Charles George Roth v Secret Gardens of Sydney Pty Ltd

6One of the tasks undertaken by Secret Gardens was the installation of a front gate to the property. A drawing of the proposed gate was supplied to Mr Roth, which he accepted. That drawing indicated some proposed dimensions, but was expressed to be "for design guidance only." In the drawing the proposed gate appears to be flush with the ground and with the supporting post which would hold its locking mechanism. 7In the cross-claim Mr Roth complained that the gate which was installed was not flush with the footpath and that there was "an unacceptable gap" between it and the post holding the locking mechanism. Clearly, for the gate to operate there had to be some gap between the bottom of it and the footpath, on the one hand, and between the side of it and the support post, on the other. The foundation of the complaint identified by Mr Roth was that, in this respect, the installed gate did not conform with the drawing. What it was he found unacceptable about those gaps did not emerge in the evidence. In a Scott Schedule $3,069.00 was claimed for rectification of the gate. 8For Secret Gardens, the effect of Mr Cantwell's evidence was that the drawing was indicative only and was not intended to convey the precise dimensions of the gate. He said that Mr Roth did not specify any dimensions, his only requirement being that the gate was effective to contain their dog, a golden retriever. It was not suggested that the gate did not meet that requirement. 9The magistrate disposed of this aspect of the cross-claim in her reasons as follows: "As regards the front gate ... there are no quotations in evidence to support the cost of rectification work even though a sum of $3,069.00 is claimed in the Scott Schedule ... . Mr Glass does not refer to the front gate in his report and it is not referred to in the evidence of Brigitte Friedman as being a problem. Secret Gardens denies that any rectification works are required and again these claims must fail." 10Ground 1 complains that in dismissing this aspect of the cross-claim her Honour failed to have regard to the evidence upon which it was founded, that is, the evidence of Mr Roth. Mr Zipser argued that the matter could not be disposed of simply by observing that Ms Friedman and the expert, Mr Glass said nothing about it. He argued that, in any event, the suitability of the gate was not a matter within the expertise of Mr Glass. 11At this stage I should refer to the proposed additional ground, ground 7. That ground raises two issues, the first of them being relevant to the gate. It complains that her Honour failed to deal with the issue raised by par 2(i) of the defence. In that sub-paragraph, Mr Roth denied that Secret Gardens had "performed its obligations" under the contract between the parties. Mr Zipser's submission was that a party "that provides goods or services under a contract is only entitled to payment if it provides those goods or services." As Secret Gardens had not supplied the gate in accordance with the drawing, it had not performed that obligation under the contract. 12As I have said, Mr Bonanno opposed my granting leave to Mr Roth to file the amended summons adding ground 7, because it was sought to do so at such a late stage of the proceedings and after the expiry of a timetable set for the filing of evidence and submissions. However, it does not appear to me that this aspect of ground 7 adds anything of significance to ground 1, and Mr Bonanno was able to deal with it. In the event, no injustice is caused to Secret Gardens by my considering this ground and I propose to do so. 13Her Honour's reasons concerning the issue of the gate are perhaps somewhat laconic. However, she noted that Secret Gardens denied that any rectification works were required. In context, Mr Bonanno argued, this conveys that her Honour accepted Mr Cantwell's evidence about the gate. Her Honour's observation that Ms Friedman gave no evidence about the matter should be understood in the same context. Whether the suitability of the gate was within the expertise of Mr Glass is not a matter I find it necessary to decide. 14As to the claim for $3,069.00 in the Scott Schedule, Mr Zipser relied upon Secret Gardens' final quotation for the gate. Putting aside an amount for the installation of an intercom system, that quotation yielded a figure of $2,790.00. The addition of 10% for GST, he added, produces the figure claimed, $3,069.00. If this be so, it seems that Mr Roth was claiming that the gate should be replaced. However, I was not taken to any part of the Local Court material which shows that the claim was articulated to her Honour in that way. 15Nor was I taken to any evidence of the size of the gaps of which Mr Roth complained. As I have said, and as Mr Zipser acknowledged, the evidence is silent as to why Mr Roth found those gaps unacceptable. In truth, it appears to me that there was no substance in this aspect of the cross-claim. In my view, that is the effect of her Honour's reasons in disposing of it and I see no error in her approach. Ground 1 and, insofar as it bears upon this matter, ground 7 are without merit.

16Mr Roth and his wife were concerned that neighbours in an adjoining block of flats could see into their property, and Mr Cantwell was instructed to provide a screen of "very established plants" in the relevant area of the property so that they would have "immediate privacy." To that end Raphis palms were planted. However, over the ensuing months the leaves discoloured, some leaves dropped, and their foliage thinned out so that neighbours could again see into the property. 17As I understand it, they were planted in May 2008. In an e-mail to Mr Cantwell of 5 November 2008, Mr Roth complained about their condition at that time. He noted that they were purchased as a screen on Mr Cantwell's recommendation and that "whilst they performed their function at time of planting, have not for some time due to deterioration." Mr Roth expressed the view that they should have been replaced. Apparently, discussion about the matter ensued. In an e-mail to Mr Roth of 4 December 2008, Mr Cantwell agreed that the plants had "endured a setback", but expressed the view that they were the right selection and that they "will come good." He undertook to maintain their care over a period and, if that was unsuccessful, to replace them. A Secret Gardens maintenance report, apparently prepared by an employee of the company and, curiously, also dated 4 December 2008, noted that "the Raphis palms are finally settling in to their new home." 18When the palms were planted they were already advanced in growth, so as to provide the screen which was sought. In his report the expert, Mr Glass, explained that the deterioration of the palms was the likely result of their being transplanted from the pots in which they were growing in the nursery, to which they were acclimatised, to "a garden situation where there is the potential for conditions to be somewhat less than what they had become accustomed to." However, he accepted that the palms were appropriate for the situation and, when he inspected the site in October 2009, he observed that they displayed new growth which appeared "healthy and vigorous." In oral evidence, he said that he would not replace them because it might not be possible to get Raphis palms of the size they currently were and "they've now adapted." 19In the amended cross-claim which was before her Honour for the purpose of the proceedings, Mr Roth pleaded that the planting of the palms was "of poor quality and apparently inappropriate for the position" in which they were planted, and that they needed to be replaced. It was alleged that some weeks after they were planted they commenced to deteriorate and continued to do so over the months thereafter. At the commencement of the hearing in the Local Court, Mr Roth sought to file a further amended cross-claim, in which it was alleged that the palms failed to meet the requirement of cl 10.1(b) of the contract between the parties, whereby Secret Gardens warranted that all materials supplied would be "good and suitable for the purpose for which they are used ...". Her Honour refused to allow that cross-claim to be filed at that late stage (and that ruling has not been challenged in this appeal). 20Nevertheless, in her judgment her Honour dealt with this aspect of the matter under a sub-heading which referred to an alleged breach of "the Construction Contract (Clause 10)". Mr Bonanno raised this issue in argument before me, but it was accepted that the effect of the earlier cross-claim was to raise the issue of the fitness of the palms for the purpose for which they were required, even though the term of the contract was not pleaded. 21Under this sub-heading, her Honour dealt with complaints about a variety of plants supplied by Secret Gardens, not just the Raphis palms. Speaking of the plantings generally, she observed that Mr Roth relied heavily on the report and evidence of Mr Glass to substantiate this aspect of the cross-claim. She noted the observation in Mr Glass' report that plants are living organisms, that their health "is very much dependent upon their immediate environment," and that conditions "that appear satisfactory today may have been different last week or last month." She added: "As so much time has elapsed between the initial plantings and the report of Mr Glass I am of the view that it is difficult to find on the balance of probabilities that the plantings complained of were not fit for the purpose." 22As to the Raphis palms, her Honour noted that it was accepted by the parties that "part of the brief given to Secret Gardens by Mr Roth was to suggest and plant vegetation that would provide privacy for the garden from the block of flats to the rear," and that Raphis palms "were suggested by Secret Gardens to fulfil this requirement." She noted Mr Cantwell's evidence that the palms were affected by drought and wind, and did not do as well "as hoped to begin with." On the other hand, she referred to the evidence of Mr Glass that the palms "are now adapting to their new location and are appropriate for that situation." She added: "He says they suffered initially from the translocation and said in his oral evidence that he would not replace them, the inference being that they are fulfilling their purpose." 23Mr Zipser fastened upon her Honour's observation, concerning the plantings generally, that it could not be said that they were not fit for their purpose as so much time had elapsed between the initial plantings and the report of Mr Glass. As to the Raphis palms, he submitted that the lapse of time was irrelevant because the question was whether they were fit for the purpose of providing privacy at the time they were supplied. He argued that her Honour had failed to address that question. He noted that, however the palms might have appeared at the time Mr Glass saw them, the evidence that they had deteriorated in the previous year was not in contest. 24Here also, it may be that her Honour's reasons could have been more precisely expressed. However, I am not persuaded that she fell into the error for which Mr Zipser contended. She had in evidence the e-mail of Mr Roth of November 2008, to which I have referred, in which he acknowledged that the palms had "performed their function" at the time they were planted. There was also the assertion of Mr Glass in his report that the palms were "an appropriate plant for this situation ... ." She referred to the evidence of Mr Glass that they had initially suffered from their "translocation" and, generally, observed that plants, being living organisms, were subject to the vagaries of nature. 25Read fairly, what her Honour was conveying was that the palms were fit for the purpose for which they were required and that, although they deteriorated for a period of time, their fitness was demonstrated by the way in which they recovered. Her Honour did address the relevant issue and, clearly, her conclusion was available on the evidence. This ground also could not succeed.

Ground 3 - irrigation system 26Another aspect of the cross-claim was the assertion that an irrigation system installed by Secret Gardens was not working properly. Mr Roth's evidence was that shortly after the installation of the system he noticed that the vegetable garden at the rear of the property was very damp. Thereafter, he received a bill from Sydney Water that was about $1,200.00 more than the usual bill. He turned the irrigation system off and said that he had not since received such an abnormal bill. Ms Friedman gave evidence to the same effect. 27In dismissing this aspect of the cross-claim, her Honour said that there was "no evidence ... as to the inadequacy of the system." As to the substantially increased water bill of which Mr Roth complained, she found that there was "no evidence to support his view that it was due to a continual leak in the system," adding that it may have been "a result of his normal usage at a time when the water tanks were not full during the drought in 2008." Mr Roth had said that the water tanks were empty even in periods of heavy rain, but her Honour observed that there was "no expert evidence before the court to substantiate this." She added that Mr Roth had given evidence that the system had been modified since it was installed by Secret Gardens. 28The absence of expert evidence to which her Honour referred is the subject of the next ground of appeal. As to this ground, Mr Zipser argued that her Honour fell into error when saying that there was "no evidence" as to the inadequacy of the system and as to Mr Roth's view that the substantial rise in the water bill was due to a continual leak in the system. Mr Zipser argued that there was evidence to that effect, to be found in Mr Roth's observations of the area, the increased water bill, and the inference which might be drawn from those matters. 29Frankly, this is a strained interpretation of what her Honour said. She was not suggesting that there was no evidence whatsoever bearing upon the topic. She was saying no more than that no defect in the irrigation system had been identified, and that she was not prepared to draw the inference from the circumstances that a leak in the irrigation system was the source of the large water bill. This ground is without merit.

30In the cross-claim Mr Roth complains of defects in water tanks supplied by Secret Gardens, including leaking, and sought the estimated cost of rectification work. For the purpose of this aspect of the cross-claim he obtained the report of an expert, Mr Michael Hyman. Mr Hyman's report was served upon Mr Bonanno two days after the time limited by directions of the court. Mr Bonanno notified Mr Roth that Mr Hyman would be required for cross-examination at the hearing. 31The hearing had been set down for 18 December 2009, and Mr Hyman was present that day. The matter was not reached, and was stood over to 15 February 2010. On that day the hearing commenced but was not completed. Again Mr Hyman was present, but was yet to be called. The matter was adjourned, part heard, to 18 June 2010. 32On 18 June Mr Hyman did not attend court. There was no explanation for this, and Mr Roth tried unsuccessfully to contact him. Counsel then appearing for Mr Roth sought an adjournment, which was refused. Unfortunately, due to a defect in the tape recording of the proceedings a transcript of that application is not available. In her final judgment her Honour recounted this history and, in relation to the application for adjournment, said this: "This application coming in the afternoon of the second day of the hearing when that date had been set for some four months was denied. In any event, the court was not able to be informed as to whether Mr Hyman would be available on any future date and the portion of the claim to which his evidence was relevant was not so significant compared to the totality of the claim to warrant an adjournment and the attendant costs that it would have entailed. Consequently, Mr Roth was not able to rely on his report." 33Mr Zipser submitted that in this her Honour fell into error. He argued that she should have allowed Mr Roth to rely upon Mr Hyman's report, notwithstanding that he was not in attendance. He referred to UCPR r 31.30, a rule which applies only to proceedings in the District Court and the Local Court. By sub-rule (2) of that rule, an expert's report is admissible if it has been served in accordance with r 31.28. By sub-rule 3(a), it is the responsibility of the party requiring the attendance for cross-examination of an expert who has prepared a report to procure that attendance. Thus, Mr Zipser argued, it was the responsibility of Secret Gardens, not Mr Roth, to ensure the attendance of Mr Hyman on the second day of the hearing. 34To this Mr Bonanno responded that, by sub-rule (2), Mr Hyman's report would not have been admissible because it had not been served in accordance with r 31.28. Sub-rule 1(a) of that rule provides that expert reports must be served in accordance with any order of the court. Mr Hyman's report did not meet that requirement, he argued, because it had been served after the time fixed by the court's directions. He acknowledged that that was not a point he had taken and, given that service was only two days late, that is hardly surprising. He pointed out, however, that at no time did counsel then appearing for Mr Roth seek the court's leave to tender the report notwithstanding the non-compliance with the direction. He also argued that, given that Mr Roth had secured the attendance of Mr Hyman on the days the matter had previously been listed, it was reasonable to assume that Mr Roth would ensure his attendance on the day in question. 35More importantly, Mr Bonanno pointed out that r 31.30(3) was not raised before her Honour. Counsel then appearing for Mr Roth sought an adjournment so that Mr Hyman's attendance could be secured. He did not raise the sub-rule as a basis for arguing that the report should be received notwithstanding the fact that Mr Hyman was not present for cross-examination. In fact, it appears, as Mr Zipser and Mr Bonanno acknowledged in this court, that both parties overlooked the sub-rule. 36This is not the occasion to determine whether the sub-rule would be applicable in the circumstances of this case, where an expert has attended for cross-examination in the course of a hearing and is required to attend on a subsequent day. The fact is that the issue was not raised before her Honour, and she could not be said to have fallen into error by not dealing with it. Even in an appeal by way of re-hearing, which is not confined to asserted error of law, an appellate court would not generally intervene where a point taken in that court was not taken in the court below and, generally, parties are bound by the course they adopted in the court below: Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11, per Giles JA (with whom Mason P and Priestley JA agreed) at [12] - [15]. 37I should record that Mr Bonanno sought to respond to this ground by material raised in his affidavit of 25 February 2011, to which objection was taken. I rejected that affidavit and, in the event, it has not been necessary to receive it to resolve this matter. This ground also cannot succeed.

38This ground relates to Mr Roth's complaint in the cross-claim that Secret Gardens planted Lilly Pilly on the western boundary of the property adjacent to the footpath, which was said to be inappropriate because the plants grew berries which fell to the footpath, causing staining and consequent inconvenience to people using the path. Secret Gardens had recommended the plants for that area, as I understand it, for the provision of a screen. In so doing, Mr Cantwell used their botanical name rather than the name by which they are commonly known, and Mr Roth and Ms Friedman did not realise that he was referring to Lilly Pilly. Late in 2008, some months after they were planted, both Mr Roth and Ms Friedman saw that the footpath in the relevant area had been stained by falling berries. 39In his report Mr Glass said of the plants that while they "provide what I understand to be the required task of screening, normally one would not have selected this species for use adjacent to a pathway because of its propensity to produce and drop (moist, coloured) fruit." However, Lilly Pilly had already been growing in other parts of the property, including in a position adjacent to the entrance pathway. 40Mr Roth did not convey to Mr Cantwell any particular requirement for the plants on the western boundary which would have ruled out Lilly Pilly, and Mr Cantwell observed the Lilly Pilly that was already on the property. In particular, his evidence was that he noted the Lilly Pilly adjacent to the entrance pathway. He said that it also bore fruit, but he saw no evidence of staining throughout its fruiting period and Mr Roth said nothing to him to suggest that the dropping of its fruit was a problem. He said in oral evidence that the existing Lilly Pilly were of a different species from those which he planted, but added that they had very similar characteristics. He also said that any fruit bearing plant will not go to fruit if it is trimmed regularly. 41In cross-examination, Mr Glass said that on the day he inspected the property he did not see "a problem with staining" on the footpath. He disagreed with Mr Cantwell that the different species of Lilly Pilly on the property had very similar characteristics, saying that different species have a different type of fruit and shed their berries in different ways. However, he could not comment upon the species planted by Secret Gardens, because he did not know "the exact cultivar" of that particular species. 42In dismissing this aspect of the cross-claim, her Honour said: "Lilly Pilly was also suggested by Secret Gardens to provide screening for privacy. The evidence was that it was referred to by a different name by Secret Gardens. Both Mr Roth and Ms Friedman say they would not have accepted this recommendation if the plants had been referred to as Lilly Pilly as they were aware that they drop berries onto pathways and cause staining. There is no evidence that this was made known to Secret Gardens by Mr or Mrs Roth. In any event Mr Glass said in his oral evidence that at the time of his inspection there were no berries visible and inferred in his report ... that it was a matter of maintenance, as does Matthew Cantwell. It was also accepted that there were other Lilly Pilly already in the garden that indicated to Secret Gardens that Mr Roth had no aversion to them." 43Mr Zipser submitted that her Honour failed to deal with what he described as the unchallenged evidence of Mr Glass that one would not normally plant the relevant species of Lilly Pilly adjacent to a pathway because of its propensity to produce and drop moist, coloured fruit. However, that proposition was challenged by the cross-examination of Mr Glass to which I have referred. 44It is perhaps unfortunate that when Mr Cantwell recommended Lilly Pilly to Mr Roth he used its botanical name, with which Mr Roth was unfamiliar. The fact remains, as her Honour noted, that Mr Cantwell recommended the species to Mr Roth in the knowledge that there was already Lilly Pilly on the property to which, apparently, Mr Roth had no aversion. In any event, the fruit bearing capacity could be controlled by appropriate maintenance. No error has been shown in her Honour's approach and this ground must fail.

45When Secret Gardens issued its final statement, it sought payment of an amount which was roughly $18,000.00 greater than the original contract price. That increase is accounted for by variations, for which the contract provided. As I have said, Secret Gardens instituted proceedings in the Local Court for an outstanding sum of roughly $28,000.00. In his defence Mr Roth put that amount in issue, pleading that he did not admit that Secret Gardens "has suffered or continues to suffer loss or damage." 46Clause 15 of the contract dealt with variations. Clause 15.2 provided: "Before commencing work on a variation, the Contractor must provide the Owner a Notice in writing containing a description of the Works ... . Where it is reasonably practical to do so, the Variation Notice should also include an estimated price ... ." 47On a number of occasions Secret Gardens forwarded variation notices to Mr Roth, in each of which a price of the proposed work was specified. Her Honour found that on each occasion Mr Roth approved of those variations. 48On the first day of hearing in the Local Court, counsel then appearing for Mr Roth called on a notice to Secret Gardens to produce documents relating to quotations it received for work to be carried out by its contractors or sub-contractors and for goods and materials supplied for the purpose of its work. Mr Bonanno did not produce documents of that kind, explaining that that was not the way his client conducted its business. He said that Mr Cantwell would obtain oral estimates from suppliers or contractors, and these would be incorporated in the variation notices. 49On the day of hearing in this court I admitted, over Mr Bonanno's objection, an affidavit of Mr Roth to which was annexed the written submissions on his behalf in the Local Court. Paragraph 1 of those submissions was in the following terms: "Clause 15.2 of the Garden Construction Contract provides before commencing any variation work the plaintiff must provide a notice in writing of the description of the work, an estimate of the time required and where possible an estimate of price. The plaintiff relies on the notices to prove its claim for the amount sought for variation works under the Garden Construction Contract. This part of its claim must fail, because the plaintiff has failed to establish the actual costs of the variation work, the notices being an estimate only." 50Her Honour did not expressly deal with that submission in her judgment. In this, Mr Zipser argued, she had fallen into error because she had failed to deal with an issue raised on the pleadings and in final submissions. As he put it in this court, the cost of any variation to the contract would depend upon the cost to Secret Gardens of performing that variation. Hence, Secret Gardens had to establish the cost to it of the variation, and that was not established by the content of the variation notice, which was an estimate only. He argued that, to the extent that there might be ambiguity in the contract as to how the price of variations was to be determined, it should be resolved against the party drafting the contract, that is, Secret Gardens. For that proposition he cited a passage from the judgment of Santow J in Burke v State Bank of NSW (1994) 37 NSWLR 53 at 72. 51I must say that Mr Zipser appears to have developed this argument more fully than his predecessor did in the Local Court. However that may be, I cannot accept this argument. As Mr Bonanno submitted, her Honour did not fail to deal with this issue. For each of the items claimed by Secret Gardens which was the subject of a variation, the amount claimed was the price set out in the variation notice. Her Honour referred to clause 15.2 of the contract and, as I have said, noted that the variations were approved by Mr Roth. That approval necessarily included acceptance of the specified price. That approach, in my view, was consistent with clause 15 of the contract and was sufficient to resolve the issue. This ground also must fail.

52This is the second aspect of ground 7 which, as I have said, was sought to be added on the day I heard this matter. As I have also said, leave to do so was opposed by Mr Bonanno. 53The matter can be dealt with shortly. In the statement of claim Secret Gardens asserted that the works the subject of the contract were completed by 28 October 2008. In his defence Mr Roth denied that that was so. 54Mr Zipser referred me to clauses 6.4 - 6.7 of the contract, which deal with the completion of the works. Clause 6.4 provided that the works would be complete "when the Contractor has finished the Works in accordance with the Contract documents and any variations ... ." Clause 6.5 required the contractor to certify to the owner that the works had been completed in accordance with the contract. The effect of the rest of that clause was that the works would be taken to be complete unless the owner notified the contractor within a certain time of any items of work considered to be incomplete or defective. Clause 6.6 required the contractor to complete any outstanding works promptly, and clause 6.7 provided for a dispute resolution procedure in the event of any dispute between the parties about completion. 55Mr Zipser observed that there was no evidence that Secret Gardens had ever issued a certificate under clause 6.5. He noted that there was evidence that there was outstanding work to be done at the time Secret Gardens sent its final statement to Mr Roth on 13 October 2008. He submitted that, in any event, Secret Gardens could not complain that the works were complete when a certificate under clause 6.5 had not been issued. 56None of these matters was considered in her Honour's judgment. Accordingly, said Mr Zipser, she had failed to deal with an issue which arose on the pleadings. 57The fact is that none of these matters was dealt with by her Honour because none of them was agitated before her. Her Honour accepted Mr Cantwell's evidence that the work the subject of the invoices showing amounts outstanding had been completed. The requirement of clause 6.5 was not put to him in cross-examination, and there was no reference to it in final submissions. The principles examined by Giles JA in Chilcotin v Cenelage (supra) are clearly apposite. Leave to add this ground is refused.

58I must say that Mr Zipser argued his case skilfully and valiantly. However, I am not persuaded that any of the grounds raises a question of law. For the most part they complain of findings of fact which, in my view, were open to her Honour. Ground 4, as I have said, seeks to agitate a matter which was not argued before her. In any event, I do not find merit in any of the grounds, even if they had been able to be characterised as raising questions of mixed fact and law. 59An explanation was proffered by Mr Roth for the late filing of the summons initiating the appeal, and I would not refuse leave to appeal on the basis that it is out of time. However, the appeal must be dismissed. If necessary, I shall hear the parties on costs.

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