is stated that the stair design was altered three times, requiring engineering alterations and re-drafting. 76The builder's claim is said to be builder's fees for five days. 77Mr Sturgess has addressed this variation in his report. In the absence of detail in annexure 36, Mr Sturgess has calculated that the amount claimed is in fact 5 days of the builder's daily fee of $206.42 per day plus GST. 78Mr Sheppard has replied to Mr Sturgess's comments in paragraph 22 of his further statement pointing out that time was wasted setting out the site and the subsequent excavation. 79The builder's evidence in connection with this variation is not sufficient to satisfy me that this item is a variation for which the builder is entitled to claim under the contract. 80For these reasons, this variation claim is dismissed.

Larger footings for future sandstone wall - amount claimed $5,446.00 81The basis for this variation is found in annexure 36 to the first statement of Mr Sheppard lodged in the Tribunal on 2 August 2011 where it is stated that Mrs McAllery requested that the retaining wall shown on the drawings be faced with sandstone, thus requiring a different footing. 82Mr Sturgess has addressed this variation in his report. He concedes that there has been a change from the engineer's drawings. He has valued the extra work in the sum of $1,859.55 including GST. 83Mr Sheppard has replied to Mr Sturgess's comments in paragraph 22 of his further statement saying that Mr Sturgess has taken no account of excavation in rock, bending of reinforcement bars and alterations to the blockwork wall. 84In the circumstances, I am of the view that a change in footing dimension would be a variation within the meaning of clause 14 of the contract. 85So far as the valuation of the variation is concerned, I prefer the valuation of the builder as it was more involved in the actual doing of the additional work and therefor in a better position to calculate the additional costs than Mr Sturgess who has done the best he can, but in a more theoretical way. 86For these reasons, I will find for the builder in the amount claimed of $5,446.00.

New structure for roof solar panels and clear ceiling space - amount claimed $39,184.43 87The basis for this variation is found in annexure 36 to the first statement of Mr Sheppard lodged in the Tribunal on 2 August 2011 where it is stated that the structure was 'completely altered' so as to allow for the installation of a large solar array on the north face of the roof. 88The owners' expert Mr Sturgess has allowed $3,522.00 in connection with the strengthening of the roof for solar panels. Mr Sturgess's report concedes that this item was in his opinion a variation under the contract. Otherwise, Mr Sturgess points out that insofar as the builder refers to a cathedral ceiling, that was a requirement of the contract drawings. 89Mr Sturgess's allowance of $3,522.00 is not calculated by him, but is taken off a job costing from 'concrete slab to completion' under the carpentry trade and the heading 'Extra rafters to support solar panelling'. 90The dispute between the parties in connection with this item is therefore the calculation of the proper cost of the variation. 91Annexure 36 to the first statement of Mr Sheppard provides a detailed breakdown of the costs claimed by the builder. Costs are claimed for steel, scaffolding, crane hire, steel workers, labourer's costs, foreman's fees and builder's fees. 92I am not satisfied that Mr Sturgess's reliance upon a carpentry costing for 'Extra rafters to support solar panelling' is to be preferred to the builder's detailed breakdown of the costs involved in this work. Nor am I persuaded that the builder's breakdown of costs claimed as referred to in the preceding paragraph relates to its obligation to provide a cathedral ceiling. Mr Sturgess also raises doubts about the amount of $8,800.00 claimed in connection with scaffolding. Mr Sheppard does not address this issue in his Further statement. The owners have not sought the production of the invoice in question and on that basis I will make no finding adverse to the builder in connection with it. 93As with the preceding variation item, I prefer the valuation of the builder as it was more involved in the actual doing of the additional work and therefore in a better position to calculate the additional costs than Mr Sturgess. 94For these reasons, I will find for the builder in the amount claimed of $39,184.43.

New structure of walls to support new roof structure - amount claimed $9,139.23 95The basis for this variation is found in annexure 36 to the first statement of Mr Sheppard lodged in the Tribunal on 2 August 2011 where it is stated that the new design of the roof required the perimeter walls to be constructed of heavier materials with a perimeter beam. 96Mr Sturgess deals with this variation claim in his report. He states that he has seen no basis for the builder's assertion that walls needed to be strengthened to support the new design of the roof. He also points out that the engineer's drawing S6 shows a detail of a 'Typical Bracing Panel Elevation'. 97In reply, Mr Sheppard states that Mr Sturgess takes no account of cantilevered steel beams and heavier studs and ring beam to the wall. Mr Sheppard provides no explanation to support the builder's case that this was additional work to what was required by the engineer's drawing S6 and the detail referred to. 98On the evidence before the Tribunal on this variation claim, I am not satisfied that the builder has demonstrated that the work the subject of this claim was additional work, rather than work that it was required to execute in accordance with clause 1(a) of the contract. 99For these reasons, this variation claim is dismissed.

New stormwater line to Creek line - amount claimed $3,205.40 100This variation has been agreed by the owners. 101On this basis I will find for the builder in the amount claimed of $3,205.40

Re-design of Breezeway roof - amount claimed $5,351.00 102The basis for this variation is found in annexure 36 to the first statement of Mr Sheppard lodged in the Tribunal on 2 August 2011 where it is stated that on the request of the owners the structure of the breezeway roof was re-designed to eliminate structural posts being placed in the covered breezeway area. This request is said to have required extra work, materials and engineering drafting. 103Mr Sheppard deals with this claim at paragraphs 51 - 55 of his first statement. 104Mrs McAllery responds to theses paragraphs in paragraphs 54 - 56 of her statement of 6 December 2012. I am satisfied having read Mrs McAllery's statement that a change to the drawings was agreed, albeit at Mr Sheppard's suggestion, and that Mrs McAlley was aware of an increase in cost as a result of this change. 105Mr Sturgess states that in his opinion the value of this variation is 'nil' which I understand to mean that there would be no extra cost to the builder in doing the extra work, having regard to the work omitted and the new work. 106Mr Sturgess refers to the builder's 26 August 2008 email, as does Mrs McAllery where the builder states that that there will be a 'nil sum outcome'. 107On the evidence of Mr Sheppard and Mrs McAllery, I am satisfied that there was an agreement to vary the works. 108There is a dispute about whether carrying out the variation caused the builder to incur additional costs. 109On the evidence available, I prefer the contemporaneous evidence of the builder as contained in its 26 August 2008 email that there would be a 'nil sum outcome'. 110For this reason the builder's variation claim is dismissed.

Re-design of main roof eaves at western end - amount claimed $9,971.62 111The basis for this variation is found in annexure 36 to the first statement of Mr Sheppard lodged in the Tribunal on 2 August 2011 where it is stated that at the request of Mrs McAllery the detail of the roof at the western end of the building was extended and the roof of the breezeway was also extended. 112The owners' expert, Mr Sturgess agrees that this item is a variation. There is a dispute about the proper valuation of the variation. Mr Sturgess values the variation at $3,759.00. 113Mr Sturgess bases his valuation on the 'G' set of architectural drawings. I am satisfied that these drawings are referred to in the contract on the basis that the contract identifies these drawings by reference to 'File 8038'. Proceeding on the basis that the 'G' set of architectural drawings are the relevant drawings, which I find that they are ,Mr Sturgess has valued the variation off the drawings in the sum of $3,759.00. In my view, this is the preferable approach. 114Mr Sheppard has had the opportunity to respond to Mr Sturgess's valuation but has failed to do so in any meaningful way. Mr Austin comments that Mr Sturgess has not included a method 'of supporting the cantilever in the calculation'. Be that as it may, Mr Austin had the opportunity of providing a calculation for that if he thought it important, but he did not do so. 115I prefer Mr Sturgess's valuation of this variation. 116I will find in the builder's favour in connection with this variation in the sum of $3,759.00.

French doors - amount claimed $7,772.00 117The basis for this variation is found in annexure 36 to the first statement of Mr Sheppard lodged in the Tribunal on 2 August 2011 where it is stated that the doors of the new building were changed to 'French' doors using commercial grade aluminium components. In addition the fitting of the doors was stated to be more difficult than originally required. 118The owners' expert agrees that this item is a variation. There is a dispute about the proper valuation of the variation. The owner's expert values the variation at $1,859.55. 119The builder's valuation of this variation is $3,900.00 being the additional cost of French doors and $3,872.00 being the additional labour to install. 120Mr Sturgess's valuation of the variation proceeds upon his estimate of the supply price of the sliding doors. Mr Sturgess does not deal with the issue of the difficulty, or lack of, in installing the French doors. 121As with other variations, in this instance I prefer the valuation of the builder as it was more involved in the actual doing of the additional work and therefore in a better position to calculate the additional costs than Mr Sturgess. 122I will find in the builder's favour in connection with this variation in the sum of $7,772.00.

More expensive columns - amount claimed $7,672.00 123The basis for this variation is found in annexure 36 to the first statement of Mr Sheppard lodged in the Tribunal on 2 August 2011 where it is stated that the concrete columns were budgeted at a cost of $100.00 on the advice of Mr McAllery. The builder alleges that the actual costs increased. 124The owners' expert states that there should be a credit to the owners of $5,738.04. 125Mr Sturgess states that columns were always required on the architectural drawings which formed part of the contract. Sheets 3 and 4 of the architectural drawings clearly show the columns. The fact that the purchase of what is shown on a drawing proves to be more expensive than budgeted for does not make the supply of the item a variation. 126Moreover in a cost plus contract the cost will ordinarily be recoverable by the builder as work carried out, but not as a variation. 127I will dismiss this claim on the basis that the facts referred to by the builder do not establish that there was a variation to the works. It is therefore unnecessary in my view to consider whether or not there ought to be a credit valuation.

Stop work for Christmas - amount claimed $908.25 128The basis for this variation is that the owners required the site to be closed over the Christmas break. 129This strictly speaking is not a variation to the works under the contract. 130Recovery by a builder for time related issues is properly an issue dealt with under clause 11 of the contract, not as a variation. 131For these reasons, this variation claim is dismissed.

Stop work for holiday - amount claimed $4,541.24 132The basis for this variation is found in Mr Sheppard's first statement where he states that the owners required the builder to stop work while they were away on holiday in June and July. 133This strictly speaking is not a variation under the contract. 134As with the preceding variation claim, recovery by a builder for time related issues is properly an issue dealt with under clause 11 of the contract, not as a variation. 135For these reasons, this variation claim is dismissed.

Alterations to building level and concrete work to accommodate tennis court level - amount claimed $13,733.42 136The basis for this variation is found in paragraphs 74 - 97 of Mr Sheppard's first statement where he gives his account of the relevant facts. Annexure 36 of Mr Sheppard's first statement provides a breakdown of the amount claimed. 137Mr Sturgess on behalf of the owners offers no comments on the builder's valuation of this variation. 138Mr McAllery deals with the tennis court at paragraphs 31 - 40 of his statement. 139In addition, the owners rely on the evidence of Mr Barry Knipler whose statement is exhibit I. Mr Knipler whose evidence I accept stated that after the tennis court was completed, it was 120mm above the remainder of the building site. 140The basis for this variation is, as I understand it, that the tennis court was constructed above the slab level of the new building that the builder was constructing. The tennis court work was specifically excluded from the builder's contract. 141According to Mr McAllery it was agreed that the levels of the tennis court and the new building would be level. There is consensus on that. 142The difference in levels was brought to the owners' attention as stated by Mr Sheppard in paragraph 93 of his statement. Mr McAllery does not disagree with Mr Sheppard's account of the meeting except as to who used a particular expression, which in my view is irrelevant. 143In paragraphs 38 and 40 of his statement, Mr McAllery, in my view agrees that extra work was required to solve the issue which had been created by the tennis court having been constructed too high. 144In paragraph 35 (ii) of his statement Mr McAllery seems to suggest that the builder was responsible, at its own cost, for managing the different levels between the tennis court and the new building. 145In my view and I so find there was a need to increase the level of the new building as a result of the finished level of the tennis court being 120mm above the level of the new building. This in my view was a variation to the works being either the execution of additional work or the change in the levels of any part of the works, as provided for in clause 14 of the contract. 146The only evidence that there is of the value of the variation is in Annexure 36 of Mr Sheppard's first statement. This valuation of the variation is un-contradicted, except that Mr Sturgess says that it is unreasonable which I think applies to the claim, not the valuation. I will accept the builder's claim for a variation in the sum of $13,733.42.

Plaster setting of jamb linings to windows in place of timber jamb linings - amount claimed $1,800.00 147The basis for this variation is found in annexure 36 to the first statement of Mr Sheppard lodged in the Tribunal on 2 August 2011 where it is stated that at the request of Mr McAllery the internal window jamb linings were plastered and not finished with timber jamb linings and architraves. 148Annexure 36 states the cost of the variation to be $440.00 as extra carpentry. 149The owner's expert Mr Sturgess agrees that this item is a variation. He has valued it at $184.16. 150I prefer the detailed valuation of this variation as carried out by Mr Sturgess in preference to the undetailed valuation provided by the builder. 151For the reasons given, I will find in the builder's favour in the sum of $184.16

WC Portaloo hire - amount claimed $2,528.00 152The basis for this variation has not been made out. It appears to be that the builder expected to be able to use toilet facilities on site but was not permitted to do so by the owners. 153As a result the hire of a portaloo was necessary. 154I find that this claim is not a variation to the works. 155As Mr Sturgess states, an allowance would ordinarily be included in preliminaries. 156In the absence of an agreement between the owners and the builder whereby the builder was permitted to use toilet facilities on site and that permission was later withdrawn, I am of the view that there is no basis for this claim. 157For the reasons expressed, this variation claim is dismissed.

Steel round wire - amount claimed $2,562.73 158The owners' expert concedes this variation and the cost claimed by the builder.

Inclement weather - amount claimed $908.25 159The basis for this variation is inclement weather affecting completion. 160This strictly speaking is not a variation under the contract. 161Recovery by a builder for time related issues is properly an issue dealt with under clause 11 of the contract, not as a variation. 162For these reasons, this variation claim is dismissed 163Having regard to my findings above, the builder's variation claim may be summarized as follows: Item No. Extra Work Amount found 1 Engineer's requirements wall and footings $Nil 2 Alterations to stair design $Nil 3 Larger footings for future sandstone wall $5,446.00 4 New structure for roof solar panels and clear ceiling space $39,184.43 5 New structure of walls to support new roof structure $Nil 6 New stormwater line to Creek line $3,205.40 7 Re-design of Breezeway roof $Nil 8 Re-design of main roof eaves at western end $3,759.00 9 French doors $7,772.00 10 More expensive columns $Nil 11 Stop work for Christmas $Nil 12 Stop work for holiday $Nil 13 Alterations to building level and concrete work to accommodate tennis court level $13,733.42 14 Plaster setting of jamb linings to windows in place of timber jamb linings $184.16 15 WC Portaloo hire $Nil 16 Steel round wire $2,562.73 17 Inclement weather $Nil Total $75,847.14

164I find that the builder is entitled to the sum of $75,847.14 on its variations claim.

Costs 165The parties have leave to make a costs application in relation to these proceedings. 166Any costs application must be lodged in the Tribunal and served on the costs respondent within 21 days of the date of this order either attaching or referring to the documents relied upon in support of the application. 167The costs respondent will have 21 days after the date it receives the application referred to above to lodge in the Tribunal and serve on the costs applicant its submissions, if any, in response to the cost applicant's costs application, such submissions either attaching or referring to the documents relied upon. 168The cost applicant will have 14 days after the date it receives the cost respondent's submissions to lodge in the Tribunal and serve on the costs respondent its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon. 169The Tribunal will determine any costs application on the basis of the submissions and attached documents lodged in the Tribunal. D Goldstein Senior Member Civil and Administrative Tribunal of New South Wales 24 June 2014

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2014