Dante De Grazia trading as All Sydney Building Services v Nicholas Solomon & Ors [2010] NSWSC 322 | Case summary

Dante De Grazia trading as All Sydney Building Services v Nicholas Solomon & Ors [2010] NSWSC 322 | Case summary | Zoe

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7 The original date for possession of the site was 1 November 2001 and Practical Completion was to be achieved by 11 September 2002. 8 During the course of the works, the plaintiff suffered various delays and for various reasons, the Architect extended the contract time for completion from 1 November 2002 (the original date) to 17 February 2003 [Memorandum L and S to DDG 28 January 2004 (Court Book 5: 1730)]. 9 On 24 December, the plaintiff achieved actual Practical Completion [Notice of Practical Completion (Court Book 5: 1643)]. In working days [defined by the contract Clause 9.3 as days excluding Saturdays, Sundays, statutory or public holidays and RDO's (rostered days off). The evidence of Mr Solomon was that RDOs are one day a month. T:795.5], the difference between the adjusted date and the actual date of Practical Completion is 206 days [calculated from calendars attached to report of George Zakos 13 August 2008, volume 4 of pale blue Court Book, page 1419 ]. There is a dispute between the parties as to the adjusted date for Practical Completion: the plaintiff contends for March 2003, the defendants contend for February 2003. 10 It is also to be kept in mind that, somewhat unusually, the contract remains on foot. There is still a final certificate to be issued. But for the contract remaining on foot the plaintiff's case may have been pleaded differently as to damages. The principle issues as between the major parties 11 There are a number of disputes litigated as between the major parties. 12 Ms Olsson SC, the Builder's counsel, endeavoured to focus throughout the trial on three items so called 'big-ticket items': these being the issues which had arisen concerning windows, cladding and joinery. This was not to be regarded as an abandonment of other variation and delay claims but it was said that because of the relatively small monetary claims involved, the small items could be dealt with fairly swiftly. 13 Without being exhaustive the real issues would least include the following:

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iii. In Minster Trust Ltd v Traps Tractors Ltd, (1954) 3 All ER 136 at p 973, Devlin J observed as follows: "There is no general rule of law prohibiting the influencing of certifiers. Apart from fraud, a duty not to influence can only be imposed by an implication arising from the contract. Such an implication must, in accordance with settled principles, be both reasonable and necessary, and the contract must be examined to see what it yields in this respect." At (1954) 3 All ER at p 145 his Lordship observed: "If two parties agree to appoint an arbitrator between them, it would be, I think, implied in the contract in order to give it business efficacy that neither side would seek to interfere with his independence. If a party to a contract is permitted to appoint his agent to act as arbitrator in respect of certain matters under the contract, a similar term must be implied. iv. Keating on Construction Contracts , eighth edition [Sweet & Maxwell 2006] at 13-012 observes as follows : "The Architect is engaged by the employer to act as his agent for the purpose of securing the completion of the works in an economical and efficient manner… But in performing them he most act fairly and professionally in applying the terms of the construction contract. An Architect acting under the ordinary construction contract is the employer's agent throughout notwithstanding that in the administration of the contract he has to act in a fair and professional manner . The Architect is required to act independently and honestly. The duty sometimes described as a duty to act 'impartially' does not overlay independence and honesty so as to encompass natural justice. The duty is one to act 'fairly', so long as what is regarded as fair is flexible and tempered to the particular facts and occasion. These obligations extend to such of the Architects duties as require him to use his professional skill and judgment in forming an opinion or making a decision where he is holding the balance between his client and the contractor. Typical of such duties are those requiring him to issue certificates or to grant extensions of time. An Architect is not however, ordinarily obliged to exercise a power to order a variation where it is fair to do so.

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At 238 MacFarlan J held that Director had a discretion about whether or not to grant extensions of time if an event had caused delay, and '[t]he kind of interest which must govern the exercise of the Director's discretion is the interest of each party [ie both parties] as it appears from all the provisions of the agreement'. Returning to the instant proceedings 30 The Architect's self-interest by reason of their bifurcated position has been strongly urged upon the Court by the plaintiff as an important consideration to be closely kept in mind. The plaintiff's contention is that a close examination of the Architect's conduct through the whole of the building project makes clear that the requisite independence which was required of him was very often absent. 31 Certainly in the present proceedings the Court is justified in the closest analysis of whether or not this claim by the plaintiff is made good by the evidence. The simple fact is that obligation of the Architect to act impartially must be very carefully monitored. The question for the Court is as to whether or not the obligation to act impartially was in fact breached or whether, notwithstanding their bifurcated position, the Architects have not been shown to have breached their duty of impartiality. The matter inheres in the detailed evidence and in the assessment of the credit of the principal witnesses. 32 For the reasons exposed below, the essential finding is that on a number of occasions Mr Solomon indeed breached the relevant contractual duties as to his role, whether it be conscious or unconscious. Examining the contract in focus in the present proceedings as regards the Architect's role 33 The contract does not include an express provision prescribing how the Architect is to act. However, it is clearly consistent with the contract as a whole to imply such a term: cf Brookings at p 135, footnote 69. 34 The following terms are all consistent with the Architect having a duty to act in an impartial manner:

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13.2 Conference Within 5 days after serving a notice of dispute, the parties shall confer to resolve the dispute or to agree on methods of doing so. At every such conference each party shall be represented by a person having the authority and power to agree to settle the dispute and, as appropriate, to agree on a method of resolving the dispute. All aspects of every such conference except for the fact of occurrence shall be privileged and without prejudice. The parties' final submissions regarding compliance with the contractual procedures 36 Following the Court having reserved its judgment the plaintiff sought to plead that the defendants were estopped from raising arguments regarding non-compliance with the relevant contractual procedures, or that it would be unconscionable to raise such arguments, against Mr De Grazia's claims. This estoppel or unconscionable conduct was said to exist because neither party performed its works under the contract in strict compliance with the contractual terms nor required the other party to so act. 37 Ms Olsson made two further arguments that are dealt with below. 38 There is an initial question of whether Ms Olsson's amendment to add the estoppel/unconscionability point should be allowed. 39 In this regard, Ms Olsson submitted that the defendants' pleadings did not specifically raise the provisions of the contract and plead a time bar to the plaintiff's claims for variations, extensions of time or delay costs: rather, the claims were denied. Therefore the plaintiff, not being on notice that a time bar only might be argued, did not put on a reply pleading estoppel. Ms Olsson further submitted that the defendants did not conduct their case as if the time bar provisions were fatal to the plaintiff's case: rather they argued the merits of the claims for variations, extensions of times and delay costs. Thirdly, Ms Olsson submitted that since the matter was argued in that way and evidence led both as to the manner in which the contract was performed and as to the correspondence and other documents relating to the various claims of the plaintiff, it was difficult to see where the prejudice to the defendants occurred. Finally, Ms Olsson contended that plaintiff did not, by virtue of the proposed amendments, seek to re-open or re-agitate any of its contentions. 40 The defendants opposed the plaintiff's proposed amendment to its pleadings. The defendants' counsel, Mr Roberts, addressed Ms Olsson's contentions in turn. Firstly, as to the time bar issue, his essential submission was that the plaintiff must have known from the outset that the defendants would rely on failure to comply with the contractual provisions with regard to instructions, variations and delays. This was said to be because the Architect had on 30 June 2005 rejected the Builder's claims on that basis. Secondly, as to the defendants conduct of the case, Mr Roberts submitted that the defendants had made it abundantly clear that the relevant contractual provisions would be relied upon, and the fact that they addressed the merits of Mr De Grazia's claims did not disentitle them from so relying. Thirdly, as to the question of prejudice, Mr Roberts submitted the defendants would be prejudiced by having to ask the Court for leave to reopen their case. It was said the defendants would need to rely on additional documentary evidence to meet the new case on estoppel, and in particular to show that they conducted themselves in a belief that they were bound by the contract's administrative provisions. Finally, Mr Roberts submitted that the fact the plaintiff did not seek to reopen his case or re-agitate any of his contentions did not avoid or reduce the need for the defendants to reopen their case, since the absence of any new evidence did not necessarily mean the defendants would not be adversely affected by the amendment. Decision as to amendment 41 In my view the defendant has not identified with the necessary precision, the sorts of prejudice which would persuade the Court not to grant the leave to amend now sought. There are cases [and this is such a case] where the manner in which the proceedings have been conducted means that a party is entitled to rely upon matters such as now put forward by the plaintiff: specifically that the defendants pleadings did not specifically raise the provisions of the contract and plead a time bar to the plaintiff's claims for variations, extensions of times or delay costs: rather, the claims were denied. Hence the plaintiff, not being on notice that a time bar only might be argued, did not put on a reply pleading estoppel. 42 There is also substance in the plaintiff's contention that the defendants did not conduct their case as if the time bar provisions were fatal to the plaintiff's case: rather they argued the merits of the claims for variations, extensions of times and delay costs. 43 I accept that since the matter was argued in that way and evidence led both as to the manner in which the contract was performed and as to the correspondence and other documents relating to the various claims of the plaintiff, it is difficult to see where the prejudice to the defendants occurs. 44 For those reasons the application for leave was allowed. The substance of the estoppel/unconscionable conduct argument 45 Ms Olsson's arguments as to the substantive aspect of the estoppel/unconscionable conduct argument have been outlined above. 46 In addition to his submission against allowing the amendment, outlined above, Mr Roberts made various submissions during final argument relevant to this issue. 47 Mr Roberts in final submissions outlined in detail the contractual provisions governing variations and extensions of time. He submitted that the contractual requirements existed for the beneficial purpose of ensuring certainty for both parties in their dealings. Mr Roberts submitted that it was necessary to examine the contractual requirements because the plaintiff's claim was pleaded as the Architect having breached his duties in administering the contract. 48 The final version of the plaintiff's pleading makes clear that the claim is framed as a breach of the Architect's contract administration duties, for which the proprietors are said to be liable. Specifically, it alleges the plaintiff carried out variation work at the direction of the Architect, and the Architect failed to properly value this work as required by Contract clause 10.6. Furthermore, the plaintiff claims delay costs which were said to result from these variations. It was alleged that the plaintiff claimed extensions of time under Contract clause 9.2 but the Architect failed to properly assess these claims in breach of Contract clause 9.2.3. 49 Mr Roberts also submitted that Mr De Grazia's allegation that Mr Solomon verbally agreed to a range of variations and extensions of time was unlikely to be true, given both Mr Solomon's tendency to document things and the contractual requirement that these matters be in writing. 50 In reopening their case, the defendants sought to make out the proposition that the parties did regard themselves as bound by the contract terms. The defendants said this was apparent from a group of documents -which they adduced- that evidenced the parties' conduct in relation to various contractual procedures, including extensions of time and variations.

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The facts in Liebe were that a Builder contracted to erect buildings for over $30,000. The contract provided that no works beyond those included in the contract should be allowed or paid for without an order in writing signed by both the Architect and the proprietor. The Builder claimed payment for certain works said by him to be extras. There had been no order in writing for these works as required by the contract. They had been ordered by the Architect, either in writing signed by him alone, or orally. The owner had known that they were being done. The High Court (Griffith CJ, Barton and Higgins JJ) in reasons delivered by Griffith CJ said (at 354), that if the proper inferences from the facts were (i) that the employer had actual knowledge of the extra works as they were being done, (ii) knew that they were outside the contract and (iii) knew that the Builder expected to be paid for them as extras then a contract to pay for them could properly be implied. If however the fact was that the owner did not know the particular works were extras or did not know or believe that the Builder expected to be paid for them, then it would be proper to conclude that no contract to pay for them should be implied … In Liebe , because the arbitrator had made no finding of fact beyond the owner's knowledge of the works as they were done, the matter was remitted to him to make the further findings of fact necessary before the question of liability could be determined. 54 In Update, Liebe was distinguished on the basis that the extra work in question in Update was not 'outside the contract' in the Liebe sense of being done solely because of a request by the proprietor's Architect and being clearly additional to what was required in order to complete the contract work for the contract price: (1990) 20 NSWLR 251 at 274G, 277D. 55 The principle is further discussed in Brookings at [10.8]. In the present case, the principle in Liebe, as interpreted in Update, also plays a part in supporting Mr De Grazia's claims for purported variations. 56 Ms Olsson's third submission in this area of the case was that the variations pressed by Mr De Grazia, excluding the cladding, were notified while the contract was still on foot.

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The way forward 57 It seems appropriate to commence with an examination of the credit of the witnesses called. Mr De Grazia 58 Generally I was impressed with the evidence given by Mr De Grazia. By reason of the consensual decision of the parties to have the evidence in chief of the major witnesses dealt with viva voce, it was necessary for him to slowly and carefully travel through the principal events. He accomplished that exercise well and where he was unable to recall a particular event or was unsure of himself, he made that clear. His recollections were close enough to the very extensive site meeting notes and to the correspondence which had passed between the parties as to be impressive. He was in the witness box for a very considerable time and the cross-examination was careful and pointed. As one may expect, the cross examiner from time to time was able to establish that a recollection of Mr De Grazia did not accord with a particular document or was inconsistent with some other testimony. But given the number of areas over which Mr De Grazia was cross-examined and making allowances for the odd occasion when by reason of his accent he found difficult to make himself understood, I would provide him as a witness of credit. 59 Later in these reasons the Court deals with the substantial attack on his credit concerning a particular letter said by Mr Solomon to have been fabricated after the event. Mr Solomon 60 Likewise I was impressed with the evidence given by Mr Solomon. He too had to give his evidence in chief viva voce and also in that regard gave clear evidence exhibiting a huge command of detail assisted by his copious site minute notes and correspondence. There were however a number of areas where it seemed to me that his protestations of having been impartial in his role as administering the contract could not be accepted. It is obviously very difficult for an Architect at one and the same time to give impartial evidence of the events which happened when he himself is under cross-examination endeavouring to justify his conduct. 61 One of the very curious circumstances with which the Court has to deal concerns the extremely untidy way in which Mr Solomon purported to put before the Court an album containing huge slabs of photographs of the site, said to have been contemporaneous. It was only in the course of his cross examination that what emerged was that certain categories of those photographs could not be relied upon at all for the simple reason that it was very difficult to be certain as to the date upon which the photographs had been taken. These were not photographs which, as I understood it, had been discovered by the defendants. I regard the whole debacle concerning the photographs [which were often shown to Mr De Grazia during his cross-examination on the basis that he was asked to assume that the photographs were taken on the dates identified in the photographs] as indicative of a sloppy approach to a major Court case where photographic evidence would play such a commanding role. The attempts by Mr Solomon to explain how some segments of the photographs could be relied upon whereas other segments of the photographs could not be relied upon, simply suggested to me that Mr Solomon, notwithstanding his apparent huge command of the detail, had in truth had himself a number of doubts about certain events and times. That he had not until his cross examination said a word about the inability of the Court to rely upon certain categories of the extensive photographs itself does not speak well in terms of his credit, particularly in a situation where he occupied the position as carrying out the day to day contract administration and was purporting to put forward photographs to prove the state of the site and of the building works as captured on camera on particular occasions. 62 His explanation as to the different categories of photographs may be shortly summarised as follows:

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iii. Thirdly, there was a category of film photographs where Mr Solomon had approximated the date on which the photographs were taken. He testified that he had used various methods to accurately approximate the relevant dates, although there could be a window of one week either side of the dates attributed. However, under cross-examination Mr Solomon accepted in relation to some particular film photographs highlighted by Ms Olsson that the same photographs had been given two dates, approximately one month apart. 63 As the reasons which follow make clear two particular examples, neither of which reflect well on him, may be cited. 64 Mr Solomon of course had a vested interest in the adjusted date being as early as possible because he had a liquidated damages clause accruing at $750 per working day. 65 Firstly, having extended the date for Practical Completion to 17 February 2003, Mr Solomon continued to process the Builder's progress claims but purported to deduct from the sum owing to the Builder an amount for liquidated damages (said to be accruing at $750 per working day from the adjusted date for completion). The only contractual provision dealing with the entitlement to claim liquidated damages is clause 10.10 and it permits the assessment and claim of liquidated damages only after Practical Completion [for obvious reasons]. 66 When the Builder (quite rightly) challenged Mr Solomon's right to make a deduction from a progress certificate for liquidated damages, Mr Solomon agreed not to deduct it in order to "assist the Builder's cash flow" but continued to include a running calculation of the amount owed in later progress certificates. Not only was he not entitled to make the deduction prior to Practical Completion but his conduct supports the inference which is drawn, that he was including the running total in order to intimidate the Builder. 67 The second example of Mr Solomon's conduct can be seen from his blatant interference in the Builder's contractual right to perform his own sequencing of the works and negotiate the terms on which subcontractors were engaged. Mr Solomon was not entitled to dictate to the Builder when and at what stage he installed the windows and doors. Clause 6.1 provides that:

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The Builder is and shall remain responsible for all construction means, methods, techniques, sequences and procedures employed and to be employed by him in and about the execution of the Works and for co-ordinating all portions of and the execution of all portions of the Works and the Architect shall not be entitled to issue any instructions as to these matters. 68 However, the Architect issued instructions as to when the windows should be installed and this constituted a breach of Contract clause 6.1. This follows from the conclusion reached in these reasons that the Architect's specification as to the window construction method was inconsistent with the Builder's contractual power to decide construction methods. Furthermore, although the Architect was contractually entitled to nominate subcontractors for provisional sum items, the Architect was not entitled to dictate the terms on which such subcontractors were engaged. Nevertheless, this is what occurred with regard to the subcontractors engaged for the supply and installation of the fireplace stone and joinery. The point is further explained in relation to joinery and the fireplace stone in these reasons. The meeting of 20 June 2003 69 It was common ground between Mr De Grazia and Mr Solomon that a meeting took place between them on 20 June 2003 in Mr Solomon's offices in Surrey Hills. The evidence given by Mr Solomon 70 Mr Solomon's evidence was that he said to Mr De Grazia that the reason for the meeting was to thrash out the unresolved variation claims made up to the date of that meeting if this was possible to agree upon. His evidence was that Mr De Grazia said that he fully understood that that was the reason why they were together and that he had wanted to sort out these matters and did not wish to wait until the end of the project to have an argument over variations. 71 Mr Solomon's notes taken at the meeting were in evidence. His evidence was that they did not reach agreement on any contract variation deductions during the meeting. His evidence was that they had reached agreement on every contract variation addition except for one item -item 6D in Contract adjustment 2, which related to the change to Western Red Cedar weatherboards - which Solomon regarded as a deduction and Mr De Grazia regarded as an addition [T:659-660]. 72 Mr Solomon's evidence was that at the end of the meeting he had made the following statement to Mr De Grazia:

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Variations - We are instructed by our client that all variations have now been settled between the parties except in regard to the change from Jarrah to WRC timber. This is reflected in certificate of payment number seven dated 27 June 2003. (copy attached for your information) 77 The letter which he composed confirmed exactly with what had happened in the meeting of 20 June but says "This letter confirms what has happened and it covers all variations, every single one from the commencement of the project to date, and all those items bar 1 are of course settled. The letter also said that this was obviously conditional upon Mr Solomon not issuing any further variation instructions from that day until completion of the project" The covering letter is in evidence [NS/3 page 136]. The evidence given by Mr De Grazia 78 Mr De Grazia, in his evidence in chief, rejected the suggestion that the June 2003 meeting finally concluded his claims for variations, meaning he would not make any further variation claims T:292.30. 79 Mr De Grazia gave evidence that he sent a response to Mr Solomon's letter of 27 June 2003 on 10 July 2003 T:292. 40-293.3. 80 In cross-examination, Mr Roberts suggested that Mr De Grazia only sent his response in 2005, and backdated it to July 2003, because he was worried that Mr Solomon's 2003 letter had resolved all variation claims. Mr De Grazia rejected this suggestion T:476.37-37. 81 Mr Solomon testified that as far as he was aware there had never been a response to the letter from his solicitor to Mr De Grazia's solicitors, dated 1 July 2003, concerning the outcome of the meeting T:673.10-674.3. 82 In cross-examination by Ms Olsson, Mr Solomon maintained that he had not seen Mr De Grazia's letter until the first day of the hearing. Ms Olsson highlighted the fact that the letter had been part of the plaintiff's list of discovered documents, and that Mr Solomon had been given access to these documents T:821.25-821.49. There was evidence that Mr Solomon personally attended at the plaintiff's solicitor's offices in order to examine the plaintiff's documents produced on discovery. His evidence was that he had not seen Mr De Grazia's letter on the occasions when he had so attended those offices. 83 Mr Solomon also rejected Mr Olsson's suggestion that Mr De Grazia had in effect said to Mr Solomon, at the time of the June 2003 meeting, that Mr De Grazia did not expect the meeting to resolve variations except for those that were discussed at the meeting. Mr Solomon was adamant in his recollection that there was a clear understanding that all variations up to the meeting date - bar those excepted- would be concluded - and no more variations would be forthcoming which predated the meeting T:822.10-822.19. 84 Mr Roberts, counsel appearing for the defendants, pressed upon the Court the proposition that the letters written by the plaintiff during the period 4 June 2003 up to 10 October 2003 all have a consistent form or appearance that is different to exhibit P 10 [which is the letter from Mr De Grazia of 10 July]. 85 The further contention is that the letters comprising exhibit D8 all have a centre justified bold subject line. The contention is that the format of exhibit P 10 has a striking similarity to the letters prepared in May 2005 and is quite distinct from those that were apparently written between June and October 2003 when exhibit P 10 was meant to have been prepared. 86 Having closely looked at the several pro forma documents being used by Mr De Grazia I remain skeptical that any of these inconsistencies may be relied upon when so serious an allegation as the present is put forward. Ms Olsson submitted and I accept that a review of the documents Mr De Grazia was using in 2003 showed that there was very little consistency in the way he set out either the letterhead or the addressee. As Ms Olsson highlighted, in the letterhead of the letter of 10 July 2003, the telephone and fax line appeared under the E in the word Services and the mobile number began under the D in the word Developments. This was the same as the letterhead on several other letters of around the same date identified by Ms Olsson. In contrast, in a fax from around the relevant time, identified by Ms Olsson, the telephone number appeared under the S in Services and the mobile number under the & before Developments. Ms Olsson was also able to identify a difference between the use of capitals for the addressee and subject matter of two letters written by Mr De Grazia in November 2003. Moreover, a brief review of the documents created by Mr De Grazia from around the relevant time shows that there were inconsistencies in the styles used other than those specifically identified by Ms Olsson. However, Ms Olsson was not able to point to an instance where Mr De Grazia had formatted the subject line in the centred style of the letter of 10 July 2003 (which was said to bear the striking similarity to the 2005 letters). 87 Ms Olsson further submitted that the content of the letter of 10 July 2003 - and in particular the grammar used - suggested that it was the same as Mr De Grazia's earlier documents and smacked of being written by him alone, without the input of anyone else (such as the claims consultant he later used). 88 Importantly it seems to me that there can be no real excuse for Mr Solomon and his team not to have immediately engaged a forensic expert to examine exhibit P10 even as the proceedings commenced. In the circumstances the Court would clearly have permitted those investigations. The defendants clearly simply eschewed such a course and having done so must live with the result. The principles: fraudulent conduct 89 There is a plethora of authority in support of the proposition that the Court is bound to see that a case of fraud is clearly proved. An allegation of fraudulent intent is one of the most serious allegations capable of being made. Actual dishonesty is said to be "the hallmark of fraud". The gravity of the allegation has been said to be such that whereas section 140(1) of the Evidence Act 1995 (NSW) stipulates a single standard of proof for all civil cases, namely the balance of probabilities, Section 140(2) preserves the doctrine in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362; Pedler v Richardson (Supreme Court of New South Wales, Young J, 16 October 1997, unreported) at 10-11. See also McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315, 319. More recently in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 the High Court has put the matter in the following terms:

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Turning to the detail 94 Mr De Grazia gave evidence that at a particular point in time he had a conversation with Mr Solomon about the specifications, in particular discussing parameters of what nominal size meant. Mr Solomon insisted that nominal size was the finished size. Mr De Grazia disagreed and made enquiries of Australian Architectural Hardwoods only to learn that forest red gum was unavailable [T:139-140] 95 In a subsequent conversation between the Builder and Mr Solomon, the Builder passed on the information that red gum was not available in any size so that it was out of the question. At a site meeting Mr Solomon had asked him to consider a cost saving if the weatherboards were changed from red gum to western red cedar [T:142]. These discussions took place in approximately February or March 2002. 96 In the further discussions Mr Solomon advised Mr De Grazia that he was looking at other profiles, one of the profiles being a Tilling western red cedar. Following that discussion Mr De Grazia made enquiries of Tilling and passed on to Mr Solomon what he had learned, namely that the western red cedar was more expensive to start off with and that the profile would not have been available from Tillings. Tillings was not prepared to manufacture the profile [T:143]. 97 In any event Mr Solomon informed Mr De Grazia that he had spoken to Australian Architectural Hardwood and that they had Jarrah available which also was a similar timber [T:151]. After further discussions Mr Solomon directed him to advise on a potential cost saving if there was a change and the Builder made some enquiries about costs. The discussions dragged on and by about the end of March 2002, the Builder considered that it was critical that the cladding be decided. 98 On his evidence this was because the building was almost ready for cladding and they did not have a specific profile or timber to work with [T:153]. The Builder's evidence was that by the end of March the stage which the work had reached was the brick work, the ground floor was up, the formwork was done on the first floor and the Builder was ready for concrete pours for the first floor in about late May. 99 Mr De Grazia made clear that by the end of March, or towards the end of March, there had been no decision on the type of boards to use and hence the Builder had not been able to order them. There were then discussions between the Builder and Mr Solomon about the finish of the cladding, that is the paint or stain. The Builder's further evidence was that as at 3 April, there still had not been a decision about which boards to use. There was evidence before the Court about a number of site meetings in relation to these matters. In particular at a site meeting on 5 April 2002 Mr De Grazia testified that particular discussion took place relating to the cladding being required as urgent. The urgency about the cladding on the Builder's case, was that the cladding would take six to 10 weeks after it would be ordered before it would arrive on site and then it would have to be painted before it could go one. The Builder's evidence was that it had to be made and it had to be ordered and had to arrive on the site. 100 These items concerning the need for Mr Solomon to make up his mind about the cladding he wanted are to be found in a number of the site minutes at the time. At a particular point in time Mr Solomon advised the Builder that he had a price from Tillings for $78 per square metre as opposed to a figure of $84 on the site minute. The Builder's evidence was that he told Mr Solomon that he had a price from Architectural Hardwood to tender for around $65 per square metre for the red gum. Mr De Grazia understood that the cedar was more expensive than the red gum and Mr Solomon was contending for the opposite [T:159]. 101 The Builder continued to pursue the proposition that it was urgent that the cladding be selected and even by a site meeting of 17 July, the same entry with respect to the weatherboard continued to appear in the site minutes. The continued vacillation from Mr Solomon in relation to the cladding continued through the site meeting of 25 July with the Builder now making clear that he needed the cladding and that the job was ready to go on but he could not continue without the cladding. 102 On his evidence Mr Solomon agreed with him and said that he would do the best he could to get the matter attended to. Mr Solomon had identified the problem that he was having was that of selecting the profile and the species of timber that he wanted. 103 The Builder thought that it was at the same meeting that he was advised that Ms Laracombe, Mr Solomon's co-proprietor, did not like the western red cedar and was looking for alternative species. The site minutes of 6 August at page 169 also dealt with cladding. In due course the Builder actually gave a Timbeck sample to Mr Solomon which he thought might appeal to him. 104 By that stage approximately 6 August, the Builder's evidence was that the building was ready for the weatherboards and that the Builder could do nothing else other than installing weatherboards and trying to seal the project for the next set of trades to come in. His evidence which is accepted was that very little was happening on the site at the time outside of a bit of roofing sheeting and the like [T:163]. 105 The Builder gave evidence that he said to Mr Solomon that he was holding the work up and that the Builder could not go any further and that the Mr Solomon was costing the Builder a lot of money. Mr Solomon had replied that he would do the best he could to select the weatherboards as soon as he could and was generally fed up with the weatherboard issue. 106 Mr Solomon also asked the Builder what would be the advantage of air-dried timber. Mr De Grazia said that he thought for an external installation, air-dried timber would be better, but that the Architect should make his own enquiries with the representatives and decide for himself which way he wanted to go [T:163]. The reason the Builder had given Mr Solomon the Timbeck brochure was because he had used Timbeck several times before and never had a problem with the Timbeck ship lap profile. Mr Solomon had said that he would telephone a particular representative of Timbeck. 107 There was then a meeting on about 9 August in which Mr Solomon had made clear that he did not want the cladding on the stair walls between the two houses and wished to delete it. He wanted cement rendered walls instead. That is what occurred. 108 At about the same period of time there was an entry in the site minutes stating "proceed with ordinary and recycled Jarrah from Australian Architectural Hardwoods [T:165]. The Builder asked Mr Solomon what this was about. Mr Solomon said that he had spoken with 'Andrew' from Australian Architectural Hardwoods who had said that he had Jarrah available which was the same as the red gum in price-in other words cheaper than western red cedar. Mr De Grazia then said:

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That is not on. You should have sent it to us first. You should have let us negotiate with Architectural Hardwood. This creates problems in the sense we don't know what you want or what you will be ordering by you dealing direct with contractors. It complicates the issue of running the job" 113 Mr Solomon had said that he only acted in that way in order to speed the order for the weatherboards as they were so far behind. The only conversation that the Builder could recall about price was whether the timber that Mr Solomon was requesting was the normal size of the cover or a standard profile that they had discussed with the 140 by 90 mm finish. In due course the Builder ordered the cladding as per Mr Solomon's profile. 114 The Builder's further evidence was that he did have a conversation with Mr Solomon about the method of fixing the boards as there are different methods of fixing cladding. The Builder's evidence was that Mr Solomon wanted the weatherboard fixed with two bronze coated nails on each board and that the Builder had said that that was fine as it was what was specified. At that stage the size of nail had been specified and at that stage, around about 23 August, when he finally got to the point of being able to place an order for the cladding, very little was happening on the site. 115 Mr De Grazia's evidence was that all that was happening was a small bit of electrical work in the roughing stage, a bit of plumbing in the roughing stage and possibly a bit of roofing in the top part of the building. There were only limited areas which the Builder could roof. Due to the weatherboard not being up they could not finish anything anyway. Mr De Grazia's evidence was that he had a conversation with Mr Solomon about the state of the work and advised Mr Solomon that the project was on standstill and Mr Solomon said that he was aware of it and that he would give the Builder some extensions of time to take care of the work where it was delayed. In fact an extension of time had been granted. 116 The Builder's evidence in relation to the site meeting of 4 September at concerned a notation about the cladding where there is an entry which says, "check whether 50 mm nails are adequate in lieu of 65 mm. The Builder's evidence was that Mr Solomon asked him to check that and that the Builder had said to Mr Solomon:

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"It's not my role to decide that. You decide. You the Architect. You specify" [T:170] 117 In due course the instruction from Mr Solomon was to use the 65 mm bronze coated nails with flat heads. The Builder's evidence was that at this stage virtually nothing was happening at the site as the project was on a standstill mainly. He was waiting at that stage for the cladding. The cladding arrives 118 Within one or two weeks the cladding arrived on a Friday afternoon. On the following Monday the cladding was carried into the living areas and the painters arrived and began painting. However when the plastic came off the cladding the Builder observed that the boards were not as per the specified sketch that he had received from Mr Solomon, in between the ordering and the arriving of the weatherboards. What was different as between the sketch and the boards as delivered was that they had been reduced. The overlap of the board had been reduced. And that was the only difference on the sketch, but the actual boards themselves were very badly machined and rough and one couldn't do anything with it. 119 The Builder then rang Andrew at Architectural Hardware and asked why the boards did not meet the sketch which had been ordered. The Builder then telephoned Mr Solomon and asked him why he had altered the sketch without telling the Builder. Mr Solomon said that he was only trying to speed up the process of the weatherboards. The Builder then asked Mr Solomon to come and look at the boards and explained to him what the problem was. The Builder said that the boards could not be fitted, this being because the groove was not at the right spot. It varied from one end of the board to the other. 120 At the time the Builder had selected about 30 or 40% of the boards and put them aside, that is to say, actually rejected them. 121 In due course Mr Solomon arrived and took photos of the boards and said that the Builder should continue to paint them as they would be alright. In this discussion Mr Solomon had been referring to all of the boards, that is to say even the ones which the Builder had rejected. 122 Complying with that instruction Mr De Grazia was instructed to install some of the weatherboards so that Mr Solomon could have a look at the finished product. The Builder complied with that instruction to install some of the weatherboards so that Mr Solomon could look at the finished product. A wall was chosen for the purpose of doing that. 123 Notably by letter dated 17 September 2002 addressed to Mr Solomon, the Builder made the following points:

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ii. if the finding on the balance of probabilities, is that the cladding leaked because of the design provided for its installation by Mr Solomon , then the Builder should be entitled to a variation for its cost and for the time it took him to create test panels, receive instructions as to the new product and fixing method and replace the cladding. 152 As the reasons which follow make plain, the findings based on the evidence which is accepted as reliable, favour scenario ii. 153 The Architect helpfully offered evidence as to an appropriate period to allow for that delay - 90 days [Memorandum L and S to DDG dated 5 January 2004 "Draft Statement of Fact- In Confidence" - Court Book 5:1644]. 154 The evidence satisfies the Court that the most probable factual matrix is this: the proprietor had originally selected Redgum for the cladding. As Architect, he had drafted a specification for its installation. Redgum proved to be unavailable in the quantities required and he was required to make an alternative selection. Although Western Red Cedar (WRC) was suggested by the Builder as an alternative soft wood [emphasis added], it was considerably more expensive than Redgum and accordingly, the proprietor or Architect selected Jarrah. 155 The Architects then took some time to select a profile but when they did, Mr De Grazia moved fairly quickly and the first delivery of boards occurred on 17 September 2002. He was concerned about their quality and communicated this to the Architect who attended on site and asked for a sample panel to be installed. 156 The evidence then diverges: according to the Builder, the Architect agreed that the boards were not of good quality and he rejected them. The Architect seemed to say that it was the Builder who rejected the boards and who refused to warrant their ability to be weatherproof. 157 There is no need to decide which version is correct on this point because one thing was clear - many of the boards had been milled so that the tongue in the tongue and groove was uneven and the groove in the boards tapered, in some of them, to nil. 158 The boards were returned to Australian Architectural Hardwoods who apparently did not charge either party for them, a fact that tends to confirm that they were defective. 159 Mr Solomon then turned his attention to WRC as an alternative product. He sought to imply if not assert that the Builder had made certain representations about their quality and abilities but this evidence is rejected. At best, Mr De Grazia testified that Mr Solomon had provided him with a sample which he said he had used before successfully. 160 Mr Solomon selected the product. He selected the profile. The evidence was that he and his partner had a sample of the V joint profile made up, that his partner asked for a sample of the shiplap profile to be made up and that Mr Solomon then (by phone) selected the V joint profile. The evidence was that Mr Solomon directed the installation of the boards by virtue of his specification and by specific instruction as to butt flashing and as to nailing. The only aspects upon which there was any controversy in this part of the evidence was the size of the nails and the type of vapour barrier in the walls [notably neither are suggested as a cause for the water entry]. 161 The Builder installed the boards to Mr Solomon's satisfaction and to his specification. Mr Solomon inspected the works and assessed the conformity to the contract and specification and certified and paid the Builder for the works. 162 Each of the following contentions put by counsel for Mr De Grazia is of substance:

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d) there must have been a defect in the cladding. This is a 'symptom' based opinion but not a diagnosis of the problem. It is salient to note that Mr Abbott states in his report dated 19 January 2010 that 'timber weatherboards are not completely impervious to water penetration' (paragraph 62). This necessarily brings the problem back to the installation which is accepted as a common and accepted form of installation which of itself cannot be defective. 172 The recommendations in the Brochure to contact the manufacturer, Timbeck, or the Western Red Cedar Centre prior to relying upon any information in the Brochure - and there are three prominent recommendations - under the heading 'Installation', 'Special Applications' and 'Specification Clause' were akin to a disclaimer. They made it clear that no reliance could be placed on the Brochure without more - they disclaimed the applicability of information in the Brochure for any particular application. Timbeck was effectively saying: 'This information may not be accurate as regards your installation - contact us to obtain such accurate information'. As stated by the High Court in Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 (in reference to a disclaimer in small print on a brochure) at [49] (per Gleeson CJ, Hayne and Heydon JJ) 'the words were there to be read'. And it was Solomon's evidence that he did read those words when he received the Brochure. It was not possible to ignore them - they were repeated three times. The words qualified all of the information in the Brochure to the effect that such information could not be safely relied upon for any specific application. 173 I accept that the Architect's failure to contact Timbeck is curious in circumstances where he clearly contacted another western red cedar supplier, Tillings, prior to instructing the Builder to order the Timbeck Product (see T712.34-46). It was not as if the Architect had not made enquiries of a western red cedar supplier before. The Architect was also 'actively' involved in selecting the replacement cladding as well (see T734.25-39). Regardless of who was responsible for contacting Timbeck prior to the installation to obtain Timbeck's recommended installation information, no-one did. This breakdown in communication between the Architect and the Builder was not Timbeck's fault and it should not be held responsible for this fundamental (and obvious) oversight.

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194 Paragraph 21(a) of the Cross Claim pleads that the alleged representations were misleading because water entered the building 'between the joints in the boards'. The drafting is opaque when it should be clear as regards what 'joints' means. Regardless, there is simply no evidence led to the appropriate standard (lay or expert) sufficient to make out this claim regarding any 'joints', and if even if there had been, there is no evidence that the alleged representations were the cause of the entry of water 'between the joints in the boards'... It is salient to note that there is no representation in the Brochure (nor is one pleaded in the Cross Claim) that water will not enter 'between the joints in the boards' in any event necessary to ground any relevant claim for relief. Manufacturer's Liability 195 The claims under both section 74B and 74D of the Trade Practices Act are brought well outside the 3 limitation period fixed by section 74J of the Act. 196 Pursuant to section 74J, the limitation period commences when the consumer first becomes aware or ought reasonably to have become aware that the goods were not reasonably fit for purpose, or were not of merchantable quality. This must have been around February 2003 when the leaking was first discovered, or shortly thereafter. The Cross Claim was filed in 2008. 197 Even if the claims were not statute barred, there simply is no evidence that the Timbeck Product was not fit for purpose. 198 The time at which the determination of whether or not goods are fit for purpose or of 'merchantable quality' (which by reference to section 74D(3) relevantly means whether they were fit for purpose having regard to the description given to the goods and their price, among other things) is when the goods are supplied to the consumer: Medtel Pty Ltd v Courtney [2003] FCAFC 151. The Timbeck Product as used on the project is no longer available and hence cannot be tested. This no doubt is one of the reasons why the limitation period is limited to 3 years to ensure relevant evidence regarding the products is not lost. 199 Significantly, as neither the Architect nor the Builder informed the cross-defendant as to the purpose to which the Timbeck Product would be used for (as had been specifically recommended in the Timbeck Brochure), it was not possible for Timbeck to consider such purpose and make any relevant representations to either the Architect or the Builder as to the appropriateness of the Product for that purpose, or to supply any particular product at all, and hence the claim must fail. Joinery The approach required for determining the joinery issue 200 In this part of the case Mr De Grazia was only claiming for delay costs. Such costs were alleged to arise from the joinery not being completed at the time it should have T:288.25-289.15. Mr De Grazia's successful tender bid to complete the joinery works represented his variation claim for the costs of performing that work.

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then the Builder within a reasonable time of such delay may notify the Architect of any loss or expense incurred or borne by the Builder as a result of such delay and the Architect thereupon shall make such addition to the Contract Sum as the Architect considers reasonable. 209 An initial question is whether the alleged delay with regard to joinery was properly notified by Mr De Grazia. Mr De Grazia's evidence was that he had made a delay claim on 16 May 2005. 210 Next the Court must consider whether the progress of the Works (with regard to joinery) was delayed due to causes beyond the control of the Builder. If so, the Builder was entitled under clause 9.2.2 to a reasonable extension of time. This issue turns on which parties' version of events is accepted, and as is outlined below Mr De Grazia's version of events is preferred. 211 The Court must determine whether the Builder is entitled to the costs of any such delays under clause 10.9. It is a precondition for the operation of clause 10.9 that the time for Practical Completion has been extended on the ground of delay for which costs are claimed. In this regard, an extension of time for delay caused by Woodfast was rejected. However, even where such an extension was not granted by the Architect, if the Court finds that on a proper construction of the contract the Builder was entitled to an extension it follows that the Court should retrospectively extend time. The consequence of this is that costs of delay would be available. In this regard, it is to be noted that it is a condition precedent for the award of delay costs under Contract Clause 10.9 that the Builder has notified the Architect of the relevant loss or expense within a reasonable time of the delay. Mr De Grazia appears to have failed to fulfill this condition precedent. However, as outlined earlier, the decision is that in all the circumstances Mr De Grazia's claims should not be defeated by failure to comply with the relevant contractual procedure. Returning to the facts 212 The Builder's claim as argued raises two purported grounds of delay beyond his control that may justify an extension of time and award of costs. Firstly, delay caused by the Architect's instructions or delay in giving such instructions (if such delay were established costs may be available under clauses 10.9.1 and 10.9.2). Secondly, delay caused by Woodfast (if established, costs may be available under clause 10.9.9). Mr Roberts submitted that even if there was a relevant delay for the purposes of sub-clause 10.9.9, it was reasonable within the meaning of the clause for Mr Solomon to conclude that Mr De Grazia had not taken all practicable steps to avoid the relevant delay, and therefore was not entitled to delay costs. This was said to be because of the state of the site when Mr De Grazia was demanding delivery of the joinery, and other matters. However, as is outlined below this proposition is rejected on the basis of credit findings.

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The plaintiff's essential submission 213 The plaintiff's submission was that there was abundant evidence to justify an extension of time for the completion of the joinery works (by ASBS) and the finishing trades that followed. 214 It was agreed that Woodfast Joinery - the initial subcontractor for the joinery - had been specified as a nominated subcontractor by Mr Solomon using the Architect's power under Contract clause 4.2.1 (outlined above). 215 Ms Olsson submitted and I accept that the appropriate inference from the evidence found to be reliable is that Mr Solomon had directed Mr De Grazia to accept the terms in Woodfast's quote for the subcontract and this was an unauthorised interference in the Builder's right to negotiate the terms of the subcontract. The Builder is given explicit power to subcontract under Contract clause 4.1 and it is apparent from section 4 of the Contract as a whole that it is for the Builder to negotiate subcontract terms. The plaintiff's submissions as to delay regarding joinery 216 Ms Olsson contended that the evidence established that Woodfast and Mr Solomon were responsible for the delay regarding joinery. In this regard, Ms Olsson contended that on the evidence, the Builder had expressed concerns about the joiner's capacity to perform the works at the outset, but the Architect had ignored this advice and instructed the Builder to proceed with the subcontract. Furthermore, the contention put on behalf of Mr De Grazia was that during the period of the subcontract Woodfast Joinery had caused him significant delays, however despite his repeatedly raising this issue and asking Mr Solomon to terminate the subcontract (under Contract clause 5.4 Mr De Grazia had to follow the Architect's instructions), Mr Solomon had delayed in giving instructions and decided to retain Woodfast. In this regard, Mr Solomon testified that in February 2003 he instructed the Builder to retain Woodfast notwithstanding the Builder's complaints). Ms Olsson submitted that:

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Ms Olsson came back to the second proposition - which was that having instructed Mr De Grazia to use Woodfast, Mr Solomon had to take responsibility for delays caused by Woodfast - at various points. 217 Mr Roberts submitted that Mr De Grazia's complaints should not be taken as proof that Woodfast was in fact delaying the works. Ms Olsson made various submissions to establish that Woodfast's actions had delayed the building work. She drew on Mr De Grazia's evidence that he had sequenced the work to install the joinery upstairs first, and because the joiner did not cooperate with this sequence, and failed to complete its work, later trades were delayed. In this regard, Mr De Grazia gave evidence in chief that there was a period from January until maybe February 2003 where nothing happened on the building site because of delays in relation to the joinery T:287.5. Ms Olsson also contended and I accept that there was scant evidence that Mr De Grazia was responsible for the delay in relation to joinery, with Woodfast never attempting to rely on a contractual remedy or alleging that Mr De Grazia was in breach of the subcontract. 218 As part of establishing the delays caused by Woodfast, Mr De Grazia gave evidence in chief that by Christmas 2002 only part of the joinery had been completed -the carcasses, which were the less expensive and less important part T:281.30-282.30. Against this, Mr Roberts submitted that it was standard practice to build and install joinery in two parts: the carcasses first and finished tops much later. In cross-examination Mr De Grazia rejected this proposition: 460.40-461.10. Mr Solomon's evidence in chief was that in his experience joinery was always done in two parts (as contended by Mr Roberts): 740.10. Furthermore, Mr Solomon testified that there were significant defects in joinery due to damage from later trades. This appeared to implicitly suggest that the Builder had brought joinery onto site too early T:740.23-48. 219 Mr De Grazia gave evidence in chief of another aspect to delay in relation to joinery, however this was not expanded upon in later argument. His contention was that he did not have sufficient information regarding the joinery to engage a subcontractor until the time when the site was actually ready for part of the joinery to be installed T:273.46-274.0. However, in re-examination Mr Solomon testified (in relation to Ms Olsson's questions about the need for the Builder to have joinery details prior to ordering) that no claim or complaint was made by Mr De Grazia about a lack of coordination between joinery and electrical and plumbing details T:970.16. The defendants' submissions as to delay regarding joinery 220 The defendant disputed Mr De Grazia's delay claim regarding the joinery. Mr Roberts submitted that Mr De Grazia's complaints regarding Woodfast were unsubstantiated and therefore his objections as to it being the subcontractor were not reasonable, as required by Contract clause 4.2.1 (see below). Mr Roberts accused the Builder of intentionally shifting blame to the joinery contractor because it was an "Identified Contractor" under the Contract, and attributing blame to the joinery contractor for virtually every delay on site. In cross-examination, Mr Roberts suggested that Mr De Grazia had embarked on a campaign from the outset to undermine Woodfast because he wanted to perform the joinery work himself T:452.10-452.20. 221 To demonstrate the alleged falsity of Mr De Grazia's complaints regarding Woodfast, Mr Roberts highlighted that in February 2003, when Mr De Grazia was writing to Mr Solomon to complain about Woodfast, he was also writing to his plasterer to complain about six weeks of delay caused by the plasterer. The relevance of this was that Mr Roberts contended that plastering affects the installation of joinery - as joinery must fit between properly plastered walls - and thus it supported the inference that the site was not ready for the joinery when Mr De Grazia was asking for it. Mr Roberts also made various suggestions in cross-examination that the building was not ready for joinery at times when Mr De Grazia was demanding joinery. The culmination of this line of questioning was that Mr De Grazia conceded, subject to the photographs Mr Roberts relied on being correctly dated, that part of the building was not ready for joinery as late as 4 December 2002 T:463.20-30. Additionally, Mr Solomon gave evidence in chief that there were problems with the plasterboard work in the building that meant such work was only finished sometime in 2003, meaning joinery that touched a ceiling could not be measured until after such plastering was completed. 222 Ms Olsson submitted and I accept that Mr Roberts' contention that the site was not ready for joinery when Mr De Grazia was demanding it did not ring true for several reasons. Firstly, Ms Olsson said that since the joinery was defective, it could be inferred that the joiner on any view was not going to do a good job. Secondly, Ms Olsson submitted that Mr De Grazia's delays in finishing the site were entirely plausible within his chosen sequence of the works. Thirdly, in relation to the plastering issue Ms Olsson submitted that the documentation showed there was a genuine dispute as to whether the Builder's work was defective, and the issue had been dropped in March 2003 but the joinery delays continued. The trip to the joinery workshop and the site minutes 223 A central part of the joinery delay issue was a point in November 2002 where Mr De Grazia and Mr Solomon had attended Woodfast's workshop. Mr De Grazia gave evidence in chief that when they went to the workshop - at his insistence to see the progress of the joinery work - there was no joinery or even materials for it. Mr De Grazia recounted a conversation in the car trip returning form the workshop where he pressed Mr Solomon to get another subcontractor in light of Woodfast's lack of progress, and Mr Solomon said he would not sack Woodfast, and instead would speak to Tony the relevant person at Woodfast. 224 As Ms Olsson submitted, Mr Solomon did not deny the November meeting with Woodfast, and therefore must have been aware the works would be delayed by the joinery. Mr Roberts submitted in this regard that Mr Solomon had given evidence and the site minutes recorded that a certain amount of joinery work had been completed. 225 Mr De Grazia's version of the meeting is accepted on the balance of probabilities. It is to be recalled that Mr Forbes' gave evidence that he remembered the two going to the Woodfast workshop. Further the fact that site minutes continued to record that the kitchens and laundries as complete was inexplicable and contrary to the evidence. The evidence called in relation to the joinery delay issue 226 Ms Olsson invited the Court to make the following Jones v Dunkel inference in relation to the delay caused by the joinery:

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The defendant did not call any evidence from Tony Amyouni, the director of Woodfast with whom he and the Builder dealt: he undoubtedly could have given relevant and material evidence on these points and his absence was not explained. The Court is entitled to infer that his evidence would not have assisted the defendant's case. 227 I accept the submission as of substance. The period from when Mr Solomon began looking for an alternative subcontractor 228 There was a period from April 2003 until June 2003 when Mr Solomon was looking for a replacement subcontractor to complete the joinery. Mr Roberts contended that negotiations had been terminated because of Mr De Grazia's abusive behaviour in a meeting with Mr Solomon and a potential subcontractor. To rebut this, Ms Olsson submitted that the evidence of the potential subcontractor, Mr Versi, showed that he did not want the job. Ms Olsson emphasised that there were other factors which had discouraged Mr Versi from taking the job. 229 Mr Solomon testified that he had consented to termination of Woodfast's subcontract on 16 June 2003 after it became insolvent. Following this, Mr Solomon had accepted a tender by Mr De Grazia to complete the joinery work. In cross-examination of Mr De Grazia, Mr Roberts suggested that ASBS had taken six months to complete the joinery work - which was based on a six week program - however Mr De Grazia disagreed, contending that practical completion was achieved in about six to eight weeks T:470.22-34. Mr Solomon gave evidence in chief that Mr De Grazia said he would complete the joinery within eight weeks, but then only completed the joinery in six months, with practical completion on about 18 or 19 December 2003 T:749.15-749.37. Regarding Mr De Grazia's eventual completion of the joinery work, Ms Olsson submitted that the job was more complex because of the need to rectify Woodfast's defective work. 230 As earlier indicated the essential finding on the joinery issue is very dependent upon the Court's finding as to which of the two parties competing versions of the facts is accepted. In general terms Mr De Grazia's version is preferred to that of Mr Solomon. Further the issue requires a credit finding as to whether or not the state of the site has been proven to be such as to have been a principal cause of the inability to deliver the joinery. That in turn impacts upon Mr De Grazia's entitlement [or not] to the claim of day-to-day costs in under clause 10.9.9. On the evidence, which is accepted as reliable, it was not reasonable within the meaning of that clause for Mr Solomon to conclude that the Builder had not taken or practicable steps to avoid the relevant delay and therefore was not entitled to delay costs. The finding is that Mr De Grazia's delay claim with respect to joinery is made out. The sub-issue of a progress claim in regard to Woodfast's work 231 A sub-issue in relation to the joinery was a progress claim for $30,000 made by Mr De Grazia in January 2003 in relation to the joinery subcontract and accepted by the proprietors. In cross-examination, Mr De Grazia accepted that this amount was not paid to the subcontractor - Mr De Grazia had reduced the valuation of their work based on defects (285.10) - meaning he received this amount on top of the price that was agreed for ASBS to complete the building work T:470.17-20. Mr De Grazia also agreed that in completing the joinery ASBS was able to use carcasses made by Woodfast (the subcontractor) that had been accepted. 232 Regarding the $30,000 issue, Mr Solomon gave evidence in chief that he and Mr De Grazia had agreed that there was $30,000 of joinery attributable to Woodfast's work on site. Mr Solomon testified that despite this agreement Mr De Grazia insisted he was going to pay the subcontractor an amount that he determined was appropriate T:744.26. 233 In regard to the $30,000 issue Ms Olsson submitted that:

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Were there sufficient details provided? 236 A significant part of the argument in relation to windows focused on the Architect's provision of details of the windows to the Builder. Primarily this was relevant for the purposes of determining the issue of delay and specifically when the Builder could obtain a quote and then order the windows. 237 In this part of the case Ms Olsson submitted that the contract drawings were not sufficient to enable the windows to be manufactured. Ms Olsson rejected the defendants' contention that there were only minor changes to the windows, submitting that the revisions of the relevant drawings showed that there were substantial changes. Ms Olsson further submitted that there had been changes by the Architect to the window details until mid-June 2002 (a point conceded by the defendants) meaning the Builder could not place a final order until this date. Furthermore, given Mr Solomon agreed there was a lead time of at least four to six weeks in the manufacture of windows (Ms Olsson has suggested four to eight weeks), the earliest the windows would arrive on site was mid-July. Ms Olsson contended that given that after the windows were installed, the cladding had to be fitted and the internal works done, it was foreseeable on this timetable that the original September 2002 deadline would not be met. It was therefore claimed that Mr De Grazia was entitled to costs for the delay caused by the Architect's conduct in providing window details. 238 Although the defendants and Ms Olsson agreed that the final change to the windows had occurred in June 2002, Mr De Grazia gave evidence in chief that he had only received sufficient detail to obtain a final quote for windows in August 2002 T:94.48. Ultimately, nothing turns on this difference, since for the reasons outlined below Mr De Grazia's window delay claim is rejected. 239 Mr Roberts' position was that the Builder had sufficient details from the contract drawings to obtain a quote for the windows and doors and to place an order (Mr Solomon's evidence in chief and under cross-examination supported this proposition T:883.41-885.33). Mr Roberts reasoned that all of the amendments to the window and door details related to internal changes. Mr Roberts contended that there was no change to the opening size of the windows. Mr De Grazia rejected this suggestion, but conceded he was unable to identify such a change T:381-386.45. Mr Roberts submitted that his contention that a quote could have been obtained form the contract documents was shown to be correct by the fact that the Builder obtained a quote from Broadview, another window supplier. 240 Mr Roberts made several more specific submissions intended to support his basic position. These included submissions that:

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iv. By 20 June 2003 all windows were complete and the cost of that trade ought to have been known. This item was not raised at all during the "Variation settlement meeting" on 20 June 2003. What was the impact of the purported delay? 246 In order to support the claim that Mr De Grazia was delayed by Mr Solomon's failure to provide relevant window details, Ms Olsson attempted to show that the progress of the works had in fact been delayed. Ms Olsson drew on the fact that in the two progress certificate paid for the six months up to mid July 2002 around $572, 000 was paid to the Builder in such certificates, whereas in the certificate from July to end of October around $45, 000 had been paid out. Ms Olsson said this was proof that very little was happening on site, and sought to link it to Mr De Grazia's allegation of delay caused by the Architect with regard to windows and cladding. 247 Ms Olsson made a similar point during cross-examination, with Mr Solomon agreeing with her suggestion that by 23 August 2002 the stud work on the second floor of the building was ready for the windows and then the cladding to be fitted, however neither was available (it was agreed that Mr De Grazia was planning to finish the second floor first). Ms Olsson suggested that this was because of Mr Solomon's delay in providing necessary details to Mr De Grazia, with the windows changed until June 2002 and only arriving in about September 2002, and the cladding ordered on about 17 September 2002 T:890.25-892.12 Ms Olsson contended that the cladding and windows were both critical to the progress of the works as they made the building watertight, and a delay in their installation in turn delayed the commencement and completion of internal finishes. 248 In evaluating this aspect of Ms Olsson's argument, it must be remembered that the fact that there was an apparent delay does not necessarily mean that it was caused by the Architect. The construction method required to be used to install the windows 249 Another significant part of the window delay issue concerned the process by which windows were to be installed into the house. Mr De Grazia's gave evidence that he wished to fit the windows into the brickwork as the brickwork was built up, rather than leaving openings in the brickwork and later fitting the windows in T:82.30-82.47, 366.27-366.50. Mr Solomon gave evidence that such a technique was essentially never used. 250 Ms Olsson conceded that a notation to the relevant contract drawing stated that the windows were to be fitted into openings that were to be left in the brickwork (by specifying that the windows should be measured on site prior to manufacture) T:1179.47-11.47.50, 1182.30-1182.32. This requirement also appeared in Specification clause 8.01 (extracted below). 251 Ms Olsson's first submission was that there was an inconsistency between the term of the contract which gave the Builder power to decide the sequence of the work and the part of the contract drawing which said that the windows should be measured on site before manufacture, and the former should take priority. Ms Olsson reasoned that the purported inconsistency activated the term of the contract that provided in the event of conflict, the general contractual conditions take priority over the contract drawings T:1182.11-1183.4. 252 Ms Olsson's second submission, which was made in the alternative, was that Mr De Grazia could have acted consistently with the part of the contractual drawing in question, and his power to decide the order of building, by measuring and ordering the windows for the bottom floor first - once the bottom floor frame was completed - however he was prevented from doing this because Mr Solomon was still changing the windows (meaning a final order could not be placed). In order to explain this alleged delay Ms Olsson emphasised Mr De Grazia's evidence in chief that he did not want to wait for everything to be finished before utilising later trades T:1183.12-1183.25, 1224.46-1225.40. 253 Mr Roberts submitted that there was no ambiguity, discrepancy or inconsistency in the contract documents, and therefore Ms Olsson's primary submission in this part of the case could be ignored. He contended that it was a contractual requirement to measure all window and door openings onsite prior to any window and door fabrication (he pointed out that the requirement appeared not only in the drawings, but also in the specification).

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262 In cross-examination Mr Roberts suggested that, apart from the contractual interpretation issue, Mr De Grazia's expressed intention to fit the windows into the building as the brickwork went up was not plausible as a matter of building practice. However, the defendants' expert, Mr Abbott, testified that this was a common practice (1003.30-1003.48) and Mr De Grazia's expressed intention therefore appears reasonable. 263 Accordingly, it was open to Mr De Grazia to maintain that he wished to install the windows as the brickwork went up. Dealing with the window delay issue 264 The defendants focused on the proposition that the changes to the windows were minor and unlikely to affect the plaintiff's progress, and did not affect the plaintiff's ability to obtain a quote or place an order. However, it is significant that under cross-examination Mr Solomon conceded that the last window change in June 2002 could not be manufactured until that change was made T:890.22-27. The Court accepts Ms Olsson's submission that until this final change was made, the Builder could not safely finalise the order and have the windows manufactured. The potential counter-argument - that Mr De Grazia could have other unchanged windows manufactured before this point - is rejected. 265 The acceptance of the above submission and the fact that Mr De Grazia was contractually entitled to insist that he wanted to install the windows as the brickwork went up (at an earlier stage of construction than when they were in fact installed) prima facie supports the window delay claim. However, the Builder must prove that the works were actually delayed by the Architect's conduct in altering the window details. 266 Mr Zakos, in his report which the plaintiff relied upon in substantiating its submissions, assessed that the Builder was entitled to an extension of time of thirty days because of the Architect's delay in providing the final window schedule. However, in relation to the window delay issue, he made an untested assumption that the project was delayed for the entire time that it took to install the windows. It may be this conclusion is correct, however it is necessary to arrive at it in a reasoned way by considering the relevant issues. These would appear to include whether later work was delayed while the windows were installed, and whether any other work was undertaken at this time.

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267 In relation to Mr Abbott's evidence, these reasons have explained elsewhere that it is often not accepted. Regarding the window delay issue, Mr Abbott did not attempt to quantify Mr De Grazia's claimed delay (he had not been instructed to report on this), and his evidence could not assist the Court in this regard. Rather, his evidence focused on the methodology as to how delay should be calculated. 268 In the result the Court rejects the window delay claim. The Builder has simply failed to prove this part of his case. The plaintiff's variation argument in relation to Arch systems 269 Ms Olsson's second major submission on the subject of windows was that Mr Solomon had instructed Mr De Grazia to use Arch Systems as the subcontractor and this amounted to a variation since Mr De Grazia could have obtained the windows that were finally specified from another subcontractor, Broadview, for around $40, 000 less. 270 In order to make out her submission, Ms Olsson relied on Mr De Grazia's evidence that Mr Solomon had told him that he did not want to use either Broadview or Sassol, the two subcontractors who Mr De Grazia had approached. Furthermore, Mr De Grazia gave testimony of a conversation where Mr Solomon had said that he wished to use Arch Systems (the contractor that was used). In examination in chief on this issue, when pressed on the fact that it was his choice as Builder to chose subcontractors Mr De Grazia said that he decided, in light of Mr Solomon's preference not to use Broadview, not to push the issue in order to avoid later conflict. 271 Mr Roberts' final position was that there was never any instruction or direction from the Architect to the Builder to use Arch Systems as the window sub contractor (Mr Solomon's evidence, including under cross-examination, was consistent with this proposition T:889.40, 969.45). Mr Roberts contended that if there had been such an instruction it would have been documented in the way instructions on the project were generally (ie given or confirmed in writing, as required by the contract). Instead the minutes in item 15.2 read 'ASBS chose Arch Systems'.

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Decision 272 The plaintiff did not identify precisely how the alleged instruction to use Arch Systems constituted a variation. A variation is defined in Contract Clause 1.2.12 to include 'changes in the character or quality of any material or work'. In this regard, it is relevant that Mr De Grazia recounted a conversation where Mr Solmon said Arch systems produced better windows than the subcontractor Mr De Grazia was intending to use T:1228.15. Furthermore, Mr Roberts did not challenge the proposition that the instruction, if made, would constitute a variation. Ms Olsson's submission that the instruction in substance constituted a variation is accepted (assuming it was made). 273 The next question is whether the instruction - although not documented in the proper way - was in fact made. Under cross-examination by Mr Roberts, Mr De Grazia conceded that he did not complain about not being able to use Broadview rather than Arch as the window subcontractor and had never thought of this aspect of the case T:386.48-387.4. (Mr De Grazia did not make any objection that he did not understand this line of questioning). Mr Roberts did not submit that this concession fatally undermined the plaintiff's window variation claim. However, the concession contradicts and weakens Ms Olsson's fundamental submission that Mr De Grazia was forced to use Arch systems. In this regard, it should also be noted that Mr De Grazia's evidence was that he had decided not to insist on using Broadview after Mr Solomon had made it clear that he did not to use Broadview, and then proceeded on Mr Solomon's instruction to use Arch T:96.35. Accordingly, there is significant doubt as to whether an instruction - that although not made in the proper form can be considered to amount to a variation - was in fact made. Accordingly, the plaintiff's window variation argument is rejected. 274 If the above be incorrect, and the alleged instruction was in fact made and constituted a variation, it is necessary for the Court to be able to value the variation in order for Mr De Grazia's claim to succeed. The claim was based on the difference between the price of a Broadview quote received by Mr De Grazia and the price paid for the Arch Systems contract. However, in cross-examination, Mr Roberts made the point that the Broadview and Arch Systems contract prices could not be compared since the Arch contract was a supply and install contract, whereas the Broadview quote was for supply only. Mr De Grazia did not deny this distinction (he argued that the difference between the two contract prices was more than installation would cost). As Mr Roberts further highlighted, there was really no evidence that Mr De Grazia could point to that would assist the Court in determining whether the difference between the quotes was appropriate (Mr De Grazia sought to justify his opinion by having regard to his building experience).

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b) The evidence falling short of the requirement that the expert make his reasoning processes explicit. 291 I reject the defendant's contention that the evidence given by Mr Zakos should be rejected. Whilst of course the evidence which he gave must be carefully scrutinised, he certainly had the training study and experience which had given him extensive specialised knowledge on the basis of which, wholly or partly, to be in a position to express relevant opinions. 292 Mr Zakos may not have recreated a construction program or created a critical path program but that was not critical. The thrust of his evidence was that building a house is a simple process in the sense that in terms of the sequential events that happen there is very little a Builder can do to change the order in which things happen. As Ms Olsson contended in this case there was not much else one could do. All that Mr Zakos was endeavouring to say was that one did not need to create a detailed construction program or critical path program in order for the task which he had been allotted to be carried out. 293 I was satisfied that he had he looked with sufficient detail at what actually happened on the site, always accepting that he had relied upon the evidence given by Mr De Grazia. He had he looked at the drawings and he looked at the instructions that passed between the parties and he looked at the site memoranda. The site minutes were critical documents because they actually recorded on a day-to-day basis what happened at the site. 294 Other than looking at every piece of documentation that passed between the parties, there was not much else he could do. The site minutes are critical documents because they are the documents that actually record on a day-to-day basis what happened on this site. The evidence given by Mr Zakos evidence fits into the category permitting the expert's evidence as admissible because it goes to the nature or the extent and the reasonableness of the claim if delayed. 295 In an interesting article by the Hon Mr Justice Byrne ['Total Costs and Global Claims', (1995) 11 Building and Construction Law Journal 397] the author referred to different possible approaches to how a claimant might present and tribunals determine a claim where it was not possible to prove the loss which flowed from a number of events which, individually, constituted a breach of contract or gave rise to what the author referred to as a contractual entitlement. Amongst the candidates put forward by his Honour was what he described as the method of determination of a global claim by resort to the 'jury approach'. In essence that amounted to the tribunals general assessment of the claims made on the evidence, but adjusting the amount to reflect the uncertainties and un-measurable components. Is there a way forward? 296 I part company with the defendants contention that in the absence of an appropriate level of programming being available as a tool to determine questions of delay and the like, a plaintiff in the position of the Builder in the current proceedings is unable to establish an entitlement to relief. 297 In other fields [as for example the assessment of contract damages] it is common ground that notwithstanding that damages cannot be assessed without difficulty and uncertainty, that does not relieve the Court from its undoubted responsibility of attempting to assess those damages as best it can cf the well-known passage from the judgment of Dixon and McKiernan JJ in Fink v Fink (1946) 74 CLR 127 at 143:

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Mr De Grazia's claims regarding non-big ticket items that are still pressed Boral H Blocks 305 Mr De Grazia's claim in relation to this item was that he had purchased Boral 20.42 blocks, which were said to meet the contractual requirements, however he had been instructed by Mr Solomon in a letter of 15 February 2002 to use the Boral 20.91, so-called H blocks, for part of the project. Mr De Grazia claimed a variation in relation to the H blocks costing more and requiring more concrete to fill. Additionally, Mr De Grazia claimed in relation to the costs of employing two labourers for 16 hours in order to move the old blocks to the back of the building (they were reused) once the variation was made. Mr De Grazia further claimed for delay costs because the H-block was said to take longer to lay than the 20.42 blocks; and secondly, the cost of repairing H blocks where a corner had broken (carpenters were said to be employed). 306 Mr De Grazia's claim was made on the basis that Mr Solomon's instruction to use H blocks constituted a variation. This would only be the case if Mr De Grazia could establish that under the contract he was not required to use H blocks, which in my view, for the reasons which follow, he fails to do. 307 The central issue between the parties was whether the 20.42 block originally purchased by Mr De Grazia complied with the original contractual requirements (and Mr Solomon's direction was a variation, entitling Mr De Grazia to costs) or whether Mr De Grazia was always required to use H blocks. The contractual regime was that Specification Clause 5.05 called for 'standard grey blocks' manufactured by Boral and referred the Builder to the Engineering specification and drawings. A structural note to engineering drawing S1 said that the type of concrete block to be used was the 'double U or retaining wall block'. 308 Specifically, the major point of difference between the parties was whether the 20.42 block originally purchased by Mr De Grazia was a retaining wall block (as required by the structural note). Mr De Grazia testified that he had consulted Boral catalogues to provide the blocks specified. In his submissions, Mr Roberts drew on a Boral catalogue produced by the defendants and which Mr Solomon testified was available up until the period when the relevant work was undertaken, in which the 20.42 block did not appear as a retaining wall block. This meant, Mr De Grazia agreed, that the only block which appeared in that catalogue that complied with both the Architectural specification and the structural note was the 20.91 H block. If this were the correct factual basis, Mr Solomon's instruction could not be regarded as a variation. Mr Roberts established in cross-examination that two other catalogues which showed the 20.42 as suitable for retaining walls, and would therefore support Mr De Grazia's argument, post-dated the relevant work. A document tendered by the plaintiff, Exhibit P2, appeared to be a photocopy from one of these later catalogues. Ultimately, Mr De Grazia conceded under cross-examination that he could not point to a document in existence at the time of the work which supported his contention, although he maintained such documents existed.

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311 Mr De Grazia did not adequately prove that the 20.42 blocks originally purchased by him were retaining wall blocks and therefore complied with the structural note. He testified that this was the case and he is generally a witness of credit. Ms Olsson's submission stated that it was obviously a retaining wall block from the way it had been used (no further reasoning was provided). Mr Zakos' evidence did not assist Mr De Grazia's position (he testified a different block again, the 20.01, could be used). Ultimately, these points do not overcome the doubt raised by the combination of Mr Solomon's testimony and the Boral brochure produced by him which showed the 20.42 was not a retaining wall block. Admittedly, that brochure was itself not entirely satisfactory as a piece of evidence, since it was undated (but relevantly Ms Olsson did not object to its tender, or deal with the matter in re-examination). Mr De Grazia's submission has not been made out. Therefore, he cannot establish that Mr Solomon's instruction was a variation and claim costs that were said to result from it. Accordingly, it is unnecessary to deal with those issues. Storage of lights 312 Mr De Grazia's claim is for approximately $200 that he testified he was charged by Tangen lights for storage of the lights. On his version of events, this cost arose because Mr Solomon instructed him to purchase the lights in May 2002 or perhaps earlier and this was several months before they were expected to be required (he said the lights were actually installed in late 2003). Mr De Grazia said that an invoice had been issued but he had misplaced it. 313 The defendants' position was that the delivery and secure storage of all provisional sum work formed part of the contract works (which Mr De Grazia was obliged to provide) because Clause 17.01 of the specification instructed the Builder to 'allow to take delivery of all items and securely store until required'. Furthermore, the defendants contended that the Architect's instruction to order the lights was given in September 2002 not March 2002 as alleged. The minutes record that the plaintiff had not ordered the lights as at 2 September 2002. No invoice has ever been produced to substantiate the Builder's claim. This item was not raised at all during the "Variation settlement meeting" on 20 June 2003. Decision 314 Mr De Grazia's claim in relation to this item was not adequately proven, there being no documentary evidence to support his testimony. Notwithstanding the general findings regarding credit, this claim is rejected. Kinking the downpipes 315 This claim related to work which Mr De Grazia had undertaken after discussions with Mr Solomon in relation to the downpipe on both houses. Mr De Grazia said he had initially warned Mr Solomon that it was fiddly work, would cost money and delay the pouring of the concrete slab for several days. Mr De Grazia had, after considering the matter, told Mr Solomon that the desired work on the downpipes could be done. Mr De Grazia said Mr Solomon then told him to undertake the work if he could do it successfully. The work was then undertaken. 316 Mr De Grazia testified to a range of costs that were said to result from this work. This included a site diary entry of two plumbers working for eight hours to kink the down pipes, for both houses, $260 worth of extra material, and additionally a range of structural work that resulted from these changes (which created another two days work for a boilermaker) T:124.40-125.2. Mr De Grazia further testified that no other work could be carried out during this period (it was dependent on the concrete slab being pored). Accordingly, his claim included a charge for the hiring of scaffolding that was already on site. 317 Mr Roberts' final submission was that the work relied upon by Mr De Grazia formed part of the contract works. He pointed out that the complete supply and fix of all downpipes formed part of the contract works as per clause 13.10 of the contract specification. Mr Roberts contended that the kinking in question was concealed stormwater plumbing work which formed part of the contract works and is a common building practice. Mr Roberts further submitted that to the extent that the plaintiff relied on an instruction about changes to the rooflines, no such instruction had been identified. He emphasised that this item was not raised at all during the "Variation settlement meeting" on 20 June 2003. Even though the plumbing was not complete by that date, it was contended that the cost of that trade ought to have been known. Furthermore, Mr Roberts submitted that no invoice to the Builder from the plumbing sub contractor (or any other sub contractor) has ever been produced to substantiate the Builder's claim. Decision 318 Mr De Grazia's claim in relation to this item was not adequately proven, there being no documentary evidence besides the site diary - such as invoices - to support his testimony. Notwithstanding the general findings regarding credit, this claim is rejected. Roof pitch 319 This claim related to work that Mr De Grazia testified was undertaken to make the pitch to the roof higher on its low point. It was undertaken after a conversation Mr De Grazia recounted where Mr Forbes said the roof pitch had to be altered from the drawings to maintain the head height above the stairs. To undertake this work Mr Forbes had to re-mark out the roof pitch (essentially sketch it out) and reorder two or three pieces of timber. Mr De Grazia testified that there was other work being undertaken at this point (mainly carpentry) and the effect of the remedial work had been that a crane booking had to be rescheduled. He further testified that the overall delay caused to the whole project was three to four days. 320 Mr Roberts' submission was that the roof pitch set-out adjustment occurred prior to any actual building work in the subject area. It was of a very minor degree and was resolved on the same day that the Architect received the pitching angle query from Mr Forbes. Mr Roberts submitted that Photos 65, 66, 70, 71, 74, 75, 76, 77 & 78 showed the roof framing in place by Saturday 3 August 2002. Mr Roberts further submitted that no additional materials (timbers, nails etc) were required due to this adjustment as it was an adjustment of documented timber members. Mr Roberts pointed out that by 20 June 2003 all roof carpentry was complete and the cost of that trade ought to have been known. This item was not raised at all during the "Variation settlement meeting" on 20 June 2003. Decision 321 Under cross-examination, Mr Forbes, the site foreman who dealt directly with this issue, agreed with Mr Roberts proposition that an initial roof set-out was carried out, there was an issue that arose, Mr Forbes spoke to Mr Solomon and it was resolved on site, after which the building of the roof commenced T:591.1-8. Mr Forbes gave evidence in chief that the construction of the roof was delayed for at least a day and a half while this issue was dealt with T:510.50-511.2. This was broadly consistent with Mr Roberts' position that the issue was resolved on the same day that it arose. In contrast, Mr De Grazia gave evidence that this issue delayed the project for three to four days. Mr De Grazia testified that it was necessary to change a crane booking, but no other evidence was produced regarding this issue (Mr Forbes did not address it in his testimony). Having regard to all of the circumstances, the plaintiff is awarded delay costs of one day in relation to this issue. Splay the balconies 322 Mr De Grazia testified that he built the balconies according to the drawings but they were subsequently changed when the angle of the roof pitch was changed. He further testified that these changes were undertaken upon instructions from Mr Solomon. Mr De Grazia testified that his claim reflected the costs and delays associated with undertaking these changes. He recounted a conversation where he told Mr Solomon this work would result in extra costs and Mr Solomon had said it would be cleaned up in a 'wash up' at the end of the job. 323 Mr Roberts submitted that this claim turned on the contractual requirement in clause 7.11 of the specification, that the Builder was required to consult with the Architect prior to construction of the splayed balconies: "method of fixing boards to frame must not pierce membrane. Discuss with Architect prior to construction." Mr Roberts contended that the method of weatherproofing the splayed balconies was discussed between Mr De Grazia and Mr Solomon and a proposal by Mr De Grazia was accepted Mr by Solomon (who confirmed this with a drawing and a memorandum). 324 In cross-examination Mr De Grazia conceded that he had the relevant details for the construction of the balustrades (which related to the balconies) by June or at least 7 August 2002. 403.40. Mr Roberts submitted photos 74 to 78 show that - despite this issue being resolved in June -the relevant work only commenced around mid November 2002. In cross-examination Mr De Grazia rejected this suggestion, contending that the balcony was built three times for different reasons. 325 Mr Roberts further submitted that by 20 June 2003 balconies 3 and 3A were complete and the cost of that trade ought to have been known. This item was not raised at all during the "Variation settlement meeting" on 20 June 2003. Decision 326 Mr De Grazia's evidence of the balconies having to rebuilt - causing a variation and a delay cost - is broadly consistent with that of Mr Forbes' (who gave evidence of two carpenters having to work for one day to reframe the balcony T:513.10-27). Mr De Grazia testified that he had put this claim together by referring to timesheets and other work that was carried out. Mr Roberts' submissions in relation to this issue focused on the fact that Specification Clause 7.11 required the Builder to consult the Architect prior to construction of the splayed balconies and despite a discussion and alleged agreement between the parties in June 2002, photographs taken by Mr Solomon were said to show that the relevant work was only undertaken in around mid-November 2002 (and therefore was not critical). Due to the evidentiary problems with Mr Solomon's photographs, they cannot be accepted as evidence of the progress of the works at their purported dates (as Mr Roberts' attempted to use them). Without the photographs, this issue turns on findings of credit and accordingly Mr De Grazia's claim is accepted. Deletion of pantry stack 327 Mr De Grazia testified that this claim related to work involving the lifting of a drainage stack by 15mm and lifting up the whole ceiling by 15mm. He further testified that Mr Solomon instructed him to do this work, and when the work was undertaken the plumbing was in place and the ceiling frame was in place, although the actual plasterboard was not. The work was performed by the plasterboard contractor and the plumber, and Mr De Grazia had calculated his claim based on timesheets and notes made at the time. 328 Mr Roberts basic position was that this item represented a deletion from the contract works. Mr De Grazia rejected this suggestion in cross-examination. Under cross-examination, Mr De Grazia maintained that he had received an overall variation from his plumber in relation to the project and he knew it included this item from a discussion with the plumber. Mr De Grazia conceded he did not have a document from the plumber, and had instead made an estimate of 30 hours work from his diary records. Mr Roberts suggested this was a variation that Mr De Grazia had compiled in 2005 which did not reflect what had happened on site. Mr De Grazia rejected this suggestion. 329 Mr Roberts further submitted that Mr Solomon's instruction occurred prior to any overhead plumbing work. Mr Roberts contended that by 20 June 2003 all concealed plumbing work in the kitchen and living areas was complete and the cost of that trade ought to have been known. This item was not raised at all during the "Variation settlement meeting" on 20 June 2003. No invoice from the plumbing sub contractor to the Builder has ever been produced to substantiate the Builder's claim. The Architect was entitled to reject the claim. Decision 330 Mr De Grazia's claim in relation to this item was not adequately proven, with all of the documentary evidence relied upon generated by him or ASBS (he made his claim by referring to timesheets and notes made at the time). Notwithstanding the general findings regarding credit, this claim is rejected. Louvres 331 Mr De Grazia testified that this claim related to work that had been done to accommodate the louvres which Mr Solomon decided not to proceed with (due to the price in the quote that Mr Solomon received for that item). Mr De Grazia further testified that various work had been done, including drilling, fixing channels in place to take the louvres, and electrical wiring had been provided. Mr De Grazia testified that once the decision not to proceed with louvres was taken the wiring had to be terminated, and some weatherboards where the wiring was penetrating had to be replaced. 332 Mr Roberts submitted that under specification clause 14.16 electrical installation of Aerobrise louvres was included in contract sum (that is, the electrical service is not included in the provisional sum for the louvres). Mr Roberts submitted that the plaintiff had said that a junction box was needed and that weatherboards needed to be replaced, and this evidence was not consistent with that of Mr Forbes. Mr Forbes testified that there was not very much work involved, saying that the wiring was already installed and all that was required was to cap off the wiring to make it safe T:525.210-28. Mr Roberts contended that the weatherboards had not been installed by the date of the instruction (contrary to Mr De Grazia's testimony). Decision 333 There is a discrepancy between the evidence of Mr De Grazia regarding the significance of the work required to cap off the electrical wiring and that of Mr Forbes. Additionally, Mr De Grazia did not refer to any documentary evidence to substantiate this claim (the only documents relied upon were letters to Mr Solomon stating the claimed costs). Moreover, Mr De Grazia's 2005 claim in relation to this item was for three times the amount claimed in 2003, and there was no explanation of this difference (it may be that in 2005 Mr De Grazia had a better opportunity to calculate the claim). Mr De Grazia could have explained the actual costs of this claim by reference to timesheets or invoices for the trades and materials he stated in his 2005 letter were used. Mr De Grazia's claim in relation to this item is rejected. Sunhoods 334 Mr De Grazia's claim for this item was based on two factors: firstly that there had been insufficient detail provided which had caused delay in having the sunhoods fabricated (and caused consequent delays on the whole project) and secondly that the sunhood Mr Solomon specified was more expensive than Mr De Grazia had allowed for. Mr De Grazia testified that he had been instructed by Mr Solomon to attend the Teachers Federation College (Mr Solomon wanted the type of sunhoods appearing on that building) however Mr De Grazia maintained that even after attending, he still required specifications from Mr Solomon. 335 Mr Roberts drew on Mr De Grazia's concession that he had for some time the documents provided to Hi-Light to obtain the quote, submitting Mr De Grazia could have got a quote much earlier from Hi-Light. Mr De Grazia further conceded that he could have got a quote and presented this to the Architect to confirm whether this was what Mr Solomon was after. 336 Mr Roberts noted that the Architect's memo of 27 November 2002 provided that the sunhoods were to remain as specified. In cross-examination, Mr De Grazia contended that the actual sunhoods installed were different, although he conceded it was entirely normal for Mr Solomon to have approved the actual sunhoods on shop drawings. Mr Roberts emphasised that some minor information concerning fixing height and location was provided to the Builder and they were installation issues rather than fabrication issues. Furthermore, Mr Zakos conceded that the sunhoods were fully specified. Decision 337 Mr De Grazia's claim in examination in chief that he should be allowed a variation because the sunhood specified was more expensive than he had allowed for, is rejected because he did not provide any evidence of what this difference was (his letter to Mr Solomon claiming the sunhood variation did not mention this issue). Mr De Grazia's claim for the costs of having to attend the Teachers Federation College to understand the sunhood specification is allowed (it is relevant that Mr Roberts did not suggest this was unnecessary T:418.6-21). Mr De Grazia's claim for ten days delay costs to perform work related to the sunhoods is rejected since his concessions under cross-examination established that he could have acted differently and this may well have reduced any such delay T:415.42- 417.47.

[504]

Fireplace Stone 338 Accordingly to Mr De Grazia evidence in chief, this claim had essentially two elements: firstly, delay with respect to the stones (which he blamed on Mr Solomon and the nominated subcontractor) which was said to have delayed the project as a whole; secondly, the costs of work associated with installation of these stones, which were said to be cleaning costs (necessary because of work by the subcontractor, on Mr Solomon's request, to rectify the stones). Mr De Grazia's evidence was essentially that he had requested specifications for the firestone to be installed and Mr Solomon had given him a quote from Arte Domus (the eventual subcontractor) asking him to organise it. Mr De Grazia had been unhappy that Mr Solomon had dealt directly with a subcontractor and as part of negotiations between the two parties Mr Solomon had agreed to pay the 50% deposit required by Arte Domus. 339 Mr De Grazia recalled a conversation where Mr Solomon had said the fireplace could not be installed as the tiles were not yet laid, and Mr De Grazia had responded that the fireplace had to be installed before the tiles. 340 Mr Roberts' final submission was twofold: firstly, since the Fireplace stone was a Provisional Sum item, under Contract clause 4.2 the Architect was entitled to nominate Arte Domus as a nominated subcontractor (as occurred), and Contract clause 4.1 provided that the Builder was not relieved of any responsibilities under the contract by subcontracting the work. Secondly, the Site was not ready for installation of the fireplace as at 12 November 2002 (a point at which Mr De Grazia testified he was waiting for Mr Solomon to provide details regarding the stone). Decision 341 Mr De Grazia's claim in so far as it relates to a purported delay in the installation of the fireplace stones is rejected. This part of the claim was only touched on at a high level of generality (Mr De Grazia testified there was a delay to the project, but did not quantify it). Moreover, in Mr De Grazia's letter of 2005 to Mr Solomon in relation to this claim, it is conceded that the delay in the supply and installation of the fireplace stone (as compared to the scheduled date) did not delay the works. Furthermore, Mr Forbes' evidence did not convey that there had been significant delays caused by this issue. 342 In relation to the plaintiff's variation claim for extra cleaning work, the finding is that Mr Solomon in addition to specifying which subcontractor would be used (as he was entitled to do), then unduly interfered in this aspect of the works, for example by arranging what work that the subcontractor would perform (Mr De Grazia appeared to have been excluded from these arrangements). This conduct constituted a breach of the Builder's right to sequence the works under Contract clause 6.1, which has been outlined above. Having interfered in this way, Mr Solomon could not reasonably expect Mr De Grazia to accept responsibility for cleaning work that was caused by the subcontractor. Therefore, Mr De Grazia's variation argument should be allowed. However, it should only be allowed to the extent that Mr Forbes corroborated it (his evidence was that cleaning work was created when the stone was first rectified, but the works were not impacted by the second rectification episode T:529.25-530.20. Accordingly, Mr Forbes' evidence was that there was a couple of hours clearing up work created, as opposed to Mr De Grazia's claim of three different occasions when cleaning was necessary). 343 Furthermore, I am satisfied that Mr Solomon's instruction for Mr De Grazia to accept the Arte Domus quote - which Mr Solomon had obtained and negotiated certain terms contained therein - went beyond Mr Solomon's power to nominate a subcontractor under Contract Clause 4.2.1 and breached the Builder's right to negotiate subcontract terms. The Builder is given explicit power to subcontract under Contract clause 4.1 and it is apparent from section 4 of the Contract as a whole that it is for the Builder to negotiate subcontract terms. Fabricate balustrade 344 This issue involves a disagreement over whether Mr De Grazia has been paid for the variation claimed. Mr De Grazia gave evidence in chief that this claim related to a specified section of steel which he could not source in Australia and accordingly had manufactured. Mr De Grazia testified that he had told Mr Solomon that this would cost more money and consequently result in a variation, and had provided Mr Solomon with some verbal costing but not an actual dollar amount. Mr De Grazia subsequently had the work done and made a claim in 2005 which he testified had not yet been paid.

[506]

346 Mr Solomon gave evidence in chief that he approved the amount claimed for the variation and this appeared in the contract sum adjustments he sent to the Builder (exhibit D6) at Item 18A. This covered the Builder's 2005 claim. 347 Mr Zakos testified that he was not aware of Mr Solomon's suggestion that this claim was the subject of an approved variation. 348 Given the matters which emerged from Mr De Grazia's evidence on this issue - and specifically the possibility that he may already have been paid for this variation - the claim is rejected. Bathroom wall tiles 349 Mr De Grazia made a variation claim for $2,402 for variation in respect of the bathroom wall tiles. Ms Olsson simply referred to the witness to the documents in the appendix to Mr De Grazia's affidavit that related to this claim. 350 Mr Roberts' position in relation to this item was that there was no evidence called. Therefore, the defendants assumed that it was not pressed or that it would be rejected because of the lack of evidence. Decision 351 The bathroom wall tiles were part of a provisional sum item for internal wall and floor tiles. Mr De Grazia provided an invoice showing that the tiles cost $64 per square metre. He claimed that the Architect had incorrectly assessed the cost at $48 per square metre. Mr De Grazia claimed for the difference between these two amounts. Under Contract Clause 10.8 the adjustment of provisional sums is to occur by reference to the total amount expended on all provisional sums. Mr De Grazia is seeking an adjustment for the amount expended on part of one provisional sum. This alone may be sufficient reason for rejecting the claim. However, it could be that the parties were acting in such a way that they were allowing adjustments in relation to parts of particular provisional items. Even if this were the case, the Court does not have sufficient information to assess Mr De Grazia's claim since there is no evidence of what amount was included in the contract sum for this part of the provisional item, and therefore what adjustment should occur. In all of the circumstances this claim is rejected. The way forward 352 During argument counsel indicated, as I understood it, that once the essential findings were made by the Court the high likelihood is that they would be in a position to agree on the proper working out of the relevant orders, including for example the dispute as to the adjusted date for practical completion. To the extent practicable in the circumstances, the parties are to endeavour to submit short minutes of order. The roadmap earlier referred to left something to be desired and did not cater for the particular decision reached in respect of the big ticket items, namely that the builder succeeds only on cladding and joinery. The parties are to endeavour to clarify the position. Following that clarification, the Court will be in a position to hand down the decisions on all outstanding remaining matters, which will include the appropriate deduction for exigencies.

Dante De Grazia trading as All Sydney Building Services v Nicholas Solomon & Ors

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