Carbone v Fowler Homes Pty Ltd

District Court of NSW|2022-11-21|Before: Mr P

Introduction

These proceedings involve a dispute arising out of contract to construct two duplex homes at Oran Park.
There are in fact sets of two proceedings which were heard together, with an order that evidence in one proceeding be evidence in the other.
The plaintiff in each case is the client of the builder, which is the defendant. The two plaintiffs are father and son.
As the building works approached completion, the parties fell into dispute about the state of accounts between them on each building contract. The plaintiff's alleged that they had overpaid the builder and sought repayment of the alleged overpayment. The builder on the other hand said that the plaintiffs had underpaid, that is to say that the defendant builder was still owed money on each contract. Based on that assertion the builder refused to grant access to the duplexes.
Both sets of proceedings were commenced in the Supreme Court, with the primary relief sought being an order for specific performance of the building contracts. The parties resolved that aspect of their dispute by a commercial compromise entered into, on a without admissions basis, pursuant to which the builder agreed to finalise the works, and give possession to the plaintiffs.
This sensible commercial approach to the specific performance aspect of the litigation unfortunately did not extend to the balance of the proceedings, that is to say to the resolution of the issue of who owed what to whom. As on any view of it, the sums in dispute were comfortably within the monetary jurisdiction of this Court and the matter was transferred by the Supreme Court to this Court.
I should also add that the builder has not cross claimed in order to recover what he alleges the plaintiffs owe him. As such the only disputes remaining for resolution involve the plaintiffs' case.
When the matter was called on before me the parties opened on the basis that there were several major points of disagreement between them which required resolution by me, and that once I had resolved those major points the balance of the disagreement between them was basically a matter of accounting only (TP 17.5 - 25)

The Major Issues

The major points requiring resolution as identified by the parties were: 1. how payments of $30,000 made by each plaintiff to Camden Council in respect of section 94 contributions were to be dealt with in the accounting between the plaintiffs and defendant ("the Camden Council Issue"); 2. whether the plaintiff Giuseppe Carbone made a cash payment to the defendant in the sum of $60,000 which needed to be brought into account in the accounting between the parties ("the Cash Payment Issue"); 3. whether the plaintiffs are entitled to damages against the defendant on account of rent which was forgone, in the period between when they say they should have been given possession of the duplexes, and when they in fact were given possession ("the Rent Issue").
Unfortunately, in final submissions both parties relied on what were in effect evidentiary summary documents summarising documents in evidence which suggested that there were still remaining disputes between them, independent of the major points to which I have just referred. These disputes seemed to be matters of accounting.
In these reasons I shall determine the Major Points and shall direct parties to bring in short minutes of order which reflect my reasons. If the parties thereafter continue to remain in dispute about the accounting between them, I shall appoint a referee to inquire into and report to the Court on the proper accounting between the parties on each building contract, in the light of my reasons.

The Pleadings

It is necessary to analyse the pleadings.
The Statement of Claim pleads that the building contracts in each case provided for various adjustments to the contract price arising out of variations (see [5] - [7]).
The pleader then pleads the self same variation credits as being represented by the defendant to be allowable to the plaintiffs in their favour. These are defined as the "Credit Representations". The Statement of Claim then pleads reliance on the "Credit Representations". After pleading that the Credit Representations were made in trade and commerce, the Statement of Claim alleges that the Credit Representations were misleading and deceptive pursuant to the provisions of s 18 of the Australian Consumer Law [12]. The pleading continues that in the premises the defendant is estopped from denying the variation credits in their favour, and is estopped from exercising contractual rights in relation to them [13].
The pleading also alleges that the defendant should be restrained from exercising contractual rights pursuant to s 232 of the Australian Consumer Law [13(iii)].
The pleading then reverts to pleading further variations some of which the plaintiff says were signed, some unsigned.
The Statement of Claim then pleads amounts paid by each plaintiff to the defendant on account of progress payments. In both proceedings the plaintiffs include the sum of $30,000 paid to Camden Council the subject of the Camden Council Issue, and in respect of Giuseppe Carbone the $60,000 allegedly paid in cash [19].
The pleading then at paragraph 22 alleges an overpayment by each plaintiff. The Statement of Claim then proceeds to plead that the defendant had refused to repay the overpayment as a result of which each plaintiff suffered loss and damage being the alleged over payment ([24]-[25]).
Importantly, the loss and damage claimed does not include a claim for forgone rent.
The overpayment case is not pleaded as a claim in contract. It is quite unclear from the pleading to date, what the jurisdictional basis of the plaintiff's claim in respect of the overpayment. Logically one would have thought that the claim in respect of alleged overpayments arises out of a claim for monies had and received, which indeed is what the pleading goes on to separately plead (see [27 - 31]).
The pleading then pleads: 1. In respect of the plaintiff Giuseppe Carbone, the failure of the defendant to credit to the sum of $59,543 which it says was reflected in a receipt issued by the defendant. 2. In respect of the same plaintiff the failure of the defendant to credit to the plaintiff in the sum of $60,000 said to be paid in cash. 3. The defendant's assertion that it was owed a substantial sum by the plaintiff. 4. The defendants refusal to complete the construction and give the plaintiff's possession; and 5. The defendants purported termination of the Building Contract.
These matters were defined as "The Conduct".
The Statement of Claim then pleads that The Conduct, constitutes unconscientious dealing by the defendant within the meaning of s 20 and 21 of the Australian Consumer Law [33] - [52].
The $60,000 cash payment allegation is obviously not pleaded by the plaintiff Matthew Carbone, but unconscionable conduct is pleaded by both defendants. The pleading in each case then pleads that both defendants have suffered loss and damage by dint of the unconscionable conduct of the defendant.
Giuseppe Carbone also pleads deceit in respect of the $60,000 alleged cash payment.
Both claim damages which includes the rent claim. It is important to note however that the rent claim is only made in the case of Giuseppe Carbone, as arising from the unconscionable conduct claim, and the deceit claim. The plaintiff Matthew Carbone seeks to recover the rent claim as arising solely from the unconscionable conduct claim.
In final submissions I drew this fact to the attention of Mr Barham of Counsel, who appeared for the defendant, who had been submitting that his clients are entitled to the rent claim on the basis of a breach of contract. I indicated to him that I did not believe that his submission could be made out on the pleadings. After debate between Bench and Bar, Mr Barham sought, and was granted a short adjournment, in order to allow him to take instructions as to whether he wished to seek leave to amend the Statement of Claim. After that short adjournment Mr Barham advised that he did not wish to seek leave to amend.
Finally, I should add that both plaintiffs claim exemplary damages.

The Camden Council Issue

I shall turn now to the Camden Council Issue.
It is common ground that each plaintiff drew cheques payable to Camden Council in the sum of $30,000 and paid that sum to the Council on account of s 94, contributions. They claim that they are entitled to a credit in the accounting between them and the defendant in respect of that sum, or alternatively in the sum of $20,000, which entitlement they submit arises pursuant to the terms of the Building Contract.
It is necessary therefore to analyse the Building Contract.

The Building Contract

The Building Contract in each case is a standard form fixed price New South Wales Residential Building Contract for New Dwellings. In its schedule 1 Particulars of Contract item 13 provides for a builder's margin of 20% (DX 6 p.8). Pursuant to schedule 5 of the contract certain other documents form part of contract between the parties. Relevantly these documents include the New Home Tender (DX 6 p.11).
Schedule 7 of the General Conditions makes provision for detailed provisional sums to be included, but none were included in schedule 7 in either contract.
Special Condition 14(c) of the Special Conditions defines "provisional allowance" to mean provisional sum as described in clause 20 (Exhibit DX6 p.16). In Clause 1 of the General Conditions "provisional sum item" is defined as: "an item of work (including labour and materials) which cannot be costed exactly at the time that the contract is entered into and for which the builder has made allowance in the contract price." (DX 6 p.22)
The marginal note to this definition refers the reader to clause 20 of the General Conditions. Clause 20 which is headed "Prime Lost and Provisional Sum Items" is of importance to the proceedings. Clauses 20.5 and 20.6 are in the following terms: "20.5 Each provisional sum item must have an allowance stated next to it. The allowance is the estimated price of providing work and does not include an amount for the for the builder's margin 20.6 In relation to each prime cost item and provisional sum item, if the actual price is: (a) less than the allowance, the difference is deducted from the contracted price (b) more than the allowance, the total of the difference and the builders margin applied to that difference is added to the contract price. " (my emphasis) (DX 6 p.30)
It is important to note the mandatory nature of the requirements in Clause 20.5. The clause requires that each individual provisional sum item must have a provisional allowance noted next to it. This is readily understandable as such precision, is essential in order for there to be a proper accounting for the provisional sum, as provided for in clause 20.6
The plaintiffs rely on the New Home Tender (DX 6 page 44 and following) to found its claim in respect of the Camden Council payments. Clause 34 of the New Home Tender is in the following terms: "34 Provide a Provisional Allowance for the following: Anything in relation to Strata Title or Sub-division preparation. Any Levies or Section 94 contributions & or Bonds required by Local Authority. Any contributions or additional fees required by Water Board, Electricity Authority, Telecommunication Authority or any other relevant Authority. Registration of linen plan at land titles office Double handling of materials and work (due to inaccessibility of delivery and work vehicles to site). Underground boring Any covenants or bonds required to allow release of linen plan prior to completion of development. Any legal fees. Development Application, Building Application and associated conditions and costs. Workers Executed Survey if required for stormwater. No Allowance for stormwater, sewer or electrical & Telstra connections outside boundary lines. No Allowance to upgrade existing sewer function. No Allowance for additional sewer junction if required. No Allowance for sewer main extension Section 73 fees or approval Energising of the electrical meters & power connection to the electricity network Note: This is only a Provisional Allowance requested by the owner." (DX 6 p.47)
Adjacent to the chapeau of clause 34 is following "$20,000 provisional".
It can be seen therefore that clause 34 lists 16 items of which the s 94 contribution is but a part. Crucially there is no provisional sum value attributed to any of the 16 described items, as is required by clause 20.5 of the Building Contract. As I have earlier indicated, the requirement for specificity as to individual items of provisional allowance nature is mandatory under that clause. On the contrary, far from there being specificity as to the amount attributable to each of the 16 items referred to in paragraph 34, the provisional allowance mentioned in respect of them is grossed up figure of $20,000, which itself is described as provisional, and which is noted at the foot of clause 34 as being "only a provisional allowance as requested by the owner".
In my view, it would not be unfair to say therefore that the grossed up figure of $20,000 is an estimate of the provisional sum, for a range of potential provisional sum items.
The plaintiff in each case says that as they have paid $30,000 to Camden Council on account of s 94 contributions, they are entitled either to that sum or the sum of $20,000 (being grossed up provisional allowance) credited to their benefit in the accounting between the parties.
This claim, in my view, is based on an incorrect analysis of the Building Contract.
In my opinion, the provisional sum allowance for the s 94 contributions never entered the contract between the parties. I take this view as there was never a monetary allowance attributed specifically to it, being an allowance which was the estimated price of providing the service as required by clause 20.5 of the contract.
The conclusion that the s 94 contributions never formed part of the Building Contract in my view is clear, as what I have referred to as a grossed up provisional allowance of $20,000 in clause 34 of the New Home Tender could never be dealt with under the procedures set forth in clause 20.6 of the contract. This is so as there is no specific provisional allowance sum to which the s 94 payment could be attributed, as was the mandatory requirement under clause 20.5.
In my view, the plaintiffs paid the s 94 contributions to Camden Council directly, and outside of the confines of the Building Contract. The builder played no part in this, and certainly did not apply a 20% builder's margin to it, which would have been his entitlement had the payment been made within the four corners of the Contract.
As such the plaintiffs are not entitled to a credit in the accounting between them and the defendant in respect of the Camden Council payment.

The $60,000 Cash Payment

Giuseppe Carbone says that he paid to Mr Frank Grippaudo, the Chief Executive of the defendant, the sum of $60,000 in cash. Mr Grippaudo denies that such payment was ever made. The plaintiff Giuseppe Carbone alleges that the refusal of the defendant to acknowledge the receipt of the $60,000 in cash constitutes the tort of deceit. He also forms part of his unconscionable conduct claim.
Giuseppe Carbone accepts that this allegation is an allegation of dishonesty (TP 246.14-25) and that as a consequence he is required to prove the allegation to the standard as discussed by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, and as further explained by the court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.
The strength of evidence required in cases of dishonesty have been variously described as "clear" or "cogent".
The reasons for this approach is "as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct" (Neat at [2]). As such a court should not lightly make a finding on the balance of probabilities, that parties to civil litigation have engaged in such conduct (Neat at [2]).
In his affidavit dated 3 November 2021, Giuseppe Carbone says that in July 2018 he had a conversation with Mr Grippaudo in which they discussed the defendant giving the plaintiff credit on the subject contract, for concreting works done by the plaintiffs on another job. This was agreed. He then alleges that in a completely unrelated way he then said to Grippaudo "would you like some liquid funds? I'm thinking about $60,000" to which he alleges Grippaudo said "yeah that will help me out". Then Carbone alleges that he said, "well let me know next week and I'll arrange the money for you so you can pick it up but I'll still need a receipt for it because I need to show the bank that I paid the deposit" [33].
He says that a few days later Mr Grippaudo came to his house and he gave him $60,000 in cash in a Woolworths shopping bag.
Mr Grippaudo denies this.
Mr Carbone goes on to claim that he obtained a receipt from the defendant. However, the document which Mr Carbone claims was a receipt for the $60,000 in cash, was not in fact a receipt for $60,000, but rather was a receipt for the sum of $59,963.95 referable to a payment that was required to be made by Mr Carbone to the defendant in respect of framework (PX1 p.651).
In his affidavit in reply, Mr Carbone revisits the issue of the cash payment and in so doing gives a somewhat different version of the initial conversation regarding the payment. He says that the conversation in fact occurred in April 2017 and was in the following terms: "FRANK: How did you keep your kids when you went through a divorce? ME: It cost me a shitload of money. My lawyers and barrister cost me a lot but I forked it out. Hold onto the reigns because it's going to cost you a shitload of money if you go down that road. Frank and I continued to speak generally about divorce. We then had a conversation to the following effect. ME: I want to pay portion of my job in cash. FRANK: Okay, how much are you talking? ME: I can do 100k FRANK: It's too much but I'll take 60k Tommy was initially present but he left before Frank changed the conversation to divorce and the cash contribution." (See affidavit of Giuseppe Carbone dated 8 November 2022 [25])
Mr Grippaudo also denies this conversation.
Mr Grippaudo says that occasionally the defendant's clients do make payment in cash, however, he says that this occurs only on limited occasions, and when this occurs, it occurs in denominations much less than $60,000. He says that in respect of such payments he tells his clients that their cash payment will be banked, and recorded in the defendant's accounting system, so as to ensure that the defendant's accounts reconcile for audit purposes. This he went on to say was essential to ensure the defendant's continuing access to Home Owner Warranty Insurance. He says that he would never do anything to imperil the defendant's statutory insurance. He said that any failure to bank and record a receipt of the $60,000 cash would imperil the defendant's statutory Home Owner Warranty Insurance.
As to the document acknowledging receipt of payment in sum of $59,963.95. Mr Grippaudo says that it was provided to Mr Carbone in good faith after Carbone assured him that he had paid this sum to the defendant's bank account, on account of framework. At this stage the defendant's bank records had yet to show the payment as a credit in their account. Mr Grippaudo said he issued the receipt because Mr Carbone said it was necessary for him to have the receipt as a matter of urgency. The urgency he explained arose from the fact that it was required to be provided to his bankers for the duplex development, in order for them to authorise a progress payment.
Mr Grippaudo says that the sum of $59,963.95 in fact was never received by the defendant. In short, he says he was duped by Mr Carbone into providing a receipt on the false representation that he in fact paid the money, which had yet to become recorded in the defendant's bank account statements.

Credit

Self-evidently credit plays a large role in determining the $60,000 cash issue.

Mr Giuseppe Carbone's Credit

As to Mr Carbone, I found him to be a most unsatisfactory witness. He was combative, aggressive, and frequently obfuscated in refusing to answer straightforward questions in a straightforward manner. I considered that he was using his time in the witness box as an opportunity to advocate his cause, rather than as an opportunity to assist the court with truthful evidence.
To give but some examples of what I considered to be the inadequacy of Mr Carbone's evidence is the fact of the discrepancy between his evidence in chief that he offered $60,000 to Mr Grippaudo whereas in in his affidavit in reply he says that he offered him $100,000.
Carbone also alleges that he factored in the payment of $60,000 as being part of the contract price, which had the effect that he needed to borrow less money from his bankers RAMS. The problem with this assertion is the dates do not align with the allegation. Mr Carbone could not have factored in the payment of $60,000, or even $100,000 as part of the building contract, as it was at the time he was arranging finance with RAMS, and at that time it was not clear that Mr Grippaudo would accept the money, and if so in what denomination. As such one is drawn to ask rhetorically how such a payment could have been factored into the calculations about the money that he would be required to borrow from the bank?
Another example is the fact that variations were signed on Mr Giuseppe Carbone's behalf by his son Matthew, and it was not until affidavits were put on that Mr Giuseppe Carbone ever placed in doubt his son's authority to deal with variation documents on his behalf with the defendant. There is also no example of Mr Carbone complaining in writing to the defendant about the lack of authority of his son to deal with them on his behalf, and asking the defendant to desist from conducting itself in such a manner.

Mr Grippaudo's Credit

By way of stark contrast, I found Mr Grippaudo to be an impressive witness. I have no hesitation in accepting him as a witness of truth. He gave his evidence in a measured way and was prepared to make concessions where appropriate.
I have no hesitation in accepting the evidence of Mr Grippaudo over that of Mr Giuseppe Carbone.
I should add however that I have not decided the $60,000 issue solely on the basis of my assessment of the demeanour of the respective witnesses. Rather I have also formed my view as to their credit by reference to the inherent probabilities and the objective facts.
I consider that Mr Carbone's first version of the initial cash conversation to be inherently unlikely, coming as it did "out of the blue", by which I mean to say that the conversation came apropos of anything which went before it. I find that the second iteration of the conversation involving an offer of $100,000 in cash to be even less likely.
I also find it inherently unlikely that a conversation of the type deposed to by Giuseppe Carbone would not make explicit reference as to whether the payment was a loan to Mr Grippaudo, in his personal capacity, or a payment to the defendant. I consider that it is inherently unlikely that Mr Carbone did not make clear arrangements as to repayment of the alleged cash payment, if it was a loan to Mr Grippaudo personally, or by way of crediting the account between the defendant and Mr Carbone, if it was an advance to the defendant.
I also find it inherently unlikely that Mr Giuseppe Carbone would not require an immediate receipt from Mr Grippaudo, even if the receipt was of an informal hand written nature.
I also consider Mr Giuseppe Carbone's evidence as to the $59,963.95 receipt to be inherently implausible. If the document was truly a document evidencing the receipt of $60,000 one is left to ask rhetorically, why does it refer to a different and lesser sum? I accept Mr Grippaudo's evidence in relation to this receipt.
I also consider that the evidence of Mr Carbone that the monies paid were the product of gambling winnings to be unlikely. Mr Carbone gave evidence that he was a "High Roller" client of various casinos. Yet, he made no effort to prove this fact. He produced no documents evidencing his High Roller status, nor did he produce documents evidencing receipt of large sums of money from those casinos. Such documents must have existed at least at some stage yet they were not tendered, nor was the reason to their absence proved. Mr Carbone's attempts to prove the winnings by mobile phone photos of certain unidentified poker machines was, in my view, derisory (PX1 p.730-735).
In addition, Mr Carbone explained that his status "high roller" at various casinos was achieved and maintained by gambling turnover. He said he gambled almost exclusively on poker machines (TP 95.40). It is a notorious fact that poker machines are set to deliver a percentage profit to the House over time, or put another way to deliver a percentage loss to the player over time correspondingly. As such if Mr Carbone truly did obtain and maintained his high roller status by high roller turnover on poker machines, he must by definition have lost the amount of the House's percentage consistently over time.
In short, I consider the explanation that the cash gambling winnings were available to fund the cash advances to be untrue.
In Watson v Foxman (1995) 49 NSWLR 315, McClelland CJ in Eq explained the requisite satisfaction of proof required in judicial decision making of this nature in the following terms: "Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding.': Helton v Allen (1940) 63CLR 691 at 712."
Mr Carbone has not satisfied me to the point of "actual persuasion" that he advanced $60,000 in cash to the defendant as he alleges.
In summary, therefore for all of these reasons I reject Giuseppe Carbone's evidence in relation to the $60,000 issue. I have no hesitation in concluding that the evidence in support of Mr Carbone's case in relation to this issue did not even begin to approach the level of clarity and cogency required by application of the principles in Briginshaw v Briginshaw.

The Rent Issue

As I have attempted to explain in my analysis of the pleadings, the rent claim is pleaded as being casually linked to both of the plaintiffs' claims in unconscionable conduct, and in the case of the plaintiff, Giuseppe Carbone his deceit claim.
As to the latter I have concluded that the payment of $60,000 upon which the deceit claim is based never occurred. Accordingly, the deceit case must fail.
As to the unconscionable conduct claim, the plaintiffs both put on substantial written submissions both in chief and in reply. In addition, their counsel addressed orally in relation to those submissions at some length. The proposition that the defendant's conduct constituted unconscionable conduct as pleaded in paragraphs 32-51 of Mr Giuseppe Carbone's State of Claim, was never in reality advanced by the plaintiffs. In my view, it was appropriate for Counsel not to address on the issue of unconscionability, as the evidence could not possibly support any suggestion that the defendant engaged in any unconscionable conduct, as pleaded in the plaintiffs' respective Statements of Claim, or at all.
The unconscionable conduct claims must fail.
As the rent claim is based solely on the deceit claim and the unconscionability claim which have both failed, there is no juristic basis for the rent claim on the plaintiff's pleaded case, and thus there is no need to further consider the rent claim.
Mr Barham of counsel however maintained at the rent claim could be available on the pleading on the basis of a case in breach of contract. I do not accept that this is the case. As I have earlier indicated, Mr Barham declined to make an application for leave to amend the pleading to make clear a nexus between the rent claim and the alleged breach of contract case. In fact, I do not believe that there is a pleaded case in contract. The plaintiff's case in relation to the alleged overpayment, in my view, is one in monies had and received, as the plaintiffs in each case ultimately plead.
I should however add, that in any event, in my view there was no evidence, or no adequate evidence, to prove any loss amounting to the rent claim.
The plaintiff sought to rely upon an affidavit of Nick Alexopoulos, a real estate agent, as to the rental value of the duplexes. I rejected this evidence as being inadmissible on the basis of principle set forth in Makita v Sproules (2001) 52 NSWLR 705.
In the face of the rejection of the expert evidence the plaintiffs tendered three lease agreements apparently referable to the duplexes. One was dated 4 May 2021, another dated 7 May 2021 the third dated 20 April 2021 (see exhibits PX2 to PX5).
In my view, this evidence was wholly inadequate to prove the loss to found the rent claim. There was no evidence for example that the leases were at arm's length. There is no evidence that the rents reflected market value, nor was there evidence as to whether there had been rental market movements in the period prior to or since the commencement of the leases.
In the face of the rejection of the expert rental value evidence, the plaintiffs relied upon the well-known statement in the High Court in Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 to the effect that difficulty in estimating damages does not relieve the court of its obligation to estimate loss as best it can [83].
The plaintiff then went on to submit that in the absence of their expert evidence, the court should simply do its best to fill the evidentiary gap which was left by the defendant's successful objection.
I do not consider this to be the correct approach. I take this view as in my opinion what Mason CJ and Dawson J said in Amann concerned situations where damages were difficult to assess. This is not such a case. In this case losses flowing from the allegedly foregone rent was relatively easy to prove. Indeed, valuation evidence is given routinely in the courts of this State on a daily basis.
The plaintiffs alleged rent loss was not difficult to assess, however, the plaintiffs simply declined to prove it.
In my view, there is a line of authority more apposite to the facts in this case than Amann.
In Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 319, Pincus J noted that "if the evidence called by the plaintiff fails to provide any rational foundation for a proper estimate of damages the court should simply decline to make one."
The approach of Pincus J was approved by Brooking J in JLW (Vic) Pty Ltd v Tsiligou [1944] 1 VR 237 at 243. It was also endorsed by the Court of Appeal in Troulis v Vamvoukalis [1998] NSWCA 237 where Gleeson CJ observed that, where damages were susceptible of evidentiary proof but there was an absence of raw material to which good sense may be applied, "justice does not indicate that… a figure should be plucked out of the air". (See also in Re. Waterfront Investment Group Pty Ltd (2015) 105 ACSR 280 at [44] per Black J.)
The issue was also considered by the Court of Appeal in McCrohon v Harith [2010] NSWCA 67. In that case McColl JA, with whom Campbell and Handley JJA agreed, quoted with approval the dicta of Devlin J in Biggin & Co Ltd v Permanite Ltd [1951] 1 KB 422 at 438 where his Honour stated "where precise evidence is obtainable, the court naturally expects to have it. Where it is not, court must do the best can."
In State of New South Wales v Moss (2000) NSWLR 536 after citing Devlin J's statement, to which I have just referred, with evident approval, Hayden JA added: "As MacPherson J said in Nilon v Bezzina [1998] 2 Qld R 420 at 494, "the degree of precision with which damages are to be proved is proportionate to the proof reasonably available"
His Honour also referred to the decision of Bowen LJ in Ratcliffe v Evans [1892] 2 QB 524 at 532-3 where his Lordship stated "as much certainty and particularity must be insisted on … in … proof of damage, as is reasonable, having regard to the circumstances and the nature of the acts themselves by which damage is done."
In my view the plaintiff has not attempted to establish the value of rental income foregone, with anything approaching the degree of precision commensurate with their capacity to do so. As I have indicate, the task was a tolerably simple one. They eschewed that task, reliant upon expert evidence of rental value which predictably did not survive objection.
I am of the opinion that in the circumstances of this case, Plaintiffs have simply failed to establish their loss, and the court should not be left to "pluck a figure out of the air" to use the expression of Gleeson CJ in Troulis. This in reality is what the plaintiffs' invite the court to do.
I decline that invitation.

Exemplary Damages

Finally, in relation to the plaintiffs' claims for exemplary damages, it is sufficient to say that there is no conceivable basis for a finding of exemplary damages. This was a commercial dispute between parties both experienced in the field of residential construction. The parties however had differing views on the proper accounting between them and they maintained their conflicting positions in a usual litigious manner. There cannot be a conceivable basis for the award of exemplary damages.

Conclusion

In summary, I find that: 1. in respect of each plaintiff neither is entitled to a credit in the accounting between them and the defendant in respect of the sum of $30,000 paid by them to Camden Council; 2. the plaintiff Giuseppe Carbone did not make a cash payment of $60,000 to the defendant; 3. that neither plaintiff is entitled to damages on account of foregone rent.
I direct the parties to bring in short minutes of order which reflect these findings.
In the event that the parties cannot agree on such short minutes of order and there remains dispute as to whether the defendant is indebted to the plaintiff in each case, and if so the quantum of the debt. I direct the parties to confer with a view to agreeing on an appropriate chartered accountant, with building industry experience, who is prepared to accept an appointment as a referee to determine these questions for them pursuant to the UCPR 20.15.
I stand the proceedings over for mention only before me at 10:00am on 24 February 2023.
I grant the parties liberty to apply on 72 hours' notice.
Costs are reserved

Amendments 24 April 2023 - Title 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: 24 April 2023

Australian Consumer Law Environmental Planning and Assessment Act 1979(NSW)

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