Plaintiff sued solicitor and barrister for negligence in conduct of District Court action - Summary judgment applications by defendants - Solicitors' defence of compromise agreement upheld - Barristers' defence of immunity for suit upheld - Action dismissed

Donellan & Ors v Watson & Ors (1990) 1 NSWLR 335

H Dakin & Co Ltd v Lee [1916] 1 KB 566

Hogan v Hughes (1988) 9 Qld Lawyer Reps 131

Kenny v Preen [1962] EWCA Civ 2; [1963] 1 QB 499

Legione v Hately [1983] HCA 11; (1983) 152 CLR 406

McDonald v Dennys Lascelles [1933] HCA 25; (1993) 48 CLR 457

O'Dea & Ors v Allstates Leasing System (WA) Pty Ltd & Ors [1983] HCA 3; (1983) 152 CLR 359

Saif Ali & Ors v Sydney Mitchell & Co (A Firm) & Ors [1980] AC 198

Shand v Doyle & Anor, unreported; FCt of WA; Library No 960510; 16 September 1996

White Industries (Qld) Pty Ltd v Floer & Hart [1998] FCA 806; (1998) 156 ALR 169

Yates Property Corporation (In Liq) v Boland (as Representative of Abbott Tout Russell Kennedy, Solicitors) & Ors [1998] FCA 8; (1998) 157 ALR 30

1 MASTER BREDMEYER: I have an application by the first defendant and a separate application by the second defendant, for summary judgment under O16 of the Rules of the Supreme Court.

2 For the purposes of these applications I will take the plaintiff's statement of claim to be that found in his minute of substituted/amended statement of claim of 26 January 1999. In that it is pleaded that the plaintiff engaged the first defendants, who are solicitors, to represent him in a District Court action, CIV 4857 of 1989 in which J-Corp Pty Ltd ("J-Corp") was the plaintiff and Mr Del Borrello was the defendant. The first defendant in turn engaged the second defendant, who is a barrister, to represent Mr Del Borrello as counsel in that action. The first defendant acted for Mr Del Borrello in that action between 5 August and 11 September 1992. They ceased to act after four days of hearing in the District Court when the action was part-heard. The action was heard before Healy DCJ on 7-10 September 1992, with Friedman & Lurie and Mr Martin representing Mr Del Borrello as solicitors and counsel respectively. The case was then adjourned. It resumed hearing on 15, 16 and 17 February and 23 March 1993, with new solicitors, Kott Gunning, representing Mr Del Borrello. Judgment was delivered on 14 February 1994 and the plaintiff's claim, ie J-Corp's, claim succeeded and Mr Del Borrello's defence and counterclaim were dismissed for reasons published by the Judge on that date and covering 28 pages. Mr Del Borrello lodged an appeal to the Full Court, FUL 38 of 1994. His amended notice of appeal, which he prepared himself, covered 18 pages. He applied before the Full Court to adduce further evidence and to extend the time for entry of the appeal. Those applications were dismissed by the Full Court on 18 December 1995 and in addition the appeal was dismissed for lack of prosecution.

3 The plaintiff has sued the first defendant for professional negligence and nine particulars of that are given. He has also sued them for overcharging and for wrongful exercise of a claimed lien over his file which disadvantaged and obstructed him from employing a new solicitor in sufficient time to prepare his case properly. He further pleads that the first defendant deliberately retained his file and documents as a lever to prejudice his case in order to force him to submit to unacceptable conditions, including paying to the first defendant moneys far in excess of the original agreed maximum price and to compromise his existing legal rights under the Legal Practitioners' Act to have the first defendant's costs agreement validated or taxed by the Supreme Court of Western Australia. The plea of negligence in para 10 is as follows:

"10. The First and Second Defendants in breach of the said contract and or retainer agreement and duty and obligations to the Plaintiff failed to exercise all due care, skill and diligence in and about the defence and counterclaim of the Plaintiff's case in the said District Court Action and further the First and Second Defendants failed to exercise any and all due care, skill and diligence in or about the said District Court Action whilst representing the Plaintiff, which resulted in prejudice and an injustice against the Plaintiff in the said District Court Action.

(a) The First Defendant ceased to represent the Plaintiff without adequate or sufficient notice and whilst the case was part heard without due care for the consequence and/or the effect that his ceasing to act would have on the Plaintiff's matters in the part heard District Court Action.

(b) The Second Defendant ceased to represent the Plaintiff whilst the case was part heard without due care for the consequence and/or the effect that his ceasing to act would have on the Plaintiff's matters in the part heard Action.

(c) During the course and the conduct of the said District Court Action in that the First and Second Defendants did not properly, adequately or skilfully plead and represent the Plaintiff's lawful instructions and interests in the said case.

(d) Further without the Plaintiff's knowledge and consent and contrary to the Plaintiff's firm instructions the First and Second Defendants amended and deleted and omitted significant pleadings to the Plaintiffs original pleadings in the said District Court Action contrary to the interests of the Plaintiff.

(e) Further without the Plaintiff's knowledge and consent and contrary to the Plaintiff's firm instructions the First and Second Defendants deleted and omitted and failed to represent new admissions made to the Plaintiff's pleadings which were a main fundamental base of proceeding to and representing the Plaintiffs case as the alternative of seeking to adjourn the trial during the course of the part heard proceedings in the District Court Action contrary to the interests of the Plaintiff and or without consulting the Plaintiff in respect of the said omissions.

(f) The First and Second Defendant failed to make necessary application and seek to adjourn the trial in sufficient time when they were aware that it was impracticable to be adequately ready to proceed to trial on the listed date of the trial of the said Action when not adequately prepared and ready for trial.

(g) Further without the Plaintiff's knowledge and consent and contrary to the Plaintiff's firm instructions the First and Second Defendant failed to properly plead and represent at the said District Court Action the correct facts in respect to the pleadings contained in the District Court Action, contrary to the case and interests of the Plaintiff.

(h) Further without the Plaintiff's knowledge and consent and contrary to the Plaintiff's firm instructions the First and Second Defendants omitted and/or withheld and/or ceased and failed to lead and represent in the said District Court Action significant discovered evidence in support of the Plaintiff's defence and counterclaim.

(i) Further without the Plaintiff's knowledge and consent and contrary to the Plaintiff's firm instructions the First and Second Defendants ceased and failed to call relevant available witnesses and further declared and/or confirmed to the Court of the said Action that no further witnesses other than the Plaintiff would be called to give evidence in support of the Plaintiff's case, the First and Second Defendants having been instructed to call all of those relevant and available witnesses."

4 Under O16 r1(1) the court may dismiss an action summarily if it is satisfied that the action is frivolous or vexatious, or that the defendant has a good defence on the merits. A case must be very clear indeed to justify the summary intervention of the court to prevent the plaintiff submitting his case for trial in the ordinary way, and once it appears that there is a real question, whether of fact or law to be decided, and that the rights of the parties depend upon it, it is not competent for the court to dismiss the action as frivolous or vexatious and an abuse of process: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91. The power given by the rule to enter judgment for the defendant makes express provision for what is, in any event, the court's inherent jurisdiction to protect its process from abuse by summarily disposing of an action as frivolous or vexatious in point of law if it is so obviously untenable that it cannot possibly succeed: Burton v President of the Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at 92. The power to order summary judgment should be exercised with great care and should never be exercised unless it is clear there is no real question to be tried Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99, and the court should be astute not to risk stifling the development of the law by summarily disposing of actions in respect of which there is a reasonable possibility that it will be found in the development of the law, still embryonic, that a cause of action does lie: Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373.

5 The first defendant says that it has a complete defence to this action because of an out-of-court agreement reached with the plaintiff on 5 February 1993. By way of introduction to that agreement I mention that on 23 December 1992 the plaintiff, through his new solicitors Kott Gunning, filed an originating summons against the first defendant, CIV 2672 of 1992, seeking the following relief:

"1. Claims that an oral agreement was entered into between the Plaintiff and the Defendant and it was a term of the oral agreement that the Defendant's professional fees prior to trial in respect of District Court Action No 4857 of 1989 would not exceed $25,000 plus disbursements; and

2. Claims that a written agreement was entered into on 5th August 1992 pursuant to which the Plaintiff has been charged a total sum of $52,605.70 in respect of professional fees for the period 5th August 1992 to 7th September 1992 which included work completed before trial;

3. Seeks to have the sum for professional fees reduced for pre-trial work to not more than $25,000 pursuant to Section 59 of the Legal Practitioners Act; and

4. Seeks to have the written agreement reviewed pursuant to Section 59 of the Legal Practitioners Act on the grounds that it is unreasonable. As to the fees charged for pre-trial work on the basis that it fails to recognise the oral arrangement."

6 By a series of letters passing between Friedman & Lurie and Kott Gunning between 18 January and 5 February 1993, the parties endeavoured to settle this dispute. Kott Gunning initially offered $10,000 in full settlement of the first defendant's claimed outstanding fees. That offer was rejected. The first defendant said they would accept $25,000. That was rejected. Kott Gunning offered $15,000 in full settlement of the fees. The first defendant said they would accept $25,000. On 2 February 1993 Kott Gunning offered $20,000.

7 On 4 February 1993 Kott Gunning made the following offer:

"1. Mr Del Borrello pay to you the sum of $20,000 forthwith;

2. Upon the receipt by you of payment of the sum of $20,000.00 as referred to in sub-paragraph 1 above, you will release from your possession all documentation you are holding in relation to District Court Action No 4857 of 1989;

3. In the event that Mr Del Borrello is successful in the pursuit of his Defence and Counterclaim in District Court Action No 4857 of 1989, Mr Del Borrello will pay to you the further sum of $10,000 in full and final settlement of any liability he may have to you in respect of fees for your professional services. In the event that Mr Del Borrello is unsuccessful, you will not receive any amount from Mr Del Borrello in respect of any liability he may have towards your professional fees other than the amount of $20,000 referred to in sub-paragraph 1 above."

8 On 5 February 1993 the first defendant responded to that offer as follows:

"We refer to your facsimile of 4 February and the subsequent telephone discussion between your Ms Webber and the writer on that day.

We confirm that we are prepared to settle with your client on the terms set out in your letter under reply subject to the following amendments:

1. The cheque payable to us by Mr Del Borrello must be either a bank cheque or, preferably, your trust cheque.

2. Paragraph 3 is to be varied in that Mr Del Borrello will pay to us an additional sum of $10,000 in full and final settlement of our claim against him for outstanding fees and disbursements in the event that he succeeds in recovering an amount of $10,000 or more in the District Court action no 4857 of 1989. We confirm that in the event that Mr Del Borrello does not succeed in obtaining payment in the amount of $10,000 or more, he will have no further liability to us in respect of our costs other than the amount of $20,000 referred to above.

3. At the time of providing to us the sum of $20,000 abovementioned, you will also provide to us a duly signed consent order in terms of which your client consents to the dismissal of the originating summons in Supreme Court No 2672 of 1992, the consent providing that there be no order as to costs.

4. You will advise the Supreme Court that the taxation of this firm's bills of costs is not to be proceeded with.

5. The agreement is, subject to matters therein contained which must of necessity survive settlement, in full and final settlement of claims by or against the parties. (Emphasis mine.)

We will require final confirmation prior to 10.30am today, failing which we must request you to attend on the Chamber Summons in relation to the orders that we seek."

9 On the same day Kott Gunning responded to that offer in these terms:

"We refer to your facsimile transmission dated the 5th February 1993.

We confirm that the amendments set out in your letter are acceptable to our client.

In relation to the Chamber Summons due to be heard at 10.30 this morning, it would appear appropriate that the parties seek orders by consent that it be adjourned sine die pending the filing of the Consent Order for dismissal.

Would you please confirm that you will be seeking to have the matter adjourned sine die this morning."

10 The $20,000 was paid. On 5 February 1993 a minute of consent orders was filed in CIV 2672 of 1992 which read:

"Pursuant to Order 43 rule 16 the solicitors for the parties consent to the following orders:

That was signed by Kott Gunning, solicitors for the plaintiff and Friedman & Lurie, solicitors for the defendant. It was fiated by a Registrar of this Court. The application for taxation of the first defendant's bill of costs was withdrawn.

11 Prior to the settlement reached on 5 February 1993, some correspondence passed between the plaintiff and the first defendant. Most of that correspondence dealt with matters of costs but some other complaints were raised. I quote from the plaintiff's letter of 30 November 1992 to the first defendant:

"At one stage in our telephone conversation you queried what part of your services I found wrong.

The part of your services that I found wrong is that you submitted a book of pleadings to the District Court without correcting a mistake that you were aware of. That mistake which you did not correct was that the pleading: Delays were contributed by the control of the Defendant.

IT SHOULD HAVE BEEN CORRECTED TO: DELAYS WERE CONTRIBUTED BY THE CONTROL OF THE PLAINTIFF.

I am not absolutely certain about another serious mistake critical to case. THIS WAS: KEN MARTIN FIRST MADE NEW PLEADING THAT I HAD INTENDED AND DID TERMINATE THE CONTRACT WITH J/CORP ON THE ULTIMATUM 15-6-1989.

I LATER HEARD OR WAS TOLD THAT THIS PLEADING WAS NOT GOING TO BE REPRESENTED.

If this is so, then the critical to case (sic) pleading where (sic) retracted or retreated without my knowledge, consent or approval and if this is so then I must say that I would condemn both you and Ken Martin for retreating the pleading.

I CAN UNDERSTAND THAT YOU AND KEN MARTIN HAD ONLY TAKEN THE CASE UP IN VERY SHORT TIME, AND THAT W MARTIN HAD OBJECTED TO THAT PLEADING AS BEING NEW TO CASE. I CANNOT UNDERSTAND OR RESPECT THAT THE PLEADING WAS RETREATED WITHOUT MY KNOWLEDGE OR CONSENT JUST TO LET W MARTIN OVERRULE THE PLEADING, and without Discussing this matter with me."

12 I also quote from the plaintiff's letter to Mr Friedman of 7 December 1992:

"I was discussing the matter of paying K Martin's past account with Mr GREG MOHEN from the LAW SOCIETY Perth. He suggested that a $10,000.00 payment from myself would be a 50% contribution similar to your payment to K Martin. I thought that may be reasonable suggestion to secure Ken Martin's account. However in the process of doing this Ken Martin has advised that under your definite instructions he ruled out to the Judge the calling of any further witness by the defendant other than myself. Is this fact true? Did you instruct Ken Martin not to call any further witnesses for the Defendant other than myself in the next Trial? Also did you instruct Ken Martin not to proceed or to retract the pleading suggested by Ken Martin that the defendant Terminated the contract with J-Corp?

I did get the impression that you were a good solicitor APART FROM YOUR BAD GREED the first line or when you started on my case, but could you explain the meaning of instructing Ken Martin on matters against my consent and approval?

I have noticed from your letter on 11-9-92, YOUR REF 1925634/F/ARP, that you do not mention or refer that no further witnesses to be called by defendant, on the contrary you do mention for possible further witnesses to be called by me was open.

Ken Martin states that by your instructions he ended the last trial by confirming to the Judge that only Mr Del Borrello would be called for the defendant.

If you are innocent of this fact then I can only suspect that J-Corp (W Martin) has either BAD INFLUENCE K Martin or unknown misunderstanding."

13 I consider that the agreement of 5 February 1993 is a complete answer to the plaintiff's claims in this action against the first defendant. That agreement not only settled the dispute over costs but also in para 5, settled all other complaints which the plaintiff now seeks to raise again against the first defendant. I consider that agreement is a complete defence and that there is no question of fact or law that needs to be tried and that summary judgment should be entered for the first defendant against the plaintiff.

14 The plaintiff's case for negligence against the second defendant is found in para 10, particulars (b) to (i) of the statement of claim quoted above. The second defendant claims to have a complete defence to that claim and part of that defence is a barrister's immunity from suit. The leading case in Australia on that topic is Giannarelli & Ors v Wraith & Ors [1988] HCA 52; (1988) 165 CLR 543. It was there held that at common law neither a barrister nor a solicitor may be sued by a client in respect of any act done or omission made in the conduct of the client's case in court or in the making of preliminary decisions affecting the way in which the case is conducted when it comes to a hearing (p579). The barrister's immunity rests upon public policy considerations, including the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings (p555). Exposure of counsel to liability for such negligence would encourage litigation by unsuccessful litigants anxious to demonstrate that, but for the negligence of counsel, they would have obtained a more favourable outcome in the initial litigation (pp558, 573, 574, 593, 594 and 595). According to Mason CJ at 559:

"The public policy considerations underlying immunity from in-court negligence have no relevance to a barrister's liability for negligent advice in relation to out-of-court matters. The problem is, where does one draw the dividing line? Is the immunity to end at the courtroom door so that the protection does not extend to preparatory activity such as the drawing and settling of pleadings and the giving of advice on evidence? To limit the immunity in this way would be to confine it to conduct and management of the case in the courtroom, thereby protecting the advocate in respect of his tactical handling of the proceedings. However, it would be artificial in the extreme to draw the line at the courtroom door. Preparation of a case out of court cannot be divorced from presentation in court. The two are inextricably interwoven so that the immunity must extend to work done out of court, which leads to a decision affecting the conduct of the trial in court. I would agreed with McCarthy P in Rees v Sinclair (1974) 1 NZLR 180 at 1870, where his Honour said:

'... the protection exists only where the particular work is so intimately connected with the conduct of the cause in court that it can fairly be said to be preliminary decision affecting the way that the cause is to be conducted when it comes to a hearing.'

This persuasive statement of the limits of immunity was endorsed by four members of the House of Lords in Saif Ali & Ors v Sydney Mitchell & Co (A Firm) & Ors [1980] AC 198 at 215, 224, 232 and 236. The statement is all the more important in that it acknowledges the existence and the limits of the immunity in a country where the legal profession is fused."

15 I consider that immunity protects the second defendant from suit in relation to allegations found in particular 10(h) of the statement of claim that the second defendant withheld and failed to present significant discovered evidence in support of the defence and counterclaim, and in relation to particular 10(i) that without Mr Del Borrello's knowledge and consent the second defendant failed to call relevant available witnesses and advised the Court that no further witnesses other than Mr Del Borrello would be called when he was instructed to call all of those relevant and available witnesses. Those matters are covered by the immunity granted to a barrister at common law for his conduct of the action during trial. I am satisfied that the second defendant's case on this is very clear and justifies the summary intervention of the Court. I am satisfied that there is no question of fact or law in relation to these two particulars of negligence which needs to be tried.

16 Particulars of negligence pleaded in paras 10(c), (d), (e) and (g) of the statement of claim against the second defendant relate to amendments to the pleadings. It is said that Mr Martin did not adequate or skilfully plead the defendant's case in the District Court action, that he deleted significant pleadings without the defendant's knowledge and consent and contrary to his instructions, that he failed to represent new admissions made to the defendant's case which were the fundamental basis of the defendant's case.

17 Mr Martin was instructed as counsel on 6 August 1992. At that time his instructing solicitor, Mr Friedman, was also newly instructed, having received his instructions on 5 August. There was considerable work to be done quickly because the case was not very well prepared, having been taken over from other solicitors, and the trial was imminent. It was set down for four days commencing on 7 September 1992. Mr Martin worked on the case from 8.15am to 5pm on Saturday 8 August 1992 with Mr Friedman and with Mr Del Borrello at various times in attendance. He said he reviewed the pleadings and examined the plaintiff's and defendants' documents and discussed the case with Messrs Friedman and Del Borrello. He met again with those two men on the evening of Sunday 9 August and he decided that the pleadings should be amended. He considered that the claim for aggravated and exemplary damages for breach of contract should be deleted, as should the counterclaim for misleading and deceptive conduct. He considered there were no material facts available to sustain that cause of action. There is a dispute over whether he was instructed to prepare those amendments or not which I need not consider now. I will assume, for the purposes of this application, that Mr Del Borrello's evidence on that is true. I am considering here when the pleadings were amended and whether those amendments were so "intimately connected" with the conduct of the case in court so as to attract the barrister's immunity. Mr Martin prepared a minute of proposed amended defence and counterclaim by Wednesday 12 August 1992. This was sent to his instructing solicitor and a copy sent to the plaintiff's solicitors. The amendments were granted by leave of a District Court registrar on 24 August 1992. That was some two weeks prior to the trial.

18 The amendments made to the defence on 24 August and 7 September 1992 are set out in a schedule attached to these reasons.

19 I consider that it is arguable that amendments prepared two to four weeks before trial are not so intimately connected with the conduct of the case in court that it can fairly be said to be a preliminary decision affecting the way the case is to be conducted in court at the hearing. But was Mr Martin arguably negligent in making those amendments?

20 It will be seen from amendments made to para 5 of the amended defence and to paras 5(b) and 14(a) of the counterclaim that the pleas that the building delays were caused, with alia, by the builder favouring other building work undertaken by him, were deleted by Mr Martin. This was said to be done without Mr Del Borrello's instructions. What was the significance of those amendments?

21 The question of delay in the construction of the units was a big issue in this case. The defendant in the District Court action (ie Mr Del Borrello) said that the units should have been built by the end of December 1988 but in fact were not completed until June or July 1989. The defendant pleaded that that delay constituted a breach of the contracts. Clause 18 of the building contracts provided a building period of 24 weeks but provided that the builder would not be responsible for late completion in six circumstances, one of which was "shortage of adequate labour or materials ..." The builder pleaded that delays were attributable to this reason. Particulars of these delays were given, eg 11 October to 25 October 1988 - delays caused while waiting for brick loadings, 25 October to 8 November 1988 - delays caused while waiting for bricklayers; 22 November to 13 December 1988 - delays caused by waiting for roof timber, gutters and roof carpenters, etcetera. Those allegations were denied by Mr Del Borrello in his reply to the plaintiff's defence to counterclaim.

22 The defendant wanted to call evidence in support of the deleted pleading that J-Corp had been busy undertaking other work to the detriment of his job. He wanted to call a witness, Peter Dixon, to give evidence of J-Corp's speedier progress on other jobs compared to its slow progress on the defendant's job. This witness had prepared a number of graphs based on discovered documents showing the good rate of progress on 250 other jobs compared to the slow progress on the defendant's job. The defendant also wished to lead evidence of newspaper advertisements by J-Corp, trading as Perceptions the Home Builders, in the relevant period advertising for more work.

23 The evidence was objected to by Mr Wayne Martin, counsel for J-Corp in the District Court trial, on 15 February 1993 and the trial judge upheld that objection specifically at 439 and 440 of the transcript because the graphs prepared by Mr Dixon, and the plaintiff's files on which it was based, had not been put to the plaintiff's witnesses in cross-examination although there had been cross-examination of Mr McEwan and Mr Walter on the progress of various jobs. Also the factual material, viz J-Corp's weekly progress reports from which the graphs were compiled, was not put into evidence. These two failures were made by the barrister in the conduct of the trial. They were not failures caused by the amendments to the pleadings mentioned. I note that no objection was made by Mr W Martin to the evidence on the basis that it was outside the defendant's pleading and the trial judge did not reject the calling of the witness on that ground. These failures which arguably could amount to negligence were made in the conduct of the trial and are protected by the barrister's immunity.

24 The trial judge at 19 - 20 of his reasons said he was surprised that no evidence was led during the owner's case to rebut the evidence of shortages of labour and materials or that these units had received less attention than other units. He referred to an application made by a witness just before the trial to set aside a subpoena served on him by the owner. The judge said "the case was part-heard but this witness was never called". This witness was Mr Joe Leahy and his statement is annexed to Mr Del Borrello's long affidavit. He was not available because he was going to be in Thailand between 2 and 15 September 1992. Why was he not called in February 1993? I do not think that the trial judge would have refused such an application. As stated, he expected such evidence to be called. I know that Mr Ken Martin said that he was only going to call one witness at the resumed hearing, viz Mr Del Borrello, but surely it would be fair to allow the calling of another witness not available in September. And also surely new counsel could have said that he was new to the case and wanted to call one, two or three more witnesses. If the application had been refused, that could have been an appeal point. The blame for the failure to call Mr Leahy in February 1993 does not fall on Mr Martin.

25 Mr Del Borrello complains about the amendments made to para 6 of the defence and to para 9(1) of the counterclaim on 7 September 1992. He says those amendments were made without his authority. Those paragraphs as they were on 24 August 1992 alleged that, as a result of the plaintiff's breach of contract, the defendant terminated the building contracts. This was done by a by a written notice dated 15 May 1989 given to the plaintiff that the contracts would be terminated as at 15 June 1989 if the plaintiff did not complete the works by that date. Those pleas were deleted by Mr Martin on 7 September 1992 and, according to Mr Del Borrello, this was done without his knowledge, consent and instructions. Mr Del Borrello says on this that "K Martin having killed the crucial part of my pleadings also failed to represent this evidence to support my case".

26 What effect did these amendments have on Mr Del Borrello's case in the District Court? None that I can see. The letter of 15 May 1989 gave J-Corp 30 days notice to terminate the contracts if the company did not complete the works within that time. The letter was put into evidence and became exhibit R. The defendant's purported termination of the contracts for breaches by the builder was not valid because the trial Judge found that the builder had not breached the contracts. The Judge found that the builder had reached practical completion. The Judge also found that the builder had not breached the contracts in failing to complete the works on time. The builder's failures to complete the works on time were legally excused by factors beyond its control. These findings of fact precluded any finding that the defendant had validly terminated the contracts for breach. In any event those amendments made on 7 September 1992, on the first day of the trial, whether made with or without Mr Del Borrello's authority, are so intimately connected with the conduct of the case in court that they can fairly be said to be part of counsel's conduct of the trial and hence are protected from scrutiny by the barrister's immunity outlined in Giannarelli.

27 The deletion of the old paras 4, 5 and 6 of the counterclaim deleted the claim for misleading and deceptive conduct contrary to s52 of the Trade Practices Act for (a) failure to complete the building works without any delays and (b) favouring other work undertaken by the plaintiff to the detriment of the defendant so that the building works were not completed within 24 weeks. Paragraph 6 pleaded that as a result of that misleading and deceptive conduct, the defendant suffered loss and damage in the sum of $56,379 as particularised in the defendant's further and better particulars of defence. I note that, although the deletion of paras 4, 5 and 6 of the counterclaim by way of amendment on 24 August 1992 removed the defendant's cause for misleading and deceptive conduct from the claim, the representation, which is the first element in that cause, remained. It is pleaded in para 3 of the counterclaim. In summary, and relevantly, it is that J-Corp's representative, Ian Hender, said that his company would carry out the works just as quickly as Plunkett. That plea was denied by J-Corp in its defence to counterclaim, so whether that representation was made by Hender or not, was an issue in this case. Hender gave evidence and was cross-examined on this issue. He denied that he said that his company could carry out the works as quickly as, and more efficiently, than Plunkett. The trial Judge at 8 of his reasons preferred Hender's evidence to Mr Del Borrello. He found as a fact that such a representation was not made.

28 The elements of a s52 action when pleaded in a counterclaim by a defendant against a plaintiff, are (1) a representation made by the plaintiff to the defendant in trade and commerce; (2) the representation is misleading and deceptive (usually because it is false); (3) the defendant acts on it to his detriment; and (4) thereby suffers loss or damage. In this case, although the cause was not pleaded, element (1) of it was, and the defendant failed on the facts to prove that issue. Hence, had the cause been pleaded (and not deleted on 24 August 1992), the defendant would have failed to prove it by failing to prove the representation. I therefore conclude that the plaintiff in this action has raised no issue of fact or law against Mr Martin in relation to the deletion of this plea.

29 The amendment to para 10 of the counterclaim made on 24 August 1992 gives the dates when third parties to whom Mr Del Borrello had sold the units "were allowed to occupy them".

30 This paragraph is ambiguous and misleading. It is probably correct to say that purchaser of unit 1, for example, was "allowed" to occupy it on 26 July 1989. I say "probably" because I have not seen the contract but the standard contract for sale of a house at that time allowed occupation on the date of settlement or the day after. To avoid ambiguity the particular should have said "Unit 1 26 July 1989". But by saying "Unit 1 date of occupation 26 July 1989" the plea is unclear. Is that the date the purchaser was allowed to occupy or the date of occupation?

31 Mr Del Borrello in his evidence given on 16 February 1993 at 544 of the transcript said that the pleading was wrong and that the dates given there were settlement dates for the contracts of sale and not occupation dates. He said the occupation dates came about a week after the settlement dates as the owners had to get the electricity connected. Mr McEwan the plaintiff's witness at 96 and 135 of the transcript said that he first became aware in the middle of July 1989 that someone had moved into the units. This was confirmed by another plaintiff's witness, Mr Newport, at 202 - 203 of the transcript. The plaintiff's counsel could have applied to amend the pleadings to agree with Mr Del Borrello's evidence and, in any event, the Judge should have accepted Mr Del Borrello's evidence unless there was evidence to the contrary, or unless he disbelieved it. At p2 of his reasons, he said:

"Unit 4 was occupied on 28 June, Unit 3 on 21 July, Unit 1 on 26 July and Unit 2 on 2 August 1989."

"The units have been occupied in an apparently satisfactory manner since the end of June 1988. In the absence of evidence from the occupiers of problems with the baths, I cannot find that any defect with them would have prevented the achievement of practical completion. In any event, the owner, by letting his purchases into occupation waived in requirement as to practical completion, particularly in the light of his knowledge of the state of the baths from his expert's inspection.

In any event, in the light of the evidence of Mr Wallis, it could hardly be said that even if the baths had to be rectified, that the units were not 'capable of being used in a free and uninterrupted manner'. It would only take a day to reinstall the baths, and that time would seem to fall within the contractual description of providing use in a free and uninterrupted manner.

In my view the company is entitled to receive the balance of the contract sum on the basis that practical completion was achieved. That state was reached by 28 June 1989 when the new owners moved into possession. There is no doubt that the company had substantially performed the contracts.

The owners' counterclaim must fail. It was quite properly conceded in closing that if the company could satisfy the court that the completion of the units was delayed by factors beyond its control, then the owner could not recover damages for delay. I am satisfied that the company has not breached any of its contractual obligations. There was no evidence that the owner had to renegotiate the sale prices his purchasers would pay because of the delay in completion of the units. I am also satisfied that the company had substantially completed the units by the date on which the first was occupied on 28 June 1989, and that the owner is thus not entitled to damages for failure to substantially complete the units."

33 The Judge in expressing these views may have forgotten or overlooked the evidence of the plaintiff and others on this. The dates of occupation in the judgment were wrong, but given the trial Judge's very firm findings on the causes of the delay and that the units had been substantially completed by the builder, it seems to me that, even if he had recognised that the dates of occupation of the units were in fact one week after the dates pleaded, or, in general terms in the latter half of July, this would not have made any difference. I am unable to see how this pleading had any effect on the result of the case or gives the plaintiff an arguable case of negligence against the pleader.

34 Paragraph 11 of the counterclaim was amended in part on 24 August 1992. The amendment was not of any significance.

35 Paragraph 12 of the counterclaim was deleted on 24 August 1992. It deleted a claim of the plaintiff's failure to carry out remedial works at a cost of $10,260 as set out in the Further and Better Particulars of the defendant's counterclaim. That plea remained alive and is found in para 11. The defective work to the value of $10,260 is included in the figure of $56,379 contained there and is itemised in the particulars mentioned.

36 Paragraph 14 of the counterclaim was amended on 24 August 1992 to delete the plea for aggravated and exemplary damages. No complaint can be made about this because firstly, Mr Del Borrello's counterclaim did not succeed so the question of damages including this form of damages did not arise. Secondly, aggravated or exemplary damages are not available for breach of contract. See vol. 9 Halsbury's Laws of Australia [135 - 505] and Addis v Granophane Co Ltd [1909] UKHL 1; [1909] AC 488 and Kenny v Preen [1962] EWCA Civ 2; [1963] 1 QB 499 at 513.

37 Further amendments were made to the defence and counterclaim by Mr Martin at the outset of the trial on 7 September 1992. I consider those amendments were intimately connected with the conduct of the case in court and are covered by the barrister's common law immunity.

38 I conclude that the second defendant has a good defence to the claims for negligence based on amendment to the pleadings which are found in particulars 10(c), (d), (e) and (g) of the statement of claim.

39 In his affidavit of 25 March 1999 the plaintiff said that Mr Martin failed to plead and argue that cl 18 and cl 19(iv) of the building contracts should be set aside as unjust and unenforceable penalties. I quote cl 18 and all of cl 19:

18. Practical completion of the Works shall take place no later than 24 weeks from the date of commencement thereof provided that the builder shall not be responsible for late completion caused by matters or events beyond the control of the Builder including but not limited to the following:

b) any suspension of the Works caused by default on the part of the Proprietor

c) inclement weather or conditions resulting from inclement weather

d) proceedings being taken or threatened by or disputes with adjoining or neighbouring owners or residents

e) any civil commotion, strikes or lockouts affecting any of the trades employed upon the Works or affecting the manufacture or supply of materials for the works

f) shortage of adequate labour or materials for any other reason whatsoever.

Practical completion shall be said to have been achieved when the Works are structurally complete and capable of being used in a free and uninterrupted manner. The finishing of minor items or minor finishing works internally or externally which do not interrupt the normal use of services and utilities shall not be grounds for disputing that the works have reached practical completion.

19. i) Upon practical completion of the Works the Builder

shall give to the Proprietor a certificate in writing stating that the Works are completed and setting out the balance owing by the Proprietor hereunder and the Proprietor shall pay the amount so certified to the Builder within seven days of the receipt of the certificate and subject to such payment he shall be entitled to possession of the works.

ii) Upon such payment having been made the Builder shall hand any keys to the Proprietor and on acceptance of the keys by the Proprietor he shall be deemed to have entered into possession of the said land and of the Works and to have acknowledged that the Works have been satisfactorily completed by the Builder in accordance with this Contract and the Builder shall thereupon be relieved and discharged from all further liability under this Contract.

iii) In the event of the Proprietor refusing to pay the balance owing for any reason whatsoever the Builder shall be entitled to charge the Proprietor interest at the rate of 20% per annum on the amount owing from the date of practical completion until such time as the said amount is paid.

iv) Should the Proprietor take possession of the Works without paying all monies owing to the Builder or without the written authority of the Builder, he shall be deemed to have accepted the Works as complete in every respect and the Builder is thereby absolutely relieved and discharged from any further responsibility whatsoever."

40 Mr Del Borrello says that cl 18 and cl 19(iv) are bad as penalties. He referred to Primary Building Co v Beris Pty Ltd, unreported; SCt of WA; Library No 7095; 19 April 1988. During the closing addresses at the trial the Judge raised with Mr James, counsel for Mr Del Borrello, whether there was any authority he wanted to refer regarding the interpretation of this type of building contract. He said that Mr James had acknowledged familiarity and expertise in building law. Mr James said he thought that there was some authority in the Supreme Court and he would forward it to the Judge. After some weeks Mr James forwarded to the Judge the Beris decision. Mr Wayne Martin, counsel for the builder, said by letter that the authority should not be regarded as having any bearing on the case because of the nature of the pleadings on which the parties had fought the trial. Thereupon Mr James applied to amend the defence to plead that cl 19(iv) in the building contracts constituted a penalty. Argument was heard on 23 March 1993 and the application was rejected on account of its lateness. The Judge's "draft reasons" on this are attached to the plaintiff's affidavit of 30 March 1999.

41 On the authority of Beris at 20 cl 19(iv) could be regarded as a penalty because it purports to prevent an owner from pursuing what might be a legitimate counterclaim against the builder. But the failure to plead that cl 19(iv) was a penalty had no real bearing on the result of the present case. The builder sued for outstanding money due under the contracts. The owner resisted that by saying that the units had not been practically completed, the works were not done in a proper and workmanlike manner, and the builder failed to complete the units by the end of 1988. The trial Judge found that the builder had reached practical completion. He found that the late completion of the units was excused by factors beyond the builder's control and that the owner could not therefore recover damages for delay. He found that the company had reached practical completion and had substantially completed the units and had not breached any of its contractual obligations. Hence it was entitled to be paid. In the final sentence of his reasons the trial Judge said:

"I am also satisfied that the company had substantially completed the units by the date on which the first was occupied on 28 June 1989, and that the owner is thus not entitled to damages for failure to substantially complete the units."

42 The trial Judge is probably alluding here to cl 19(iv) of the contracts. That was an additional reason for his rejection of the owner's claim. Even if Mr Del Borrello's lawyers had pleaded that cl 19(iv) was a penalty it would not have stopped the builder recovering in this case because the trial Judge found that the builder had reached practical completion and had substantially performed his obligations under the contract. In other words, the owner was not able to prove on the facts that he had a legitimate counterclaim (for defective work, non-completion or lateness, or whatever), whether cl 19(iv) was in the contract or not.

43 Another particular of negligence pleaded against Mr Martin is found in para 10(b) of the statement of claim that he ceased to represent the plaintiff while the case was part-heard without due care for the consequences and/or the effect that his ceasing to act would have on the plaintiff's matters in the part-heard action. Evidence on that has been led. It mainly consists of correspondence passing between the plaintiff and Mr Martin. On 11 September 1992 the plaintiff wrote to Mr Martin advising him that Friedman & Lurie were no longer acting for him. His letter includes this statement:

"I would appreciate if you kept in communication as to where do we go from here and what must I do, apart from choosing a solicitor to act on the case. If you can recommend a reasonably good solicitor to me it would help me."

Mr Martin replied on 15 September acknowledging receipt of the letter but saying that the rules of the Bar Association prevented him from communicating directly otherwise than through an instructed solicitor. The plaintiff wrote to him again on 1 October 1992. In that letter he said he sincerely hoped that Mr Friedman had paid Mr Martin's account and he did not require his account to be taxed. He said that at a pre-trial conference on 30 September a new trial date had been set for 15-17 February 1993 "hoping that you can still act on this case after all accounts are sorted out".

44 On 22 October 1992 Mr Martin wrote a letter to Mr Friedman asking him as the ex-solicitor to forward the letter on to Mr Del Borrello as a matter of urgency and I quote from part of that letter:

"As I understand the position, Mr Friedman is now no longer the solicitor of record for Mr Del Borrello in the matter. Mr Friedman has made it plain to me that I am no longer retained by him for the completion of this trial. No other solicitor has approached me seeking to retain my services to act on Mr Del Borrello's behalf on 15, 16 and 17 February 1993.

I have now been approached to accept a brief which will occupy the days of 15, 16 and 17 February 1993 and, given that I presently hold no brief for those dates, believe that I am at liberty to do so. However, before accepting that brief, I wish Mr Del Borrello to be apprised of my position, so that he has an opportunity, if he desires to do so, to take some urgent step by engaging a solicitor to re-dress the position immediately. If I do not hear from a solicitor acting on Mr Del Borrello's behalf in relation to this matter by Friday 30 October 1992, then I will accept the brief that has been offered to me, which acceptance will preclude any possibility of my appearing on behalf of Mr Del Borrello on 15, 16 and 17 February 1993."

45 Mr Del Borrello received a copy of this letter of 23 October.

46 On 1 December 1992 Mr Del Borrello wrote to Mr Martin saying, among other things, that he was still in the process of allocating another solicitor who would work in conjunction with the Law Society Litigation Fund. He estimated that the trial would take a further five days and believed it was essential to call witnesses whom he named, a total of about eight witnesses. The letter included two cheques, one for $6000 and one post-dated cheque for $4000.

47 On 3 December 1992 Mr Martin replied to Mr Del Borrello acknowledging receipt of his letter of 1 December. He said that the rules of the Bar Association prevented him from dealing with a plaintiff in person and that he could only act on the instructions of a solicitor and that Friedman & Lurie who briefed him on the matter no longer acted for the plaintiff and were off the record through a dispute over fees. He returned the two cheques to the plaintiff and said indebtedness for his fees was due to him by Friedman & Lurie. He said the cheques should be sent to that firm so that that firm could pay him. The letter includes the following statements:

"1. I have still not been contacted by any solicitor acting on your behalf seeking to retain my services at the resumed hearing of this trial in February 1993.

2. I have pointed out to you some time ago that I had been offered another brief clashing with the period of your resumed trial, and that if I did not hear from a solicitor acting on your behalf within a reasonable time, then I would accept that brief, I did not hear from a solicitor acting on your behalf in this matter, and I have accepted the other brief. That being the case, I will only now be available if the solicitors who had retained my services over the period are prepared to release me to complete your resumed trial. That is a matter entirely for them, but there is no basis even to request that until you have engaged another solicitor."

48 I consider on the evidence before me that the second defendant has a good defence to this claim for negligence. There were five months between the end of the first hearing on 10 September 1992 and the resumed hearing on 15 February 1993, and that was adequate time for the plaintiff to obtain another solicitor to re-engage Mr Martin as counsel for the adjourned hearing. I know that plaintiff had a dispute with Friedman & Lurie over fees and that they held a lien over his file and papers and these presented difficulties to the plaintiff. Nevertheless, it cannot be argued that the plaintiff was "dumped" by Mr Martin at such a late stage that he was unable to find another barrister. Wherever the fault lay for the breakdown in the relationship between the plaintiff and his solicitor shortly after the first hearing - that breakdown was not the fault of Mr Martin. I do not consider that there is any fact or issue that needs to be tried here and that Mr Martin has a good defence to this part of the claim.

49 Particular 10(f) of the statement of claim is similar to particular 10(b). It is, that the first and second defendants - I am only concerned here with the second defendant - failed to seek to adjourn the trial in sufficient time when they were aware that that it was impracticable to be adequately ready to proceed to trial on the listed date of the trial of the said action when not adequately prepared and ready for trial. In the plaintiff's affidavit of 25 March 1999 he says that Mr Martin began work on it on 8 and 9 August 1992. It was listed for trial on 7 September 1992. The plaintiff says the case was complex, needed to be carefully prepared, and further essential discoveries needed to be made. He says that Mr Martin failed to devote the time available to look for the evidence which was at the first defendant's office and failed to apply for an adjournment of the September date. I do not consider that this is arguable. The District Court action commenced in 1989. The trial date was September 1992, three years later. Mr Del Borrello had two solicitors acting before Friedman & Lurie were engaged on 6 august 1992 and they thereafter engaged Mr Martin as counsel. Three years should be an adequate time to get ready. The case was not of extraordinary complexity. It was a building dispute. The contract was to build four units, five building contracts were signed, one for each unit and one for the site works. They are in identical terms. The builder sued the owner, Mr Del Borrello, for $54,799.30 which sum was later reduced. The owner filed a defence and counterclaim. A month was a reasonable time for newly instructed counsel to prepare the case.

50 The case was heard over four days in September 1992. Friedman & Lurie then dropped their client over non-payment of fees. Mr Del Borrello protested at that, and through another solicitor, Kott Gunning, brought an originating summons already mentioned on 23 December 1992 to have the Court rule on the costs charged. That was not pursued vigorously to a trial. The dispute over the solicitor's fees was eventually settled out of court on 5 February 1993, as previously mentioned. The plaintiff sought an adjournment of the new trial date of 15 February 1993 from Healy DCJ. The plaintiff made that application in person on 29 January 1993 on the basis that he was not in a position to instruct counsel properly. That application was refused and that was one of the appeal grounds in the appeal to the Full Court already mentioned. Mr Martin, as a barrister, had to be instructed by a solicitor. Between September 1992 and February 1993 the plaintiff had adequate time to get another counsel. I do not consider it is arguable to say that Mr Martin acted negligently in ceasing to represent the plaintiff when he did. He did not act negligently in not seeking a further adjournment of the trial between September and February. He was not instructed by a solicitor to do so. I consider he acted properly in holding himself available for a reasonable time to act on the retrial.

51 For the reasons given I consider that both applications should succeed.

1. As to paragraph 1 of the Statement of Claim the defendant admits says that pursuant to four five separate building contracts (the four unit contracts, and a 'site works' contract) made between the parties the Plaintiff agreed to carry out the certain works described or referred to therein for the Defendant at Lot 219 Kew Street, Kewdale.

2 The Defendant denies each and every allegation in paragraph 2 of the Statement of Claim and says that the works have never been practically completed by the Plaintiff.

4. As the works have not been practically completed and there are no moneys owing from the Defendant to the Plaintiff the Defendant denies that the Plaintiff is entitled to any interest.

5. The Plaintiff has breached each of the four agreements unit contracts by failing to complete the works in a proper and workmanlike manner and by delay in failing to complete the works by the end of December 1988. Lack of proper and adequate supervision, favouring other work undertaken by the Plaintiff to the detriment of the Defendant and by its refusal failure by 15 June 1989 to complete the balance of the works.

6. As a result of the Plaintiff's breach of the four contracts agreements the Defendant has terminated the building contracts by its conduct as pleaded in paragraph 9 of its Counterclaim herein and further has suffered loss and damage and it sets off such loss in extinction or reduction of the Plaintiff's Claim.

6. As a result of the Plaintiff's breach of the four contracts the Defendant has terminated the building contracts by its conduct as pleaded in paragraph 9 of its Counterclaim herein and further has suffered loss and damage and it sets off such loss in extinction or reduction of the Plaintiff's Claim.

7 Except as expressly admitted the Defendant denies each and every allegation in the Statement of Claim.

8. In the premises the Defendant denies that he is liable to the Plaintiff.

2. On 8 June 1988 the Defendant entered into an agreement with Plunkett Homes (WA) Pty Ltd which provided inter alia that Plunket (sic) Homes (WA) Pty Ltd would carry out the building works referred to in paragraph 1 of the Statement of Claim for the sum of $119,572. ("the Plunkett Agreement")

3 In some time after 8 June 1988 but before the end of June 1988 Ian Hendenr on behalf of the Plaintiff, in order to induce the Plaintiff not to proceed with the Plunkett aAgreement with Plunkett Homes (WA) Pty Ltd and in order to induce the Defendant to enter into the contracts, assured the Defendant that the Plaintiff would complete the building works referred to in paragraph 1 of the Statement of Claim for $119,572 without any delays. instead contract with the Plaintiff, orally promised the Defendant that if he contracted with the Plaintiff it would carry out the buildings works:-

(a) for the same price as stipulated in the Plunkett Agreement, i.e. $119,572;

(b) the Plaintiff was ready to start the job and to carry out the works without any delays;

(c) that the Plaintiff would carry out the work just as quickly and more efficiently than Plunketts.

4. In consideration of the aforementioned promises made by Hender to the Defendant, the Defendant agreed not to proceed with the Plunkett Agreement and then agreed orally with Hender for the Plaintiff to do the building works upon the terms proposed by Hender, which terms as agreed between them would then be embodied in formal contract documentation to be prepared by the Plaintiff in due course ("the Hender Agreement").

5. The Plaintiff did not prepare and present to the Defendant the five separate building contracts until early in August 1988 and the five contracts were then executed on 5 August 1988.

6. The five building contracts bearing date 5 August 1988 all specify the date of commencement of 29 June 1988 and a practical completion date of 24 weeks thereafter, which terms are to be construed against the surrounding circumstances in existence at the date the contracts were signed, namely the Plunkett Agreement and the Hender Agreement.

4. In relation upon the truth and accuracy of the Defendant entered into the contracts.

5. The Plaintiff in trade or commerce engaged in misleading and deceptive conduct contrary to s.52 of the Trade Practices Act.

(a) Failure to complete the building works without any delays.

(b) Favouring other work undertaken by the Plaintiff to the detriment of the Defendant so that the building works were not completed within 24 weeks.

6. As a result of the Plaintiff's misleading and deceptive conduct has suffered loss and damage in the sum of $56,379 as particularised in the Defendant's Further and Better Particulars of Defence.

2 7 Pursuant to the five contracts the Plaintiff was required to complete the building works being the construction of four home units within 24 weeks from 29 June 1988, but did not do so and was thereby in continuing breach of the four unit contracts as from 1 January 1989.

3.8. The plaintiff purported asserted (erroneously) that it had to have completed the building works on or about 28 June 1989 which amounted (in any event) to a delay of approximately six months.

9. (1) By reason of the said continuing breaches of the Plaintiff, the Defendant by written notice to the Plaintiff given on 15 May 1989 gave notice to the Plaintiff of his election to terminate the five building contracts as at 15 June 1989, if the Plaintiff did not complete the works by that date.

(2) The Plaintiff took no step whatsoever to complete the works between 15 May 1989 and 15 June 1989, and accordingly on 15 June 1989 the five building contracts duly terminated in accordance with the Defendant's aforementioned notice of 15 May 1989.

9. (1) By reason of the said continuing breaches of the Plaintiff, the Defendant by written notice to the Plaintiff given on 15 May 1989 gave notice to the Plaintiff of his election to terminate the five building contracts as at 15 June 1989, if the Plaintiff did not complete the works by that date.

(2) The Plaintiff took no step whatsoever to complete the works between 15 May 1989 and 15 June 1989, and accordingly on 15 June 1989 the five building contracts duly terminated in accordance with the Defendant's aforementioned notice of 15 May 1989.

4.9.10. Although never practically completed the Plaintiff did by 28 June complete the building works to the stage where the Defendant was able to sell the units to third parties allow third parties to whom he had pre-sold the four units to take occupation thereof.

5.10 The Plaintiff's delay referred to in paragraph 4 8 hereof constitutes a breach of the four contracts.

611. As a result of the works not having been practically completed and as a result of the Defendant's delays in carrying out building works and as a result of other breaches referred to in paragraph 5 of the Defence and failure to carry the building works in a proper and workmanlike manner the Defendant has suffered loss and damage in the sum of $56,379 as particularised in the Defendant's Further and Better Particulars of Defence.

7.12. If, which is denied, the building works have been practically completed by the Plaintiff then the Plaintiff is in breach of the contracts in having failed, despite requests from the Defendant, to carry out remedial work to repair defects or omissions relating to materials and workmanship.

The Defendant relies upon the defects and omissions detailed in the Further and Better Particulars of Defence and the Defendant claims the cost of such work being $10,260.00.

12.13.8. In the premises the Plaintiff is liable to the Defendant.-for damages for breach of the four unit contracts.

14. As a result of the following matters the Defendant claims aggravated and exemplary damages:

(a) Favouring other work undertaken by the Plaintiff, including project homes for the Plaintiff, to the detriment of the Defendant so that the building works were not completed within 24 weeks.

(a) From June 1988 to June 1989 the Plaintiff advertised each week in The Sunday Times newspaper and The West Australian that it would build homes for the public without the advertisements stating that due to a shortage of labour and materials the normal construction times for such houses would be substantially delayed.

(b) Advertising as alleged in paragraph 14(b) hereof in a form which, despite the shortage of labour and materials, claimed that:

(i) the Plaintiff had a reputation for completing construction of houses on time;

(c) During the course of construction of project homes which the Plaintiff was building for itself the Plaintiff advertised in The West Australian and The Sunday times that 10 excitingly new home designs were about to be completed and then advertising that the new homes had been completed.

(a) By letter dated 15 February 1989 the Plaintiff advised the Defendant that construction had reached "setting stage" and requested the second progress payment. By letter dated 2 March 1989 the Defendant wrote to the Plaintiff advising that progress payments were due at plate high stage, lockup stage and at completion, that no progress payment was due at "setting stage" and informing the Plaintiff that the Defendant did not know what the Plaintiff meant by the phrase "setting stage" and that if the Plaintiff was claiming that the units had reached lockup stage that this was not correct in relation to units 1 and 2.

(b) The Plaintiff responded to the Defendant's said letter of 15 February 1989 by letter dated 3 March 1989 by advising that as it had not received payment for the progress payment that work had stopped on the units and interest would be charged to the Defendant.

(c) In a telephone conversation on 3 March 1989 between the Defendant and Mr G McEwan on behalf of the Plaintiff Mr McEwan did not dispute that the units had not reached the stage when a progress payment was due but advised the Defendant that if the progress payment was not made the Plaintiff would not carry out any further work on the units.

(d) The Defendant made numerous telephone calls to the Plaintiff in relation to faults and delays in construction of the units but the Plaintiff did not return the telephone calls.

(e) The Defendant arranged a meeting on site with one of the Plaintiff's supervisors to discuss the Defendant's dissatisfaction with the Plaintiff's contractual performance but the meeting was cancelled by Mr G McEwan on behalf of the Plaintiff who advised the Defendant that he could not waste the time of a supervisor to attend the Defendant's complaints.

(f) On or about 10 July 1989 the Defendant attended at the offices of the Plaintiff to discuss problems in relation to the building works carried out by the Plaintiff but the Plaintiff refused to discuss matters with the Defendant.

(a) As a result of the matters pleaded in paragraph 14 hereof the Defendant has suffered anxiety, stress and humiliation.

(i) The sum of $56,379.00 Damages for breach of contract;

(ii) Pursuant to Section 32 of the Supreme Court Act interest on the said damages sum of $56,379.00 at the rate of 13% per annum as from 1 August 1989;