WINTOUR v ALLEN

The appellant filed a defence but ultimately relied on a Notice of Grounds of Defence filed on 10 July 1986. He also filed a cross-claim seeking damages upon the basis that the respondent had breached his contractual duty to perform work of a professional standard within a reasonable time. The appellant said that the work was not up to standard and that it had not been performed within a reasonable time.

He also relied upon these two allegations as grounds of defence and in addition claimed as follows:

"Further and in the alternative the defendant states that the work for which the plaintiff claims payment was not done in accordance with the defendant's instructions for the engineering plans provide for levels at a higher level than the minimum RL of 2.1 datum as specified in paragraph J of the Council's letter dated 24 November 1981."

These appear to have been the only defences which are presently relevant. I should, however, mention that the appellant paid the respondent $5,000 in September 1983 and initially claimed that that was in payment of all the respondent's claims. However, it appears clear from the invoice which he paid that the claim was made in respect of non-engineering services of a detailed nature and that the claim that the respondent has mounted in this action is entirely separate.

The hearing of the case commenced at Murwillumbah on 29 August 1988 and continued till Friday 2 September when it was adjourned to a date to be fixed. In the event it was fixed fairly premptorily as a consequence of Judge Ward's need for medical treatment. The appointed date was 14 October 1988. The appellant, who was under cross-examination at the time, did not appear. Neither did his wife, nor a Mr Border, whom he wished to call. His counsel was at the hearing and sought an adjournment upon the basis that the appellant and his witnesses had been unable to secure transport from Murwillumbah to Sydney. Evidence was led before the judge that there was an available means of transport of which the appellant and his witnesses could have availed themselves. In these circumstances, and having regard to an impression that the appellant was seeking to delay the evil day, his Honour refused the adjournment. He then concluded the hearing of the case at the end of which he found a verdict and judgment for the

respondent in the sum of $48,683.00. He also found a verdict for the respondent in the cross action and ordered the appellant to pay the respondent's costs.

The appellant has appealed and there is in the appeal papers a supplementary notice of appeal raising ten separate grounds of appeal. All of these have not been pressed. Unfortunately, the appellant withdrew instructions from his solicitor and counsel immediately preceding the hearing of the trial and the appeal has been argued by the appellant himself. This has necessarily meant that the Court has lacked the assistance of counsel although it must be said that the appellant has a very keen grasp of the facts of the case.

Initially he sought to adduce further evidence but his Motion was refused for reasons which have already been given. He then pressed on with submissions in respect of grounds of appeal | to 6 and has helpfully handed to the court his written submissions upon the basis of which he seeks that the appeal be upheld. Although six grounds were pressed it is apparent that there is a degree of repetition and it is convenient to group the appeal into three separate grounds as follows:

(1) His Honour erred in declining to grant an adjournment on 14 October 1988;

(2) His Honour erred in holding that the respondent had performed the engineering work entitling him to payment.

(3) His Honour erred in holding that the respondent had performed his task within a reasonable time. The first ground of appeal may be shortly disposed of.

His Honour concluded that the Court was being trifled with. The appellant had shown every indication of endeavouring to delay the disposition of the case and his failure to appear in Court on 14 October without good reason provided no basis for the grant of an adjournment. In addition his Honour took the view, which has not been challenged, that the evidence which the appellant wished to call and which led to the making of the application for an adjournment was almost certainly inadmissible.

The granting of an adjournment lies within the discretion of the trial judge and in view of the matters to which I have drawn attention I can see no basis at all for a submission that the trial judge erred in this case. On the contrary once he was faced with evidence which showed that the appellant had made very limited endeavours to reach Sydney and that he would have been able easily to secure a passage to Sydney if he had made reasonable enquiries it seems to me that his Honour took the correct course. The ground of the application was tenuous, even presumptuous, accordingly the ground fails. I should add that I have decided this point upon the evidence and material adduced before Judge Ward. This course followed the earlier decision to deny the appellant's motion for leave to adduce further evidence.

Even if, however, the Court had had regard to the additional material the result would be the same. The conflict between the new material and that originally produced before Judge Ward was spelt out by me in my earlier judgment and the new material serves only to support the view that the appellant was not frank with the Court when he sought an adjournment or when he advanced his reasons for seeking to adduce further evidence.

The second ground of appeal requires some reference to the facts which are somewhat complicated.

The respondent said that in mid-1982 the appellant approached him and asked him to perform engineering works for him in connection with a sub-division then being developed by the appellant. Prior to this time the appellant had been notified that his application to subdivide his property had been approved.

Approval was granted subject to a number of conditions including the dedication of a foreshore reserve, the upgrading of a section of Creek Street to a standard adequate to cater for the proposed development and "the filling of the subject land to a minimum RL of 2.10 on datum. Evidence is required that such filling would not adversely affect the adjoining land".

The respondent regarded the last condition as ambiguous in that it did not specify whether all the subject land had to be filled to that minimum RL or whether the minimum had to be achieved at a particular point. He did not feel that this ambiguity was resolved by the special provisions of Interim Development Order No 2 of the Tweed Shire Council Local Environmental Plan. The relevant provision provided that the site should be filled to a level not less than the road centre line level at the front of the site.

His opinion was supported by Mr Hill an independent consulting engineer who said in cross-examination "Condition J says filling the subject land to a minimum of 2.1. My argument would be: Is that 2.1 the property boundary, the house, the property alignment, and as I just said, the location of that 2.1 can have quite a significance over the overall subdivision." Later he said that the only doubt in his mind would be whether 2.1 was the property line or the building line. Nonetheless there was, in his view, ambiguity. Although the appellant has argued that there is no force in this evidence it appears that he himself agreed generally with the proposition that ambiguity arose from the condition when giving his evidence at the trial.

The point about this evidence is that the respondent contended that he could not prepare the engineering plans until this matter had been resolved. He was not concerned about this, he said, because at that time the appellant was endeavouring to arrange a joint venture of the sub-division and was in no hurry for the engineering plans to be submitted. He was also waiting until the deposited plan was registered but three days before this occurred on 26 November 1982 the appellant lodged an appeal to the Land and Environment Court against conditions A, F and K of the approval which appeal, although it did not concern the question of filling, complicated the matter.

Following the lodging of the appeal the appellant and respondent and the Council had a conference with an assessor of the Land and Environment Court following which the respondent prepared a new concept plan. The original survey plan had not been drawn to scale and had involved intrusions into the foreshore protection area. The new plan was drawn to scale and managed to achieve two extra blocks of land. It was submitted to Council on 23 March 1983 by the respondent who said in his accompanying letter, inter alia, "With regard to Condition J it has been assumed that Council's standard cross-sections will apply and that the minimum RL of 2.1 metres AHD will apply at the building line, ie six metres from the real property line". On 11 April 1984 the Council accepted the plan as a substitute plan subject to a number of conditions, one of which explained original condition J. What the Council said was that "Item J of the approval required the filling of the land to a minimum height of RL 2.1 AHD. This figure is to be applied by adopting a minimal level of 2.40 at the property line so that no part of any allotment lies below this level, other than those areas where fill is graded to match existing property levels".

The appellant, through his solicitor, then filed, on 20 May 1983 an amended appeal attacking the imposition of condition J and a number of the other conditions. Following the lodgment of this appeal discussions took place between the respondent, representing the appellant, and the Council and on 2 August 1983

the Council proposed a compromise in which a relative level of 2.1 at the property line and 2.4 at the building line was suggested. After some delay Jack Woodward and Partners, who claimed to be the solicitors for Mr Wintour, wrote to the Council on 25 October 1983 agreeing that engineering plans would now be re-submitted in accordance with the amended levels set out in the Council letter of 2 August. The solicitors also said that the appeal would be withdrawn. Although the appellant and his representatives took the view that sufficient works had been done on the property to prevent the original approval lapsing there was some concern that the Council might take a different view. Accordingly, some expedition was effected. On 4 November 1983 the respondent lodged plans which turned out to be inadequate. He prepared more detailed plans and on 24 November 1983 the appellant picked them up from the respondent and took them to the Council where he lodged them and paid the relevant fees.

Following the taking of this action the respondent wrote a long letter to the appellant setting out all that he had done and enclosing the Council letter of 2 August 1983, the letter from Jack Woodward and Partners and other relevant material which was passing at that time. The response was a letter from the appellant complaining about a lack of information but it is significant that in this letter the appellant makes no complaint about the actions of Jack Woodward and Partners nor the action of the respondent in lodging plans with the reduced levels set out by the Council in its letter of 2 August 1983.

Then on 11 April 1984 the Council wrote to the appellant indicating its disagreement with his expression of his view that substantial commencement upon the sub-division had taken place by November 24 1983 and saying that on application following the withdrawal or determination of the appeal fresh approval would be given subject to compliance with a number of conditions including the condition relating to fill which had been expressed by them in the previous August. On 19 April 1984 the Council wrote to the respondent acknowledging receipt of the balance of engineering plans and advising that the plans would be approved without major amendment following withdrawal or determination of the appeal.

On 7 August the application before the Land and Environment Court was compromised in conjunction with the compromise of other proceedings brought by the Council against the appellant. The relevant agreement involved the discontinuance of the appeal relevant to the present proceedings and the Council's promise to consent to the appellant's application in the terms set forth in its letter of 11 April 1984.

Following the settlement of the Court proceedings Council approved the engineering plans on 18 September 1985. It was at this stage, according to the case which the respondent sought to make at the trial, that he became entitled to payment of his fees. Judge Ward agreed with him and, as there had been no dispute about his method of quantification of his fees, entered the judgment which I earlier set out.

The appellant says his Honour erred. The respondent was obliged to produce engineering plans of a professional standard and sufficient to secure approval to the sub-division within a reasonable time. He had produced plans which were not of a professional standard; had not led to his securing development approval and had not been produced within a reasonable time. Accordingly, the respondent had failed to meet his contractual obligations and was not entitled to anything for the work he had done.

The appellant submitted that the respondent had received his instructions in 1982 and should have produced plans sufficient to secure approval within a few months. Instead he had not produced final engineering plans until April 1984. Even then the plans had only led to the approval of a sub-division upon the terms as to fill which were set out in the letter from Council dated 11 April 1984. This was not satisfactory to the appellant as he had instructed the respondent to prepare plans to achieve an approval upon the terms originally secured in November 1981. For reasons which will later appear the appellant submitted that the approval in September 1985 was not a valid approval upon which the respondent could base a claim for his fees and therefore the claim should have failed.

The obvious difficulty with the appellant's case is that there appears to be an abundance of evidence which indicates that the appellant was aware of the respondent's concern about the ambiguity in condition J in the original approval and had given instructions at various times to the steps which had been taken by the respondent and solicitors on his behalf. There was, for instance, the letter from Jack Woodward and Partners dated 25 October 1983 expressing their instructions to the effect that the engineering plans would be submitted with the amended levels sought by the Council. There is also the occasion on which the appellant uplifted the engineering plans and took them to the Council himself on 24 November. Apart from all of that there is the long letter written by the respondent to the appellant setting out what the respondent had done in the matter and enclosing the most relevant correspondence. If this letter disclosed actions of the respondent and the appellant's solicitors which had not been approved by him then he had every opportunity to say so. In his reply he did not even hint that actions had been taken without his instructions.

Undaunted the respondent has pressed upon this court submissions that he did not know that either Woodward or the respondent were processing his application upon the basis of the amended reduced levels and he had certainly not instructed them to do that. He had not seen the letter from Jack Woodward at any relevant time nor had he understood the engineering plans. Furthermore, he says that the terms of settlement were signed by his counsel in a duplicitous manner designed only to prejudice him. He says that he saw the handwritten terms of settlement before the relevant terms were included in it and that he never gave instructions to his counsel to agree to the terms which appear in the document filed in court. In short, he says that he never agreed that the engineering plans should be submitted with the amended reduced levels.

I indicated earlier that he also contended that the approval of 18 September 1985 was of no effect and therefore the respondent had failed to perform his part of the contract.

Between October 1985 and November 1986 no further action was taken by the appellant. In the latter month he filed an application in the Land and Environment Court in effect challenging the Council's refusal to allow him to dredge the creek for fill. Then in March 1987 solicitors who had recently been retained by him filed an amended application seeking, inter alia, a declaration that the original approval dated 24 November was a valid and subsisting approval. That application was heard in the Land and Environment Court and the appellant was successful in obtaining the declaration that the November 1981 approval was subsisting. The Court also declared that the Council was not entitled to impose a condition upon the approval requiring the filling of the land to a minimum RL greater than 2.10 on datum (the words used in the original approval).

Following this decision the Council decided that it could not permit two approvals to remain on the record and eventually the later approval, that is the approval of September 1985, was rendered null and void so that the only remaining valid approval was that granted in 1981.

Accordingly, the appellant argued, the respondent had not prepared engineering plans leading to successful valid approval for sub-division but had produced plans which were quite irrelevant to the approval granted in November 1981 which was based on a different RL than the later level. Accordingly, he had failed to make good his case.

All these submissions were properly made to Judge Ward. He was faced with a conflict of evidence between the appellant and the respondent and he made a clear finding that the appellant was an unsatisfactory witness and that the respondent's evidence should be preferred where there was conflict except in those cases in which the appellant's version was supported by documentary evidence. In one area that finding is critical. The respondent said that the appellant had given him clear instructions to prepare the engineering plans in accordance with the amended reduced levels and that he had also advised him that he, the appellant, would withdraw his appeals to the Land and Environment Court. There was, a clear statement by the appellant that he would accept the compromise levels offered by Council. Once that evidence is accepted, and it seems to me to fit in far more happily with the documentary evidence in the case than the appellant's evidence, then a finding in the respondent's favour on the issue whether the appellant had given him instructions to prepare plans and seek approval on the basis of amended reduced levels was bound to be decided in the respondent's favour. The court simply rejected the appellant's denials and found that the respondent had acted in accordance with instructions. In so doing the trial judge has not been shown to be in error. Indeed, in my view the decision on this aspect of the case was the only proper decision which could be made. Acceptance of the appellant's evidence required the rejection of a deal of documentary evidence, the acceptance of duplicitous conduct by the appellant's own counsel in the Land and Environment Court and some form of conspiracy between Mr Woodward the solicitor and the respondent. The case is, at best, highly improbable.

Furthermore acceptance of the respondent's evidence involves the rejection of the other two contentions advanced by the appellant. The first is that the respondent failed to produce the engineering plans within a reasonable time and to process the sub-division application expeditiously. The respondent explained that from time to time the appellant wished the matter to be held pending his endeavours to secure a joint venturer and in addition the problem of the ambiguity underlying condition J in the original grant posed a significant impediment in the formulation of the engineering plans.

The appellant denies that there was any ambiguity. He has contended in this Court that the Council policy at Hastings Point was to require a building line RL 2.10 so that it was.3 below the level of the habitable area of all residential buildings. He has submitted that this flows from the special provisions in the Interim Development Order and that a statement by the respondent in his letter of 22 March 1983 to the Council makes it quite plain that there was no relevant ambiguity. His Honour rejected this argument and was, in my opinion, correct to do so. The statement in the letter is no evidence of a lack of ambiguity but rather points to the respondent seeking to gain an advantage for the appellant. The special provisions tend to make the point even more obscure rather than to clarify

the ambiguity. Having regard to those factors I do not find that the appellant has shown that his Honour erred in rejecting the claim that the respondent had failed to proceed expeditiously.

The appellant's last submission is a rather odd one which, if correct, could lead to an unjust result. However, I do not think it has any merits. The respondent's case in the ultimate was that he was given certain instructions, that is, to prepare engineering plans based on the amended RL in order to enable the appellant to gain sub-division approval. He carried out his instructions to the letter and accordingly, is, in my opinion, entitled to payment. It is not to the point that the appellant later changed his mind and put into play a sequence of events which led to that approval being rendered null and void.

In my opinion the appeal should be dismissed with costs.

The order of the Court will be that the appeal is dismissed with costs.