The plaintiff is the Owners Corporation for the strata scheme of the "Lamia" building at 276 - 278 Marrickville Road, Marrickville in New South Wales. Some of the lots in the building are commercial, some are residential. The strata plan was registered on 30 July 2008.
Mr Da Silva, the first defendant, is a tiler and waterproofer. He and tradesmen working under his supervision removed and replaced the tiles on the common balcony terrace for units 301, 302 and 303 (some of the residential lots) between late July 2014 and early April 2015. Each of the units has aluminium sliding doors giving access to the same common balcony terrace.
The Owners Corporation complains that the work Mr Da Silva did and supervised was defective. It says that as a result of the work, water enters units 301, 302 and 303 from the common balcony terrace in periods of rain, something which did not happen before Mr Da Silva and the tradesmen did their work.
The Owners Corporation sues Mr Da Silva for breach of contract or, alternatively, for breach of a duty of care imposed by section 37 of the Design and Building Practitioners Act 2020.
It is common ground that, subject to some issues about causation, if the Owners Corporation succeeds on either basis, then the work needs to be redone and the Owners Corporation is entitled to damages for the full cost of rectification. The quantification of those damages is mostly agreed.
Most of the issues between the parties concern questions of liability.
In response to the claim for breach of contract:
7.1 First, Mr Da Silva asserts that he cannot be liable in contract because he has a good defence of non est factum. If he succeeds in that defence, there is no enforceable contract against him - the contract he signed is void. Mr Da Silva says he actually did the work pursuant to a written contract dated 29 May 2014 between his company (Tile Projects Pty Ltd) and a company called Haralambis Construction Pty Ltd.
7.2 Secondly, if he fails on his non est factum defence, Mr Da Silva accepts that the contract included the express terms relied upon by the Owners Corporation, but says that the parties varied the terms of the contract; in particular, he says they changed the scope of work he was required to undertake. He says he did the varied work properly. He goes so far as to say that the variations agreed absolved him of the requirement to comply with the Building Code of Australia and the relevant Australian Standards.
7.3 Thirdly, Mr Da Silva says if he is bound by the contract and the scope of works was not changed, then the Owners Corporation has not proved that the work he did caused the damage it claims.
In response to the Owners Corporation's claim based on s.37 of the Design and Building Practitioners Act 2020:
8.1 Mr Da Silva accepts that he owed the Owners Corporation the duty of care stated in s.37 because the work he did was construction work.
8.2 He says that the "construction work" he carried out was the work he actually did, which he says was in accordance with the varied scope of works agreed by the parties.
8.3 He says that the economic loss of the Owners Corporation was caused by the deficient or absent waterproofing relating to the sliding door and window fixtures, and not arising from the construction work he carried out (T268).
8.4 Mr Da Silva says that reasonable care did not require him to have any involvement in rectifying defects in the existing sliding door and window fixtures (T267), or to undertake significant work that he had been instructed not to do and for which he would not be paid (T270).
8.5 He says if the scope of works was varied during the course of the work such that compliance with the Building Code of Australia and Australian Standards were dispensed with (which he says was the case), reasonable care did not require him to then stop the work rather than complete it (T271).
8.6 Mr Da Silva also raises a number of defences based on provisions of the Civil Liability Act, 2002.
The balance of these reasons proceed under the following headings:
A. FACTS THAT ARE EITHER COMMON GROUND OR ESTABLISHED BY CONTEMPORANEOUS DOCUMENTS
A.1 What happened before Mr Da Silva commenced the work
A.2 What happened whilst Mr Da Silva undertook the work
A.3 What happened immediately after Mr Da Silva finished the work
B. DID THE OWNERS CORPORATION AND MR DA SILVA HAVE A BINDING CONTRACT IN ACCORDANCE WITH THE DOCUMENT SIGNED BY MR DA SILVA ON 22 JULY 2014?
B.1 Non est factum is the issue
B.2 Mr Da Silva's evidence
B.3 Mr Da Silva's submissions about non est factum
B.4 The Owners Corporation's submissions about non est factum
B.5 What needs to be decided?
B.6 Should I draw a Jones v Dunkel inference in relation to the failure of either side to call Mr Haralambis?
B.7 Further findings of fact about what happened when Mr Da Silva signed the document
B.8 Is Mr Da Silva entitled to succeed on his defence of non est factum?
B.9 My findings
C. WHAT WERE THE TERMS OF THE CONTRACT?
D. DID THE OWNERS CORPORATION AND MR DA SILVA VARY THE TERMS OF THE CONTRACT?
D.1 Mr Da Silva's submissions
D.2 The Owners Corporation's submissions
D.3 My analysis and findings
D.4 Legal point: any variation had to be writing signed by the parties to be effective
E. BREACH OF CONTRACT: THE WORK THAT MR DA SILVA ACTUALLY DID OR SUPERVISED DID NOT COMPLY WITH MR EVANS' SCOPE OF WORKS, THE AUSTRALIAN STANDARD OR THE BUILDING CODE
E.1 Mr Da Silva's admissions in cross-examination
E.2 The experts' evidence, going to breach and causation
E.3 Mr Moisidis' evidence going to breach and causation
F. MY FINDINGS ON BREACH OF CONTRACT
G. DAMAGES FOR BREACH OF CONTRACT
G.1 Causation
G.2 Quantification of damages
H. THE CLAIM BASED ON BREACH OF A DUTY OF CARE IMPOSED BY SECTION 37 OF THE DESIGN AND BUILDING PRACTITIONERS ACT 2020.
H.1 The Design and Building Practitioners Act, 2020
H.2 The Owners Corporation's case
H.3 Mr Da Silva's response
H.4 My analysis and findings
I. IS MR DA SILVA ENTITLED TO SUCCEED ON ANY DEFENCES BASED ON PROVISIONS OF THE CIVIL LIABILITY ACT, 2002?
I.1 Contributory negligence
I.2 Proportionate liability
J. COSTS
K. MY ORDERS
A. FACTS THAT ARE EITHER COMMON GROUND OR ESTABLISHED BY CONTEMPORANEOUS DOCUMENTS
Most of the relevant facts are either common ground or established by contemporaneous documents. I will set those out now. Some matters of fact were contentious. I will address those separately.
Having regard to the issues raised by the parties I will focus on 3 different periods of time: (i) what happened before Mr Da Silva commenced the work; (ii) what happened whilst Mr Da Silva undertook the work; and (iii) what happened immediately after Mr Da Silva finished the work.
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A.1 What happened before Mr Da Silva commenced the work
Either Haralambis Construction Pty Ltd or another company controlled by Mr Con Haralambis (the second defendant) and his brother Mr Ari Haralambis had built the building and obtained the registration of the strata plan. Mr Con Haralambis was a practising solicitor and owned one of the lots in the building. He was also a member of the executive committee of the Owners Corporation.
In around July 2013, the Owners Corporation engaged Mr Paul Evans, a building consultant, of PA Evans and Associates Pty Ltd to carry out an inspection of the building in order to identify any defects, particularly any defects relating to the common property. (Mr Evans had previously inspected the building in February 2012 and provided a report to the Owners Corporation on 8 March 2012 which was very limited in its scope.)
Mr Evans inspected the building on 15 July 2023 and found that there were a number of defects in the common property requiring remediation. He set out them in a written report dated 23 July 2013. Included in his report were defects concerning the common balcony terrace for units 301, 302 and 303. The defects Mr Evans identified were:
Insufficient and in some areas no control joints in the tile and bedding.
Delaminating and drummy skirting tiles.
Advanced efflorescence (that is, unsightly white salt and crystal deposits on the finished surface of the tiles and between the tiles).
Insufficient fall in the tile bed and ponding in a range of isolated areas.
Poor drainage.
Mr Evans did not suggest that there was any problem with water entering into units 301, 302 and 303 from the common balcony terrace.
The strata manager provided a copy of Mr Evans' defects report to Mr Haralambis (or his company) on 28 October 2013. This led to communications passing between Mr Haralambis, the strata manager and the executive committee of the Owners Corporation, which included:
16.1 On 10 December 2013 Mr Haralambis (writing on behalf of Haralambis Management Pty Ltd) provided a detailed response by email to the strata manager. In the email, Mr Haralambis proposed to undertake various repairs, including to level 3 balcony tiling to units 301, 302 and 303 (his reference to unit 310 in the email being an obvious typographical error for 301).
16.2 On 15 January 2014 the executive committee sent an email to Mr Haralambis and the strata manager asking a number of questions about the proposed repairs.
On 24 February 2014 the strata manager sent an email to the executive committee with a fee proposal to engage Mr Evans to oversee the outstanding defects works.
On 13 April 2014 Mr Haralambis sent an email to Mr Evans, copied to the executive committee and the strata manager, setting out a suggested scope for the tiling rectification to level 3.
In or around May 2014 the Owners Corporation engaged Mr Evans to produce a scope of works to remediate the defects he had identified. (He did not prepare a draft scope of works until 30 May 2014.)
On 19 May 2014 Tile Projects Pty Ltd (Mr Da Silva's company) provided a "Quotation for Rectification" to Haralambis Management Pty Ltd for the project "Marrickville Rectifications". The quotation was for preparing and waterproofing the floor and supplying and fixing tiles for a total of $30,000 plus GST, or $33,000 inclusive of GST. Mr Da Silva said that he prepared this quotation and gave it to Mr Haralambis on 19 May 2014. This was well before Mr Evans had prepared his draft scope of works dated 30 May 2024, and the quotation makes no reference to any scope of works document. There is no evidence that the Owners Corporation was aware that this quotation had been obtained.
On 22 May 2014 Mr Haralambis sent an email to Mr Evans and "the ECM" saying "We have a tiler who can tentatively start within 3 - 5 weeks and we will require your scope of works and details ASAP to allow these works to proceed". Mr Haralambis' reference to the ECM was a reference to the Executive Committee of the Owners Corporation. The email was also sent to the strata manager (Beth Cocking of Strata Plus Pty Ltd).
On 26 May 2014 Mr Da Silva received an email from Mr Haralambis referring to their recent meetings and discussions and noting that "you are our preferred tiling and waterproofing tenderer provided we sign a Subcontract by 5pm Wednesday, 28 May 2014". The subcontract Mr Haralambis referred to was for 3 separate projects: one at Rushcutters Bay, one at Chalmers Street and a third at "Lamia - unit 310, 30 and 303 Marrickville Road Marrickville works". The email included a summary of the subcontract sum for each project. Excluding GST, the sum for the Rushcutters Bay project was $259,000, for the Chalmers Street project $176,000 and for the Marrickville works on the Lamia building $30,000. Enclosed with the email was a subcontract, revised scope of works and sketch of floor plans for 276 - 278 Marrickville Road, Marrickville.
Mr Da Silva said he signed the subcontract on 29 May 2014. He says he then attended a meeting at Mr Haralambis' office in Surry Hills the following day (30 May 2014) at which time Mr Haralambis said to him words to the effect "I am going to change the quote for the Marrickville job to $24,949.72 plus GST and you can make up the difference on the charges for the other job sites". Mr Da Silva said the documents were then amended (including the contract sums) by Mr Haralambis and signed by Mr Haralambis. The documents as signed and amended were included in the Court book (pages 356 to 425). This is the agreement pursuant to which Mr Da Silva says he, or perhaps more correctly his company Tile Projects Pty Ltd, did the work the subject of these proceedings. There is no evidence that the Owners Corporation was aware that this agreement had been entered into. It is important however to recognise a few things about the document:
23.1 It is stated to be a "subcontract".
23.2 The parties are Haralambis Construction Pty Ltd, defined as the Builder, and Tile Projects Pty Ltd, defined as the subcontractor, abbreviated to SC.
23.3 It related to all 3 projects I have mentioned.
23.4 In the schedule (Court book page 357) the "Builder's representative" is stated to be "Ari Haralambis or such other person as advised from time to time by the builder". The "Subcontractor's representative" is stated to be "John Da Silva …".
23.5 In the same schedule, against the words "Quality Assurance", it is stated "in accordance with relevant Australian Standards and Building Code of Australia (BCA)".
23.6 Mr Da Silva's contractor licence number is handwritten in the schedule as well as another number.
23.7 In the table under clause 15 in the additional terms and clarifications (Court book page 361 - 362) item 14 is "Repair all of Level 3 - being units 301, 302 and 303 at Lamia - 276-278 Marrickville Rd Marrickville incl demolition, removal, new 3 coat waterproof membrane, screed, tiles, grates, expansion joints, skirting tile, supply and install tiles and all related works and materials". In the same table, the printed "subcontract sum" of $30,000 has been crossed out and $24,949.70 has been written by hand.
23.8 In the table under clause 17 (Court book page 363 - 364) it says that "All works to units 301, 302 and 303 Marrickville Rd Marrickville being Lamia apartments to be completed within 6 weeks of the date of this subcontract".
23.9 It sets out an agreed scope of works (Court book page 369 - 370).
Mr Evans prepared his draft scope of works on 30 May 2014.
On 2 June 2014 Mr Evans provided his draft scope of works to the strata manager (Beth Cocking of Strata Plus Pty Ltd) by email. On the same day Ms Cocking emailed a copy to Mr Haralambis and Ms Helen Sotiras (an employee of either Haralambis Management Pty Ltd or Haralambis Construction Pty Ltd) and to the members of the executive committee of the Owners Corporation (Ms Schifreen, Ms Bartolo, Ms Conlon, Mr Elliott, Mr Cis, Ms Rogers and Mr Stoker).
Later on 2 June 2014, Mr Haralambis sent a copy of page 9 of Mr Evans' draft scope of works to Mr Da Silva and his brother Mr Ari Haralambis. He addressed the email to Mr Da Silva and said "Look at details for level3 Marrickville - can we discuss as need to agree with Strata". (Mr Da Silva said that he had no discussion with Mr Haralambis about this email.)
On 3 June 2014 Mr Haralambis sent a long email to Mr Evans, copying in the members of the executive committee of the Owners Corporation and the strata manager. He attached to the email a copy of Mr Evans' draft scope of works with "our preliminary marked up comments" in red. In the email, which Mr Haralambis signed off above the name Haralambis Management Pty Ltd, Mr Haralambis said:
"The agreement with the Owners Corporation is that Haralambis Construction Pty Ltd (on a without admission and without prejudice basis) will attend and rectify the tiling works in accordance with an agreed scope subject to your regular inspections".
Later on 3 June 2014, Mr Haralambis sent an email to Mr Da Silva confirming their meeting on 30 May 2014 and attaching copies of various documents relating to the subcontract for the 3 projects.
On 4 June 2014 Mr Evans sent an email to Mr Haralambis with his detailed response to Mr Haralambis' comments and suggestions regarding the draft scope of works, sending a copy of his email to the members of the executive committee of the Owners Corporation, the strata manager and to Mr Ari Haralambis.
On the same day (4 June 2014), Mr Haralambis sent Mr Da Silva an email outlining the proposed timetable for the work, commencing Wednesday, 23 July 2014.
On 11 June 2014 Ms Bartolo (the secretary of the executive committee of the Owners Corporation) sent an email to Mr Haralambis and Mr Evans, copying in the members of the executive committee and residents directly impacted by the works to be done, the strata manager and Mr Ari Haralambis, seeking clarification on certain matters and giving executive committee approval on others. One matter Ms Bartolo sought clarification of was that the work would be completed to the Australian Standard, foreshadowing that Mr Evans would be engaged by the executive committee to check the work and ensure this was done.
On the same day (11 June 2014) Mr Evans sent a reply to Ms Bartolo and all of the other recipients of her email saying, amongst other things, that he would be pleased to take on the role of contract administration "when and if the general details and requirements of my scope of works are agreed and published past the draft stage".
On 17 June 2014 Ms Bartolo (the secretary of the executive committee) sent an email to Mr Haralambis, copying in the members of the executive committee, the strata manager, Mr Ari Haralambis and Mr Evans, asking the following questions:
"1. Referring to Paul Evans Email (04.06.2014) 3.4 & 3.5 - it is our understanding that Home Owner Warranty Insurance must be provided prior to work commencing. Who will be providing the EC with a certificate of Home Owners Warranty insurance?
2. Referring to Paul Evans Email (04.06.2014) 9.13, 9.16 & 9.19 - Will the works and specification be carried out to the Australian Standards as Paul Evans highlighted in his scope of works?
3. Will there be a registered builder/foreman overseeing the works?"
On 19 June 2014 Mr Da Silva emailed copies of Tile Project Pty Ltd's certificates of currency for public liability and workers compensation insurances to Haralambis Management Pty Ltd and Mr Haralambis.
On 20 June 2014, Mr Haralambis responded to Ms Bartolo's three questions of 17 June as follows:
"1. Con has discussed this with Paul Evans and as the original building licence used was that of Ari Haralambis, Haralambis Construction Pty Ltd which has the same licence holder being Ari Haralambis (Licence Number: 41026 5) will use Project Tiles Pty Ltd to carry out the works in relation to which we provide the following licence details:
a. Tiling Licence for John Da Silva 6284C (attached);
b. Tiling Licence for Faical Bechara 188036C (attached)
2. Tile Projects confirms that all works will be carried out to Australian Standards and the Building Code of Australia. Tile Projects will provide suitable certificates on completion;
3. John Da Silva the Managing Director of Tile Projects will supervise and manage the works;"
On 30 June 2014 Ms Bartolo sent an email to Mr Haralambis, copying in the members of the executive committee, the strata manager, Mr Ari Haralambis and Mr Evans, seeking specific clarification on who would be purchasing Home Warranty Insurance, whether it would be Mr Ari Haralambis or Mr Da Silva. She said that the executive committee was required to sight the insurance prior to work commencing and to send a copy to the strata manager for their records. Ms Bartolo also reminded Mr Haralambis that Mr Evans was unable to accept a number of Mr Haralambis' proposed variations to the scope of works because they would not meet Australian Standards. Ms Bartolo asked for confirmation from Tile Project and/or Mr Da Silva that the work will be completed as per Mr Evans' recommendations. She also asked for a costing of the works so that the executive committee could determine if they had sufficient funds to cover Mr Evans fees to oversee the works.
Mr Haralambis replied to Ms Bartolo 3 July 2014. He said that as the defects are being carried out pursuant to the same building licence (Ari Haralambis licence number 41026 S) that carried out the original works, no additional home warranty insurance is required. He then set out some details of the way in which "the tiling contractor has indicated" he will perform the work. Finally, he said that it was a matter for the executive committee, in reference to the executive committee's suggestion that they would engage Mr Evans to oversee the works.
On the same day (3 July 2014), Mr Evans provided his comments in response to Mr Haralambis. He sent his email to Mr Haralambis and copied in the executive committee, the strata manager and Mr Ari Haralambis. He took issue with the suggestion that Mr Ari Haralambis' licence was used to carry out the original works and suggested that it could not be used to contract for building works. He explained that the Home Building Act required home warranty insurance to be provided for the contemplated works. He also took issue with what Mr Haralambis had said about the way in which the tiling contractor had indicated he will perform the work.
Mr Haralambis replied to everyone by email on 4 July 2014. He said that "we will arrange for home warranty insurance to be obtained". Mr Haralambis also said that "we have finalised negotiations and the total cost of the works (is) $17,832 plus GST - we have signed the subcontract for works to proceed". He also described the way in which some of the work would be done. At the foot of this email, as with the other emails I have mentioned, Mr Haralambis signed off above the name Haralambis Management Pty Ltd.
On 9 July 2014 Mr Evans informed the strata manager (Beth Cocking of Strata Plus Pty Ltd) by email that he had decided to withdraw his services. He said:
"Good afternoon Beth
Due to the circumstances with this project based on what I have experienced to date I think it will be very difficult for me to continue to achieve the necessary outcomes as there have been too many unanswered questions plus a number of issues in my scope that have been questioned and have been refuted by a member of the OC and these are not issues that are negotiable for me and should not be negotiable for the OC in my opinion.
It is clear that my role in assisting the OC will be constantly under challenge so I would rather the OC seek alternative technical advice than that which I have provided.
I get it that this is all very difficult for the OC to digest and negotiate such a large amount of technical and legal data. Under normal circumstances I would be engaged as an expert consultant and just insist on what steps must be followed to achieve the best outcome for all of the Owners not just the vested interests.
Accordingly I have regrettably decided to withdraw my services from this Strata Scheme, I hope you will understand the difficulty of my position."
On 10 July 2014 the strata manager advised the members of the executive committee of Mr Evans' decision. The members of the executive committee included Mr Haralambis.
Mr Evans confirmed his decision on 11 July 2014, in a further email after being pressed to change his mind. He told the strata manager:
"Good morning Beth
Thanks for your email. I don't see a role for myself that would not end in conflict so in the best interests of the Owners Corporation I think they will be better off with a new Consultant. I have tried very hard to achieve a fair and reasonable outcome for all stakeholders but I can't sign on to a compromised solution that constantly challenges best practice.
I am quite willing to explain my Scope of Works or provide any assistance to get a new consultant up to speed quickly (no fee required)"
On 11 July 2014 Mr Haralambis sent Mr Da Silva an email, copying in his brother Mr Ari Haralambis. He asked Mr Da Silva to "please provide your quotation confirming the price for all works at $17,832 plus GST to include the following"… "3. Preparation of slab and application of new polyurethane membrane in accordance with Paul Evan's specification. … 7. All works in accordance with Paul Evan's specification as agreed. …". In his affidavit evidence, Mr Da Silva acknowledged that he received this email but says that he never provided Mr Haralambis with the quotation he wanted, nor discuss it further with him.
By 21 July 2014 the Owners Corporation had engaged the services of Mr Bill Moisidis of Bellmont Façade Engineering to oversee the works, then due to commence on Wednesday 23 July. Mr Moisidis' fee proposal, accepted by the Owners Corporation, was "to provide inspections/review of technical reports/specifications/provide technical advice as required".
On the same day (21 July 2014) Mr Haralambis (again writing on behalf of Haralambis Management Pty Ltd) sent an email to Mr Moisidis, Ms Coking (of the strata manager), Ms Natasha Rogers (the Chair of the executive committee and owner of Lot 105) and Ms Helen Sotiras (an employee of either Haralambis Management Pty Ltd or Haralambis Construction Pty Ltd). Attached to the email were a number of documents including and relating to a home building contract between Haralambis Construction Pty Ltd and the Owners Corporation for a contract price of $9,350 to undertake work including the installation of a rubbish chute and bin in relation to the tiling rectification works. In the body of the email Mr Haralambis said: "We will forward a copy of the John Da Silva contract and associated documents tomorrow".
On 22 July 2014 Mr Da Silva met with Mr Haralambis in Mr Haralambis' office in Surry Hills. It was at this meeting that Mr Da Silva signed the document which the Owners Corporation alleges constituted its written agreement with Mr Da Silva. I refer to this meeting in more detail elsewhere.
On 22 July 2014 at 12:58 PM Mr Haralambis sent an email to Mr Moisidis, Ms Rogers (the Chair of the executive committee) and Ms Cocking (of the strata manager), copying the email to himself and to Mr Da Silva. The "Subject" was described in the header of the email as "Lamia Tiling Rectification Project - Contract - John Da Silva (Tiling)". In the header of the email, the first attachment was described as "Tile Projects - Home_building_contract_over_5000 Signed JDS.pdf". The body of the email referred to a number of attachments, including the following:
"1. Home Building Contract Over $5000 signed and dated 22.07.2014 by John Da Silva;
…
2. Paul A Evans and Associates Scope of Works 14.05.2014;
3. Clarifications and Changes to P.A Evans and Associates Scope of Works dated 21.07.2014
4. Copy of John Da Silva's licence;
5. Tech Sheet - Bostik Dampfix PU;"
Attached to the email was a complete copy of the home building contract, which included page 2 of 27 as signed and dated by Mr Da Silva.
On 22 July 2014 at 3:59 PM Ms Emily Osborne of Haralambis Management Pty Ltd sent a list of names and contact details for "the project at Lamia" to Ms Rogers, Mr Haralambis, Ms Bartolo, Ms Shifreen and Mr Moisidis, copying in Mr Da Silva and Mr Ari Haralambis. Mr Da Silva's role is described in the list as "Tiling Contractor". Mr Ari Haralambis' and Mr Con Haralambis' roles are described as "Builder". Mr Moisidis, referred to as Bill, is described as "Consultant to strata".
On 22 July 2014 at 11:09 PM Ms Rogers replied to Mr Haralambis' email attaching the home building contract signed and dated by Mr Da Silva, saying:
"Con,
Have reviewed documents below and will sign on behalf of the OC.
You can leave hard copy in my mail box (#105)
I can scan back to you for distribution.
regards
Natasha"
On 23 July 2014 at 6:03 AM, Mr Haralambis replied to Ms Rogers email, saying "Thx". Mr Haralambis sent copies of the email to Mr Moisidis, Ms Cocking and Mr Da Silva as well as his brother and Ms Osborne. The "Subject" of the email was again described as "Lamia Tiling Rectification Project - Contract - John Da Silva (Tiling)".
On 23 July 2014 at 4:30 PM, Mr Haralambis sent a hold/inspection point checklist to Mr Moisidis and Mr Da Silva, copying the email to his brother and Ms Rogers.
On 23 July 2014 at 6:42 PM, Mr Moisidis sent Mr Haralambis an email with a number of questions, copying in Mr Ari Haralambis and Ms Rogers.
On 23 July 2014 at 8:43 PM Mr Da Silva sent an email to Mr Haralambis with his comments about some items on the control/inspection checklist.
On 23 July 2014 at 9:46 PM Mr Haralambis replied to Mr Moisidis and Mr Da Silva, copying in Mr Ari Haralambis and Ms Rogers, and providing his comments in response to Mr Moisidis's questions. One of the questions that Mr Moisidis had asked was "I understand that someone else is doing the waterproofing - Bechara? Does he need to be up to speed with all this also? Is the membrane system to be used confirmed as being that in Paul Evans scope?". Mr Haralambis' comment was: "he is working under John Da Silva - so John will brief him and manage him".
On 24 July 2014 at 4:49 PM Mr Haralambis sent an email to Mr Da Silva with the stated subject "Lamia Tiling Rectification Project - John Da Silva Contract Signed" and the attachments described as "Da Silva Contract - Duly Signed.Pdf". In the body of the email Mr Haralambis said:
"John,
We enclose signed contract by the Owners Corporation for the above project.
Please contact me should you have any queries.
Con Haralambis"
The attached contract was signed by the Owners Corporation on 23 July 2014 on the same page that Mr Da Silva had signed on 22 July 2014.
The work started on or about 28 July 2014.
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A.2 What happened whilst Mr Da Silva undertook the work
On Monday 28 July 2014 Mr Moisidis sent the first of what counsel for the plaintiff referred to as 4 warning emails. He sent the email at 10.20 am to Ms Rogers (the chair of the executive committee), Mr Ari Haralambis, Mr Con Haralambis and Mr Da Silva, copying in Ms Cocking (of the strata manager). The email said:
"Hi All
I met with Ari this morning.
The deck is being cleared of debris today and tomorrow, and grinding of the membrane is likely to start the day after. I noted today that the screed was reinforced.
At same stage this week, I'd like to get a handle on the amount of fall achievable and Ari has kindly advised that he can obtain these levels by using his laser / dumpy level. I will speak to Ari mid-week this week to see when I can get back to site to see what has been exposed.
The drains will be blasted clean by Ari's plumber this week also.
Ari will be able to remove some of the glue from the skirting tiles on the concrete parapet as well as off a face block - so we can see what sort of finish is achievable (from an aesthetical point of view)
The limiting factors, as I had mentioned before will be the height of the balustrade (maintain correct parapet to finished floor height) and the sub sills. Both these factors are limiting the screed height. Discussion has occurred(today and last week with Con) around raising the screed height to cover the sub sill leg in part. My position on this is that I do not recommend this due to the following reasons:
- 1. Corrosion of the sub sill due to embedment of aluminium
- 2. Lifting of the finished floor height in comparison with the step down height
- 3. At present the weep holes are approximately 30mm above the tile level. Increasing the tile level brings the surface water to a height almost level with the weep holes. This does not allow the windows/sub sills to perform as designed.
I am conscious of the issue that we don't want to create more problems that what we had, so I am considering alternatives for the composition of the screed - something that will allow thinner beds to be used and therefore allow the tiler to pick up 15mm of height for example or more. Grinding of the slab around each drain (as discussed by Con) will assist in increasing that catchment area.
Once the site has been cleared and we have some levels, we will have a better idea of what heights there are to utilise."
A little explanation is required to understand what Mr Moisidis was talking about in his email of 28 July 2014. In cross-examination he explained or accepted that the sub sills are at the base of the sliding door; the balustrade is, in effect, on the opposite side of the balcony; the screed is a cement layer that creates a fall towards the drain. He said he believed that the drains were centrally located so that you needed to increase the height of the screed nearest the apartment to allow for a fall towards the drain. In referring to "lifting of the finished floor height in comparison with the step down height" he was referring to lifting the finished floor height outside (on the balcony) compared to the inside floor height (inside the unit). He agreed that in effect he was concerned that there would be a similar height between the outside floor (on the balcony) and the inside floor (inside the unit). He agreed that his 3rd point about increasing the tile levels closer to the levels of the weep holes had a similar consequence to raising the floor height. He agreed that if the external floor is at a lower height, water can escape the weep holes and by gravity fall to the outside finished wall and that if you raise the external floor, the water cannot escape by gravity because there is nowhere for it to fall. He agreed that it was for this reason he advised against raising the screed height and covering part of the sub- sill leg.
Mr Moisidis gave unchallenged evidence (which I accept) about meeting with Ms Rogers and Mr Con Haralambis on 28 July 2014 after sending this email.
59.1 He made a file note after the meeting (Exhibit 1). He recorded in his file note: "Meeting with Natasha Rogers + Con Haralambis to raise cavity flashings and build new hobs to doors. Natasha Rogers advised that strata plan does not want to raise door hobs so not to step over so wants to keep as is. Con Haralambis advised this is dangerous. Bill Moisidis confirmed limited certificate is not correct way to do this."
59.2 In his affidavit evidence he said that aided by the file note, he recalled that during their meeting on 28 July 2014, he advised Ms Rogers and Mr Haralambis that the scope of works to rectify the water ingress ought to involve removing the existing sliding doors and raising the hobs which would allow the raising of the cavity flashings. Ms Rogers and Mr Haralambis advised that the Owners did not want to undertake these works. He recalled that he advised Ms Rogers and Mr Haralambis in this meeting that if his advice was not going to be heeded then Bellmont would not be able to certify the works as complying with the applicable building codes. He recalled advising Ms Rogers and Mr Haralambis that Bellmont would only be able to oversee the works and assess that they were being completed in line with the scope of works prepared by Mr Haralambis and agreed to by the Owners.
On Monday 4 August 2014 Mr Moisidis sent the second of what counsel for the plaintiff referred to as 4 warning emails. He sent the email at 10.17 am to Mr Ari Haralambis, copying in Mr Con Haralambis, Ms Osborne (an assistant to the Haralambis brothers), Mr Da Silva, Ms Rogers and Ms Cocking. The email said:
"Hi Ari
These drains are hot dip galvanised correct? ... you mentioned on site last week. If so (or grade 316 stainless), I have no problem with them. At my first meeting with Con, he suggested using the strip drains to assist in obtaining falls and the owners had no objection.
I don't believe the Owners have an issue with any drain in particular, just ensuring that the tile falls are sufficient enough to get the water to the drains.
Further to our meeting on Friday, I have again given consideration to the issue of covering the subsill. My position hasn't changed on the issue of tiling up over the leg of the subsill. I do not recommend it.
Subsills require that minimum set down (ie the leg of the subsill at the very least) to allow the weep holes to function fully and correctly in times of heavy rain and high wind gusts. Also, please see attached photo of a subsill in constant contact with wet cementitious screed (this is 14 years old).
I suggest you contact laticrete (that was the additive supplier's drum I saw on site on Friday - or another supplier if you have a preference - I know that Parchem and BASF have similar products) and discuss with them what they can provide to you which will allow you to use minimal screed thickness - so that your levels are not covering your subsills. High additive contents (in lieu of water) may increase your strength, reduce shrinkage, reduce the thickness of screed required to allow you to achieve falls.
In addition to the above, it may be of significant benefit to also grind the slab down around the floor drains to a larger area than what you currently anticipate to assist with improving the drainage.
The only other scenario I can see (aside from raising subsill heights) which may assist is installing new floor drains (coring through the slab). This will obviously mean that you will have some surface pipes in the balconies below, but it may prove to be a very reasonable solution considering the risks of raising the tile bed.
Please contact me to discuss this further - no doubt we will need to."
In cross-examination Mr Moisidis explained that high wind gusts are relevant to the set down because as the wind is blowing against the sub- sill or the sliding door the water in that sub- sill cannot escape because its passage is being blocked by the wind blowing the water back in. He agreed that in effect the more wind, the greater the likelihood that the water will be blown back towards or into the apartment if the wind is going in that direction.
On Tuesday, 5 August 2014 at 4:23 PM Mr Haralambis sent an email to Ms Rogers, Mr Ari Haralambis, Mr Moisidis and Mr Da Silva setting out confirmation of works that had been agreed at a meeting between himself, Mr Moisidis, Mr Ari Haralambis and Mr Da Silva on Monday, 4 August 2014 between 4.30 and 5 PM. As with his other emails, Mr Haralambis signed off the email above the name Haralambis Management Pty Ltd.
On Friday 8 August 2014 Mr Moisidis sent the third of what counsel for the plaintiff referred to as 4 warning emails. He sent the email at 4.27 pm to Mr Con Haralambis and Ms Rogers, copying in Mr Ari Haralambis, Mr Da Silva and Ms Cocking. The email said:
"Hi All
I agree with Con's meeting minutes, though need to advise that there was one point that I reiterated at the meeting which has not been minuted below.
This is the issue of screeding and tiling over the leg of the subsill (in part) and our concern with this procedure with respect to corrosion, lifting of the finished floor level and also performance of the sliding doors.
It was noted by the tiler that he could use a higher additive to sand/cement ratio and thereby reduce the thickness of the screed and hence avoid covering the subsill leg (in part), but the tiler identified that this would slow him down when laying the screed and would cost more as the would require additional buckets of product. I don't believe that this is an appropriate reason to avoid using the additive.
This needs to be clearly documented and all risks associated with proceeding with the tilers (Tile projects) methodology clearly understood so that the warranty implications for the tiler are also clear. I can't recall if there was any proposed warranty issued by the tiler.
On Monday 15 September 2014 Mr Moisidis sent the fourth of what counsel for the plaintiff referred to as 4 warning emails. He sent the email at 4.00 pm to both Mr Haralambises and Mr Da Silva (John), copying in (amongst others) Ms Cocking, Ms Rogers, Ms Shifreen and Ms Bartolo, with stated subject "Lamia - Window sub sills". The email said:
"Hi Con / Ari/ John
Please see the attached photo of a sub sill which was buried in a tiled bed and had grout packed in behind it (from another project we are inspecting which is 10 years old). The level of corrosion is tremendous.
As you know, I have advised my concerns with burying subsills previously and hence why we advised you that a thin bed screed should be used to avoid this issue. The thin bed screed allows for greater falls to be created by going from feather edge up to the required 30mm (or so).
The reason the thin bed screed was not used was because John advised that it would cost more and be slower and that its more difficult to lay the screed.
I just need to reiterate this again, so it is clear and there is no misunderstanding and obviously, to make it clear that this method was not my recommendation and that I recommended against this method of burying subsills. I NOTE that it is not ALL subsills that have this issue.
Based on the above, we are now in a position of trying to overcome the issue of buried sills by waterproofing or sealing or by some other means protecting them from corrosion. le trying to make the best out of the situation created with the seals."
On 12 October 2014 Ms Bartolo (the secretary of the executive committee) sent an email to Mr Con Haralambis, Mr Da Silva and Mr Ari Haralambis about the timing of the completion of the works. Ms Bartolo asked if they could be completed by Saturday 18 October. Mr Con Haralambis then took the matter up with Mr Da Silva in an exchange of emails on 12 and 13 October 2014, copying in Mr Ari Haralambis.
On 27 November 2014 Bellmont Façade Engineering Pty Ltd wrote a letter to the proprietors of the strata plan care of the strata manager providing a certificate of final inspection for the balcony of unit 301. The letter was signed by Mr Peter Nguyen of Bellmont Façade. Emails leading up to the provision of the letter show that Mr Moisidis was involved in its preparation. The letter stated:
"Bellmont Façade Engineering was engaged by the Executive Committee of SP 80867 to inspect, comment on the balcony rectification works completed by Haralambis Constructions and John Da Silva of Tile Projects at the above mentioned address. The final inspection was undertaken on Wednesday 26th November 2014 and was accompanied by Eve Bartolo. The visual inspection consisted of an external inspection of the balcony rectification works concerning the external tiled balcony terrace.
Subsequent to our inspection, we identified the following minor works that require further rectification:
…
Bellmont Façade Engineering confirms that the scope adopted by Haralambis Constructions, Tile Projects and the Owners has been completed as per the agreement reached. It should be clear however, that this certificate is not intended to confirm that the works have been completed in accordance with the Building Code of Australia."
On 19 December 2014 an inspection carried out by Mr Moisidis, Mr Da Silva, Mr Con Haralambis and the supplier of the tile adhesive of the terrace tiling for Ms Shifreen's unit (Unit 303) revealed that the adhesive had adhered well to the back of the tile but not to the upper layer membrane. The problem was common to the remainder of the balcony. It required the removal of the existing tiles, the application of a new compatible moisture seal coating and the re-laying of new tiles. All of this was explained in an email from Mr Moisidis to Ms Rogers, Mr Da Silva and the Haralambis brothers on 23 December 2014. It was envisaged that the rectification work would need to be done in the New Year.
A program for undertaking this rectification work was laid out in an email from Mr Con Haralambis to Mr Moisidis, Ms Rogers, Mr Ari Haralambis, Mr Nguyen and Mr Da Silva on 22 January 2015.
Mr Da Silva attended the site on 11 February 2015 and removed approximately 1.5 square metres of tiles to create a test patch for this rectification work.
On 28 February 2015 Mr Da Silva sent a draft program plan to Mr Moisidis and the Haralambis brothers to proceed with the rectification work in full commencing the following Monday (2 March 2015).
On Wednesday, 4 March 2015 Mr Moisidis reported to the executive committee of the Owners Corporation, the Haralambis brothers, Mr Da Silva and the strata manager that Mr DeSilva had that day stripped the tiles and was applying the moisture seal coat to the terraces.
The work was finally completed by 7 April 2015 (per letter from Mr Moisidis dated 15 April 2015).
[4]
A.3 What happened immediately after Mr Da Silva finished the work
On 15 April 2015 Mr Moisidis sent a letter to the Proprietors of SP 80867 care of the strata manager. The subject of the letter was stated as "Level 3 Terrace Rectification Works 276-278 Marrickville Road, Marrickville - SP 80867". The letter said:
"Bellmont Façade Engineering confirms that the remedial waterproofing and tiling scope of works adopted by Tile Projects and the Owners Corporation has been completed as of 7 April 2015.
Please do not hesitate to contact the undersigned should you require any further assistance."
On 20 April 2015 a series of emails passed between Ms Rogers (the chair of the executive committee), Mr Dick Lopes (the occupant of unit 301), Ms Shifreen (the owner of unit 303), Mr Ari Haralambis, Mr Con Haralambis, Mr Moisidis and other unit owners. It appears that each email was copied to the whole group.
74.1 At 8:17 PM, Ms Rogers sent an email to Mr Ari Haralambis and Mr Con Haralambis stating:
"Claudia in apt 302 has just contacted me to say she has arrived home to find a significant amount of water in her apartment.
I have gone to have a look - the sliding tracks in both her rooms that open onto the balcony are overfilling with water which has travelled along the floorboards.
She has mopped up the water on the surface and has towels and sheets down at present."
74.2 At 8:27 PM Mr Dick Lopes replied all stating:
"I can report the same water presence in unit 301 in the east facing door sliding tracks but not overflowing. Will put down towels tonight in case it worsens".
74.3 At 8:54 PM Ms Shifreen replied to Mr Lopes:
"It happens every time there's rain and strong wind."
74.4 At 9:07 PM Mr Con Haralambis wrote:
"No one has ever reported that water enters sliding doors onto timber floor
Ava says it happens all the time ???? Is that water in tracks or on timber floors Ava?
I can be there tomorrow morning to have a look will Claudia be there say 7:30 am?"
74.5 At 9:14 PM Ms Rogers addressed an email to Mr Con Haralambis:
" Con,
This is the first time that Claudia has experienced it.
One thought was that there may be some debris covering the drainage holes in the external sliding tracks - it was too dark and wet to tell.
I will contact her to ask about tomorrow and let you know.
Thank you"
74.6 At 9:45 PM Ms Schifreen said:
"Con
The water wells up in the tracks and overflows onto the timber floors.
I have spoken to you about this and Imogen and I both emailed you about it. It is also a list of things I emailed to Strata plus that I brought up with Paul Evans."
74.7 At 9:47 PM Mr Con Haralambis said:
"Water in tracks I understand and it drains out / dries out etc - that is how they are designed
But entering onto timber floors I am not aware of and certainly not in the Paul Evans report we are working to
Please contact me should you have any queries."
74.8 At 10:12 PM Ms Shifreen said:
"Con, as I said, Imogen and I emailed you about and it was mentioned in an email I sent to strata plus about some things I bought up with Paul Evans."
The emails continued on 21 April 2015:
75.1 At 1:03 AM Ms Shifreen said:
"PS Con, You suggested I contact Bradnam's, which I did. They didn't offer a solution."
75.2 At 7:19 AM Mr Haralambis said:
"That was for water sitting in track which they advised drained or dried out - again ni one has advised water going through doors onto timber floors
Please provide copies of the correspondence you are referring to".
75.3 At 7:33 AM Ms Shifreen said:
"I did."
75.4 At 7:40 AM Ms Shifreen said:
"It's the same problem, Con. The water wells up in the tracks because it doesn't drain fast enough in heavy rain and overflows onto the timber floors. That's the reason you advised me to contact Bradnams and the reason they tried to make the drain holes bigger.
[5]
B. DID THE OWNERS CORPORATION AND MR DA SILVA HAVE A BINDING CONTRACT IN ACCORDANCE WITH THE DOCUMENT SIGNED BY MR DA SILVA ON 22 JULY 2014?
[6]
B.1 Non est factum is the issue
Did the Owners Corporation and Mr Da Silva have a binding contract in accordance with the document signed by Mr Da Silva on 22 July 2014? The only question here is whether or not Mr Da Silva succeeds on his defence of non est factum.
Counsel for Mr Da Silva submitted that the court should accept Mr Da Silva's evidence about the actual signing and circumstances surrounding the signing by Mr Da Silva of the document. Based on the court accepting that evidence, Mr Gray submitted that it was a "plain case of non est factum".
[7]
B.2 Mr Da Silva's evidence
Mr Da Silva admits that it is his signature on page 2 of 27 of the home building contract relied upon by the Owners Corporation.
He describes the circumstances in which he came to place his signature on that page in his affidavit of 14 February 2023 (more than 8 years after the event) as follows:
"16. On 22 July 2014 Tile Projects was ready to commence work on the Lamia Project on 23 July 2014. I met with Con Haralambis at his office in Surry Hills. I knew that Con Haralambis was both a practising solicitor and a director of a group of related companies engaged in the construction industry of which Haralambis Construction was one and Haralambis Management was another. The meeting lasted approximately 5 - 10 minutes. Con Haralambis and I discussed matters other than the Lamia Project but in relation to the Lamia Project Con Haralambis said to me words to the effect:
CH: I need to get you to sign this for the Owners' Corporation so you can start work on the site. It is for insurance and work, health and safety purposes.
17. Con Haralambis pointed to a single sheet of paper on his desk partly obscured under a pile of papers. It is common, but not invariable, for me to be asked to sign documents which confirm that formalities to perform building work on a particular site are in order, e.g. that the work will be done by a licensed tradesman, that required insurances are in place, etc. I pulled the sheet of paper to expose more of it so I could sign it. I signed the piece of paper believing that it was a routine document of this type for the Lamia Project and left it on Con Haralambis's desk. I did not know the piece of paper was a contract under which I would have personal liability and I would not have signed it had I known that (I had already signed a sub contract between Haralambis Construction and Tile Projects for Tile Projects to do the Lamia Project work (page 7)).
18. … The document I signed on 22 July 2014 was a single sheet of paper - it certainly did not have attached to it the other pages purporting to be a contract between Owners Corporation 80867 and me personally …"
Pages 5 to 27 inclusive of the document relied upon by the Owners Corporation as the contract have handwriting against the typed words "Contractor initials". Mr Da Silva denied that he had placed his initials on those pages, and the Owners Corporation did not assert otherwise.
In his affidavit dated 25 August 2023, Mr Da Silva said:
"5. … I reaffirm that when I attended the office of Con Haralambis on 22 July 2014 I had no knowledge or belief that I was there to sign another contract with the Owners for the Marrickville Lamia Apartments tiling work. Con Haralambis had a one page document form ready for me to sign, he told me, for commencing the tiling work at the Marrickville Lamia Apartments site ( and the Rushcutters and Surry Hills sites) but we never discussed anything to do with a second contract for the Marrickville Lamia Apartments project and especially a contract to be made by me personally. I signed the document form in the circumstances described in paragraphs 16 to 18 of my first affidavit.
7. … I confirm that at the meeting at Con Haralambis's office on 22 July 2014 there was no mention of any new contract for the Marrickville Lamia Apartments project - It is something I would remember and I would have refused outright to sign a second contract in my own name. If I had signed a second HIA contract form knowing what the form was I would have initialled every page at the time I signed the document. I was very familiar with the HIA standard form contracts and I knew I had to initial or sign every page."
In his affidavit of 14 February 2023 Mr Da Silva accepted that he received the email sent by Mr Haralambis on 22 July 2014 at 12:58 PM, attaching a copy of the contract after Mr Da Silva had signed page 2 of 27, but said (at paragarph 20) that he "paid no attention to the documents". He said "it looked to me they were and I assumed they were about the documents I signed on 30 May 2014 … I did not open the attachments to the email or print them.".
In the same affidavit Mr Da Silva accepted that he received the email sent by Mr Haralambis on 24 July 2014 attaching a copy of the contract signed by the Owners Corporation, but said (at paragraph 25) that he "assumed it was a copy of a contract the Plaintiff signed with Con Haralambis". He said he did not print the attachment.
In cross-examination:
84.1 Mr Da Silva said that he wrote the date 22/07/14 under his signature on the page he signed.
84.2 He was challenged on his evidence that Mr Haralambis told him it was for insurance and work, health and safety purposes. When it was drawn to his at attention that he had already provided to Mr Haralambis certificates of currency and details for his company's public liability and workers compensation insurances on 19 June 2014 (proof of which is provided by an email of that date), Mr Da Silva suggested that it was about health and safety and that in any job he has to go to, all his workers need to sign a form about health and safety. When it was drawn to his attention that only he was being asked to sign the document and not his workers, he suggested that it was about insurances because the site induction related to insurance anyway and suggested he needed to sign to confirm that all of his workers had been complying.
84.3 He said "the table was full of documents like plans and other things".
84.4 Mr Da Silva gave the following evidence (T137):
Q. And did Mr Haralambis point to the document? Or how did--
A. Yes.
Q. --you know what to sign?
A. No. Well, we had been discussing - so I got, like I told you - and I didn't tell him. Telling you now. I wasn't - that was this office for five, ten minutes. We discuss all the jobs. And before I go he - he - he said to me, "Please sign up here before you sign works". And, guess what? I done it.
84.5 Mr Da Silva contradicted his own affidavit evidence about pulling out the page he signed in order to see more of it. In his affidavit he had said "I pulled the sheet of paper to expose more of it so I could sign it", whilst in cross-examination he denied that he pulled the page out at all. His evidence in cross-examination was (T137):
Q. And you say you had to pull the page out to see so that you could sign it - from under the papers.
A. No, no. I didn't pull it. It just sign - "please sign up here". He give me the pen, and I sign it under - on the - on the spot.
84.6 Mr Da Silva said that he did not notice that the document he signed was "2 of 27". He agreed with the suggestion that he just signed it.
84.7 He said that he knew Mr Haralambis was a solicitor and asked the rhetorical question why could he not trust him?
84.8 When asked about the email sent by Mr Haralambis on 22 July 2014 at 12:58 PM (attaching a copy of the contract after Mr Da Silva had signed page 2 of 27) Mr Da Silva admitted receiving that email the same day he signed a document in Mr Haralambis's office. He admitted that the email said "Here's a copy of the contract Mr Da Silva has just signed" but said he "just didn't read" the email. He agreed that he "ignored that email".
84.9 When asked about the email sent by Mr Haralambis on 24 July 2014 (attaching a copy of the contract signed by Mr Da Silva and the Owners Corporation), Mr Da Silva admitted receiving the email but said that he probably didn't read it, then said he saw the email but didn't read it at all.
[8]
B.3 Mr Da Silva's submissions about non est factum
Mr Gray submitted that the court should accept Mr Da Silva's evidence because:
85.1 The court should draw a Jones v Dunkel (1959) 101 CLR 298 inference against the Owners Corporation because of its failure to call Mr Haralambis as a witness. The court should infer that no evidence Mr Haralambis could give would have assisted the Owners Corporation's case about the circumstances surrounding Mr Da Silva signing the 22 July 2014 contract document (written outline paragraph 2). The court can have full confidence in Mr Da Silva's evidence, supported in critical respects by the failure of the plaintiff to call Mr Haralambis (paragraph 3).
85.2 Mr Da Silva was straightforward and frank in giving his evidence. This was demonstrated by his frank admission about 2 matters in particular that did not help his case, namely (a) the fact that he had received from Mr Haralambis a copy of the "contract" dated 22 July 2014 and did not respond to it in any way; and (b) the fact that he knew the waterproofing work which he carried out at the Lamia apartments did not comply with the relevant Australian Standard (paragraph 4). Mr Da Silva openly acknowledged that after receiving Mr Haralambis's email of 22 July 2014 he had never sent any email repudiating the 22 July 2014 contract.
85.3 Mr Da Silva was candid and responsive and did not attempt to evade any questions (paragraph 4).
85.4 It was not put to Mr Da Silva that his evidence was false. The cross-examination was directed to establishing the unlikelihood that his evidence was true (paragraph 18). It was never put to Mr Da Silva in cross-examination that he knew perfectly well that the document he signed was a home building contract; and his assertion that he did not believe that it was a home building contract was not challenged (T251).
85.5 It is unlikely that Mr DeSilva would have knowingly and willingly signed a contract for a price of $17,832 inclusive of GST (being the contract price stated above his signature) because (a) his company already had a contract to do the work for $24,949.72 plus GST; (b) he says that Mr Haralambis asked him on 11 July 2014 to send him a quote for $17,832 plus GST, which he effectively refused to do; and (c) he did not respond to Mr Haralambis email of 11 July 2014 asking for a quote confirming the price at $17,832 plus GST (T254).
85.6 Mr Da Silva's evidence is corroborated by:
1. The existence of a subcontract between Mr Haralambis and Tile Projects Pty Ltd to perform the waterproofing and tiling subcontract works for $24,949.70 (paragraph 19(a)).
2. The "fact" that on 11 July 2014 Mr Haralambis asked Mr Da Silva to provide a quotation to carry out the same work for $17,832 plus GST and Mr Da Silva had refused to do so (paragraph 19(b)).
3. The "fact" that on 3 July 2014 Mr Evans had raised the issue of home warranty insurance with Mr Haralambis and that the figure of $17,832+ GST equated to $19,615 plus GST, which was under the $20,000 threshold requirement for the provision of home warranty insurance (paragraph 19(c)).
4. (The "fact" that) There is no reference to any contract between the Owners Corporation and Mr Da Silva in any subsequent email in the long sequence of email exchanges between the parties during the course of the work (paragraph 25(a)).
5. (The "fact" that) When the time came for payment, payment was made on a final invoice from Tile Projects Pty Ltd based upon an initial contract price of $24,949, being the price in the 29 May 2014 subcontract (paragraph 25(c)). Mr Da Silva refers to the Tile Projects Pty Ltd tax invoice to Haralambis Construction Pty Ltd dated 13 April 2015 in the sum of $41,339.87 inclusive of GST (Court Book 844).
As to the non est factum defence generally, Mr Gray submitted that the Owners Corporation "ratified" Mr Haralambis' actions in procuring Mr Da Silva's signature to the document and so was "bound" by Mr Haralambis' actions in procuring that signature. This was said to be because:
86.1 The Owners Corporation relied upon Mr Haralambis to obtain Mr Da Silva's signature to the 22 July 2014 contract, referring to the evidence of Ms Rogers (the chair of the executive committee). In cross-examination, Ms Rogers had agreed with the proposition that "in getting that piece of paper to (her) signed by Mr Da Silva, Mr Haralambis was acting on behalf of, for the benefit of, the Owners Corporation to get a contract in writing for this work".
86.2 The Owners Corporation made no enquiry as to how Mr Da Silva signature to the document was obtained, again referring to the evidence of Ms Rogers. In cross-examination, Ms Rogers accepted that she had never turned her mind to the question of whether she should ask how the piece of paper came into existence.
86.3 The Owners Corporation "accepted Mr Haralambis's actions as a member of its executive committee and having legal connections in obtaining Mr Da Silva signature to the document", again referring to the evidence of Ms Rogers. In cross-examination, Ms Rogers had agreed with the proposition that "It'd be fair to say, wouldn't it, that knowing Mr Haralambis I think you said had legal connections or something like that, that you trusted that he did whatever was required to be done properly?".
Mr Gray submitted that this "ratification" of Mr Haralambis's actions in procuring Mr Da Silva's signature to the document confirmed Mr Haralambis' position "as if acting as agent for the plaintiff in procuring Mr Da Silva's signature" (T262). In that circumstance, Mr Gray submitted "the result is that the plaintiff metaphysically was standing beside Mr Haralambis, on 22 July 2014, when Mr Da Silva signed the piece of paper in Mr Haralambis' office. And the plaintiff had full knowledge of everything that was said and done at that time.".
Mr Gray submitted that there is no question of the plaintiff being some sort of innocent third-party who had no knowledge of what had happened. And the plaintiff is, in every sense, committed to the knowledge Mr Haralambis had (T263).
Mr Gray also submitted that Mr Haralambis gave a description of the document to Mr Da Silva which was manifestly wrong (T254).
[9]
B.4 The Owners Corporation's submissions about non est factum
It did not emerge clearly until closing submissions that Mr Da Silva was relying on a defence of non est factum, and it is necessary to consider the course of the evidence and the Owners Corporations' submissions in that light.
Mr Marshall, counsel for the Owners Corporation submitted that:
91.1 It is contrary to common sense and human experience that if Mr Haralambis had misled Mr Da Silva into assuming he was signing something other than a contract, that Mr Haralambis would immediately thereafter issue that signed contract to the man he had just misled.
91.2 Even if that had been the case, it was obviously then possible for Mr Da Silva to immediately object and to inform all the parties, including the Owners Corporation, that he was misled into signing that contract and that he did not agree that he was bound by the contract. Mr Da Silva did not do so.
91.3 Two days later, Mr Haralambis then issued to Mr Da Silva the fully signed contract. Mr Haralambis said to Mr Da Silva: "we enclose signed contract by the Owners Corporation for the above project".
91.4 Again, it cannot be that Mr Haralambis was seeking to mislead or deceive Mr Da Silva about what it was he had signed, in circumstances where Mr Haralambis then issued that same document twice to Mr Da Silva.
91.5 In circumstances where the defence pleaded by Mr Da Silva was that Mr Haralambis concealed the true nature of the document and misled him into signing it, it was incumbent on the Mr Da Silva to call Mr Haralambis and put that alleged set of circumstances to him in the witness box.
91.6 Counsel for Mr Da Silva indicated at the opening of the hearing that he intended to call both Mr Moisidis and Mr Haralambis. He did subsequently call Mr Moisidis but elected not to call Mr Haralambis.
91.7 Where Mr Da Silva's case for vitiation of the signed contract was solely dependent on actions said to have been taken by Mr Haralambis, it was incumbent on Mr Da Silva to call Mr Haralambis and obtain his evidence on the situation. Having failed to do so, and having not put the allegation to Mr Haralambis, the court could not find it to be made out. Further and in any event, the court would need to draw the inference that Mr Haralambis' evidence would not have assisted Mr Da Silva, referring to Jones v Dunkel [1959] HCA 8, (1959) 101 CLR 298.
91.8 There was nothing preventing Mr Da Silva from, even on his own evidence, identifying what the page or the document he signed was, and so it was at least through inadvertence that he did not do that. In circumstances where the opportunity was available to him to clarify what it was he was attaching his signature to, if by his carelessness he failed to do that, he does not enjoy the protection of a non est factum defence.
[10]
B.5 What needs to be decided?
Having regard to those submissions it is necessary for me to consider:
1. Whether I should draw a Jones v Dunkel inference in relation to the failure of either side to call Mr Haralambis.
2. What further findings of fact I should make.
3. Whether Mr Da Silva is entitled to succeed on his defence of non est factum.
[11]
B.6 Should I draw a Jones v Dunkel inference in relation to the failure of either side to call Mr Haralambis?
Both parties have criticised the other for failing to call Mr Haralambis as a witness and both parties have invited the court to draw a Jones v Dunkel (1959) 101 CLR 298 inference against the other.
Until shortly before the hearing, Mr Haralambis was an active defendant in the proceedings brought by the Owners Corporation - he was the second defendant. He was also a cross-defendant to the cross-claim brought against him by Mr Da Silva. Mr Haralambis had sworn 2 affidavits, copies of which were included in the Court Book. At the commencement of the hearing I was informed that both the Owners Corporation and Mr Da Silva had arrived at settlements with Mr Haralambis and would not be pursuing their cases against him. As a result of those settlements I made orders by consent on the first morning of the hearing, the effect of which was to dismiss both the claim and cross-claim against Mr Haralambis with no order as to costs. The Owners Corporation had arrived at a similar settlement with Mr Moisidis' company, the third defendant (Bellmont Façade Engineering Pty Ltd).
Mr Gray (counsel for Mr Da Silva) indicated at the start of the hearing that he intended to call both Mr Moisidis and Mr Haralambis. Subsequently he did call Mr Moisidis and read his affidavit evidence, but did not call Mr Haralambis or seek to read his affidavit evidence.
The chronology of facts I set out at the start of these reasons demonstrates that Mr Haralambis was a central figure in the events that took place leading up to the events of July 2014. In my view, they do not place him in the camp of one party or the other. I will say more about why I say that later when addressing Mr Gray's submission to the effect that Mr Haralambis was "as if acting as agent for the plaintiff in procuring Mr Da Silva's signature".
As explained by Heydon, Crennan and Bell JJ in Kuhl v Zurich Financial Services (2011) 234 CLR 361 at 384-385 [63]-[64], the rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party.
Where the failure is to call a non-party witness, as it is put in Cross on Evidence by the Hon J D Heydon AC (Lexis Nexis online) at [1215], the rule cannot be applied to the non-calling of a witness unless it would be natural for the party to call the witness, or the party might reasonably be expected to call a witness, or, as Glass JA said, "the missing witness would be expected to be called by one party rather than another.".
In my opinion, in the particular circumstances of this case, which I have described above, it could not be said to be natural or reasonably expected for either Mr Da Silva or the Owners Corporation to call Mr Haralambis as a witness.
For those reasons, I decline to draw a Jones v Dunkel inference against either party.
[12]
B.7 Further findings of fact about what happened when Mr Da Silva signed the document
I accept that Mr Da Silva signed and dated page 2 of 27 in Mr Haralambis' office on 22 July 2014. There does not seem to be any dispute about that. The fact that he signed and dated the document that day is supported by contemporaneous objective evidence in the form of Mr Haralambis' email of that date sending the signed document to Mr Moisidis, Ms Rogers (the Chair of the executive committee), Ms Coking (of the strata manager) and to Mr Da Silva himself.
The critical evidence I must consider is whether, as Mr D Silva says, Mr Haralambis said to him "I need to get you to sign this for the Owners' Corporation so you can start work on the site. It is for insurance and work, health and safety purposes." and whether, as Mr Da Silva says, he believed the piece of paper he signed was a routine document of the type he described as "documents which confirm that formalities to perform building work on a particular site are in order, e.g. that the work will be done by a licensed tradesman, that required insurances are in place".
Mr Da Silva gave his oral evidence in a very straightforward manner. He made many frank concessions against his interest - not the least of which was that he did not comply with the Australian Standards. I detected nothing in his demeanour to indicate that he was not attempting to tell the truth about what happened when he signed the document according to his honest recollection. How reliable his recollection was and whether I should accept it give rise to further considerations.
I must also bear in mind that:
104.1 The events that took place in Mr Haralambis' office on that day occurred more than 8 years before Mr Da Silva swore his affidavit of 14 February 2023 and more than 9 years before giving his oral evidence.
104.2 The only other person who was present (Mr Haralambis) has not given any evidence.
104.3 To the extent that I am being asked to consider evidence of what Mr Da Silva says Mr Haralambis said to him so long ago, the well-known observations of McLelland CJ in Equity in Watson v Foxman (1995) 49 NSWLR 315 at 319 bear repeating: "human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.".
104.4 I should test Mr Da Silva's evidence of the conversation and of what took place as far as possible against contemporary materials, objectively established facts and the apparent logic of events (: Fox v Percy (2003) 214 CLR 118 at [31] per Gleeson CJ, Gummow and Kirby JJ).
I accept that Mr Haralambis asked Mr Da Silva to sign a document "so you can start work on the site". So much would appear to have been a logical and a likely thing to say in the circumstances.
Beyond that, on the evidence as a whole, I am not persuaded that Mr Haralambis said words to the effect "It is for insurance and work, health and safety purposes.". Nor am I persuaded that Mr Da Silva believed the document he signed was a routine document of the type he described as "documents which confirm that formalities to perform building work on a particular site are in order, e.g. that the work will be done by a licensed tradesman, that required insurances are in place".
I say that for the following reasons:
107.1 I accept Mr Marshall's submission that it is contrary to common sense and human experience, and I would add therefore quite unlikely, that if Mr Haralambis had misled Mr Da Silva into assuming he was signing something other than a contract, that Mr Haralambis would immediately thereafter email that signed contract to the man he had just misled. All the more so, describing it in the header and body of the email in the way he did. A cursory glance at the email, without opening any of the attachments, would have revealed that it suggested that Mr Da Silva had signed a contract earlier that day.
107.2 I also accept Mr Marshall's submission that it is equally unlikely that Mr Haralambis would have emailed the same document again, for a second time, 2 days later signed by the Owners Corporation if he had misled Mr Da Silva in the first place about what it was he had signed. All the more so from the descriptions given in the subject, the name of the attachment and the body of the second email.
107.3 The suggestion that "insurance" was mentioned is contradicted by the contemporaneous documents showing that Mr Da Silva had already provided proof of insurance to Mr Haralambis well in advance of the meeting.
107.4 The suggestion that Mr Haralambis asked Mr Da Silva to sign a document for "health and safety purposes" is unlikely having regard to the fact that Mr Da Silva agreed in cross-examination that employees are usually asked to sign documents relating to health and safety as part of a site induction process, and there was no evidence that that process had been undertaken in advance of Mr Da Silva being asked to sign the document.
107.5 In cross-examination, Mr Da Silva twice gave a different account of what Mr Haralambis said, both times omitting any reference to Mr Haralambis saying that it was for insurance and work, health and safety purposes.
107.6 In cross-examination Mr Da Silva contradicted his own affidavit evidence about pulling out the page he signed in order to see more of it. I referred to the contradiction when setting out his evidence earlier.
[13]
B.8 Is Mr Da Silva entitled to succeed on his defence of non est factum?
Mr Gray (Counsel for Mr Da Silva) submitted that this is a plain case of non est factum. He did not cite any authorities for that proposition.
The Owners Corporation did not refer me to any cases on non est factum.
The leading case on non est factum is the decision of a unanimous High Court in Petelin v Cullen (1975) 132 CLR 355.
In my view, Mr Da Silva falls at the first hurdle. The High Court said that the class of persons who can avail themselves of the defence is limited. "It is available to those who are unable to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; it is also available to those who through no fault of their own are unable to have any understanding of the purport of a particular document." (132 CLR at 359 - 360).
The successful appellant in Petelin v Cullen (1975) 132 CLR 355 was, as the primary judge found, incapable of reading and understanding the document he signed. As the High Court put it, he could not read English; it was beyond his capacity to understand what the document provided.
There is no evidence before me that Mr Da Silva falls within this limited class of persons. Quite the contrary. The evidence shows that he can read and write English. This is demonstrated by his own affidavits filed in the proceedings and the numerous emails written to him and by him in evidence. The evidence also shows that Mr Da Silva has been running his own tiling and waterproofing business through his own company since at least 2008. The evidence shows that waterproofing and tiling has been his only trade occupation all of his working life, since 1991.
It was not suggested in the evidence or in submissions that Mr Da Silva was unable to read the document he signed. Nor was it suggested in the evidence or in submissions that he was unable to have any understanding of the purport of the document.
What the evidence establishes is that Mr Da Silva was able to read the document and was able to have an understanding of the purport of the document, but chose not to read it.
For those reasons, I do not accept that Mr Da Silva falls within the limited class of persons who can avail themselves of the defence.
Had I found that Mr Da Silva did fall within the limited class of persons who can avail themselves of the defence, I would have to consider whether "he signed the document in the belief that it was radically different from what it was in fact". In Petelin v Cullen (1975) 132 CLR 355 the appellant signed a document that purported to extend an option to purchase land he had previously given the respondent in the belief that it was in fact a receipt for the payment of money. The evidence on the appellant's belief as to what he was signing was a little equivocal, as identified by the Court of Appeal: in cross-examination the appellant was asked "but you have never thought that was a receipt, have you?" and answered "I can't say yes or no". Nevertheless on all of the evidence, the primary judge found he believed it was a receipt and the High Court endorsed that finding on the facts.
I have found that I am not persuaded that Mr Haralambis told Mr Da Silva that the document was "for insurance and work, health safety purposes". In those circumstances I am equally not persuaded that Mr Da Silva believed the document was a routine document of the type stated. It follows that I am not persuaded that he signed the document in the belief that it was radically different from what it was in fact.
Had Mr Da Silva successfully reached this point in establishing his defence, the next thing I would have to consider is whether "his failure to read and understand it was not due to carelessness on his part", but only if the Owners Corporation would count as an "innocent person" (132 CLR 355 at 360). The party seeking to enforce the contract can be an "innocent person" if they rely upon the document and the signature which it bears and they are unaware of the circumstances in which it came to be executed. If however they are aware of the circumstances in which it came to be executed and know or have reason to suspect that it was executed under some misapprehension as to its character, they will not be an "innocent person" (132 CLR 355 at 360). Even if the party seeking to enforce the contract is unaware of what their agent said and did, they must take responsibility for the agent's action and would not be considered an "innocent person" (132 CLR 355 at 360).
Mr Gray submitted that Mr Haralambis was acting as agent for the Owners Corporation in having Mr Da Silva attend his office and sign the document. I do not accept that submission. There is no evidence before me that the Owners Corporation prepared the contract and entrusted it to Mr Haralambis to have it signed by Mr Da Silva. The chronological sequence of the contemporaneous documents I set out at the start these reasons demonstrates quite clearly that leading up to the commencement of the work in July 2014, and for that matter thereafter, Mr Haralambis was acting in his own interests and those of his brother and their 2 companies in all of their communications with the Owners Corporation and the individual members of the executive committee. This is demonstrated not only by the substance of the communications, but also by the fact that Mr Haralambis regularly signed off his emails above the name Haralambis Management Pty Ltd.
There is no suggestion otherwise that the Owners Corporation was aware of the circumstances in which Mr Da Silva executed the document or knew or had reason to suspect that it was executed under some misapprehension as to its character. In fact, the evidence points the other way when one looks at the contemporaneous email exchanges immediately before and after execution of the document - Mr Da Silva was copied in on what the Owners Corporation were sent, and registered no protest.
Having regard to those matters were it necessary, I would find that the Owners Corporation was relevantly an "innocent person" and that Mr Da Silva's failure to read and understand the document was due to carelessness on his part.
[14]
B.9 My findings
For those reasons I find that Mr Da Silva has not made out his defence of non est factum.
Because that was the only issue raised by the parties in relation to whether or not there was a contract between them, it follows that I find the Owners Corporation and Mr Da Silva had a binding contract in accordance with the document signed by Mr Da Silva on 22 July 2014.
[15]
C. WHAT WERE THE TERMS OF THE CONTRACT?
The contract included the following terms.
Clause 2 provided:
"All work done under this contract will comply with:
1. (a) the Building Code of Australia to the extent required under the Environmental Planning and Assessment Act 1979 (including any instrument made under that Act)
(b) all other relevant codes, standards and specifications that the work is required to comply with under any law
…
2. This contract may limit the liability of the contractor for a failure to comply with (1) if the failure relates solely to:
(a) a design or specification prepared by or on behalf of the owner (but not by or on behalf of the contractor), or
(b) a design or specification required by the owner, if the contract or has advised the owner in writing that the design or specification contravenes (1)."
By Clause 3 it was agreed that "the contractor will… comply with all relevant Australian Standards, laws and requirements of the relevant local council and all statutory authorities with respect of the work".
By Clause 9(a), and by section 18B of the Home Building Act 1989, the contractor warranted that "the work will be performed in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract".
By Clause 9(e), and by section 18B of the Home Building Act 1989, the contractor warranted that "if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling".
Clause 1 described as "specifications" the "PA Evans and Associates 'Scope of Works' Ref 28831TD" of 10 pages and dated 30 May 2014; referred to 3 plans dated 2 June 2014; and described as "other documents" "Clarifications and Changes to P A Evans Scope of Works" dated 21 July 2014.
By Clause 1, those documents formed part of the contract.
Clause 1 also provided that "Any agreement to vary this contract, or to vary the plans and specifications for work to be done under this contract, must be in writing signed by each party to this contract".
The contract price was stated to be $17,832 including GST.
It was a special condition of the contract that despite anything in it the Owners Corporation "will not be liable to pay the Contractor any money as all amounts payable under or relation to this Contract will be paid by Haralambis Construction Pty Ltd to the Contractor. The contractor agrees that it will not claim or seek to claim any money from the Owner and will only have recourse to Haralambis Construction Pty Ltd to recover all monies payable to the Contractor under this Contract".
The PA Evans and Associates Scope of Works dated 30 May 2014 included the stipulation in paragraph 9.15: "Install the new membrane in strict accordance with the manufacturer's instructions… Ensure that the membrane is applied in continuous form and finished on to a complimentary angle to be installed to match the location of the internal face of the sub-sill".
The manufacturer's instructions in turn required compliance with particular Australian Standards.
Neither party referred me to the Clarifications and Changes to P A Evans Scope of Works document dated 21 July 2014.
[16]
D. DID THE OWNERS CORPORATION AND MR DA SILVA VARY THE TERMS OF THE CONTRACT?
[17]
D.1 Mr Da Silva's submissions
As I understand it, Mr Gray's submissions about the variation of the terms of the contract come down to this. He submits that:
138.1 Mr Haralambis and Mr Moisidis, acting on behalf the Owners Corporation, directed Mr Da Silva to do the work in the way he did it.
138.2 Because the work Mr Da Silva actually did did not comply with the original scope of works under the contract, the parties must have changed the scope of works and adopted a new one which specified the work he actually performed.
138.3 If the work Mr Da Silva actually did did not comply with the Australian Standards or the Australian Building Code, the parties must have changed that requirement and, in effect, dispensed with the need to comply when they changed the scope of works.
138.4 Incontrovertible evidence that the parties had changed the scope of works and adopted a new one which Mr Da Silva performed was provided by the letter of 27 November 2014 from Bellmont Façade Engineering to the Owners Corporation which stated (in part) that "Bellmont Façade Engineering confirms that the scope adopted by Haralambis Constructions, Tile Projects and the Owners has been completed as per the agreement reached.".
Mr Gray conceded that acceptance of these submissions required the court to infer that the contract was changed during the course of the performance of the work. He submitted that the agreement "as far as we know, never set out in detail and writing", was nonetheless clearly understood to require Mr Da Silva to do the work he actually did, Mr Da Silva did that work and completed the scope agreed by the parties, with the necessary consequence that even if the work Mr Da Silva did not comply with the Australian Standards, that was not a breach of his contract, because that requirement had been dispensed with by the parties" (T256).
[18]
D.2 The Owners Corporation's submissions
The Owners Corporation takes issues with each of these submissions.
Mr Marshall also raises a legal point. He submitted that because the work was residential building work under the Home Building Act 1989, if there was a variation of the contract it had to be in writing signed by the parties to be effective. He cited Paraiso v CBS Build Pty Ltd [2020] NSWSC 190. Mr Gray did not address this question in his submissions.
[19]
D.3 My analysis and findings
I do not accept that Mr Moisidis, acting on behalf of the Owners Corporation or otherwise, directed Mr Da Silva to do the work in the way he did it.
To the contrary, the evidence establishes that Mr Moisidis repeatedly warned Mr Da Silva (and Mr Haralambis) against proceeding with the work in the way Mr Da Silva was proposing because (amongst other things) it would raise the height of the screed under the tiles and thereby raise the height of the finished tiled balcony relative to the height of the internal floor, reducing the step down from inside to outside. The repeated warnings were contained in the 4 warning emails, which themselves referred to or were confirmatory of other meetings.
The same emails establish that it was Mr Da Silva who decided to proceed in the way he did and to reject Mr Moisidis's recommendation to consider using additives in order to reduce the thickness of the screed. Mr Moisidis also confirmed that this was the case in cross-examination.
I am unable to accept Mr Da Silva's general assertions in his affidavit evidence that Mr Moisidis directed Mr Da Silva to do the work in the way he did it in light of the more specific and detailed contemporaneous emails.
Further, I am unable to accept that Mr Moisidis had the authority of the Owners Corporation to vary the contract, including the scope of works.
Mr Gray relied upon some admissions made by Ms Rogers in cross-examination about the role Mr Moisidis played. In cross-examination Ms Rogers (the chairperson of the executive committee) accepted various propositions put to her about her "understanding" of Mr Moisidis' role (T57 - 58). However that is only part of the evidence.
Other evidence before me shows that:
148.1 Mr Moisidis had been engaged by the Owners Corporation "to provide inspections/review of technical reports/specifications/provide technical advice as required": see 21 July 2014 in the chronology of facts I set out earlier.
148.2 In the list of names and contact details prepared by Haralambis Management Pty Ltd and circulated to all concerned with the work about to commence, including to Mr Haralambis and Mr Da Silva, Mr Moisidis was described as "Consultant to Strata": see 22 July 2014 in the chronology of facts.
148.3 Mr Moisidis's email exchanges of 23 July 2014 with Mr Haralambis and Mr Da Silva show that Mr Moisidis was asking questions and seeking information, rather than being directive or prescriptive.
148.4 In his first warning email (of 28 July 2014) Mr Moisidis set out his reasons for recommending against raising the screed height to cover the sub- sill leg in part. He was not being directive or prescriptive in that email.
148.5 Mr Moisidis's evidence about his meeting with Ms Rogers and Mr Haralambis on 28 July 2014 after sending the first warning email indicates that he was providing advice, and not making decisions for the Owners Corporation.
148.6 Mr Moisidis's 2nd warning email (of 4 August 2014) again set out advice and recommendations. It was not directive or prescriptive.
148.7 Mr Moisidis's 3rd warning email (of 8 August 2014) took the same approach.
148.8 Mr Moisidis's 4th warning email (of 15 September 2014) demonstrates even more clearly that Mr Moisidis was providing advice and recommendations, not being directive or prescriptive.
Whether or not Mr Haralambis was being more forceful, directive or prescriptive in his dealings with Mr Da Silva, it is impossible for me to say on the evidence. However the evidence does show, and I find, that to the extent that Mr Haralambis may have been directing Mr Da Silva what to do and how to go about it (and I am not finding that he did), Mr Haralambis was not doing so on behalf of or with the authority of the Owners Corporation.
Mr Gray's submission that Mr Haralambis had authority to act for and make decisions on behalf of the Owners Corporation appears to be founded almost entirely on the fact that Mr Haralambis was a member of the executive committee. So much is true. However that only tells part of the story.
As I have already mentioned, either Haralambis Construction Pty Ltd or another company controlled by Mr Haralambis and his brother Mr Ari Haralambis had built the building and obtained the registration of the strata plan.
As I have already found in addressing Mr Da Silva's non est factum defence, the chronological sequence of the contemporaneous documents I set out at the start these reasons demonstrates quite clearly that leading up to the commencement of the work in July 2014, and for that matter thereafter, Mr Haralambis was acting in his own interests and those of his brother and their 2 companies in all of their communications with the Owners Corporation and the individual members of the executive committee. This is demonstrated not only by the substance of the communications, but also by the fact that Mr Haralambis regularly signed off his emails above the name Haralambis Management Pty Ltd.
Moving then to the Bellmont Façade Engineering Pty Ltd letter of 27 November 2014, I note the following:
153.1 The letter refers to "the scope adopted by Haralambis Constructions, Tile Projects and the Owners… as per the agreement reached". The letter does not suggest that the scope was adopted or agreed by Mr Moisidis, or Bellmont Façade or Mr Nguyen (the signatory to the letter).
153.2 Bellmont Façade was at pains to point out in the very next sentence that "It should be clear however, that this certificate is not intended to confirm that the works have been completed in accordance with the Building Code of Australia". The clear inference is that Bellmont Façade (or Mr Moisidis) had not endorsed the "scope" or been a party to the agreement.
153.3 These last 2 matters confirm what was already obvious from Mr Moisidis' 4 warning emails - he did not agree to any new scope referred to in this letter on behalf of the Owners Corporation.
153.4 The letter does not say how or in what way the scope was adopted and agreed on the part of the Owners. The letter does not identify who "adopted" the scope or "reached agreement" on behalf of the Owners Corporation.
153.5 The letter does not discuss or inform what the terms of any variation to the scope were, or the terms of any agreement reached.
153.6 The letter expressly says it is about unit 301. This was only part of the work. The work was done on the common balcony terrace for units 301, 302 and 303, not just 301.
Mr Da Silva did not seek to establish by other evidence what the terms of the new "scope" or "agreement" were. As I have mentioned, Mr Gray submitted that as far as Mr Da Silva knew, the agreement was never set out in detail and writing.
Having regard to all those matters I do not accept that Mr Moisidis or Mr Haralambis agreed with Mr Da Silva to change the scope of works or dispense with the need to comply with the Australian Standards and the Australian Building Code on behalf of the Owners Corporation.
To the extent that Mr Gray suggested that the Owners Corporation may have adopted the new scope or reached an agreement itself, or through the agency of Ms Rogers (the chairperson person of the executive committee), which would have the effect of dispensing with the need to comply with the Building Code of Australia or the Australian Standards, in my view that is highly unlikely given the following:
156.1 On 11 June 2014 and 17 June 2014, the executive committee was concerned to ensure that the work would be completed as per Mr Evans recommendations which necessarily involved complying with Australian Standards: see emails referred to in chronology of facts.
156.2 On 20 June 2014 Mr Haralambis assured the executive committee that all works will be carried out to Australian Standards and the Building Code of Australia: see email in the chronology of facts.
156.3 On 30 June 2014 the executive committee was again concerned to ensure that the work would be completed as per Mr Evans' recommendations which necessarily involved complying with Australian Standards: see email in the chronology of facts.
156.4 The contract provided to the executive committee on 22 July 2014, signed by Ms Rogers on 22 July 2014 on behalf of the Owners Corporation, expressly provided that all work done under the contract would comply with the Building Code of Australia and all relevant Australian Standards.
156.5 By occupation Ms Rogers was a paediatric occupational therapist. In her affidavit Ms Rogers said that: "I have no expertise or knowledge in building matters and during the building works the subject of this Affidavit I relied upon the advice provided to me by the various consultants and builder involved in the building works.". In cross-examination she remembered "trying to do our due diligence as very lay people to make sure that we had tradespeople that had appropriate licenses". "We absolutely believed" all works will be carried out to Australian Standards and the Building Code of Australia".
156.6 Ms Shifreen was a social worker - her evidence was that she did not have any knowledge or experience in construction issues.
156.7 As at 9 July 2014 Mr Evans had the distinct impression that it was very difficult for the Owners Corporation to digest and negotiate the large amount of technical and legal data being presented to them.
156.8 When Mr Evans withdrew, the Owners Corporation made a point of retaining Mr Moisidis specifically to advise them about the technical side.
For those reasons I do not accept that the Owners Corporation itself agreed with Mr Da Silva to change the scope of works or dispense with the need to comply with the Australian Standards and the Australian Building Code on behalf of the Owners Corporation.
It follows that I am not satisfied as a matter of fact that the Owners Corporation and Mr Da Silva agreed to vary the terms of the contract to change the scope of works or dispense with the need to comply with the Australian Standards and the Australian Building Code on behalf of the Owners Corporation
That obviates the need to deal with Mr Marshall's legal point that any variation needed to be in writing signed by the parties to be contractually effective.
However in my opinion, it is a good point and provides a complete answer to Mr Da Silva's claim that his scope of works, and therefore the contract, was varied. It provides an additional reason for not being satisfied that the contract was varied. I will explain briefly why I think it is a good point.
[20]
D.4 Legal point: any variation had to be writing signed by the parties to be effective
It is common ground that the work Mr Da Silva did and supervised was "residential building work" within the meaning of the Home Building Act 1989 (HB Act).
As in force at the time the contract was made (July 2014) the HB Act provided:
6 Application of requirements for contracts
(1) Sections 7-7E apply to a contract under which the holder of a contractor licence undertakes:
(a) to do, in person, or by others, any residential building work or any specialist work, or
(b) to vary any such undertaking to do residential building work or any specialist work or the way in which any such work is to be done.
7 Form of contracts
(1A) This section applies to a contract only if the contract price exceeds the prescribed amount or (if the contract price is not known) the reasonable market cost of the labour and materials involved exceeds the prescribed amount. The prescribed amount is the amount prescribed by the regulations for the purposes of this section and is inclusive of GST.
(1) A contract must be in writing and be dated and signed by or on behalf of each of the parties to it.
(2) A contract must contain:
(a) the names of the parties, including the name of the holder of the contractor licence shown on the contractor licence, and
(b) the number of the contractor licence, and
(c) a sufficient description of the work to which the contract relates, and
(d) any plans and specifications for the work, and
(e) the contract price if known, and
(f) any statutory warranties applicable to the work, and
(g) in the case of a contract to do residential building work - a conspicuous statement setting out the cooling-off period that applies to the contract because of section 7BA.
(3) The contract must comply with any requirements of the regulations.
(4) If the contract price is known, it must be stated in a prominent position on the first page of the contract.
(5) If the contract price is not known or may be varied under the contract, the contract must contain a warning to that effect and an explanation of the effect of the provision allowing variation of the price. The warning and explanation must be placed next to the price if the price is known.
7A Offence
A person must not contract to do work under a contract unless the requirements of section 7 or 7AAA in relation to the contract are complied with.
Maximum penalty: 80 penalty units in the case of a corporation and 40 penalty units in any other case.
7E Regulations concerning contracts
(1) The regulations may make provision for or with respect to:
(a) clauses or matter that must be included in a contract or a class of contracts, or
(b) clauses or matter that must not be included in a contract or a class of contracts.
(2) If the regulations require a contract or class of contracts to contain a clause in prescribed terms, a contract of the kind to which the prescription relates is taken to include the clause in the terms prescribed. A contract that contains a term that is inconsistent with any such clause is unenforceable to the extent of the inconsistency.
(3) If the regulations provide that any matter must not be included in a contract or a class of contracts any contract that contains that matter is unenforceable to the extent that it includes or applies to that matter.
(4) Any regulations made under this section do not apply to a contract in force at the time that the regulations commence.
(5) This section does not limit section 7 (3).
10 Enforceability of contracts and other rights
(1) A person who contracts to do any residential building work, or any specialist work, and who so contracts:
(a) in contravention of section 4 (Unlicensed contracting), or
(b) under a contract to which the requirements of section 7 apply that is not in writing or that does not have sufficient description of the work to which it relates (not being a contract entered into in the circumstances described in section 6 (2)), or
(c) in contravention of any other provision of this Act or the regulations that is prescribed for the purposes of this paragraph,
is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work. However, the person is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person.
(2), (3) (Repealed)
(4) This section does not affect the liability of the person for an offence against a provision of or made under this or any other Act.
The Home Building Regulation 2004 provided:
11A Thresholds for contract requirements
(1) The prescribed amount for the purposes of section 7 (Form of contracts) of the Act is $5,000.
12 Conditions to be included in certain contracts
(1) Pursuant to section 7E of the Act, a contract to do residential building work must include each of the conditions set out in Part 1 of Schedule 2.
Schedule 2 Conditions to be included in certain contracts
Part 1 Contracts to do residential building work
1 Plans and specifications
(1) All plans and specifications for work to be done under this contract, including any variations to those plans and specifications, are taken to form part of this contract.
(2) Any agreement to vary this contract, or to vary the plans and specifications for work to be done under this contract, must be in writing signed by or on behalf of each party to this contract.
(3) This clause does not apply to a contract of the kind referred to in clause 16 of the Home Building Regulation 2004.
The legislation, as it was in this form, was considered by the Court of Appeal in Xu v Jinhong Design & Construction Pty Ltd [2011] NSWCA 277.
In that case the condition the subject of clause 1 (2) of Schedule 2 to the regulation did not form part of the contract because the owner fell within the exception made in the case of "developers". Nevertheless the contract contained a such a provision (per Macfarlan JA at [104]).
Macfarlan JA concluded that because of the provisions of the HB Act, in particular sections 6 and 7, the builder could have no claim in contract against the owner in respect of oral variations to the building work. His honour said, at [105] - [106]:
105 Section 6(1)(b) of the Act in my view clearly indicates that the requirement of writing imposed by s 7 applies to variations, as here, of the ambit of the residential building work. The breadth of operation of s 6(1)(b) is indicated by the fact that it is expressed to apply to the variation of "any such undertaking to do residential building work ... or the way in which any such work is to be done" and not simply to the variation of the contract under which such undertaking is given. This supports the view that the subsection operates on an agreement to change the nature or quantum of building work even if that is made under a provision of the building contract dealing with variations in the work and does not involve a variation of the building contract itself. To construe the subsection otherwise would be to render it largely inoperative.
106 In these circumstances the Builder can have no claim in contract against the Owner in respect of the oral variations to the building work. Nevertheless it is likely to have (or have had) a quantum meruit claim to recover the value of the work done in pursuance of the oral variations ( Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221). A claim of that type is one to restitution or one based on unjust enrichment and is not based upon the existence of an implied contract ( Lumbers v W Cook Builders Pty Ltd [2008] HCA 27; (2008) 232 CLR 635 at [83] - [84]).
Basten JA (at [25]) agreed with Macfarlan JA that the requirement of writing in section 7(1) must apply to the contract to vary the undertaking to do residential building work, including a variation provided for by the original contract.
His Honour added the following (at [28]-[29]) in relation to the interpretation of section 7E. His Honour said:
[28] … Further, there was no consideration of the operation of s 7E, which must be read with cl 12 and Schedule 2, Part 1, item 1 of the Home Building Regulation 2004 (as in force for the purposes of this agreement). The effect of s 7E is that, where a regulation requires that a contract contain a clause in prescribed terms, it is taken to include that clause, and any term inconsistent with that clause is unenforceable. Clause 12 of the Regulation requires that certain conditions are included in contracts, as provided by Schedule 2; Schedule 2, cl 1 requires that all plans and specifications for work to be done under a contract are taken to form part of the contract and continues:
"(2) Any agreement to vary this contract, or to vary the plans and specifications for work to be done under this contract, must be in writing signed by or on behalf each party to this contract."
[29] It would follow that a residential building contract cannot permit a variation which is not in writing. An oral variation which would itself involve residential building work cannot be enforced as a separate contract because that contract would not be in writing.
The third member of the court, Sackville AJA, did not address the interpretation of the HB Act.
The legislation in materially the same form was considered by Fagan J in Paraiso v CBS Build Pty Ltd [2020] NSWSC 190. His Honour was considering the form of the legislation as at 23 March 2016, which was the date of the contract in that case. The only difference in the legislation is the fact that by then the terms to be included in the contract, as referred to in section 7E, were stated in a schedule to the Act, rather than in the regulation.
Although Mr Marshall referred me to this case, it seems to me that Fagan J came to the conclusions he did based on his interpretation of the contract in that case (which were different to the terms of the contract in the present case), rather than the HB Act.
In any event, based on the interpretation of the HB Act given by Macfarlan JA and Basten JA, I accept the submission that any variation to the scope of works needed to be in writing signed by or on behalf of both Mr Da Silva and the Owners Corporation in order to be contractually effective.
Because there was no such writing, the variation to the terms of the contract suggested by Mr Da Silva could not be contractually effective in any event.
[21]
E. BREACH OF CONTRACT: THE WORK THAT MR DA SILVA ACTUALLY DID OR SUPERVISED DID NOT COMPLY WITH MR EVANS' SCOPE OF WORKS, THE AUSTRALIAN STANDARD OR THE BUILDING CODE
Breach of the terms of the contract was admitted under cross-examination by Mr Da Silva. It was also established by the evidence of 3 expert witnesses, and in addition the evidence of Mr Moisidis. I will address each of those in turn.
Although some of this evidence goes to causation, I will address some issues about causation separately.
[22]
E.1 Mr Da Silva's admissions in cross-examination
Mr Da Silva admitted under cross-examination that:
176.1 He was an experienced waterproofing contractor.
176.2 He was aware that the relevant waterproofing standard that governs the performance of waterproofing works is AS 465.2-2012.
176.3 He knew that waterproofing works are required to be performed in accordance with AS 465.2-2012.
176.4 He knew that failing to perform waterproofing works in accordance with AS 465.2-2012 meant the waterproofing system may fail.
176.5 He performed waterproofing works at the Lamia Building.
176.6 He did not perform the waterproofing works at the Lamia building in accordance with AS 465.2-2012.
176.7 He did not install the membrane in accordance with the Australian Standard.
[23]
E.2 The experts' evidence, going to breach and causation
Three experts gave evidence: Mr Mitchell Taylor (a licensed builder and building consultant), Dr John Cunniffe (a building consultant) and Mr Stephen Hamilton (a civil engineer and building consultant).
Each of the experts had provided written reports after inspecting the building.
In their oral joint concurrent evidence they each agreed with the following, unless otherwise stated.
They understood that the scope of works and the defects in the terraces before Mr Da Silva performed any of his works were those are set out in Mr Evans' scope of works.
Paragraph 9.15 of Mr Evans scope of works required whoever did the works to:
Install the new membrane in strict accordance with the manufacturer's instructions as set out in this document and by liaison with the membrane supplier and licensed applicator. Ensure that the membrane is applied in continuous form and finished onto a complimentary angle to be installed to match the location of the internal face of the sub-sill.
Dr Cunniffe explained that the reference to a "complimentary angle" by Mr Evans is normally called a "water stop".
Based on their inspections:
183.1 There was no complimentary angle (or water stop angle) installed on the level three balcony.
183.2 There was little to no step-down under the sliding doors in a number of locations on the level 3 balcony. This meant that the external tiled floor height is very close to, or at the same height, as, the internal floor. This was shown clearly in the photograph at paragraph 8.104 of Dr Cunniffe's report (CB 1912).
183.3 In the case shown in the photo, the installer had lifted the height of the screed and the finished tile height on the far end of the photo, to be almost in line with the internal floor.
183.4 There were no sill flashings installed under the sliding doors.
183.5 There was no sub- sill.
183.6 The photograph at paragraph 8.108 of Dr Cunniffe's report (CB 1914) showed that the waterproof membrane was on the side of the rebate under the sliding door, but not on to the slab. This can be described in a number of different ways. Another way of describing the same idea is that the photo shows that the waterproof membrane goes only part the way up the hob instead of all the way up the hob and onto the slab, the slab being under the doorframe and under the internal floor of the unit. The photo also showed that there was no sub-sill flashing.
183.7 The height of the floor tiles in some places is up to the sill of the tracks of the sliding doors. This is shown in photograph 8.117 of Dr Cunniffe's report (CB 1916). This meant that the height between the finished floor tile and the internal floor would be roughly similar.
The relevant standard was Australian Standard AS 4654.2 - 2012 "Waterproofing membranes for external above-ground use, Part 2: design and installation".
Compliance with the Australian Standard is a requirement of the Building Code.
Under the Australian Standard, where the objective of the waterproof membrane termination is to prevent water entry, the primary requirement is for the height of the membrane to prevent water, including wind-driven water, flowing over the membrane.
To calculate the correct termination height for a waterproof membrane, a waterproofing expert or tradesperson would refer to the table attached to the Australian Standard. It provides for a minimum termination height of 40 millimetres.
The Australian Standard required that for doors and windows onto external waterproofed areas, sub- sill flashing shall be included as part of the membrane system.
To comply with "Option 1" of the Australian Standard, the waterproof membrane would need to terminate at a minimum height of 40 millimetres and have a sub- sill flashing.
If a waterproof membrane was installed other than in accordance with Option 1, or either of the other 2 options provided for in the Standard, it would be non-compliant with the Australian Standard, which would mean it would also be non-compliant with the Building Code.
Option 2 of the Australian Standard is actually the method stipulated by Mr Evans in his scope of works paragraph 9.15 (set out above).
That option provides for the waterproof membrane to terminate against the water stop angle. The reason for the water stop angle is that it creates a physical barrier. Terminating the waterproof membrane on that physical barrier means that you have a continuous waterproof seal up to the height of the water stop angle. Without that, you are at greater risk of water penetration and a failure in the effectiveness of the waterproof membrane.
Returning to the photograph at paragraph 8.108 of Dr Cunniffe's report (CB 1914), the waterproof membrane is shown in the photo halfway and lower up the hob, whereas the Australian Standard required it to travel the entire way up the hob and under the door and onto the water stop angle.
Under Option 3 of the Australian Standard the membrane travels right to the top of the hob and is covered by sub- sill flashing. Whereas comparing it to what was installed, the membrane travels inconsistently along the hob and no sub-sill is installed.
What has been installed is inconsistent with all 3 options in the Australian Standard.
The waterproofing works that were performed at the Lamia building were inconsistent with the Australian Standard and inconsistent with the Building Code. This renders them defective.
The height difference between the "Finished floor level (Internal)" and "Finished floor level (External)" as shown in the Australian Standard is the step-down.
So as to create a fall towards the drain, Mr Da Silva had installed a higher screed. To install the tiles and to create the fall, Mr Da Silva had installed higher screed external to the aluminium doors. This had the effect of increasing the height of the "Finished floor level (External)" such that it was "substantially higher" than provided for in the Australian Standard. The consequence of it being substantially higher is that water can much more easily travel horizontally from the external finished floor to the internal finished floor.
Waterproofing is a specialised area of construction.
An experienced waterproofer would be familiar with the governing Australian Standard.
Both Mr Hamilton and Mr Taylor agreed that the consequence of performing waterproofing works other than in accordance with the Australian Standard means it is conceivable they will fail. Dr Cunniffe's opinion was that they would not necessarily fail and that you could comply with certain sections of the Australian Standard and it could still fail.
All three experts agreed that if the external finished floor height is too high compared to the Australian Standard, if the waterproofing membrane is too low compared to the Australian Standard, if there is no sub-sill flashing, and there is no water stop angle then the waterproofing will almost certainly be ineffective.
In summary, the experts all accepted that Mr Da Silva performed the works in a manner inconsistent with the necessary Australian Standard, that by doing so he breached the Building Code of Australia and, as a consequence, the works were defective.
[24]
E.3 Mr Moisidis' evidence going to breach and causation
In cross-examination about his warning email of 8 August 2014, Mr Moisidis agreed that he was concerned that if Mr Da Silva constructed the tiling works and waterproofing works as he was proposing, there would be "water problems".
When asked about his 4th warning email (of 15 September 2014) he explained why a thin bed screed should be used, and that it was not used because of Mr Da Silva's decision; the way Mr Da Silva was proposing to go about the work might cause water ingress; that he had in mind the Australian Standard for external waterproofing when he made the comments he did in his 4th warning email.
His evidence included the following:
"Q. And it was your opinion, when you were giving those warnings, that if Mr Da Silva went about doing the works in that manner, they would be inconsistent with the Australian Standard?
A. Correct.
Q. Do you think, if the finished floor height was lower it would be likely that the water ingress wouldn't have occurred?
A. Yes."
[25]
F. MY FINDINGS ON BREACH OF CONTRACT
For those reasons I find that in doing the work he did:
207.1 Mr Da Silva breached his obligation under clause 2 of the contract which required that all work done under the contract comply with (a) the Building Code of Australia to the extent required under the Environmental Planning and Assessment Act 1979 (including any instrument made under that Act) and (b) all other relevant codes, standards and specifications that the work is required to comply with under any law.
207.2 Mr Da Silva breached his obligation under clause 3 of the contract to comply with all relevant Australian Standards, laws and requirements of the relevant local council and all statutory authorities with respect of the work.
207.3 Mr Da Silva breached clause 9(a) of the contract under which he warranted that the work will be performed in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract.
207.4 Mr Da Silva breached the same warranty implied in the contract by s.18B(a) of the Home Building Act 1989.
207.5 Mr Da Silva breached clause 9(e) of the contract under which he warranted that if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling.
207.6 Mr Da Silva breached the same warranty implied in the contract by s.18B(e) of the Home Building Act 1989.
[26]
G. DAMAGES FOR BREACH OF CONTRACT
As I said at the start of these reasons, it is common ground that, subject to some issues about causation, in the event the Owners Corporation succeeded on the basis of breach of contract, then the work needs to be redone and it is entitled to damages for the full cost of rectification. The quantification of those damages is mostly agreed.
The issues I need to address therefore are causation and what has not been agreed as to quantification.
[27]
G.1 Causation
The chronology of facts set out earlier shows that on 20 April 2015, within a fortnight of the work being completed on 7 April 2015, rainwater from the common terrace filled the tracks of the sliding doors and then overflowed onto the timber floors inside units 301, 302 and 303.
The Owners Corporation submitted that this sort of thing was not occurring before Mr Da Silva carried out his work. Had it been occurring, it submitted, Mr Evans would have identified it as a defect in his first 2 reports and required it to be rectified in his draft scope of works. As I mentioned earlier, Mr Evans did not suggest that there was any problem with water entering into units 301, 302 and 303 from the common balcony terrace.
Mr Da Silva submitted that there was some evidence indicating that it had been happening before Mr Da Silva did any work. Mr Gray pointed to the evidence in Mr Moisidis's affidavit where he said at paragraph 8 that when he attended the property on 19 July 2014, before Mr Da Silva had started work, he "understood at that time that there were water ingress issues to the level 3 balconies and that works were being proposed to address this", and at paragraph 10 that he "understood that the owners wished to engage Belmont in respect of works to rectify these leaks". Mr Moisidis was asked about this evidence in cross-examination. He was taken to Mr Evans building defects report of 23 July 2013 and agreed that the defects identified by Mr Evans were familiar to him. He agreed that his email of 19 July 2004 setting out his fee proposal made no mention of water ingress issues, nor did the work order he received on 21 July 2014. He recalled that at some stage during the process he did inspect "evidence of water damage on a timber floor in one of" the apartments. He did not remember when that was. He did not have any specific record but thought it might have been one of his first inspections. Mr Moisidis was clearly relying on his memory in giving this evidence, not any contemporaneous records.
Mr Gray invited me to accept Mr Moisidis's affidavit evidence at face value such that I should find based on his evidence that there were water ingress issues before Mr Da Silva undertook his work.
I am unable to accept Mr Gray's submission. There is no doubt, and it is in fact common ground, that Mr Evans made no reference to any water ingress issues in either of his reports or his scope of works. Having been commissioned by the Owners Corporation to inspect the building and identify defects in the common property, and in the process identifying defects in relation to the common terrace for units 301, 302 and 303, had water ingress been occurring from that terrace it would have been an important thing for him to have mentioned and addressed in his scope of works. In those circumstances, the fact that Mr Evans did not refer to any water ingress issues in either of his defects reports or scope of works suggests strongly that there were none.
Having regard to those matters, I find that water ingress had not been occurring before Mr Da Silva undertook his work.
The expert evidence establishes that Mr Da Silva did not comply with the Australian Standards and the Building Code of Australia and carried out his work in such a way as to produce a result whereby:
216.1 So as to create a fall towards the drain, Mr Da Silva had installed a higher screed. To install the tiles and to create the fall, Mr Da Silva had installed higher screed external to the aluminium doors. This had the effect of increasing the height of the "Finished floor level (External)" such that it was "substantially higher" than provided for in the Australian Standard. The consequence of it being substantially higher is that water can much more easily travel horizontally from the external finished floor to the internal finished floor.
216.2 The external finished floor height was too high compared to the Australian Standard, the waterproofing membrane was too low compared to the Australian Standard and there was no water stop angle then the waterproofing.
Mr Gray submitted that the cause of the water ingress was a deficient flashing waterproofing associated with the sliding door window frame which was not anything Mr Da Silva had anything to do with. In other words it was a structural problem arising out of the way the building had been built and nothing to do with the work Mr Da Silva did. Mr Gray submitted that what might well have happened is that the work that Mr Da Silva did was effective to capture the stormwater on the balconies which was, either through wind or leakage, then transported through the defective window flashings into the inner. He submitted that if that is what happened, which might well have happened, all it does is in to indicate that the defective pre-existing window flashings had not been challenged as efficiently or as strongly as they were after Mr Da Silva did his work.
The Owners Corporation submitted that Mr Da Silva installed a screed which raised the height of the tiled balcony particularly at the apartments. The finished floor level of the balcony was installed by Mr Da Silva. As Mr Da Silva was undertaking the work, Mr Moisidis warned him against undertaking the work in the way he was proposing because he was concerned that the screed was too thick and might cause water ingress.
I am unable to accept Mr Gray's submissions. Even if there were deficiencies in the way the building had been built, it is clear that the sliding doors had been performing adequately for a number of years before Mr Da Silva did his work. What changed was Mr Da Silva increasing the height of the external balcony tiles relative to the height of the internal floor allowing rainwater more easily to travel horizontally from the balcony to the floor inside the unit. It is a simple step to infer that the work that Mr Da Silva carried out in breach of the Australian Standards and Building Code of Australia was the cause of the water ingress, and I find that it was.
[28]
G.2 Quantification of damages
The same 3 experts, Mr Mitchell Taylor (a licensed builder and building consultant), Dr John Cunniffe (a building consultant) and Mr Stephen Hamilton (a civil engineer and building consultant), gave evidence about the scope of works required for rectification and its cost.
Prior to giving oral joint concurrent evidence they prepared a joint report which became exhibit C. As a result of preparing the joint report, the experts agreed that out of a total of $462,797.93 including GST, only $42,762.54 had not been agreed and remained in issue.
By the end of their oral evidence their disagreement appeared to have dissipated, if not entirely disappeared.
In any event, having regard to their oral evidence and Mr Marshall's submissions - Mr Gray did not make any submissions on quantum - I find the following:
223.1 If the waterproof membrane has to be removed and replaced, then the balustrade has to be repaired as part of that process for the membrane to be installed compliant with the Australian Standard.
223.2 In order to undertake that work in a safe manner, so as to gain access to the outside face of the balustrade, it is reasonable and necessary to use a swing stage to provide a safe working platform.
For those reasons, I find that the Owners Corporation is entitled to the sum of $42,762.54 that had not been agreed.
It follows, and I find, that subject to any further defences to be considered, the Owners Corporation is entitled to damages of $462,797.93 for the cost of rectification.
[29]
H. THE CLAIM BASED ON BREACH OF A DUTY OF CARE IMPOSED BY SECTION 37 OF THE DESIGN AND BUILDING PRACTITIONERS ACT 2020.
[30]
H.1 The Design and Building Practitioners Act, 2020
Section 37 is in Part 4 (sections 36 to 41) of the Design and Building Practitioners Act 2020 (the DBP Act).
It commenced on 10 June 2020 and operates retrospectively. Kirk JA and Griffiths AJA described its retrospective operation in Roberts v Goodwin Street Developments Pty Ltd (2023) 110 NSWLR 557, [2023] NSWCA 5, at [185]:
The operative provision in Pt 4 is s 37, which imposes the statutory duty of care. Importantly, Pt 4 of the Act has retrospective operation, pursuant to Sch 1 cl 5 to the Act. It extends to construction work carried out before the commencement of the Part as if the statutory duty of care was owed by the person who carried out the construction work to the owner of the land and to subsequent owners when the construction work was carried out. That retrospective operation is subject to the limit that the economic loss in question must first became apparent within the 10 years immediately before the commencement of s 37, or on or after the commencement of that section.
Sections 37 to 41 provide as follows:
37 Extension of duty of care
(1) A person who carries out construction work has a duty to exercise reasonable care to avoid economic loss caused by defects -
(a) in or related to a building for which the work is done, and
(b) arising from the construction work.
(2) The duty of care is owed to each owner of the land in relation to which the construction work is carried out and to each subsequent owner of the land.
(3) A person to whom the duty of care is owed is entitled to damages for the breach of the duty as if the duty were a duty established by the common law.
(4) The duty of care is owed to an owner whether or not the construction work was carried out -
(a) under a contract or other arrangement entered into with the owner or another person, or
(b) otherwise than under a contract or arrangement.
38 Economic loss - owners corporations and associations
(1) An owners corporation or an association is taken to suffer economic loss for the purposes of this Part if the corporation or association bears the cost of rectifying defects (including damage caused by defects) that are the subject of a breach of the duty of care imposed under this Part.
(2) The economic loss suffered by an owners corporation or association for the purposes of subsection (1) includes the reasonable costs of providing alternative accommodation where necessary.
(3) Subsection (1) applies whether or not the owners corporation or association was the owner of the land when the construction work was carried out.
(4) Subsections (1) and (2) do not limit the economic loss for which an owners corporation, association or an owner may claim damages under this Part.
39 Duty must not be delegated
A person who owes a duty of care under this Part is not entitled to delegate that duty.
40 No contracting out of Part
(1) This Part applies despite any contracts or stipulations to the contrary made after the commencement of this Part.
(2) No contract or agreement made or entered into, or amended, after the commencement of this Part operates to annul, vary or exclude a provision of this Part.
41 Relationship with other duties of care and law
(1) The provisions of this Part are in addition to duties, statutory warranties or other obligations imposed under the Home Building Act 1989, other Acts or the common law and do not limit the duties, warranties or other obligations imposed under that Act, other Acts or the common law.
(2) This Part does not limit damages or other compensation that may be available to a person under another Act or at common law because of a breach of a duty by a person who carries out construction work.
(3) This Part is subject to the Civil Liability Act 2002.
Section 37 applies to a person who carries out "construction work". Section 36 provides that "construction work means any of the following - (a) building work, (b) the preparation of regulated designs and other designs for building work, (c) the manufacture or supply of a building product used for building work, (d) supervising, coordinating, project managing or otherwise having substantive control over the carrying out of any work referred to in paragraph (a), (b) or (c).".
Further and relevantly for present purposes, s.36 also provides that "building work includes residential building work within the meaning of Home Building Act 1989".
There have been very few cases applying or interpreting these provisions to date.
Kirk JA and Griffiths AJA surveyed the legislative history and relevant mischief to which Part 4 is directed in Roberts at [195] - [210]. The DBP Act was enacted in the context of broader public concerns about building defects highlighted by, for example, the much-publicised cases of widespread and serious defects in the Mascot Towers and Opal Tower buildings in Sydney. The DBP Act sought to address some of the problems by requiring various design and building practitioners to be registered and to comply with various regulatory requirements. Part 4 of the Act specifically sought to overturn the effect of the High Court's decision in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185. Their Honours explained that the High Court held in Brookfield that the builder of strata-titled serviced apartments owed a duty of care to the registered proprietor and property developer, but not to the respondent owners corporation. In brief, the effect of the decision was that a builder's duty of care to avoid economic loss resulting from latent defects in a property stopped with the first purchaser, absent special cases involving vulnerability (such as the plaintiff's incapacity or limited capacity to protect itself from economic loss arising from a builder's conduct).
The use of the phrase "economic loss" in s.37 and s.38 no doubt takes up the distinction between physical injury (or damage) and economic loss (or pure economic loss) recognised by the common law and applied in Brookfield.
In Brookfield the owners corporation brought proceedings against the builder to recover damages for the cost of repairing what were said to be latent defects in the common property of the serviced apartment complex. The owners corporation contended that the builder was liable in negligence for breach of a duty "to take reasonable care to avoid a reasonably foreseeable economic loss to the (owners corporation) in having to make good the consequences of latent defects caused by the building's defective design and/or construction" (at [63] per Crennan, Bell and Keane JJ). Their Honours said that the loss for which the Owners Corporation claimed damages "is truly characterised as economic loss" (at [67]). They explained further (at [124]) that "it is of critical importance to appreciate that the loss for which the respondent seeks damages is the expense which it is obliged to incur as a result of the emergence of latent defects after its acquisition of the common property. It was common ground that this expense is properly understood as a species of economic loss as distinct from damage to its property.".
Hayne and Kiefel JJ made the same point at [47]. Their Honours said: "The nature of the damage suffered is important to resolving the issue about duty of care. The defects which the Owners Corporation identifies in the common property are not alleged to have caused any damage to person or property. Steps can be taken, therefore, to prevent damage to person or property. If the Owners Corporation has suffered damage, that damage is pure economic loss.".
In his second reading speech in the Legislative Council on 19 November 2019, the responsible minister said that what became section 37 "makes it clear that a beneficiary of the duty will be entitled to seek damages for the breach of the duty as though the duty was established by the common law. This means that while a duty of care will be automatically owed, any person who wants to proceed with litigation will be required to meet the other tests for negligence established under the common law and the Civil Liability Act 2002. This includes determining that a breach of the duty occurred and establishing that damage was suffered by the owner as a result of that breach. The hurdle of establishing that a duty is owed, however, will no longer be required, saving valuable court time and expense for the owner.".
Section 41(3) of the DBP Act says that Part 4, and therefore section 37, is subject to the Civil Liability Act 2002.
In The Owners-Strata Plan Number 87060 v Loulach Developments Pty Ltd (No 2) [2021] NSWSC 1068, Stevenson J held that s.5B of the Civil Liability Act 2002 applies to a claim for damages for breach of the statutory duty in s.37 of the DBP Act. His Honour said this meant, in light of the authorities, that a plaintiff alleging a breach of duty of care by builder must identify the specific risks that the builder was required to manage, and the precautions that should have been taken to manage those risks (at [42]).
In my opinion, another provision of the Civil Liability Act 2002 that would apply is s.5D. It addresses the question of whether negligence caused a particular harm.
In The Owners - Strata Plan No 84674 v Pafburn Pty Ltd [2023] NSWCA 301, the Court of Appeal held that Part 4 of the Civil Liability Act 2002, which deals with proportionate liability and apportionable claims, does not apply to a claim for damages for breach of the statutory duty because, amongst other reasons, the statutory duty is expressed to be non-delegable.
Adamson JA said (at 14]) that a builder remains entitled to cross-claim against concurrent wrongdoers, it just can't reduce its own liability to the owner for the whole loss.
In giving their separate reasons for that decision both Adamson JA and Basten AJA addressed the general nature of a claim under s.37. At [11], Adamson JA said that s.37 evinces a clear legislative intention not only to extend the scope of the common law duty of care to owners and subsequent owners of land on which building work is done but also to create a new cause of action deriving from statute which is to be treated as if it were a cause of action in tort. At [70], Basten AJA referred to the deeming phrase "as if" in section 37(3) and said that to give effect to the deeming, the claim must be treated as one brought under the common law for all purposes, including addressing the application of the Civil Liability Act.
An example of a successful claim for damages for breach of the statutory duty under s.37 is provided by the decision of the Court of Appeal in Kazzi v KR Properties Global Pty Ltd t/as AK Properties Group [2024] NSWCA 143. The Court of Appeal found that Mr Kazzi breached his statutory duty of care, as the nominated supervisor of works, by making decisions as to the progress and manner of the works that gave rise to the defects on which the owners relied (per Mitchelmore JA at [126]; Gleeson JA and Basten AJA agreeing).
[31]
H.2 The Owners Corporation's case
Mr Marshall (Counsel for the plaintiff) summarised the Owners Corporation's case against Mr Da Silva in his written closing submissions as follows:
244.1 Mr Da Silva owed the Owners Corporation the duty to exercise reasonable care to avoid economic loss caused by defects in or related to the Lamia building and arising from the construction work performed by Mr Da Silva.
244.2 Mr Da Silva, in order to meet that duty of care, was required to either:
1. perform the construction works in accordance with the Building Code of Australia (BCA) and the relevant Australian Standard (AS 4654.2 - 2012); or
2. if Mr Da Silva was instructed to perform the construction works in a manner inconsistent with the BCA and the Australian Standard, to expressly warn the Owners Corporation in writing of the likely economic loss that would be caused if Mr Da Silva so performed the construction works; or
3. if the instructions continued such that Mr Da Silva was unable to perform (or was prevented from performing) the construction works in accordance with the BCA and the relevant Australian Standard, Mr Da Silva should have refused to perform the construction works.
244.3 Performing the construction works in accordance with the BCA and the relevant Australian Standard (AS 4654.2 - 2012) would have involved Mr Da Silva doing those things pleaded at paragraph 38 of the Amended Statement of Claim. Paragraph 38 of the Amended Statement of claim set out a list of 19 precautions that it was alleged ought reasonably to have been taken by a reasonable person in Mr Da Silva's position. Mr Da Silva did not do so.
244.4 Having failed to exercise such reasonable care, Mr Da Silva failed to discharge his duty of care and was therefore negligent.
244.5 By so failing to exercise such reasonable care, Mr Da Silva has caused economic loss to the Owners Corporation in the form of damage to the common property of the building which the Owners Corporation is liable to repair, damage caused to the owners' property by the defective common property and costs that must be incurred by the Owners Corporation in removing the defective work performed by Mr Da Silva and replacing it with compliant work.
244.6 The scope of work required to achieve this outcome, and the cost of doing so, has been agreed by all the experts in the proceedings. The cost is $462,707.93.
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H.3 Mr Da Silva's response
I have already set out in general terms at the start of these reasons Mr Da Silva's response to the claim based on a breach of the statutory duty. For ease of reference I repeat it now:
245.1 Mr Da Silva accepts that he owed the Owners Corporation the duty of care stated in s.37 because the work he did was construction work.
245.2 He says that the "construction work" he carried out was the work he actually did, which he says was in accordance with the varied scope of works agreed by the parties.
245.3 He says that the economic loss of the Owners Corporation was caused by the deficient or absent waterproofing relating to the sliding door and window fixtures, and not arising from the construction work he carried out (T268).
245.4 Mr Da Silva says that reasonable care did not require him to have any involvement in rectifying defects in the existing sliding door and window fixtures (T267), or to undertake significant work that he had been instructed not to do and for which he would not be paid (T270).
245.5 He says if the scope of works was varied during the course of the work such that compliance with the Building Code of Australia and Australian Standards were dispensed with (which he says was the case), reasonable care did not require him to then stop the work rather than complete it (T271).
245.6 Mr Da Silva also raises a number of defences based on provisions of the Civil Liability Act, 2002.
In addition to accepting that he owed the Owners Corporation the duty of care stated in section 37 because the work he did was construction work, Mr Da Silva made a number of relevant admissions on the pleadings. He has admitted that:
246.1 The Lamia building is a "building" within the meaning of section 36 of the DBP Act.
246.2 The works were "residential building work" within the meaning of the Home Building Act, 1989, and "building work" and "construction work" within the meaning of s.36 of the DBP Act.
246.3 The owners corporation is the "owner of the land" and an "Owners Corporation" within the meaning of s.36 of the DBP Act.
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H.4 My analysis and findings
Many of Mr Gray's submissions for Mr Da Silva raise matters I have already considered and determined when dealing with the claim for breach of contract. It is simplest for me to address those submissions first.
As to the submission that the "construction work" Mr Da Silva carried out was the work he actually did, which he says was in accordance with the varied scope of works agreed by the parties, I have already found that I am not satisfied that there was a varied scope of works agreed by the parties.
As to the submission that the economic loss of the Owners Corporation was caused by the deficient or absent waterproofing relating to the sliding door and window fixtures, and not arising from the construction work he carried out, I have already dealt with this issue in considering causation for the breach of contract. I have already found that the work Mr Da Silva carried out in breach of the Australian Standards and Building Code of Australia was the cause of the water ingress.
As to the submission that Mr Da Silva says that reasonable care did not require him to have any involvement in rectifying defects in the existing sliding door and window fixtures, or to undertake significant work that he had been instructed not to do and for which he would not be paid, this raises what is really now a false issue on the facts as I have found them and on the way the Owners Corporation puts its case.
As to the submission that if the scope of works was varied during the course of the work such that compliance with the Building Code of Australia and Australian standards were dispensed with (which he says was the case), reasonable care did not require him to then stop the work rather than complete it, I have already found that I am not satisfied that the scope of works was varied during the course of the work such that compliance with the Building Code of Australia and Australian standards were dispensed with.
I move then to Mr Marshall's submissions for the Owners Corporation.
I find that Mr Da Silva owed the Owners Corporation a duty to exercise reasonable care to avoid economic loss caused by defects in or related to the Lamia building and arising from the construction work performed by Mr Da Silva. This duty of care arises from section 37 of the DBP Act.
I find that in order to meet that duty of care Mr Da Silva was required to perform the construction works in accordance with the Building Code of Australia and the relevant Australian Standard (AS 4654.2-2012). That requirement is consistent with the evidence of the 3 expert witnesses (Mr Taylor, Dr Cunniffe and Mr Hamilton) and Mr Da Silva's obligations under the contract.
I find that Mr Da Silva breached that duty of care by failing to perform the construction works in accordance with the Building Code of Australia and the relevant Australian Standard. I have already made findings in that regard when considering the breach of contract.
Bearing in mind that section 5B of the Civil Liability Act 2002 applies I make the further following findings:
256.1 I find that the risk of harm including damage to property was foreseeable. The risk was that if the waterproofing work was not performed in accordance with the Building Code of Australia and Australian Standard then it may fail. Mr Da Silva conceded as much in cross examination and 2 of the 3 experts gave unqualified support to that proposition.
256.2 I find that the risk was not insignificant. It was not far-fetched or fanciful.
256.3 I find that a reasonable waterproofer in Mr Da Silva's position would have taken the precaution of complying with the Building Code of Australia and the Australian Standard. This is something he had agreed to do under the contract in any event.
I have already found that the work Mr Da Silva carried out in breach of the Australian Standards and Building Code of Australia was the cause of the water ingress. The parties have agreed that the work needs to be redone and the Owners Corporation is entitled to damages for the full cost of rectification That addresses factual causation under section 5D(1)(a) of the Civil Liability Act 2002. As to section 5D(1)(b), it is appropriate in my view for the scope of Mr Da Silva's liability to extend to the harm caused bearing in mind that the duty of care is imposed by statute and the mischief to which the statute is directed as explained by Kirk JA and Griffiths AJA in Roberts.
I have already dealt with the quantification of damages.
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I. IS MR DA SILVA ENTITLED TO SUCCEED ON ANY DEFENCES BASED ON PROVISIONS OF THE CIVIL LIABILITY ACT, 2002?
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I.1 Contributory negligence
Rule 14.16 of the Uniform Civil Procedure Rules provides that "A defendant who relies on contributory negligence must plead specifically the contributory negligence.".
Mr Da Silva pleaded contributory negligence in paragraphs 53 to 55 inclusive of his defence.
In an outline of written submissions provided to the court and to the Owners Corporation on the morning of the last day of the hearing, Mr Gray set out an entirely new allegation of contributory negligence unrelated to the pleaded defence. He addressed the written submission allegation of contributory negligence in his oral closing submissions.
Mr Marshall for the Owners Corporation addressed the new allegations of contributory negligence very briefly in his oral reply, as best he could having only been presented with them earlier that morning and listening to Mr Gray speak. Mr Marshall did not take a pleading point, but that that does not remove the force of rule 14.16.
In the circumstances I do not propose to address Mr Gray's written or oral submissions about contributory negligence any further.
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I.2 Proportionate liability
Mr Da Silva also pleaded a proportionate liability defence under Part 4 of the Civil Liability Act, 2002. Mr Gray referred to it also in his outline of written submissions.
Section 34(3A), which is in Part 4, provides that "This Part does not apply to a claim in an action for damages arising from a breach of statutory duty under Part 2C of the Home Building Act 1989 and brought by a person having the benefit of the statutory warranty". Section 18B is in Part 2C of the Home Building Act 1989. I have found that the Owners Corporation has the benefit of the statutory warranty.
As I have already mentioned, in The Owners - Strata Plan No 84674 v Pafburn Pty Ltd [2023] NSWCA 301, the Court of Appeal held that Part 4 of the Civil Liability Act 2002 does not apply to a claim for damages for breach of the statutory duty because, amongst other reasons, the statutory duty is expressed to be non-delegable.
Having regard to those matters, I do not propose to address the question of proportionate liability any further.
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J. COSTS
In the event that the Owners Corporation succeeded in its claim it submitted that the court should invite subsequent submissions on costs.
I therefore defer making any decision about costs and I will list the matter for directions.
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K. MY ORDERS
I have found that the Owners Corporation is entitled to damages in the sum of $462,707.93 for breach of contract and for breach of the statutory duty of care.
The parties agreed that this sum should be reduced by $145,000 to reflect the contribution to be paid to the Owners Corporation through its settlements with the second and third defendants, Mr Haralambis and Bellmont Façade Engineering Pty Ltd.
In those circumstances it is appropriate, as the Owners Corporation submitted, to give judgment for the Owners Corporation against Mr Da Silva in the sum of $317,707.93.
I make the following orders:
273.1 Judgment for the plaintiff against the first defendant in the sum of $317,707.93.
273.2 List the matter for directions before me at 9:30 AM on Friday 12 July 2024.
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Amendments
05 July 2024 - 5 July - corrected table of contents placement
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Decision last updated: 05 July 2024