Robust Builders Pty Ltd v Barai & Anor - [2023] NSWDC 376 - NSWDC 2023 case summary — Zoe

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Robust Builders Pty Ltd v Barai & Anor

[2023] NSWDC 376

District Court of NSW|2023-08-31|Before: Mr P

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At a glance

Source facts

Court

District Court of NSW

Decision date

2023-08-31

Before

Mr P

Source

Original judgment source is linked above.

Judgment (53 paragraphs)

[1]

REASONS FOR JUDGMENT Introduction The parties' cases Issues The evidence relied upon by the parties issues associated with the builder's claim The date the contract was entered The Builder's evidence The Owners' evidence Mr Barai Ms Mahjabeen Expert evidence Submissions The Builder's submissions The Owners' submissions The builders' submissions in reply Consideration Credit Mr Mehndiratta Mr Barai Ms Mahjabeen Forensic consequences of credit findings Analysis When the contract was entered into & entry into collateral agreement Was there a cap on claims for variations? Summary The claim for unpaid invoices The Builder's evidence The invoices the subject of the claim Other documents The Owners' evidence Mr Barai's evidence Mr Barai's position in relation to the invoices he says were received Mr Barai's position with respect to the invoices he says he did not receive Features of Mr Barai's cross-examination Ms Mahjabeen Submissions The Builder's submissions The owners' submissions Consideration Claim in restitution for works performed The claim in detinue for items not returned to the Builder The Builder's evidence The Owners' evidence Submissions Consideration ISSUES ASSOCIATED WITH THE OWNERS' CLAIM The owners' lay evidence Mr Barai's evidence Ms Mahjabeen's evidence The Builder's evidence Other documents Mr O'Donnell's evidence Qualifications and expertise Mr O'Donnell's opinion as to defective works Mr Mehndiratta's challenges to Mr O'Donnell's opinion about rectification works and costs General points Submissions The owners' submissions The builder's submissions Consideration Statutory provisions General assessment of Mr O'Donnell and his evidence Evaluating Mr Mehndiratta's submissions relating to defects and incomplete works Quantification of rectification costs Costs of the proceeding Orders

[2]

The parties' cases

In this proceeding, which commenced (on 23 August 2018) almost five years ago to the first day of its hearing, the plaintiff, a building company called Robust Builders Pty Ltd ('the Builder') alleges that on 23 December 2016, it entered into a written contract with the defendants (Mr Barai and Ms Mahjabeen, who I will refer to collectively as 'the Owners' unless indicated otherwise) relating to their residential home at property at Seven Hills (the Property). The works were for the demolition of the existing structure and the construction of a two storey dwelling. The works were performed throughout 2017 and 2018 and an occupancy certificate was issued on 3 July 2018. From late July 2018, the Builder alleges that it was locked out of the property and that it was unable to reclaim various items of property. The precise circumstances as to how the contract came to an end are unclear (there was no evidence of any written notice of termination, as required by the contract), although it appears to be common ground that the Builder ceased performing work in July 2018 and that the Owners moved back into the property in August 2018.
The Builder alleges that the contract price was $510,000 (incl of GST) for which it claims that it received payment of $487,800. It contends that it made some small refunds to the defendants ($2,310 and 4,500). The Builder sues the Owners for the monies representing what its director, Mr Ravi Mehndiratta, characterised in his opening address (T 27) as unpaid invoices for approved variations. The amended pleading sets out a schedule of these invoices. The total claimed is $220,624.25.
Part of the Builder's claim also concerns the value of equipment and other tools which the Builder contends was left on the property and to which it has been improperly deprived access to after being locked out in August 2018. The Builder quantified that particular claim as being in the sum of $92,000.
In total, the Builder claims the aggregate sum of $312,624.25 which means that the claim was capable of being brought in the NSW Civil and Administrative Tribunal.1 It also claims interest, calculated under s 100 of the Civil Procedure Act 2005 (NSW). The Builder sues on actions in contract and, alternatively, on a quantum meruit.
In his opening address, Mr Mehndiratta indicated the Builder's case that there was a single written contract, dated 23 December 2016, which referred to a contract price of $510,000. He further explained that, in substance, the Builder's claim for unpaid invoices was in respect to variations that had not been agreed to in September 2016 but were subsequently recognised and agreed to by the Owners. The owners' Bank had paid the progress payments. As I understood Mr Mehndiratta to submit, the variations were recognised either in the December 2016 version of the contract and/or by way of a bundle of correspondence after December 2016.
By their Further Amended Defence (28 August 2020), the Owners deny that any written contract was entered into on 23 December 2016. They say that they signed the contract on 24 September 2016. They accept that the contract price was $510,000, but this price included, as a component, the sum of $160,000 representing the variations agreed between the parties in November 2016. They say that there were no additional variations.
In his Opening Address, Mr Lambley, the Owners' solicitor who appeared for them at the hearing, indicated that save for the written contract of September 2016, Mr Barai, in particular, disputed inserting his signature in many of the documents that Mr Mehndiratta had attached to his affidavit, or evidentiary material (Exhibits A and B), to sustain the Builder's version of the contract contended for.
In his opening, when I asked what consequence(s) would follow depending upon the Court's finding of when the contract was entered, either in September or in December 2016, Mr Lambley, indicated that in the former instance, his clients' position was that all payments were made; but in the latter instance, Mr Mehndiratta would need to prove, by reference to a contract price, what amount was owing and he, Mr Lambley, did not presently understand what the claim for quantum upon that contingency was.
The owners also contend in their Defence that the works were not completed and were rather, defective. The 'incomplete' feature of the works was partly indicated by a rectification order made by an inspector on 31 August 2018. A litany of defects were identified in paragraph 8(d) of the Defence. The Owners deny that any valuable equipment owned or belonging to the Builder had been left on the property.
One of the owners, the first defendant and first cross-claimant, Pankaj Barai, filed a Cross-Claim (on 21 August 2019, which was amended on 10 February 2021). But at the hearing, Ms Mahjabeen was added as a second cross-claimant [1] . Mr Barai alleged a series of defects (corresponding to the itemised description of defects in the Defence) and claimed damages for the works required to rectify and complete the works. The cross-claim identified breaches of the contractual term of the contract requiring the Builder to exercise care and skill (clause 3, a general condition to the contract which relevantly required the Builder's compliance with statutory warranties under the Home Building Act 1989 (NSW) and also compliance with relevant Australian Standards); breach of an implied term that the works would be of merchantable quantity and another implied term that the work would be fit for purpose. The owners also claim interest under the Civil Procedure Act 2005 (NSW).
In addition to relying upon incomplete and defective works to sustain a cross-claim, the Owners pleaded in their Defence that the same claim operated as a defence of set-off to reduce or extinguish the Builder's claim.

[4]

The evidence relied upon by the parties

Case-management directions throughout the proceeding plainly indicated that evidence was to be by way of affidavit.
At the hearing Mr Mehndiratta read his affidavit dated 30 March 2020.
He also relied upon a document titled "Lay Evidence By Robust Builders Pty Ltd" (Exhibit A). This document had been lodged by hand with the Parramatta District Court Registry on 8 October 2019. Much of what appears in Exhibit A appears to reprise that which was set out in Mr Mehndiratta's affidavit of 30 March 2020.
Mr Mehndiratta also relied upon a document titled "Lay Evidence Reply By Robust Builders Pty Ltd" (Exhibit B), which he authored. The document was undated but the solicitor for the Owners noted from the Bar Table that he received it on or about 4 April 2023. The document was prepared by Mr Mehndiratta. Although there were problems of form, including argumentative assertions and conclusions in it, it was this document that indicated the substance of the Builder's position, at least in relation to the state or condition of the construction works, in response to the owners' evidence and by reason of the Builder's essentially unrepresented status, some latitude was given as to formal matters from the perspective of rules for the admissibility of the evidence. The critical issue was considering fairness to the Owners in allowing the Builder to rely upon evidence which may have been deficient as to form.
Mr Mehndiratta also read an affidavit sworn by a forensic examiner, Ms Melanie Holt (21 October 2021) notwithstanding that she had been engaged to provide expert opinion evidence by the Owners; not the Builder.
Although Mr Mehndiratta was precluded by my evidentiary ruling early in the hearing from putting on further (lay or expert) evidence in reply to the Owners' evidence this ruling was directed to the preparation and service of further affidavit (or opinion) evidence, and a significant number of email and other correspondence upon which he cross-examined the Owners' witnesses was admitted.
In defence of the Builder's Claim and in support of their Cross-Claim, the Owners primarily relied upon: 1. the affidavit of Pankaj Barai sworn 8 November 2022; 2. the affidavit of Fahima Mahjabeen sworn 7 November 2022; and 3. a report prepared by a building expert, Mr Paul O'Donnell of the firm 'Canberra Sydney Inspections' dated 26 October 2022.

[5]

The Builder's evidence

In his affidavit and also in his document lodged with the Court on 8 October 2019 (Exhibit A), Mr Mehndiratta asserts that the parties entered into a written contract on 23 December 2016, although, in his Opening Address, he acknowledged that an earlier contract had been signed in September 2016. This earlier document was 'amended.' The reason for his argument that the latter contract superseded the first one was that, according to what Mr Mehndiratta said in his opening address, the second defendant was frequently requesting changes to the contract in the intervening period and, he implied, he wanted a degree of certainty. The December 2016 version (if I could call it that) was supposed to fix the specifications. He contends that the defendants were well aware of and had explained to them (by him) the version of the contract on 23 December 2016.
Mr Mehndiratta annexed to his affidavit the contract and what he asserted to be variations signed and acknowledged by Mr Barai. He did the same with Exhibit A. The contract was in the NSW Fair Trading format.
On the copy of the contract included at p 5 of Mr Mehndiratta's affidavit, there is a handwritten annotation that appears on the title page ('Home Building contract for work over $20,000) that did not appear on the corresponding page in Mr Mehndiratta's affidavit. The annotation reads: "Amended Final Contract Pankaj Barai and Rahima Robust Builders Pty Ltd for $510,000 on 23 December 2016. Previous Contracts and Tenders Null and Void." Apparently underneath is a signature, but Mr Mehndiratta did not identify whose it was.
Page 8 of Mr Mehndiratta's affidavit is depicted as follows:
Page 10 of Mr Mehndiratta's affidavit (also p 19 of Exhibit A) is depicted as follows:
Clause 4 (p 15 of Mr Mehndiratta's affidavit), which provided for the deposit, indicated a sum of $51,000.
Clause 12 (p 20 of Mr Mehndiratta's affidavit) provided for progress payments at various stages of work.
At p 32 of Mr Mehndiratta's affidavit was the section of the contract titled 'Record of Adjustments and Variations'. Under this section, reference was made to a contract price of $510,000. There was also handwritten insertions under the sub-heading 'Variations' which, when combined, appeared to yield an aggregate sum of just over $72,000.
At p 34 of Mr Mehndiratta's affidavit was a typed document. The typed words were as follows: "We confirm that the previous contract amount now has changed. We are getting refund from the builder for the couple of stages we agreed upon not to be done by Robust Builders any more as per the agreed terms and conditions with immediate effect. Pankaj Barai"
On the face of this typed document there were various handwritten annotations. So far as they are legible, these included: "PREVIOUS CONTRACT 350,000 + 160,000 - NULL VOID NOW NEW CONTRACT 510,000.00 - 23/12/16 APPROVED REFUND FOR … FLOOR …. 2310.00 APPROVED"
Underneath those were various purported signatures. Mr Mehndiratta asserts that these were the signatures of the owners.
Other relevant documents were annexed to Mr Mehndiratta's affidavit (pp 35-39 incl). To paraphrase, they all were documents, purportedly signed by Mr Barai acknowledging certain events occurring on 20 April 2018, 20 February 2018, 20 April 2018 and 6 March 2018 (the last document - which also purported to indicate the second defendant's signature - in this sequence being undated). These also appeared in Exhibit A.
There was a document (pp 40-44 of Mr Mehndiratta's affidavit) titled "TENDER WITH DETAILED SPECIFICATIONS". This was purportedly also signed by the Owners (as well as Mr Mehndiratta) on 23 December 2016.
In another document (Mehndiratta's affidavit, p 36), being one purportedly signed by the first defendant on 20 February 2018, there is purported confirmation of a meeting occurring (apparently on that date) in which certain documents were received by Mr Barai. A handwritten annotation indicated that one of the documents was a copy of the contract.
The Owner relied upon an insurance certificate issued by icare (which appeared with other documents in Exhibit HH), apparently dated 28 March 2017 which identified as the contract date '23 December 2017'.
The Owner relief upon an application to HBCF apparently prepared by the builder on 22 March 2017 and which was emailed to the owners on 22 March 2017 (Exhibit GG). In the application, the 'construction type' was marked "New Single Dwelling" (notwithstanding that under the sub-heading 'Construction Description' reference was made to a "Double Storey House") and 23 December 2016 was stipulated as the date the contract was signed. The contract price was identified as $510,000.
In the course of his closing address, Mr Mehndiratta was granted leave to re-open the plaintiff's case to tender an email he sent to both owners at 1:37pm on 20 November 2016 (Exhibit QQ). The email attached several documents: a contract signed by the parties, signed plans and Specifications.
The first of these attachments was the same version of the contract attached to the owners' respective affidavits which, amongst other things, stipulated a contract price of $350,000 (but which on the title page bore handwritten annotations including an assertion of a 'total' contract price of $510,000).
The second document was the 'Post Contractual Variations' document which was the second part of Exhibit 1; a document I will later summarise. This included a 'New Progress Payment Schedule' (signed by the builder on 20 November 2016) which referred to the contract price as $510,000.
A third document was some plans of the property, apparently bearing the initials or signatures of the owners (although the owners were never cross-examined on them, as the existence of the plans was only brought to the attention of the Court during closing submissions).
A fourth, and final document annexed to the email on 20 November 2016 was titled 'Specifications'. It did not bear the signatures of the owners (or Mr Mehndiratta).
This email did not attach the first part of Exhibit 1, which was a document titled 'Tender'. To anticipate somewhat, I note that Ms Mahjabeen gave some evidence consistent with this omission: she said that although she recalled seeing the 'Post Contractual Variations' part of Exhibit 1, she did not see the 'Tender' part of it.
In closing address, Mr Mehndiratta was also granted leave to reopen the Builder's case so as to entitle it to rely upon an email he sent to both owners at 3:52pm on 21 November 2016 (Exhibit RR). Before I summarise that, I note that in the same Exhibit, there is another email sent by Mr Barai to Mr Barai on 19 April 2016 (at 9:30pm), well before the owners entered a contract with the Builder. Pertinently, in that email, Mr Barai indicated he was sending 'the contract paper' to Mr Mehndiratta. Understood in context, this must have been a reference to an unexecuted contract which the owners had received from a different builder. But he also explained that he would send the 'other s 149 form' later. It was this last reference which triggered Mr Mehndiratta's email response on 21 November 2016. He asked Mr Barai to email to him "149 (2 and 5)" and indicated that document should not be older than 3 months.

[6]

Mr Barai

Mr Pankaj Barai deposed that he and his wife initially wanted a different builder to undertake the works, but were persuaded by Mr Mehndiratta to engage him. This, he says, occurred in about the middle of 2016.
Mr Barai deposed that on or about 24 September 2016 he and his wife were present at home and that at about 5:00pm that day Mr Mehndiratta attended the property and presented a written contract for both of them to sign.
The version of the contract that Mr Barai annexed to his contract was the same as that which was annexed to Ms Mahjabeen's affidavit.
Page 22 of Mr Barai's affidavit and Page 13 of Ms Mahjabeen's affidavit is depicted as follows:
It was pointed out to Mr Barai in cross-examination that on the version of the contract he said he had signed (at p 25 of his affidavit) that in the section headed "Owner and Contractor details" the details of 'address' and 'title details' were missing. In re-examination, Mr Barai said that Mr Mehndiratta did not suggest, or invite him (or his wife) to fill in those details.
In the version he attached, clause 4, which dealt with the deposit, the amount of the deposit was left blank (Barai, p 31). He later said in his evidence that the owners paid a deposit of $45,000. A reference to this figure is contained in Exhibit CC.
Also in the version of the contract attached to Mr Barai's affidavit, under clause 12 the words "Refer to Variation List" were typed. This was another difference to the version of clause 12 in the version of the contract attached to Mr Mehndiratta's affidavit. I was not able to locate within Mr Barai's affidavit where the said 'Variation List' appeared. On the page titled 'Record of adjustments and variations' (Barai, p 50) where provision is made for a list of variations, that part of the document was left blank. (In Mr Mehndiratta's version of the contract some details for variations were inserted, at page 32 of Mr Mehndiratta's affidavit).
Mr Barai further deposed that Mr Mehndiratta assured him that variations would be included in that price. He deposed that he and his wife signed the parts of the document as Mr Barai had directed them before returning the version to Mr Mehndiratta.
But he deposed that after doing so, Mr Mehndiratta said that he had another document that he wanted them to sign. This was a document that contained the same provisions as the earlier document that they have both signed albeit that it was completely blank in terms of handwriting. Mr Barai deposed that Mr Mehndiratta asked him and his wife to sign the document. This, Mr Mehndiratta explained to them, was to cover the situation if Mr Mehndiratta had to change the price or change anything actions. He explained that they should sign in order to save time.
Mr Barai deposed that he signed the document because he believed that he could trust Mr Mehndiratta and was anxious for construction to proceed. He and his wife then signed this other document, again, as Mr Mehndiratta directed them. He recalled that after they had done so, Mr Mehndiratta indicated that he would prepare documents and lodge them with the bank, including the tender and other documents.
Mr Barai deposed that in late November 2016 he received a telephone call from Mr Mehndiratta. The effect was an assurance by Mr Mehndiratta that he had lodged the contract, with a list of variations, as per the tender to the bank and that the bank would revert to Mr Barai and his wife for the purposes of loan approval. He recalled seeing an email from Mr Mehndiratta or about this time attaching the tender document, which listed variations with a total cost of $160,000.
During the hearing, the Owners tendered a document, Exhibit 1, which had not been annexed to either of the owners' affidavits. There were two parts to this document. The first part was a document titled 'Tender.' Both Mr Barai and Ms Mahjabeen generally recognised it as a document that had been prepared by Kurmond Builders. But Mr Barai said in his evidence that whilst this was generally so, the section in this part of the document under the heading 'Additional Inclusions' (which was in bold print) was information that the Builder (Mr Mehndiratta) had created. Mr Barai accepted that he signed this part on 20 November 2016. (Ms Mahjabeen recalled seeing it before, but could not recall the circumstances in which she had seen or signed it: T 421.34 - 424.39). Mr Mehndiratta did not challenge what appeared to be his signature on this part of Exhibit 1.
The second part of Exhibit 1 (representing the last two pages) relevantly were an attachment titled 'Post Contract Variations'. This document individually described and quantified items, tallied up the individual values and indicated a "Total Variation" of $160,000, with a "Total Contract Price" of $510,000. The document was signed by Mr Mehndiratta and the two owners and underneath the signature block was a date identified as 20 November 2016.
On 16 December 2016, Mr Barai received correspondence (Annexure B to his affidavit) from the National Australia Bank. The letter indicated the Bank's approval of loan finance to assist with the construction works. Relevantly, the letter identified the contract price (or construction cost) as follows: "$510,000 including variations".
Mr Barai denied having any meeting or discussions with Mr Mehndiratta in respect to any further contract or documents signed in December 2016.
On 4 April 2017, 22 June 2017 and 24 July 2017 Mr Barai sent emails (Annexure C) to Mr Mehndiratta in which he relevantly asked the latter for copies of the contracts (signed by the Builder and Owners), the tenders and the contractor license.
In his cross-examination, Mr Mehndiratta referred Mr Barai to a number of documents purportedly bearing Mr Barai's signature (in Exhibit A at pp 9, 10, 11 and 83; corresponding to pp 39, 34, 36, & 38 of Mr Mehndiratta's affidavit, respectively). The effect of Mr Barai's evidence was that he: 1. denied creating or signing the document which, to paraphrase, purported to request that all documents or communications about plans, variations or the supply of materials be supplied in person; 2. denied creating or signing the document purporting to confirm that the previous contract price had changed; 3. accepted that he had affixed his signature to the document confirming (on 20 February 2018) his receipt of a range of documents identified, (by handwritten annotations), as the contract, the stamped plan, Home warranty insurance, an NAB progress claim certificate 4. accepted that he supplied written confirmation (on 6 March 2018) for receiving the sums of $2,310 and $4,500 from the builder.
As to the last of these documents, he said that the sum of about $6,000 was supplied in connection with a retaining wall, even though Mr Barai did not recall that work being carried out.
Mr Barai was referred to (Exhibit AA). He said in his evidence that the reference to $100,000 was erroneous. He said that there was no other contract in which he entered with the builder for that sum. He was later shown a document purporting to indicate entry into a $100,000 but said he never signed it or saw his wife sign it. (by reason of there being no reference by either party to any contract for $100,000 entered into on 24 September 2016 in their respective pleadings - or for the builder, in any of Mr Mehndiratta's affidavit, Exhibits A and B - I directed that the evidentiary effect of any answer about this document was limited only to the witness, Mr Barai's credit). A suggestion appeared to be made to Mr Barai that on 24 September 2016, all that was agreed was that the builder would construct a single storey dwelling. To that end, Mr Barai (but not Ms Mahjabeen) was shown a document which plainly indicated a proposed two storey dwelling (Exhibit EE) prepared on 15 December 2016 - after the date of the contract propounded by the owners and before the date propounded by the Builder.
In cross-examination, Mr Barai said that he had arranged for his solicitors to 'hire' Ms Holt, the forensic examiner; and did not speak to her himself and did not understand why she did not proceed to prepare an opinion. He also said that it was his solicitors' responsibility to hire a forensic examiner. He was unaware of any court order that Mr Mehndiratta provide the original of the version of the contract he propounded to Ms Holt.

[7]

Ms Mahjabeen

Ms Mahjabeen deposed to not entering into any contract with Mr Mehndiratta in December 2016. She only signed a contract in September 2016.
She provided some background to this. She recalled that in late August 2016 she and Mr Barai had (initially) decided to retain another builder to construct the property (Kurmond Builders), and were about to enter into a contract with that particular builder, but she and her husband were persuaded by Mr Mehndiratta against Kurmond Builders. She recalled that Mr Mehndiratta promised, in effect, to match what Kurmond Builders could do, but provide a little more. She said (in re-examination) that on 22 September 2016, Mr Barai informed her that Mr Mehndiratta was going to come over to their place for the purpose of signing a contract. She recalled that on 24 September 2016, Mr Mehndiratta came over to her and Mr Barai's rented property, in the company of Sanya Devi. She said in her cross-examination, that she had received a positive report about Mr Mehndiratta's work from a friend for whom Mr Mehndiratta had built a granny flat.
She deposed that Mr Mehndiratta pulled out a document and informed her and Mr Barai that he had a contract for them to sign. She noted that it had the words "Home building contract for work over $20,000" written on it. She also recalled Mr Barai asking Mr Mehndiratta whether variations were included in the price and Mr Mehndiratta assured them that they were; adding that the tender would be included 'at the back.' She recalled seeing her and Mr Barai's details being handwritten on the document and identification of the contract price of $350,000. She recalled that after she finished reading the contract, Mr Mehndiratta directing them to sign on the second page and initial the others. Each of them signed on the second page and they both initialled the other pages. Mr Mehndiratta then took the document.
In cross-examination, she said that she recalled Mr Mehndiratta and Ms Sanya Devi coming over to rented place (in Artarmon). She understood that the contract price was to be $510,000; and that this price was to include, as a component, $160,000 for variations which were to be subsequently supplied by Mr Mehndiratta; but which were to be the same as the variations that had been prepared by Kurmond. She alluded to the very front page of the contract annexed to her affidavit which contained Mr Mehndiratta's handwritten annotation breaking down the components of the price.
Ms Mahjabeen deposed that Mr Mehndiratta presented her and her husband another document for them to sign. This bore the same title as the contract they had signed and was essentially the same document, but without any handwriting in the document. She deposed that Mr Mehndiratta asked them to sign it and explained to them that he would need it if there was ever a need to change the price or have more variations. She deposed that Mr Barai initially remonstrated with being asked to sign a blank document but Mr Mehndiratta told that this was just to save time and indicated that he could not start work unless it was signed. Under cross-examination, she said she went through this document.
She deposed that she and Mr Barai then signed and initialled that document. She observed Mr Mehndiratta sign and initial it as well and recalled him saying that he would send the contract to the bank for loan approval.
Under cross-examination, when she was taken by Mr Mehndiratta to page 19 of Exhibit A, she denied that she or Mr Barai inserted the handwritten details regarding the contract price or the date. With reference to Exhibit A page 19, she disputed that the printed (capitalised) reference to her was in her handwriting, although she accepted that the signature attributed to her looked like her handwriting.
Later, when shown a range of documents annexed to Mr Mehndiratta's affidavit (pp 35, 39, 40-44, 46-54, 55-57, 58, 59, many of which were reproduced in Exhibits A and C) her common answer was that although a signature looked like her husband's, she did not see him sign it and Mr Barai did not discuss the contents of the (relevant) document to her. Where a signature or initials resembled her signature or initials, Ms Mahjabeen denied that she applied it or them. On the last of those documents (p 59), there appeared an incomplete handwritten reference to her daughter's name. Ms Mahjabeen said that she may have verbally referred to her daughter when speaking to Mr Mehndiratta, but indicated that her daughter (apparently about 13 years of age at the time) had no involvement in the construction works. Three of these documents appeared to be purported written variations purportedly signed by Mr Barai and these all seemed to bear the date 5 July 2018. However, she said she did not see her husband sign the documents or have a discussion with her about them.
In her affidavit (and in her evidence in Court) Ms Mahjabeen denied signing any document listing the contract price as $510,000.
She said in her cross-examination that Mr Mehndiratta had emailed to her (or her husband) variations on 20 November 2016.

[12]

Mr Mehndiratta

I did not regard Mr Mehndiratta to be either a reliable or credible witness. As to the former, whilst making allowance for the dated nature of the events at the time he gave his evidence at the hearing, his evidence was nonetheless punctuated by "I can't recall," to the point that it resembled a mantra and many of these responses were to questions not about events occurring between 2016 and 2018 but much more recent procedural developments, such as when and in what circumstances he prepared evidence in this proceeding in reply.
When he gave evidence, he struck me as often non-responsive and was prone to embellish. He struck me as intent to give answers which he felt might assist the Builder's case and he gave some evidence which was plainly implausible. Much of this was again centred on the procedural way in which the parties prepared for the hearing. For example, Mr Mehndiratta said that of the O'Donnell expert building report relied upon by the Owners, he said he only received 16 pages and blank pages with exclamation marks, and believed that it was incomplete; but he did not complain to the owners' solicitors about this. For another example, he conceded he did not prepare an expert report in reply to Mr O'Donnell and explained that he was denied access to the property; but he neither asked the Owners for permission to enter the property to allow an expert to inspect; nor sought an order from the Court to compel such inspection. As a further example, it struck me that he dissembled when explaining the apparent omission from his document (which he did not date) representing his "Reply" to the lay and expert evidence served by the Owners: after initially suggesting that he had not had the opportunity to reply to all of that evidence, he then appeared to suggest that there was some other evidence that he had prepared, which he neither 'read' nor tendered in the Builder's case prior to his being cross-examined.
Sometimes also, he tried to shift responsibility to others for not being able to provide responsive evidence. This included what he identified as the Builder's accountant (whose surname he could not recall spelling) and Ms Devi (the person whom he had unsuccessfully applied to have called as a witness to give evidence in the Builder's case on the first day of the trial).
As I point out elsewhere in these reasons, it appeared at times, through his cross-examination of the owners that Mr Mehndiratta was even casting doubt upon the existence of any contract being entered into on 24 September 2016 and even produced a document, for Mr Barai's consideration, that purported to prove a $100,000 contract being entered into on that same date where none of the parties, in their pleadings or affidavits, had previously referred to such contract - and where he arranged to send the $350,000 contract of 24 September 2016 to the Owners on 20 November 2016 (Exhibit QQ). I found this conduct cynical and opportunistic.
He had a propensity, to the say the very least, of creating documents which he deliberately did not date. This had the effect, if not the design, of creating a confusing and/or contentious paper trail in the event, which materialised all too often in this litigation, that the owners disputed signing documents.
At the conclusion of his evidence, I derived no confidence from his evidence save to the extent that it was corroborated independently by reliable documents (ie not those which he or his company had generated) or was consistent with the objective probabilities.

[13]

Mr Barai

I reject Mr Mehndiratta's attacks on Mr Barai's credibility and his accusations of lying. Mere differences in his recollection in comparison to what Ms Mahjabeen or what Mr O' Donnell had said on any particular topic (major or minor) was not indicative of Mr Barai lying. As pointed out to Mr Mehndiratta in his closing address, he appeared to elide any distinction between a mistaken recollection (about events which in large part occurred over 5 years ago) and lying. As I also pointed out to Mr Mehndiratta in argument, the circumstance that in some respects (which were very small in number) he differed in his recollections with what his wife or Mr O'Donnell said did not derogate from his credibility or reliability: if his evidence was in all respects identical to these two other witnesses, I am quite sure that Mr Mehndiratta would have accused him of engaging in wholesale collaboration with the other witnesses and then used that as a platform to challenge Mr Barai's credibility.
I formed the impression that Mr Barai was doing his best to tell the truth, although his recollections of what occurred were less confident than what appeared from the detailed narrative set out his affidavit. There were some instances where evidence of his recollections about whether he sent an email to Mr Mehndiratta were proven to be wrong (eg Exhibits Y and JJ, NN and OO). Evidence about his recollections in those respects were about emails sent in September 2017 and March 2018, being nearly 6 or 5 years ago (respectively).
Mr Barai was softly spoken and struck me as nervous. He was, at times, defensive and was anxious to provide further information than what a particular question may have required. Like his wife, on occasions, he thought it a sufficient answer to a question to simply make cross-reference, without more, to his previously answered a question. These matters led me to form the further impression that he was anxious about the effect of his answers on his (and his wife's case). My impression of him overall was a man who was earnest and studious, unsophisticated and naïve to a high degree and somewhat timid. Signing blank forms without reading and accepting what he was being told by the builder at face value represents supreme gullibility although in fairness to him, the contemporaneous email correspondence suggests a continuous anxiety, bordering on desperation, about his and his family's living arrangements throughout the works; which helps to put his conduct into some context.

[16]

Analysis

The following analysis deals with the issues of when the contract was entered, whether the owner was entitled to claim for variations (which were, on the owner's case, additional variations after those agreed on 20 November 2016) after the contract was entered (whatever that date was).
The Builder's case on when the contract was entered into appeared to me ambivalent. In some instances in correspondence Mr Mehndiratta asserted and argued at this hearing is that the contract entered into in December 2016 replaced the one that the Builder admits was entered into in September 2016; rendering the latter as being 'null and void'. However, it is also the case that other more contemporary documents contained a handwritten annotation, apparently by him, which described the September 2016 contract as being only 'amended'. The Builder did not plead in any Reply to the Owners' defence (which identified 24 September 2016 as the date for at least part of the documents constituting the contract), and Mr Mehndiratta did not otherwise assert (at least in his affidavit or Exhibits A or B) that the contract of September 2016 was unenforceable for any want of certainty or completeness.
The distinction between a contract that is subsequently modified and a contract that brings an end to an earlier contract is well recognised [3] , even if it may sometimes be difficult to identify in practice. One important legal consequence is that modifications to a contract are required to be supported by further consideration [4] ; whereas if an entirely new contract is formed there is automatically a consideration. As explained in Sara Lee at [23] whether a new contract has been entered depends upon the (objective) intention of the parties disclosed by the later agreement [5] . Ultimately, though, for the reasons that follow, it is unnecessary to find whether one contract superseded another or whether one version changed to one contract amounted to a variation.
The builder contended that the contract entered into on 23 December 2016 was for a contract price of $510,000. The owners contended (and had admitted in their Defences, paragraph 6(vi)) that, by 20 November 2016, the contract price was $510,000. Perhaps contrary to the parties' mutual expectations, it struck me that what was most material about the question whether the contract was entered was not so much what was the contract price, but more what provision the contract made for variations once the works commenced.

[17]

When the contract was entered into & entry into collateral agreement

In my view, a contract was entered into on 24 September 2016. Both parties conducted the proceeding on the basis that a binding contract came into existence on that date: the difference was that the builder contended that by reason of events, this contract subsequently was either amended or was rendered 'null and void.' That contention was manifest on numerous documents that Mr Mehndiratta relied upon in his evidence; and the owners maintained that they signed the contract on that date to manifest their agreement.
It is true that in the version of the contract annexed to the owners' affidavits, details are missing from one of the pages of the contract identifying the address for the works, including lot details. However, although there is a statutory requirement for there to be a 'sufficient description of the work' (Home Building Act 1989 (NSW), s 7(2)(c)), a provision of that kind is for the benefit of the owner and it would be incongruous if a builder could rely upon its absence to avoid the contract. There is no entire agreement clause in the contract that would preclude the owners' reliance upon parole evidence. Nor is there any statutory requirement (under the Home Building Act 1989 (NSW)) that mandates that all the terms of a contract to which the statutory warranties apply must be written and/or contained in the same document. Moreover, Mr Mehndiratta did not challenge the owners' versions of conversations that occurred on 24 September 2016 that they signed the document which supplied background known to the owner and the builder or evidence to indicate that the Builder knew where they lived.
The contract price for the Fair Trading version of contract annexed to the owners' respective affidavits was identified as $350,000. Alongside the reference (see for example, Barai, p 25), there was a warning that the contract price could increase and stipulated several reasons for why that was so, including variations.
In Crown Melbourne Ltd v Cosmpolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1 at [22] the plurality said: "a representation made in the course of negotiations may result in an agreement collateral to the main agreement if it can be concluded that the parties intended that the representation be contractually binding. It may be so concluded if the representation has the quality of a contractual promise, as distinct from a mere representation. The question of intention is adjudged by reference to the words and conduct of the parties, but it is an objective test - of what a reasonable person in the position of the parties would necessarily have understood to have been intended."
On the same day, 24 September 2016, the parties also entered into a collateral agreement that (a) this contract price would be subsequently varied to factor in variations that a third party, Kurmond Buildings had quoted the owners (and which had been conveyed to the builder), (b) which variations were the subject of further negotiations between owner and builder, and (c) the Builder promised that the value of those confirmed variations (after negotiations) would not exceed the sum of $160,000. After correspondence between the owners and Builder in the intervening period from 24 September 2016, on 20 November 2016, the parties agreed that the contractual price was varied to $510,000 inclusive of the variations identified, and separately quantified, on 20 November 2016, in Exhibit 1.
Exhibit 1 was a composite exhibit, comprising two documents. The 'tender' part of Exhibit 1 was substantially created by Kurmond Builders, but was subsequently modified by Mr Mehndiratta. This would be consistent with (a) Mr Barai's evidence, by which he identified Mr Mehndiratta as being responsible for the section titled "Additional Inclusions" and (b) Ms Mahjabeen's evidence, which I accept, concerning Mr Mehndiratta's promise that he could "do the same things that you want from Kurmond" (Mahjabeen, paragraph 10) and the tender he prepared would be "the same one that you have me that you got from Kurmond Builders" (Mahjabeen, paragraph 16; see also Barai, paragraph 11).
My conclusions concerning the date the contract was entered and the existence of a collateral agreement are supported by several circumstances.
First, it reflects the evidence of the owners of what was said on the subject of price and variations, which I accept.
Secondly, the owners' evidence is supported by the handwritten annotations (which I find was inserted by Mr Mehndiratta) that appears on the title page to the version of the contract each of the owners annexed to their respective affidavits, signalling the 'base' price ($350,000), 'Variations' ($160,000) with a total of $510,000. As Mr Lambley correctly emphasised, it was this version of the contract which was attached to Mr Mehndiratta's email of 20 November 2016.
It is important, also to recognise, that the contract price was not $510,000 as at 24 September. If it was, then that figure would have been inserted expressly into the stated contract price appearing, for example, in p 25 of Mr Barai's evidence. The objectively ascertained intention of the parties, manifested by their contract, was that the contract would not increase from $350,000 to $510,000 independently or irrespective of the parties agreeing upon the variations up to the value of $160,000. There would be no benefit to the owners from that.
Thirdly, by the National Australia Bank's loan approval to the Owners which indicated, in the letter dated 16 December 2016 (Barai affidavit, p 51), the contract price of $510,000 inclusive of variations. It is immaterial whether Mr Mehndiratta actually saw this letter - although he implausibly suggested that he had not just because the address referred to in the letter omitted the number from the Builder's street address. He had the opportunity to (but did not) refer to the letter in his evidence in reply. The Owners had noted (in Exhibit AA) that their lender required details of how the "additional $160,000" would be spent. That additional sum was a reference to a price on top of the 'base' contract price of $350,000 identified in the contract on 24 September 2016.
I also note that the Fair Trading rectification order of August 2018 also indirectly pointed to 24 September 2016 as the contract date. I say indirect, since the Inspector had allowed the builder until 24 September 2018 - the two year anniversary of the date the contract was entered - for it to complete the works (Appendix 7 to Exhibit 4). The two year period reflected the warranty period that the Home Building Act provides (s 18E(1)(b)) an owner to commence an action for breach of statutory warranties for defects which do not constitute 'major' defects. I infer that Mr Mehndiratta would have had the opportunity to inform Fair Trading what his view of the contract date was or to correct the input of the owners in that regard if he believed it was untrue.
Incidentally, although there was a reference in the last paragraph in Mr Barai's email (Exhibit AA) to another contract for $100,000, I accept Mr Barai's evidence that this was erroneous. In this regard, I reject the proposition that Exhibit EE indicated that the parties were only agreed as to the construction of a single storey dwelling on 24 September 2016 and that this had changed to a double storey dwelling by 23 December 2016 (or some other date post-dating 20 November 2016). I reject that the point is made good by the email sent, on Mr Mehndiratta's behalf, by Ms Devi (at 8:57pm) on 18 November 2016 (Exhibit FF). Ms Devi did not give evidence to say that there was a 'second contract' for $100,000 or what the source of that belief or information was.
In the tender part of Exhibit 1, reference was made to a 'Double Storey home' (item A1) and in the 'Post-Contract Variations' part of Exhibit 1, reference was also made to a 'Double Storey House'. Particularly in the absence of any pleaded reference to a $100,000 contract in any of the pleadings, in Mr Mehndiratta's affidavit (and Exhibits A and B), I regarded his question to Mr Barai (and he did not ask Ms Mahjabeen the same question) as to whether the latter had signed a $100,000 contract with the builder for a second, upper storey, as disingenuous.
As to the reference in the owners' email of 4 April 2017 (Exhibit BB), "we signed two papers" alongside the item description (copies of the contracts), this did not amount to an admission by the Owners that a contract was entered into on 23 December 2017. I find that it was a rather loose reference to the owners evidence of applying the date 24 September 2016 and their signatures on one version of the contract on that date and their applying signatures to an effectively blank version of the contract on the same date.
Fourthly, the owners' version is also consistent with the content of Exhibit 1, earlier described and which was titled 'post-contractual variations'. This indicated, on its face, that the original contract price had been adjusted to include variations whose value ($160,000) brought the total price to $510,000. This particular document was signed by the Owners on 20 November 2016. Contrary to Ms Mahjabeen's evidence, which appeared to me to be uncertain on the subject, I find that both owners signed both parts of Exhibit 1, being both the Tender and the Post-Contract Variations. It is to be recalled that it was the owners who put Exhibit 1 into evidence in their case, which exhibit partly included the Tender. Their solicitor advocate would not have done so if his instructions were that what purported to be the owners' signatures on that part of the document were not authentic. Mr Mehndiratta admitted that his signature was on the 'Tender' part of Exhibit 1 as well.
I recognise that this conclusion is not supported by the attachments which Mr Mehndiratta emailed to the owners on 20 November 2016 (Exhibit GG) which, as I noted, omitted the 'Tender' part of Exhibit 1. Nevertheless, this part of Exhibit 1 was signed and neither party pointed to any inconsistency between this part of the document with the Post-Contract Variations.
Quite how all of these specifications were supposed to work harmoniously, or what, if any hierarchy was attached to them, was a subject that was given little attention by the parties at the hearing.
Fifthly, although the owners affixed a date (24 September 2016) for one version of the contract (in Mr Barai's and Ms Mahjabeen's respective affidavits), they did not affix a date for the other version (in Mr Mehndiratta's affidavit, p 8).That omission meant that a statutory requirement (s 7(1) of the Home Building Act 1989 (NSW)) was not complied with in Mr Mehndiratta's version; which arguably meant that this version of the contract could be unenforceable for an action in contract at the instance of the builder (s 10(1)(c), although see s 11). It did not matter, however, that the contractor's initials were left off the version of the contract that the owners propounded (noting, as I have done elsewhere, that it was the owners' version that Mr Mehndiratta relied upon when sending his email to the owners on 20 November 2016: Exhibit QQ).
Sixthly, there is little or no admissible evidence of events that occurred on 23 December 2016 itself, in any of the narrative accounts given by Mr Mehndiratta (in his affidavit or in Exhibits A or B), or any contemporaneous email correspondence passing between Mr Mehndiratta and Mr Barai in which reference was made to any modified or amended agreement being reached on that particular date. In particular, there was nothing corresponding to a signed list of agreed variations such as that which appeared on Exhibit 1 (executed on 20 November 2016) on or around 23 December 2016.
Seventhly, some of the cross-examination by Mr Mehndiratta of the owners in the period between 24 September and the commencement date for the works (such as on the documents which were Exhibits M-O) was really beside the point. It was the second part of Exhibit 1 - the part titled 'Post Contract Variations' which constituted the final statement of variations agreed to by the parties on 20 November 2016, irrespective of any discussion on that subject between 24 September and 20 November 2016.
Eighthly, it is true that there are some documents attached to the affidavit and exhibits which bear the owner or owners' names and the date of 23 December 2022, but aside from the owners disputing the authenticity of those documents, there is no direct proof that they inserted their signatures on a version of the contract on that date. To repeat what I said earlier about the forensic consequences of my adverse credit findings against Mr Mehndiratta, having regard to what I have said about my adverse view of Mr Mehndiratta's credibility and reliability, there was no reliable evidence to support the fact of any meeting between the Builder and Owners on 23 December 2016 or the content of it, which would have provided an obvious reason or opportunity for the owners to sign a document, in Mr Mehndiratta's presence, on that particular date. Moreover, noting the extensive list of variations agreed to as at 20 November 2016, it would be inherently surprising if a new contract price, based upon additional variations, would be entered into just over a month later.
I also reject therefore, the builder's argument that on 23 December 2016, the owners agreed to the content of the document titled 'Tender with Detailed Specifications' which appears at p 40-44 of Mr Mehndiratta's affidavit. Nor is there any evidence to suggest that they approved of the document which is Exhibit F. Further, and in relation to the 'Specifications' attachment that was emailed to the owners on 20 November 2016, there was no evidence that the owners approved that document.
Ninthly, other documents relied upon by the Builder to establish entry into a contract on 23 December 2016 do not sustain the contention. The document (Exhibit N) which the Builder relied upon did not assist the Builder to establish a contract entered into as at 23 December 2016, even though it was created after 20 November 2016. All that Ms Mahjabeen was doing was making a request for further elaboration (as in explanation) of the inclusions. That was not inconsistent with the proposition that inclusions and a list of variations had been agreed on 20 November 2016.
The Icare certificate of insurance (Exhibit HH) did not assist the Builder either. Mr Barai said that he had not seen the document and had no involvement in creating the information supplied to the insurer. Ms Mahjabeen was not asked about it. I infer that it was Mr Mehndiratta who provided the information and, given what I have said about his credit, I am unable to accept the content of the document as information independent from him. Contrary to Mr Mehndiratta's submission, the attachments to Exhibit HH were not signed by the owners.
The position with respect to the HBCF Application (Exhibit GG) was relevantly the same. Mr Barai said he had not seen this document before. Ms Mahjabeen was not asked about it. I find that it was Mr Mehndiratta who was responsible for the information provided to this third party.
Tenthly, contrary to the Builder's submission, Ms Holt's evidence, such as it was, did not assist the Builder to prove that a contract was entered into on 23 December 2016. At its highest, Ms Holt provided no opinion since for a significant period of time she did not receive the document she needed to express an opinion. Even though Ms Holt eventually did receive the original of the version of the contract annexed to Mr Mehndiratta's affidavit, I accept Ms Mahjabeen's and Mr Barai's common explanation for why the owners did not proceed to get a report from Ms Holt; being that they baulked at paying her expert fees after initially engaging her.
I draw no inference adverse to the owners that Ms Holt did not complete the examination with which she was originally tasked. Mr Mehndiratta eventually read her affidavit in the Builder's case. It was arguably open to the Builder, being put on notice by Ms Holt's email to him on 6 October 2022 (Exhibit U), which email indicated that the owners did not wish to proceed with her, to engage Ms Holt for itself, to engage that examiner if it wanted to. Given the nature of the task, it is not easy to divine that Ms Holt would have been in receipt of confidential information from the owners that would have presented her with a conflict of competing duties. There is no property in a witness; even an expert one.
Mr Mehndiratta submitted in his closing address that it was "impossible" for him to have 'faked' documents - presumably, a reference to signatures appearing on documents. That submission however is one of expert opinion, for which Mr Mehndiratta did not demonstrate any specialised knowledge himself; and the submission is rejected.
At any rate, the episode concerning attempts to obtain handwriting evidence went nowhere. Ms Holt's evidence, such as it was, was neutral. This is of some significance in a context where the onus of proving the date of the contract that the builder was suing upon fell upon the builder.
Mr Barai said, in his evidence, that he partly paid a deposit on 24 September. A curiosity of his evidence was that he said he paid the sum of $45,000 with a promise to pay an additional amount thereafter. This evidence is significant in two respects. First, it confirms that a contract was entered into on 24 September and before 23 December 2016. Secondly, it provides some support for my finding about a collateral agreement that the stated price of $350,000 would be adjusted to $510,000 once a list of variations was identified and confirmed, which would not exceed the value of $160,000.
I prefer the evidence of both Owners that, at Mr Mehndiratta's request, on 24 September they signed another version of the same contract with handwritten details omitted from important provisions, such as the contract price.
For the avoidance of doubt, I say that it is implicit in what I have just reasoned that, unless each of the owners agreed to them (as applicable), I do not regard any of the typed documents annexed to Mr Mehndiratta's evidence and purportedly bearing the signature of one or both of the owners as reliable documents: they are undated, not appearing on the plaintiff's letterhead. Their authenticity, in terms of the suggested application of their signatures, was denied by the Owners and it would have been open to the Builder to prove, by admissible and persuasive means that they were given to the Owners, in his evidence in reply. All that Mr Mehndiratta could say (when cross-examined and not in his evidence in reply) in that regard is that they were physically handed to the Owners for their signature. I do not believe that evidence.

[18]

Was there a cap on claims for variations?

The real issue concerning the contractual provisions, so it seemed to me, was whether the collateral agreement had the legal effect, as the Owners apparently contended, that the builder's right to claim for further variations (ie beyond those already agreed on 20 November 2016) was modified. The effect of the owners' contention was that the value of the variations identified and agreed on 20 November 2016 represented a cap on the value of variations with the legal effect that no further adjustment of the contract price could occur on account of variations (as distinct from the operation of other provisions, such as cll 3, 10, 11, 14 and 20). This would amount to a very literal construction of the collateral agreement on 24 September: that the adjustment of the contract price agreed that date could not be adjusted for any further variations.
I do not accept the owners' contention.
For one thing, Mr Lambley conceded in his closing address that, on the basis of the evidence of both Mr Barai and Ms Mahjabeen, there was at least one variation which the owners accepted had arisen after the contract was entered into, relating to invoice 1167 concerning the tiling. (Their point was that they negotiated a lower sum than the builder claimed) That concession is inconsistent with the owners' contention that there was a cap.
As was set out in the explanatory comment alongside the statement of the contractual price (a typical feature of the Fair Trading form of building contract for work over $20,000), the contract price can be increased, in accordance with the contract terms "because not all costs can be absolutely determined at the outset although the contractor is obliged to make reasonable estimates given known conditions. The reasons for possible increases include …. Variations, including those due to unforeseen matters.."
As at the dates of 24 September 2016 (when the collateral agreement was made) and 20 November 2016 (when the variations for the value of $160,000 were agreed), and before the Builder commenced the works, there remained a prospect of 'unforeseen matters' that may result in the need for the Builder to make a claim for variations under cl 13. That is to say, the contract price was inherently subject to the prospect of further variations. Any further or additional variations, after variations were agreed to on 20 November 2016, pursuant to the collateral agreement entered into on 24 September 2016 permitted further adjustment of the contract price. This served the purpose of accommodating 'known unknowns' or 'unknown unknowns' [6] .
The owners' contention that there were no further permissible variations after the variations agreed to on 20 November 2016 would have the effect of modifying the builder's subsisting right under cl 13 of the contract to claim variations, to the point of negation. Collateral agreements, to be enforceable, cannot be inconsistent with the terms of the contract in this way [7] .
Further, viewing the matter objectively, with reference to what the parties knew, the Builder did not, by its conduct, manifest its consent to a situation whereby no matter the cause, it would have to incur additional cost for unexpected reasons not contemplated without the capacity to adjust the contract price.
The adjustment made to the contractual price on 20 November 2016 made for a contract price that was still inherently subject to the prospect of further change, for a range of possible reasons including, relevantly, agreed variations.

[20]

The invoices the subject of the claim

By Annexure RB2 to his affidavit, Mr Mehndiratta annexed what he asserted were outstanding invoices. Neither in that affidavit (which, I note, was prepared at a point when the Builder was legally represented [8] ), nor in his lay evidence in reply to the owners' affidavit evidence (Exhibit B) did he provide any narrative account to supplement any inferences that would arguably arise on the face of the documents themselves. That can be a forensically risky course for a litigant to take [9] .
The invoices which Mr Mehndiratta annexed were as follows (in the order they appear in the annexure, with the amounts stated as being inclusive of GST): 1. Invoice 1130 (17 October 2017) for balance owing on 'next stage framing' claimed to be $6,680; 2. Invoice 1167 (21 April 2018) relating to variously described works (including floor tiles and bathroom tiles) claimed to be $16,890; 3. Invoice 1150v (18 February 2018) relating to an air conditioner for the claimed sum of $16,500; 4. Invoice 1149v2 (22 December 2017) referring to a power pole variation, for the claimed sum of $2,280; 5. Invoice 1149v (22 December 2017) referred to as 'variation windows' for the sum of $1,500; 6. Invoice 1167v (21 April 2018) referred to as 'lights and intercom' for the claimed sum of $14,410; 7. Invoice 1193v11 (5 July 2018), concerning variation costs for sewerage, electrical and plumbing lines, for the claimed sum of $5,060; 8. Invoice 1193v (8 June 2018), with the reference driveway and external steps, for the claimed sum of $8,068.50; 9. Invoice 1193v12 (5 July 2018) with variously described works (including pantry area and fridge pantry supply and installation and variations to tiles in bathrooms and final rubbish removal) for the claimed sum of $10,960; 10. Invoice 1194v1 (29 Jun 2018) with the reference 'Garage variations' for the claimed sum of $10,780; 11. Invoice 1194v3 (29 June 2018), with the reference 'Alarm variation' for the claimed sum of $4,180; 12. Invoice 1194v2 (29 June 2018) with the reference 'Alfresco Variations' with the claimed sum of $17,270; 13. Invoice 1194v5 (29 June 2018) with the reference 'Skipbins Variations' with the claimed sum of $6,138; 14. Invoice 1194v4 (29 June 2018) with the reference 'Lawn variations' for the claimed sum of $473; 15. Invoice 1194v6 (29 June 2018) with the reference 'Rubbish Removal Variations' with the claimed sum of $6,160; 16. Invoice 1194v7 (29 June 2018) with the reference 'Stormwater Variations' for the claimed sum $2,376; 17. Invoice 1194v6 (29 June 2018) with the reference 'Tank Variations' for the claimed sum of $4,180; 18. Invoice 1195 (30 June 2018) with the reference 'Variations Paint' for the claimed sum of $2,750; 19. Invoice 1195v1 (24 August 2018) with the reference 'Variation Inspection Charges, for the claimed sum of $770 20. Invoice 1115 (6 July 2017) bearing the reference '20 Janice' and apparently relating to demolition works, for the claimed sum $1,100; 21. Invoice 1115v (10 July 2017) with the reference 'Swimming Pool Demolition', for the claimed sum of $18,000; 22. Invoice 1119 (13 July 2017) relating to CDC approval, for the claimed sum of $25,500; 23. Invoice 1125 (20 August 2017), relating to piering for house slab, for the claimed sum of $2,598.75; 24. Invoice 1127 (6 September 2017), relating to the 'base stage' of the work, for the claimed sum of $18,000; 25. Invoice 1125v2 (8 September 2017) concerning what was described as the external dropedge beam (30m), for the claimed sum of $18,000; 26. Invoice 1195v2 (4 September 2018) referenced 'Building Material' for the claimed sum of $92,000.
The combination of the totals for each of the individual invoices yielded a sum owing in an aggregate sum of $220,624.25.
Among other documents in (pp 55-57 of Mr Mehndiratta's affidavit; also Exhibit A, pp 53-55 incl) are what purport to be variations, in the form prescribed by the Housing Industry Association. From the handwriting, they appear to have been dated 5 July 2018. They purport to bear a signature by one of the owners - apparently Mr Barai.
At p 35 of Mr Mehndiratta's affidavit there is the following document: "Agreement Porcelain tiles in living area has to be done by the builder but I requested Builder to do tiling in whole ground floor , I (Pankaj) will pay variations on Tiles cost and installation of tiles including material and labour which will be twenty five dollars ($25) per sq m as the allowance is only $25 for installation and $35 per sq m for tiles cost besides Living area and no Carpets to be done Tiled and waterproofed lightweight timber balcony as per plans by the builder Skirting tiles to other than shower, Ceramic tiles to front porch will be done by builders" Mr Barai admitted applying his signature under his typed name and inserted the date 20 April 2018 alongside.
At p 37 of Mr Mehndiratta's affidavit, there is the following document: "Agreement: As per the Tender Conditions below Porcelain tiles in Living area only and Carpet in all other areas and rooms (Tiles and Carpet as per Robust Builders choice) - Customer insisted on tiles all over ground floor - Estimate will be provided after calculation. Tiled and waterproofed lightweight timber balcony as per plans Skirting tiles to other than shower Ceramic tiles to front porch 1.9m high tiles to shower perimeter & 1.2m high tiles to bathroom & ensuite with skirting tiles to WC and laundry I Pankaj Barai is has agreed upon as follows I requested Builder to do tiling in all bathrooms up to the ceiling with Cornices on the top. Owner (Pankaj) will bear the cost of tiles, material and labour charges more than 1.9 m high tiles to shower perimeter & 1.2m high tiles to all bathrooms." Mr Barai agreed that he applied his signature (above his typed name) and inserted the date (20 April 2018)

[21]

Robust Builders Pty Ltd v Barai & Anor

At a glance

Court

Decision date

Before

Source

Judgment (53 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (10)

Cited By (2)