1. The Contract, which is dated 20 June 2015, is in the form of the New Homes Building Contract produced by the Master Builders Association. The Builder is identified in the Contract as Bailey Ridge, which is a business name used by Mr Hatfield.
2. The Contract documents are identified on page 34 of the Contract as being seven pages of specifications dated 20 June 2015 supplied by the Builder and plans prepared by Metro Building Designers. The engineering documentation is said to have been prepared by a Mr Al Abadi of Haider Consultants ("the Engineer"). The number of pages is not specified in regard to either the plans or the engineering drawings.
3. The Contract price was to be paid in accordance with the percentages set out in s.40 of the Act, save that the deposit was slightly reduced to $20,000 and the excess was added to the final payment. The Contract provided that no retention system had been allowed for in the price.

1. Although the plans were identified as being prepared by Metro Building Designers, no such plans were in existence at the time the Contract was signed. The price and the Contract were negotiated on the basis of plans used to obtain a town planning permit ("the Ferotto Drawings"). However, in the course of their discussions and in accordance with recommendations made by the Builder, a further set of plans ("the Metro Drawings") was to be prepared by Metro Building Designers and it was agreed that these would be the working drawings pursuant to which the work would be carried out.
2. The purpose of the new plans was threefold:
   • (a) to address deficiencies the Builder said were present in the Ferotto Drawings;
   • (b) to reduce the size of the units so that they would not encroach upon an easement at the rear of the site. This involved deleting the carport for the rear unit and changing it to a car parking space; and
   • (c) to provide for the units to be constructed in accordance with a new proprietary construction system involving prefabricated panels ("the Bondor System") which the Builder said would be quicker and cheaper.
3. The changed plans resulted in a cheaper construction cost and, as a consequence, the Builder agreed to pay for the Metro Drawings, which cost $4,000.00.
4. There was an issue in the case as to what was included in the Builder's scope of works. I think that, on a proper analysis, the parties agreed that;
   • (a) the units were to be constructed in accordance with plans that were to be prepared by Metro Building Designers;
   • (b) the Builder was to arrange and pay for the preparation of those plans; and
   • (c) the plans were to be in accordance with the Ferotto Drawings with any necessary modifications to address the easement issue and the other concerns the Builder had with those drawings and to provide for construction to be in accordance with the Bondor System.
5. Pursuant to this arrangement, the Builder sent the Ferotto Drawings to Metro Building Designers who prepared the Metro Drawings at a cost of $4,000.00 which the Owner paid on the Builder's behalf.

1. Under the terms of the Contract the Builder was to obtain the building permit. There was some delay due to the expiry of the planning permit and the building permit was not finally obtained until 21 October 2015. The site works were commenced shortly before that date.
2. The building permit plans, endorsed by the relevant building surveyor, were the Metro Drawings and also the structural drawings by the Engineer.

1. The work commenced with a site scrape and the excavation for the slabs and footings. In order to assist the Builder's cash flow, an agreement was made between the parties that the Owner would, when requested to do so by the Builder, pay sub-contractors directly and in exchange, the Builder would not charge a 10% margin on the amount that was so paid. Perhaps as a consequence of this arrangement, the deposit of $20,000.00 provided for in the Contract was not paid to the Builder by the Owner. However, amounts paid by the Owner to the Builder, to suppliers and to sub-contractors soon overtook that sum.
2. Excavators and trucks were hired and sub-contractors were engaged to carry out the site works under the direction of the Builder. Accounts were provided to the Owner by the Builder which the Owner paid. In some instances, such as with tip fees, the Builder or his sub-contractor charged the cost to the Owner's credit card. In addition to payments for the work actually done, the Builder also requested that the Owner pay deposits to suppliers for the bricks, the trusses, the windows and the cabinetry.
3. The Owner recorded the amounts that he paid to the Builder on a running spreadsheet which is in evidence. This was updated with evidence that the whole of the deposit for the trusses was subsequently paid. Consequently, by the time of the hearing, the Owner had, at the Builder's request, paid out amounts for both work and deposits totalling $88,227.82.
4. According to the Owner, the payments that he made were to be on account of the relevant staged payment due under the Contract. Apart from some references in emails, that was not documented but I accept the evidence of the Owner in this regard.
5. The units were to be constructed on a raft slab in accordance with the engineering drawings. When excavation of the site began, a great deal of rock was encountered that the Builder said he had not anticipated.
6. The Builder informed the Owner of the problem and negotiations then took place concerning an additional allowance to be made for the removal of the rock. Eventually the Owner agreed that the Builder would be entitled to a further amount of $10,500.00 for this extra cost. The Builder acknowledges that amount was discussed but claims that it was for the hire of the truck, the driver and the tipping only and did not include the cost of the excavator and operator which, he said, was an extra $10,167.72. No agreement was reached as to an extra charge for the excavation.
7. In November 2015, excavation for the slab and footings appears to have been completed and some underground plumbing for the units was then installed. The Builder then informed the Owner that the Ferotto Drawings, upon which he had priced the project, had not included a number of matters that were now required by the Metro Drawings and the price needed to be increased if that additional work was to be done by him.
8. On 1 December 2015 the Builder informed the Owner by an email that he would not proceed further with the building work without a new building contract to replace the existing Contract. The Owner would not agree and so the Builder purported to suspend work. He said that he needed a "builder's fee" written into the new building contract "...as a stand-alone payment before we go any further". Negotiations followed concerning the Builder's allegation that a number of items of work were not included in the existing Contract and his continued demand for a builder's fee.
9. The Owner suggested that the parties attempt to mediate the dispute but, despite a number of communications, no agreement could be reached. No further work was done on site.

1. The principal issues in this case are:
   • (a) whether the Builder was entitled to any extra payment with respect to the rock encountered on site;
   • (b) whether the Owner was in breach of the Contract for failing to agree to the variation of Contract sought by the Builder; and
   • (c) termination of the Contract; that is, which of the parties was entitled to terminate the Contract, how did the Contract come to an end and the calculation of damages.

The Builder's entitlement to extra for rock removal

"14.1 Builder generally not entitled to extra amounts for excavations or footings

After entering into this Contract the Builder cannot seek from the Owner an amount of money not already provided for in the Original Contract Price if the additional amount could reasonably have been ascertained had the Builder obtained all the Foundations Data required under the Act.

14.2 Builder's entitlement to extra amounts for excavation and footings

The Builder will be entitled to claim an amount of money not already provided for in the Original Contract Price if the need for the additional amount could not reasonably have been ascertained from the Foundations Data.

14.3 Owner to pay additional cost of Builder entitled to extra amount

If the Builder is entitled to any additional amounts which could not reasonably have been ascertained for excavations or footings under this Contract or the Act, the Owner will pay to the Builder, in the Builder's next progress claim, the agreed cost of the additional work or, if the cost is not agreed, the cost incurred by the Builder plus15% for the Builder's margin."

1. This clause largely repeats s.30 of the Act, subsection (3) of which defines foundations data as follows:

(a) the information concerning the building site that a Builder exercising reasonable care and skill would need to prepare -

(ii) an adequate estimate of the cost of constructing those footings; and

(b) any reports, surveys, test results, plans, specifications, computations or other information required by the regulations for the purposes of this section.

(4) In deciding whether he, she or it has obtained all the information required by subsection (2), a Builder must have regard to -

(a) the relevant standards published by Standards Australia; and

(b) the need for a drainage plan or Engineer's drawings and computations; and

(c) the need for information on the fall of the Land on the site."

This definition is adopted in Clause 1.0 of the Contract.

1. In the present case, the Builder was given a soil report obtained by the Owner that classified the site as being "H1". It is dated 30 October 2012 and it provides what appears to be standard instructions for footings of various types without any specific instructions concerning this particular site or any particular design. Two boreholes were taken that produced exactly the same results, being fill of silt and clay to a depth of 250 mm, basaltic grey, stiff, moist material between 250 mm and 700 mm and "Refusal probably boulder" at 700 mm.
2. This soil report is referred to in the engineering drawings, which are dated December 2012. On sheet SO2 of the engineering drawings, there is the following note:

"All edge beans, internal beams, strip, and pad footings are to be founded at least 100 mm into the natural stiff clay soil with a minimum allowable bearing capacity of 150 kPa as a guide. Based on the geotechnical report, the founding depth will be 1000 mm below the existing ground surface level."

1. On 28 October 2015 at the instigation of the Builder, the geotechnical engineer returned to the site and provided a very short supplementary report to the effect that much of the clay on the site was only firm and so the founding in those parts should be on rock to achieve 150 kPa allowable bearing pressure. Rock included boulders securely founded on firm clay as well as stiff clay. There is no evidence as to what parts of the site this direction applied to.
2. In order to claim an additional entitlement with respect to the rock that was encountered, the Builder must demonstrate first, that the additional cost was incurred and secondly, that it could not reasonably have been ascertained from the Foundations Data.
3. In his report, Mr McFarlane said that the requirements of the soil test reports were for all slab beams and all strip footings to be founded on rock. He said that this was confirmed by the engineering drawings.
4. He said that his inspection of the Land found all excavations for the slab had been taken down to bedrock as specified. He said that the rock that had been excavated could not be considered as bedrock or boulders securely founded on specified founding layer.
5. Mr Brown said that he observed that the block had rock almost at the surface and that it was very firm. He noted that it would appear that most of the foundations to date have gone down to rock save for the rear of the property.
6. He said that the configuration of the H1 slab would tolerate sitting on rock and on natural clay and that, following the receipt of the amended soil report, the matter should have been referred to the Engineer to determine what steps should be taken next.
7. He said that he felt that, once the topsoil was ignored, most of the clay was certainly 100 kPa and there would have been no real need to go to rock. He concluded that the removal of the rock from the site without direction from the Engineer was in violation of what is contained within the Code under the standard "deemed to comply" provisions.
8. Mr Jeffrey said in his report that he considered that the Builder's claim for excavation and removal of rock was excessive. He said that, when the work is completed, the clearing of the site will render the work the Builder has done useless. I think that must be an overstatement because the rock that was taken from the site will not have to be removed again.
9. He said that having reviewed the Builder's invoices he believed that the cost of excavation and removal of rock was approximately $8,000.00 -$8,500.00, although he provided no details of his calculations. However, he said that from his site inspection he found that the excavation depth does not exceed the 1000 mm provided for in the Engineering drawings.
10. Mr Pitney made a general comment in his report that, on the basis of the information the Builder had supplied to him, the cost of removing the rock appeared fair and reasonable and that the Builder should be entitled to an extension of time for that work. He does not attach to his report the information that he was given or provide calculations in regard to this and it appears that he was working from whatever it was that he was given by the Builder.
11. I am satisfied that, in the absence of a contrary direction from the Engineer, the engineering drawings required the Builder to excavate to the depths indicated and that the Owner appears to have agreed that it was reasonable for him to do this work. Moreover, the foundation data, being the original soil report, referred to boulders, not solid rock, and to very stiff clay that was later considered to be only firm and the Builder was then required to go down to rock. The issue between the parties was: what costs were incurred? The Owner said that he was prepared to pay a reasonable price.
12. The Builder relies upon some figures prepared by his accountant, which are Exhibit "D". These state that, according to the number of trips taken to the tip as indicated by the documents the accountant was given, 168 m³ of material was removed. However, the figures indicate that the accountant has assumed that each load was 6 m³ and the evidence is that the capacity of the truck that carried the material away was 3 m³. That would reduce the quantity to 840 cubic metres.
13. So far as I can see from the spreadsheet, the following expenses were incurred in regard to the site works:

1. In addition, the Builder has produced invoices in his own name and also in the name "Rocket Industries", purportedly for the machine operator, that bear a striking resemblance to his own invoices in terms of format and font. These seem to be for work that appears on the spreadsheet. Since it does not appear that the Builder outlaid any of his own money towards the cost of this work, I think that the spreadsheet is the best source from which to obtain the costs that were incurred.
2. Not all of this can be claimed under Clause 14.2 because site works would have been necessary even if no rock had been encountered. In this regard the only assessment that I have is contained in Mr Pitney's report, in which he has costed site works for the project at $2,755.00. If this is deducted from the above amount then the claim under Clause 14.2 would be $17,496.78 plus the 15% allowed by Clause 14.3 of the Contract, which produces a final figure claimable under Clause 14.2 of $20,121.30.

1. The Builder claimed that the scope of works under the Contract did not include a number of matters shown on the Metro Drawings, including rain water tanks, fencing and garden sheds. This was denied by the Owner, who insisted that he told the Builder that he had a "turn key" contract and that the Builder was to deliver the four units completed in accordance with the plans and ready for him to rent out to tenants. The allegation that it was a turn key contract appears a number of times in the documents and was even used by the Builder, although he gave it a different meaning.
2. Mr Jeffrey said that the cost of providing the tanks, fencing and sheds was $18,400.00, calculated as follows:

Rain water tanks (x4), including pump and connections $14,000.00

1. Mr Pitney did not price any of these items since his instructions were that they were not included in the Contract scope of works.
2. On 15 May 2015 the Owner sent an email to the Builder, the first two sentences of which were as follows:

"As discussed I need turn key ready to rent landscape, floor covering, fly screens and door steps included. Builder's range is ok. Crossing and mailboxes by builder. All connection ready as per utility requirements. I have utility connection fees only."

1. On 2 June 2015 the Builder sent an email to the Owner enclosing a copy of the specifications, asking him to look over them and let him know if the Owner was happy with the items in the build.
2. On 17 June 2015 the Owner sent the following email to the Builder:

"I have received proposed landscape from Phillip and my response to him is also attached.

I can go back and insist he updates or you can ask Glenn to update

I have no preference for any layout apart from lawn where possible rather than garden beds no tenant looks after garden beds. They do mow the lawn.

Simplest/cheapest the council will accept that you know you preference." (sic.)

1. Attached to this email was a landscape plan that, although apparently drawn by Mr Ferrotto, is not part of the Ferrotto Drawings. It provides a design for the landscaping of the Land around the four units. This plan specifies dividing paling fences 1800 mm in height between the units and storage sheds of 6 m³. A number of handwritten alterations had been made by the Owner, deleting various items but not the internal fencing or the storage sheds.
2. Less than an hour later, and apparently in response to this email, the Builder sent an email to the Owner saying that he would prefer Phillip to finish the landscape plan that is required for the building permit. Attached to the email was his quotation, which he said was worked out from the Ferrotto Drawings and the engineering drawings. He listed various things that were included, including driveway, fencing, heating and cooling but there is no mention of the sheds or whether the fencing was to include internal fencing.
3. The scope of works is not determined by the subjective understanding of either party as to what was intended but rather, by the Contract documents. However, it seems clear that the Builder's price had been calculated before he was in receipt of the landscape plan which showed the internal fencing and sheds and so it is unlikely that they were included in his price.
4. Rain water tanks, internal fencing and sheds are not included in the specifications referred to in the Contract. However they are shown on the Metro Drawings. The Ferrotto drawings show dark lines that might indicate internal fencing but there is no description in the drawings to say what these lines mean, nor are any sheds or rain water tanks marked. Sheds and internal fences appear on the landscape plan that was produced later but no water tanks.
5. Note 1 of the specification states:

"The contract documents, including working drawings, colour selection, specifications of the building contract make up the total works to be performed. The home will be built in accordance with these documents. Any items not specified in the documentation will not be included." (sic.)

1. By Clause 3.2 of the Contract, the specifications ranked ahead of the plans in order of precedence. The specifications referred to boundary fences but no mention was made of internal fencing. Internal fencing, sheds and rain water tanks are not shown on the Ferrotto drawings, apart from the unannotated dark lines referred to. Although they are shown in the Metro Drawings, those were not the drawings the parties had before them when the Contract was entered into and the job was priced. It cannot have been the intention of the parties that the Metro Drawings that were to be prepared would expand the Builder's scope of works beyond what had already been agreed. Consequently, I am not satisfied that they were within the Builder's scope of works.

1. The Owner did not agree to the Builder's demand for a new Contract. On 24 December 2015 the Builder hand-delivered to the Owner in the form of a letter, a proposed variation listing what he claimed was additional work, which he said would increase the Contract price by $145,906.00, and stating that the project would be delayed by six months. He said that he could do no more to progress the work until the variation was accepted and that in the meantime he was suspending work under Clause 16.2 of the Contract.
2. Mr Jeffery said that the Builder's claim that the completion would be delayed by six months was excessive. Mr Pitney said in his report that he thought the whole project could be built in 16 weeks if the Builder worked a six-day week. I am satisfied that the claim for an extra six months was excessive although nothing turns upon that.
3. The grounds upon which the Builder was entitled to suspend work pursuant to Clause 16 were set out in that clause. Those grounds did not include the Owner refusing to accept a variation.
4. The Owner signed this document and returned it to the Builder on 27 December but added the following notation:

"The variation is accepted to the footings subject to itemised bill/costing to be provided to enable their costs to be paid. Please itemise pricing to indicate work done and to be done and cost of each. If agreeable I will pass on to sworn surveyor to confirm."

1. The Builder did not accept this notation as an acceptance of the variation that he wanted. Indeed, since it was in different terms to the Builder's offer, it could be no more than a counter-offer. At the Owner's request, the Builder met the Owner's quantity surveyor on site in order to justify the claim that he was making for the rock removal. The quantity surveyor asked the Builder for further information to justify the amount claimed but none was provided. Consequently, no agreement was ever reached in regard to the Builder's claim for additional rock excavation.
2. In a further email on the following day, the Owner confirmed that he had no issue about paying a fair share in regard to the base stage but that he believed that the proposed variation was "over the top" and asked for an itemised costing which, he said, the Builder refused to provide.
3. On 3 February 2016 the Builder sent a further letter by registered post to the Owner, referring to the letter of 24 December seeking a variation and continuing as follows:

"I understand that the variation has again been rejected. This is in breach of clause 22.1 of the Contract as a refusal to consent to any reasonable or necessary variation requested by the Builder under clause 13.

This letter constitutes written notice under clause 22.1 of the Builder's intention to terminate the Contract unless you remedy the breach by consenting to that variation within 14 days after receipt of this notice."

1. On 22 February 2016 the Builder sent a further letter by registered post to the Owner stating:

"With reference to written notice dated 03 February 2016 sent by registered post, I have failed to receive an acceptance of the variation of contract. As such I hereby terminate the contract to build four double storey domestic buildings at 53 Warranga Crescent Broadmeadows."

1. On 23 February 2016 the Owner's solicitors wrote to the Builder, referring to the Contract, alleging that the total construction period of 90 days expired on 20 January 2016 and stating that the Builder had unlawfully suspended work. The letter requested that the Builder immediately return to the site and recommence work and that if the work was not recommenced by 1 March 2016 they were instructed to terminate the Contract on behalf of the Owner.
2. A meeting took place at the Builder's accountant's office in March 2016 and thereafter, by a letter dated 7 March 2016, the Builder by his agent agreed to temporarily withdraw his letter of Contract termination for a period of seven days. Quite obviously, termination of the Contract is not something that can be withdrawn. If the Builder had already effectively terminated the Contract it would have been at an end and if the relationship between the parties was to continue, a fresh Contract would have been needed.
3. In any case, the negotiations between the parties broke down and, by an email dated 18 April 2016, the Builder noted that his temporary withdrawal of the termination the Contract had expired. He also said that he had advised the domestic building insurer and the relevant building surveyor and that the home warranty insurance had been cancelled.
4. On 5 May 2016 the Owner's then solicitors gave notice to the Builder purporting to determine the Contract. The operative part of this notice is as follows:

1. You have engaged in conduct amounting to a breach of the Building Contract (the "Breach"), and the breach complained of is as described in Item 1 of the Schedule herein.
2. You have engaged in conduct amounting to a repudiation of the entirety of the Building Contract (the "Repudiation"), and the repudiation is as described in item 2 of Schedule herein.
3. You have requested a variation to the Contract Price ("Variation") in excess of 15% of the Contract Price, giving rise to Mr Sen's statutory right to terminate the Building Contract as described in Item 3 of the Schedule herein.

AND TAKE FURTHER NOTICE that due to your wrongful termination and repudiation of the Building Contract in its entirety, Mr Sen hereby exercises his right to immediately terminate the Building Contract, and further reserves all his other rights, including his right to initiate proceedings against you in respect of loss and damage suffered as a consequence of your conduct." (sic.)

1. In the schedule to the notice the breach was said to have been the Builder's suspension of works on site "without cause", in or about December 2015. The repudiation was said to be a notice of termination given to the Owner by the Builder on 3 February 2016 and the purported termination on 22 February 2016 and the further termination on 18 April 2016. The variation was said to have been the variation sought in the Builder's letter of 24 December 2015.
2. As I pointed out during argument, terminating a contract by accepting a repudiation is qualitatively different from terminating pursuant to the statutory right set out in s.41 of the Act. However:
   • (a) the operative part of the Owner's notice purports to terminate "due to your wrongful termination and repudiation of the Building Contract in its entirety" and so, although a right to terminate under s.41 was asserted, the termination was on the ground of breach; and
   • (b) I accept Mr Gray's submission that, since the variation that the Builder sought was not agreed upon, no opportunity to terminate pursuant to s.41 could have arisen.

1. In order to establish repudiation, it must be shown that the other party has evinced an intention no longer to be bound by the contract or has shown that he will only fulfil it in a manner that is substantially inconsistent with his obligations (see Cheshire & Fifoot Law of Contract 9th Australian Edition para 21.12 and the cases there cited).
2. In Shevill v. Builder's Licensing Board [1982] HCA 47 Wilson J said (at para.8):

"Repudiation of a contract is a serious matter and is not to be lightly found or inferred: Ross T. Smyth & Co., Ltd. v. T.D. Bailey, Son & Co. (1940) 3 A11 ER 60, at p 71. In considering it, one must look to all the circumstances of the case to see whether the conduct "amounts to a renunciation, to an absolute refusal to perform the contract_": Mersey Steel and Iron Co. v. Naylor, Benzon & Co._ (1884) 9 App Cas 434, at p 439."

1. The conduct said to amount to repudiation must be assessed objectively. In Laurinda Pty Ltd v. Capalaba Park Shopping Centre [1958] HCA 23, Brennan J. said (at para 14):

"Repudiation is not ascertained by an inquiry into the subjective state of mind of the party in default; it is to be found in the conduct, whether verbal or other, of the party in default which conveys to the other party the defaulting party's inability to perform the contract or promise or his intention not to perform it or to fulfil it only in a manner substantially inconsistent with his obligations and not in any other way."

1. The request for a variation is said by the Builder to have been made under Clause 13 of the Contract. Clause 13.1 provides that when the Builder requests a variation, he is required to serve upon the Owner a notice, containing certain matters, including a description of the variation, the likely cost and whether there would be any delay if it were carried out. By Clause 13.2, the Builder is not to give effect to the variation requested unless the Owner has consented to it or certain other circumstances apply. There is no provision in the clause requiring the Owner to agree to a variation. If an Owner does not agree to a variation, the consequence is that the Builder must continue to build in accordance with the Contract documents without the variation, except in certain specified circumstances which are not applicable here.
2. Consequently, the Builder had no contractual right to insist that the Owner agree to the substantial variation that he sought, yet he stated explicitly that he was not prepared to carry on with the Contract unless it was agreed to and then he purported to determine the Contract when it was not agreed to. That was repudiatory conduct. The Owner having accepted the repudiation, the Contract came to an end at the moment of acceptance.

1. The claim is for general damages for breach of contract. In general terms, when a contract is broken, the innocent party is entitled to such damages as:

"... may fairly and reasonably be considered either [as] arising naturally, that is, according to the usual course of things, from such breach of contract itself or ... may reasonably be supposed to have been in the contemplation of both parties, at the time they made a contract, as the probable result of the breach of it."

(Hadley v. Baxendale (1854) 156 ER 145 (at p. 151) ).

1. As to the assessment of damages, in Tabcorp Holdings v. Bowen [2009] HCA 8; [2009] 253 ALR 1 the High Court said (at p.6):

"The "ruling principle"... confirmed in this Court on numerous occasions..., with respect to damages at common law for breach of contract is that stated by Parke B in Robinson v Harman [1848] EngR 135; (1848) 154 ER 363 at 365):

"The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed."

1. As a result of the Builder's breach and the subsequent termination of the Contract, the Owner has lost the benefit of the Contract and was then required to engage another builder to complete construction of the four units. That has not yet occurred. Insofar as the cost of doing would have exceeded the balance payable by him under the Contract, he has suffered a loss of bargain. Although loss of bargain damages can only be claimed when the Contract is terminated (see Cheshire & Fifoot Law of Contract 9th Aust Ed. Para 23.22) the appropriate time at which to assess that loss is the time of breach (ibid para. 23.25). In the present case the relevant breach is the repudiatory breach which was accepted by the Owner because it was that, and its acceptance, that caused the benefit of the Contract to be lost.
2. There were a number of breaches relied upon as constituting the repudiatory conduct. The earliest of these was 3 February 2016 and I am satisfied that that, in itself, evinced an intention on the part of the Builder no longer to be bound by the Contract. Damages will therefore be assessed as at that date.

1. Mr Jeffery gave the cost to complete the works at various dates, based upon several quotations the Owner had received, ranging from $605,170.00 in June 2015 to a current cost of $658,178.00.
2. Mr Pitney's assessment of the cost of construction as at November 2015 was $598,202.00. His costing was based on quantities that he took from the Contract documents but excluded internal dividing fences, landscaping, sheds and water tanks. This figure does not take account of the extra allowance to which the Builder was entitled for the removal of the additional rock.
3. When one considers the items not costed by Mr Pitney it is apparent that there is very little difference between the two assessments. Mr Pitney's assessment of the cost of construction was as at November 2015, which is closer to the date of repudiation than Mr Jeffery's date of June 2015. In his report, Mr Pitney has provided details of the quantities of labour and materials and I can see how he arrived at his figures, whereas Mr Jeffery appears to have relied upon quotations the Owner has received and made adjustments to take account of increases in building costs. I therefore accept Mr Pitney's figure of $598,202.00 to be the reasonable cost of constructing the units as at November 2015.

1. Amongst the amounts that the Owner has paid are deposits that were paid to the following suppliers:
   • (a) A deposit of $10,785.11 for the windows from A&L Windows. The windows have been received by the Owner and are in storage;
   • (b) A deposit of $2,500.00 to Bunnings Hardware with respect to the kitchen. The Owner said that he returned home to find that a number of bench tops had been delivered and he has these in storage as well. There is no evidence as to the value of these or whether they represent the whole of the $2,500.00.
   • (c) A deposit paid to the truss supplier of $8,040.00. It appears that this is still held by the supplier and will be recoverable when the development is completed and the trusses are delivered.
2. I think that it is appropriate to deduct these figures from the amount that the Owner has paid, since he continues to have the benefit of these payments.

1. The balance of the Contract price payable by the Owner was $365,643.88, calculated as follows:

1. The Owner's loss of bargain is therefore $211,233.41, calculated as follows:

1. By Clause 18.1 of the Contract and Item 17 of the Appendix, if the Builder should fail to bring the work to completion by the completion date, the Owner was entitled to liquidated damages at the rate of $500.00 per week until such time as Owner should take possession of the site.
2. The Owner claims delay damages of $16,500.00, being 33 weeks liquidated damages at the Contract rate up until the time that it would take to complete the project.
3. The precise date upon which the work commenced is not established by the evidence except that it was shortly before 21 October 2015. The construction period was 90 days and so the completion date was 19 January 2016. The Contract was terminated on 5 May 2016. The period for which the Owner is entitled to liquidated damages under the Contract is therefore from 19 January 2016 until 5 May 2016, which is 107 days. At the Contract rate, that amounts to $7,642.86 and that sum will be allowed.
4. Since the only claim for delay is pursuant to the liquidated damages provision in the Contract, no further amount can be allowed beyond the date of termination.

1. There will be an order that the Builder pay to the Owner the sum of $244,601.38, calculated as follows: