Zhao v Goodman & Anor

Zhao v Goodman & Anor - [2010] NSWCA 2 - NSWCA 2009 case summary — Zoe

[12]

(a) The identification of the contract between the parties 3 The second respondent is the husband of the first respondent. The second respondent met the appellant when the latter was undertaking construction works on a property opposite the premises of the first respondent's parents. They entered into discussions with a view to the appellant being engaged to construct a dwelling house on the property. His Honour noted at [3] that it was common ground that the second respondent acted as agent of the first respondent at all relevant times. 4 During the course of negotiations, a number of documents were created. These relevantly included: ■ an itemised quotation totalling $533,800 (the alleged contractual quotation) dated 25 January 2000 and initialled by the appellant and the first respondent (Blue 3, 1175); and ■ a Department of Fair Trading Standard Form Home Building Contract, dated 1 February 2000, in booklet form signed by the appellant and first respondent (the Home Building Contract) (Blue 3, 881). 5 His Honour found (at [14]) that it was common ground that a final contract was concluded between the parties on a date in either late January or early February 2000 when the appellant met with the respondents at the first respondent's parents' house (the meeting). However, the parties disagreed as to the sequence in which the above documents came into existence and which of them governed their contractual relationship. 6 The respondents contended that the contract between the first respondent and the appellant was constituted by the Home Building Contract and incorporated documents including the specifications and drawings and that this contract was signed by the parties during the course of the meeting. 7 The contract price in the Home Building Contract was stipulated to be $533,800 (Blue 3, 886). Its signature page (Blue 3, 910) contains the signatures of the appellant as builder and first respondent as owner each of which was witnessed by the second respondent. The date of the contract is stated to be 1 February 2000. The second respondent purportedly inserted this date some time after the meeting to reflect the date that a deposit of $25,000 was paid to the appellant. 8 Stapled to the inside cover of the Home Building Contract (at Blue 3, 883) was a typed quotation (the booklet quotation). Except for some handwritten notes made by the second respondent next to some of the items, that document is identical to the alleged contractual quotation (for the details of which, see [8] below). The booklet quotation appears to have been initialled by the appellant. That quotation reveals a total price of $533,800 comprising a fixed sum of $375,000 and prime cost (PC) items totalling $158,800. 9 The appellant agreed that he signed the Home Building Contract and that he discussed the booklet quotation with the respondents. (Although he initially denied having signed the booklet quotation, this was conceded in cross-examination.) However, he contended that within minutes of his signing of the Home Building Contract, that agreement was discarded and replaced with another contract constituted by the alleged contractual quotation and certain oral terms. Essentially, the appellant asserted that the respondents had told him at the meeting that they wanted to save money and that he should not follow the architect's specifications incorporated into the Home Building Contract but that the second respondent would instruct him as to the nature of the works that he was to undertake. 10 The parties therefore agreed, so the appellant contended, to take responsibility for the jobs that they respectively completed and that the contract price would be reduced to account for any works that the second respondent himself arranged for third parties to complete. In light of this agreement, the second respondent typed up the alleged contractual quotation. It reflected the same price as that contained in the Home Building Contract, that is, $533,800, which was formulated from an itemised list of works and prices. It was also identical to the booklet quotation except for the second respondent's handwritten notes thereon. The alleged contractual quotation was signed by the appellant and the first respondent and dated 25 January 2000 in handwriting. The appellant contended that this document, combined with oral instructions given to him by the second respondent from time to time, formed the basis of the contractual relationship between the parties. 11 The primary judge held (at [16]) that on both the appellant's and the respondents' case with respect to which document constituted the contract between them, there was no doubt that the contract price was $533,800. (It was agreed that an additional $10,000 was to be paid to the appellant if the respondents decided to proceed with the construction of a fourth bedroom, which they ultimately did, bringing the total contract price to $543,800.) 12 However, his Honour was required to determine the circumstances in which each of the documents referred to at [4] above came into existence. He found (at [16]) that the appellant's assertion that the alleged contractual quotation was prepared in order to become the basis of the contract after the preparation of the booklet quotation and the signing and discarding of the Home Building Contract, was "entirely unreliable". 13 His Honour preferred the second respondent's evidence that the alleged contractual quotation was prepared before the iteration of that document constituting the booklet quotation. He found (at [17]) that the alleged contractual quotation was simply the final quote in which the agreed upon negotiated price of $533,800 was recorded and that the booklet quotation came into existence subsequently, when the second respondent made handwritten notes on a copy of the pre-existing document. His Honour also noted (at [17]) that the booklet quotation, stapled to the inside cover of the Home Building Contract, was only relevant insofar as it reflected the manner in which the contract price was arrived at and thus the objective intention of the parties as to price. He stated that he was satisfied that none of the discussions alleged by the appellant to the effect that the Home Building Contract was discarded, varied, replaced or renegotiated took place at the meeting. 14 His Honour therefore found (at [18]) that the contract that governed the building works, the subject of the dispute, was comprised of the Home Building Contract dated 1 February 2000. He continued:

[18]

(b) The claim for rectification of defects and completion of works 17 The first respondent's claim for the cost of rectifying defective work was based upon the alleged negligence of the appellant as well as his alleged breaches of the express warranties contained in clause 8 of the Home Building Contract and the warranties in the same terms which were implied pursuant to s 18B of the Home Building Act 1989 (the Act). That section provides: "The following warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work: (a) a warranty 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, (b) a warranty that all materials supplied by the holder or person will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new, (c) a warranty that the work will be done in accordance with, and will comply with, this or any other law, (d) a warranty that the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time, (e) a warranty 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, (f) a warranty that the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the person for whom the work is done expressly makes known to the holder of the contractor licence or person required to hold a contractor licence, or another person with express or apparent authority to enter into or vary contractual arrangements on behalf of the holder or person, the particular purpose for which the work is required or the result that the owner desires the work to achieve, so as to show that the owner relies on the holder's or person's skill and judgment."

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20 The first respondent relied below on the expert evidence of a Dr Bayliss as well as that of Messrs Robinson, Howard and Valencia. The appellant did not call any expert evidence in support of his defence. In addition, the primary judge noted at [29] that he had had the benefit of a view of the property on 26 March 2008 which enabled him to obtain a better understanding of the nature and extent of the defects in the construction work. He was entitled to draw any reasonable inference from that inspection in accordance with s 54 of the Evidence Act 1995. 21 His Honour's consideration of the nature, cause and costs of rectification of each of the alleged defective items is set out below. i. Failure to construct drip grooves on the terrace bulkheads 22 The respondents alleged that the appellant had constructed the eave soffits and external bulkheads of the level 2 and 3 terraces without drip grooves, the absence of which allowed rainwater to penetrate at the external edge and cause damage. They contended that the appellant did not construct the soffits in accordance with the plans and drawings, which required a drip groove to be installed. 23 The appellant responded to this claim to the effect that he had been instructed by the second respondent to produce a square finish to all roof edges, irrespective of the plans, and in particular, that he was instructed not to install drip grooves despite him giving advice to the second respondent that this was necessary to prevent rainwater from blowing inside. The appellant also gave evidence that the relevant drawing did not show that any drip grooves were to be installed. 24 As a result of his findings as to the appellant's credibility, the primary judge did not accept his account that he did not install drip grooves because the second respondent told him not to. He found (at [34]) that the appellant "simply did not understand the detail in the drawings" and (at [36]) that he was negligent and in breach of warranty in respect of his construction of the eave soffits and external bulkheads for the level 2 and 3 terraces. 25 His Honour also found (at [35]) that even if the appellant's evidence in relation to the drip grooves were to be accepted, it could not amount to a defence to the claim for breach of warranty under s 18F in that he did not establish that the deficiencies of which the respondents complained arose from any written instructions contrary to his advice.

[22]

ii. Failure to waterproof the level 3 terraces, the kitchen fountain and the front entry tiles 26 The respondents alleged at trial that there was a failure to properly, or at all, waterproof and/or flash the balconies, terraces and deck, a fountain constructed in the kitchen as well as the front entry tiles. The respondents' expert, Mr Robinson, found minimal to no evidence of waterproofing of these areas upon his inspection of the relevant work. 27 The appellant contended that he did waterproof these areas. However, with respect to the terraces and balconies, his case was that the water damage arose because the respondents had changed their minds and instructed him to install concrete pavers that were thicker and heavier than the intended tiles without reconstructing the terrace and balcony surface levels to accommodate the variation. Although, so he submitted, he warned the second respondent that the pavers were too high and heavy and could damage the membrane, the second respondent instructed him to proceed with the concrete pavers and not the tiles provided for in the specifications with the result that the variation in materials caused the water penetration. 28 At [41] his Honour stated that he preferred the evidence of the second respondent that it was always his intention to use concrete pavers. He found (at [44]) that it was unlikely, having regard to the fact that successful rectification work involving the same type of concrete pavers and no change to the superstructure had been effected, that the height of the pavers was the cause of the water damage, and it was more probable that, in accordance with the evidence of Mr Robinson, a waterproof membrane simply was not installed. 29 Again, his Honour found (at [45]) that even if he were to accept the appellant's account of events, this could not amount to a defence under s 18F of the Act as the appellant did not establish that the deficiencies of which the respondents complained arose from any written instructions that they had given him contrary to his advice. 30 With respect to the front entry tiles, Mr Robinson gave evidence, which his Honour accepted at [78], that the water penetration occurred as a result of inadequate sealing. The primary judge therefore rejected the appellant's contention that water entry was also caused by the increased height of the concrete pavers. 31 Finally, with respect to the kitchen fountain, the appellant suggested that any damage to the waterproofing was caused by the installation of the plumbing for the fountain, for which he had not been responsible. At [72] his Honour found that there was no evidence of any damage caused by the plumbing. He again accepted the evidence of Mr Robinson who, on inspection, had found minimal to no waterproofing of the water holding receptacle of the fountain. 32 The primary judge thus found (at [44], [46], [72]-[73] and [78]-[79]) that the water damage claimed by the respondents in respect of the balconies, terraces, kitchen fountain and front entry was caused by the appellant's failure to properly waterproof the surfaces concerned by the installation of membranes and flashing and that he was negligent and in breach of warranty in respect of these failures. 33 His Honour also found (at [49], [77]) that attempted rectification by the application of a silicon shield or coating over the pavers as suggested by the appellant would be short term and inadequate and that rectification would require the removal of the pavers and the waterproofing of the sub-strata. He thus awarded damages for the cost of rectification and repair of the affected areas on this basis: the sum of $23,878.21 was awarded for the terraces and balconies and the sum of $2,016.63 was awarded for the front entry. The sum of $443.05 was awarded for the kitchen fountain claim. iii. Defective cement render 34 The primary judge noted (at [50]) both on the basis of the report of Dr Bayliss and his own inspection, that much of the render work was defective in that it was uneven and cracked, was salting and shrinking, had lost adhesion and had fallen off or was peeling away. 35 At [52] his Honour recorded the following factors as contributing to the defective render according to Dr Bayliss:

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■ mould and fungi in the sub-floor timbers caused by the absence of ventilation as a result of soil being left against the wall of the building and weep holes having been rendered over; ■ the moisture in the timbers created a haven for termites; ■ that ant capping to one of the bedrooms was not continuous and there were holes in the ant capping as a result of rusting, rendering it ineffective. 43 In the opinion of Mr Howard, the termites had obtained access to the house through a build up of soil that was abutting the external wall above the level of the internal floor of one of the bedrooms (Black 1, 390). No expert evidence on this issue was called by the appellant so that that of the respondents' experts, his Honour found (at [96]), was uncontradicted. 44 The specifications for the works required the installation of a product known as Termimesh (see Blue 1, 312). During the negotiations that led to a reduction in the contract price, the appellant had reduced the allowance made in respect of termite protection from $6,000 to $2,000. It was the appellant's case that the reduction occurred as a result of the abandonment by the second respondent of the requirement for the Termimesh. Instead, the appellant was only required to use a protective spray, and this was indicated by the words 'spray only' written by the second respondent next to the termite protection item on the booklet quotation. 45 Once the contract had been concluded, so the appellant submitted, the requirement for the spray was dispensed with as the second respondent told him that he would arrange for the spraying himself, and another contractor carried it out. 46 In addition, the appellant claimed that he had told the second respondent that a retaining wall needed to be built to prevent soil from abutting the house and allowing termite entry but that the second respondent had said that building such a wall would be too expensive. 47 The second respondent denied the version of events given by the appellant. In particular, he denied that the reduction of price involved dispensing with the requirement for Termimesh or that he had told the appellant not to conduct the spraying. Despite discussions occurring with respect to a retaining wall, according to the second respondent, this was never in the context of termite protection. 48 Having regard to his findings as to the appellant's credibility, the primary judge did not accept the appellant's account of the termite issue, observing at [99] that "[i]t had the flavour of reconstructed evidence tailored to meet the exigencies created by the evidence served on behalf of the [respondents], rather than evidence based on genuine recollection, and I was totally unconvinced by it". 49 His Honour also found at [100] that no preventative termite spraying was ever carried out at the respondents' house, the sub-floor ventilation was inadequate, the ant capping installed was substandard, and that the appellant was negligent and in breach of warranty in respect of these failures. 50 His Honour then considered the cause of the termite damage, finding at [101] that "[t]here is no doubt that entry occurred through the soil and debris left abutting the external wall at a height in excess of the floor level. … But the magnitude and extent of the infestation and the scale of the damage was exacerbated and facilitated by the other factors described by the experts, including the defective ventilation and ant capping". 51 He stated (at [102]) that it was the appellant's responsibility to ensure that soil did not slip onto the site of the building works and to remove building debris that had accumulated. The appellant had created the site conditions for which he could not avoid responsibility. Accordingly, his Honour found (at [103]) that the appellant's negligence and breach of warranty was the cause of the termite infestation. He awarded $53,940.00 for the termite claim and $4,336.40 for the sub-floor ventilation claim. 52 His Honour also remarked (at [104]) that even if the appellant's conversations with the second respondent were to be accepted, they could not amount to a defence to his breach of warranty under s 18F of the Act in that the appellant did not establish that the deficiencies of which the respondents complained arose from any written instructions given to him contrary to his advice. 53 In light of his findings, the primary judge found it unnecessary to decide whether the respondents agreed to excise the requirement for the installation of Termimesh in accordance with the specifications. However, he noted (at [107]) that if this were to become a relevant consideration, he was not satisfied that the parties dispensed with the requirement to install the mesh as no amendment to the specifications was formally recorded and the words "spray only" in the booklet quotation were equivocal. v. Failure to complete the garage ceiling 54 The first respondent claimed that there was a failure by the appellant to fill voids within and complete the painting of the garage ceiling. The appellant conceded that he did not complete the garage ceiling work, but contended that he did not do so because the second respondent had given him a direction to do other work instead. Having regard to his findings in relation to the appellant's credibility, the primary judge did not accept the appellant's explanation as to why he did not complete the work on the garage (at [84]). He awarded $4,420.72 in damages in respect of this item.

[31]

(c) The cross-claim 55 The appellant's cross-claim was brought against both the first respondent and the second respondent, seeking payment for amounts the appellant claimed remained outstanding in respect of various items of work that he had performed and for which he alleged he had not been paid. 56 The primary judge found (at [112]) that there was no basis for the joinder of the second respondent as a cross-defendant, as there was no suggestion that he acted at any time other than as agent for the first respondent and he was not party to the relevant building contract with the appellant. 57 Insofar as the cross-claim against the first respondent depended upon the appellant's case as to the applicable building contract, his Honour rejected it at [113]. In any event, he noted that the appellant would have been unable to enforce the contract he alleged applied (consisting of the alleged contractual quotation and oral terms) on the basis of s 10(b) of the Act which was in the following terms: "A person who contracts to do any residential building work … and who so contracts … under a contract … that is not in writing or that does not have sufficient description of the work to which it relates … is not entitled to damages or to enforce any other remedy in respect of a breach of the contract." 58 In addition, to the extent that the cross-claim against the first respondent relied upon alleged variations to the works contracted for, his Honour rejected (at [116]) this claim on the basis that there was no evidence of any written variations in accordance with the requirements of clause 12 of the Home Building Contract which, as noted above, was the contract found by his Honour to govern the parties' relationship. 59 Furthermore, the primary judge found (at [119]) that the items for which payment was claimed were either part of the works covered by the agreed fixed price, or had already been the subject of payments made by the first respondent above that fixed price.

[36]

64 It is convenient to set out seriatim each of the appellant's challenges to the findings of the primary judge, the respondents' response thereto and my determination of the relevant challenge. 65 However, before doing so it is necessary and relevant to make two observations. The first is that, as noted at [15] above, the primary judge formed an adverse view as to the appellant's credit which infected his findings on those aspects of the dispute between the parties where the issue was whether to accept the evidence of the respondents and/or the experts they called on the one hand, or the uncorroborated evidence of the appellant on the other. The second is that it can be fairly said that most, if not all, of the submissions of the appellant seek to assert that his Honour in effect erred by failing to accept the appellant's evidence. But to succeed in the appeal on this ground requires the appellant to overcome the constraints, where evidence has been rejected by a trial judge on the basis of adverse credit findings, authoritatively stated by the High Court in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 129 [29]. I shall refer further to this constraint when dealing with the individual issues to which I now turn. (A) The documents constituting the construction contract 66 The appellant submitted that his Honour erred in accepting the respondents' account that the Home Building Contract and the documents incorporated by clause 3 thereof governed the agreement between the parties and rejecting the appellant's contention that this agreement was constituted by the alleged contractual quotation as well as oral terms. 67 Before considering this submission, I should clarify that the determination of which documents constituted the building contract between the parties was, in effect, only relevant to the cross-claim. This is because each of the documents asserted by the parties to constitute the agreement between them stipulated an identical contract price. The only difference of any significance between the two asserted agreements was the additional clauses contained in the Home Building Contract, and in particular, clause 12 which related to variations. The import of this clause was that it required a contractor (in this case, the appellant) to provide the owner (in this case, the first respondent) with notice in writing before commencing work on any variations. As the variations alleged by the appellant in the cross-claim were not in writing in compliance with clause 12, a finding that that clause did not apply to the contract between the parties would have assisted the appellant. 68 At the hearing of the appeal, counsel for the respondents agreed that the appellant's assertion that the alleged contractual quotation applied but the Home Building Contract did not was, in essence, only relevant to the appellant's cross-claim. However she also noted that the appellant's assertion that the contract between him and the first respondent included oral terms was relevant to the issue of whether the contract was for a fixed price, as asserted by the respondents, or on the basis that the appellant would perform and be paid for works as and when directed, as asserted by the appellant.

[61]

99 The appellant made no substantive submission with respect to the kitchen fountain issue, such that his Honour's findings with respect to this defect should remain undisturbed. He simply did not believe the appellant's explanation for the problem given the evidence of Mr Robinson that on inspection he found no or minimal waterproofing. iii. Defective cement render 100 In relation to the render issue, the appellant first submitted (Orange 10 and 23) that the evidence of Dr Bayliss and Mr Robinson should not have been admitted or accepted as neither of them were experts in the field of rendering and neither had told the truth in their evidence. Although it is true that Dr Bayliss was academically trained as a chemist, he was an expert in coatings and construction materials. In particular, according to his CV, as a self-employed consultant for over eight years, he had inspected and reported on the condition of coatings and associated substrates including cement render. His expertise with respect to cement render was not called into question in his cross-examination: cf Black 1, 438Y. Mr Robinson had been a licensed builder since 1992, had been a council health and building surveyor for many years and a recognised building consultant by the Department of Fair Trading since 1994 and in private practice since 1991. The opinions expressed by each of these experts indicated on their face that each had a clear understanding of the issues relating to the proper application of cement render to external walls of a residence. The primary judge clearly thought so and no good reason has been advanced by the appellant to reject his Honour's assessment of the expertise and evidence of those witnesses. 101 With respect to Dr Bayliss' evidence, the appellant further submitted (at Orange 23) that not only did he not have experience in brick wall rendering but was only a painting coat expert but also his opinions as to render mixing were inconsistent with Australian Standard 3700-1988 and (at Orange 24O) that he should not have taken render samples from the ground. In relation to the contention that Dr Bayliss' opinions contravened the relevant provisions of Australian Standard 3700-1988, not only was he not cross-examined on that Standard but also it was not in evidence. In any event, it is clear from the exchanges in the transcript (at Black 1, 434-437) that Dr Bayliss took render samples from many locations in the house and that there was no evidence to support the contention that his method of sampling was flawed.

[97]

141 The respondents submitted, and his Honour found at [115], that under clause 10 of the Home Building Contract which applied as between the parties, the installation of PC items was included in the fixed contract price of $533,800. In any case, his Honour also found (at [116]) that to the extent that the extra items for which payment was claimed were alleged variations, the appellant could not enforce these variations as they were not effected in writing in compliance with clause 12 of the Home Building Contract. (In addition, the respondents submitted that ss 6(1)(b), 7 and 10 of the Act precluded a builder from enforcing a variation to a written contract that is not itself in writing: see also Dowling v Rae [1927] HCA 5; (1927) 39 CLR 363.) 142 The primary judge found, and I have confirmed, that the contract between the parties was that constituted by the Home Building Contract. That contract complied with the relevant provisions of the Act. I would be inclined to reject any submission by the respondents that a variation of that contract was unenforceable by the appellant by virtue of s 10(1) of the Act because it was not in writing. I would also doubt that any such variation was irrecoverable for non-compliance with clause 12 of the Home Building contract where otherwise it was agreed by the parties that the work was to be, and was in fact, performed. However, it is unnecessary to form a concluded view with respect to those issues. 143 The difficulty in the present case is that the primary judge made no finding to the effect that the items claimed by the appellant as variations (and which amount in my view to $22,845) were in fact variations to the works the subject of the Home Building Contract and that they were performed by the appellant at the respondents' request. At least one reason for this is that the appellant's case was always that the building contract was constituted by the alleged contractual quotation and that the Home Building Contract was abandoned immediately after it was signed, a submission his Honour rejected. Certainly, there was reason for the primary judge to find (at [114]) that the alleged contractual quotation did not comply with the Act and was thus unenforceable by virtue of s 10. 144 But for present purposes, the critical finding of his Honour is at [119] where he found that even if the appellant had a valid claim for variations, he had in fact been paid for them as he accepted the calculations in the table that I have recorded at [135] above. 145 His Honour therefore accepted that the first respondent had paid the appellant and his suppliers a total of $420,162.12. On the appellant's own case, the total amount which he was entitled to be paid (including variations) was $406,685 (see [133] above). Although the appellant contended that he and his suppliers had only been paid $345,500, this assertion was rejected.

[98]

146 It is not suggested by the appellant that the respondents' payment records did not support their claim to have paid the appellant and his suppliers a total of $420,162.12. The second respondent tendered a form of spreadsheet detailing all the payments he had made with supporting documentation: see at Blue 1, 12-16 and to which he deposed at Blue 1, 3-4 (para 14 of his affidavit sworn 11 January 2007); Blue 1, 193-217, paras 10-83 of his affidavit sworn 29 June 2007. The spreadsheet and some of its supporting documentation (cheque butts) was also tendered as Exhibit E: Blue 3, 926-1010. This evidence was referred to at paras 302-312 of the respondents' written submissions at trial (at Black 2, 818-819) which his Honour accepted at [119]. The appellants' written submissions at trial did not challenge those of the respondents to which I have referred although reliance was placed upon the appellants' own calculations at Black 2, 919 (paras 22-30). Whether the appellants dealt with the issue in oral submissions is unknown as the appeal papers do not include the transcript, if any, of those submissions. 147 I have read the relevant cross-examination of the second respondent relating to payments made by him to or on behalf of the appellant. It is confined to the transcript at Black 1, 244-252 and at Black 2, 583-584. This cross-examination comprised only 11 pages of transcript out of a total of approximately 150 pages of cross-examination of the second respondent. Moreover the main cross-examination on this issue at Black 1, 244-252 was generally confined to ascertaining whether the second respondent had invoices to match the payments itemised in his cheque butts. It is thus apparent that the main issues between the parties related to the respondents' claim for defective work and that the appellants' cross-claim received but scant attention. 148 It is telling that it was never suggested to the second respondent (except once at Black 1, 252D) that either the payments evidenced by the cheque butts were not in fact made or that they were unrelated to the building works undertaken by the appellant. Furthermore, at Black 1, 249N, counsel for the appellant conceded that there had been discovery of those quotations or invoices in the respondents' possession. It also needs to be acknowledged that the second respondent was being cross-examined in 2008 about payments he had made in 2000-2001, some seven to eight years earlier. 149 In the foregoing circumstances it cannot be said that it was not open to the primary judge to accept the first respondent's evidence as to the total payments he had made to or on behalf of the appellant. 150 Accordingly, in my view it has not been demonstrated that his Honour erred in finding at [119] that the total amount paid by the respondents exceeded that to which the appellant was entitled with the consequence that as no further monies were due to the appellant and unpaid, his cross-claim fails. Conclusion 151 For the foregoing reasons, the appellant has not established any proper basis which would warrant appellate intervention with respect to his Honour's findings and orders. Accordingly, I would propose that the appeal should be dismissed with costs. 152 MACFARLAN JA: I agree with Tobias JA. 153 McCLELLAN CJ at CL: I agree with Tobias JA. **********

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Cases Cited (8)