Harrison v Meehan[2015] QCAT 205

REASONS FOR DECISION

Background

1. [1]
   The respondent is a builder.  Mr and Mrs Harrison engaged him to help construct their new home at their land at 78 Bovelles Street, Camp Hill.
2. [2]
   The parties signed a master builders’ contract on 1 February 2013.  The description of works to be performed by the builder under the contract was misleading.  It described the general works to be carried out on site rather than the scope of work of the builder under the contract.  The builder’s remuneration under the written contract was $195,000.
3. [3]
   The agreed scope of work of the builder was in fact much more limited.  The builder’s stated understanding of that was for him to build the timber frame of the home and supervise other trades on site engaged by the owners.   The owners understanding was that the builder would do all the carpentry work and supervise the other trades.
4. [4]
   Construction commenced on 11 February 2013.  The builder was to be paid his labour weekly on tendered invoices.  In August 2013, before the builder had finished his work, the parties fell out.  The owners thought he had over claimed on the work actually performed and that the project was well behind schedule.  Words were exchanged.  The builder walked off site on 26 August 2013.  The owners engaged solicitors.  They put the builder on notice that if he did not return he would be in breach of the contract and the contract would be terminated.  The builder did not return.  The solicitors gave notice terminating the contract.
5. [5]
   In turn the builder gave notice of suspension of work to the owners based on the failure of the owners to pay invoices.  He demanded the owners remedy that breach.
6. [6]
   Mrs Harrison obtained an owner builder permit on 19 September 2013.  She then engaged another builder to complete work on site.  The owners brought an application against the builder seeking damages of $21,752.83 and the costs of rectification of the builder’s incomplete work of $117,708.84.
7. [7]
   The builder counterclaimed $65,926 for monies due under the contract and for the value of a variation to the contract.

The Issues

8. [8]
   The issues for determination appear to me to be as follows.

1  What were the terms of contract between the parties?

2  Which party fell into breach and was the contract validly terminated?

3  What damages flow?

What were the terms of contract between the parties?

9. [9]
   The parties signed the master builders’ contract on 1 February 2013.  The description of the works under the contract in item 3 of the schedule to the contract provided “Construction of new dwelling at the above address.  Works include site preparation, foundations, slabs, all walls (exterior/interior), doors, windows, roof, guttering, stormwater, sewer hook up to main, water to house points, electrical rough in only.”
10. [10]
    The parties are in consensus that that was not the agreed scope of work of the builder however.  Item 3 of the schedule simply described the general work intended to be carried out on site, by the builder and by other trades the builder was to supervise.  It was a general description of what was going to happen on site.^[1]  The true agreement between the parties appear to have been partly written and partly verbal.
11. [11]
    The applicants say the agreed scope of work of the builder was that he would complete all necessary “carpentry work”, including supply of associated carpentry materials, and he would also supervise other trades engaged by the owners. 
12. [12]
    The builder says his scope of work was far more limited.  He refers to a document he entitled a materials take off document.  That document, he says, set out his scope of work and the steps that he, his site supervisor, his carpenter and his trades assistant, were to take under the contract.^[2]  The owners dispute that that document formed any part of the contract.  Indeed they dispute it was ever produced or provided to them before or at the time of contracting.  They say they were first made aware of it when they received the builder’s response to their filed application.  It formed an attachment to that document.
13. [13]
    The materials take off document is not referred to in the master builders’ contract.  It is not referred to in item 5 of the schedule to the contract where the contract documents are identified.  It bears no signature by either party.  The builder’s evidence at hearing was that he gave the document to Mrs Harrison just before signing the contract.  But in his statement of evidence of 19 August 2014 he said he provided a copy to Mrs Harrison on site around 2 December 2012, that is two months before the master builders’ contract was signed.  He said she took it away with her.  The owners deny it was ever produced to them.
14. [14]
    Clause 3.2 of the general conditions of contract states “The parties acknowledge that the terms of this Contract are set out in the Contract and shall not be altered, varied, suspended, deleted, or affected by reference to any prior representations, conditions or agreement, whether written or verbal.”  Given both parties acknowledge the written agreement does not encompass all aspects of the agreement between them, clause 3.2 cannot strictly apply.  Having said that however, given item 5 of the schedule to the contract entitled “Contract Documents” has been completed with the inclusion of the plans drawn by Cunningham Designs and referring to foundations data prepared by a named engineering firm, had the materials take off document formed part of the contractual documents as at time of execution of the written agreement one would have anticipated it would have been included there or somewhere in the contract.  It was not.
15. [15]
    In the builder’s statement of evidence of 7 October 2014^[3] he described his scope of work under the contract as carrying out the carpentry work and supervising the construction of the dwelling excluding external works.  Any additional work he said was to be done at the materials cost price and the cost of his labour and that of his employees charged at agreed hourly rates.
16. [16]
    At hearing, in cross-examination, the builder’s evidence was that his scope of work was limited to being responsible for construction of the frame of the house only.^[4]  He said the materials take off document reflects that limited scope of work.
17. [17]
    This proposition, that the builder’s scope of work was limited to construction of the frame only rather than all carpentry work on site, appears to be somewhat in conflict with his prior written statements of evidence. 
18. [18]
    What flows from the scope of work being limited to building the frame only, says Mr Meehan, is that he was therefore not responsible for the supply and fixing of external cladding.  He did supply cladding, and he did fix some of it though not all before the contract was terminated, but he says that was done as a variation and an extra to the original contract.  He says that extra work was worth $18,586.
19. [19]
    But the materials take off document itself seems to be itself at odds with this claim by the builder that his limited retainer was only to build the frame and supervise other trades.  The scope of work in the materials take off document also includes general site set out and earthworks preparation.  It covers below slab and slab set out for both upper and lower levels, retaining walls set out for both lower and upper levels and supervision of their construction, backfilling retaining walls and lower slab SHS column setting and supervision of the concreting.  That work was not “carpentry” work as defined by the builder or the owners or the experts called in this matter nor indeed is it covered by the expression framing work as used by Mr Meehan.  It is probably best described as “general builder’s work”.  Mr Meehan holds a QBCC contractor’s licence as a Builder- Low Rise.^[5]  Neither party claimed that the builder’s scope of work extended to such builder’s work.  That additional “general builder’s work” was worth $20,205 in the materials take off document.
20. [20]
    The other thing of note about the materials take off document is that there is no cost for supervision of other trades other than concreting.  One might legitimately expect that such cost would be noted and form no insignificant part of the agreed contract price.  Yet it is missing from the materials take off document.  Incongruously, Mr Meehan says in a statement of evidence that the concreter and concreting had nothing to do with his scope of work.^[6]  In end result, given the foregoing, I reject the builder’s contention that the materials take off document formed part of or reflected agreed terms of the contract.
21. [21]
    Another twist to the tale that should be mentioned is that the builder seems to have advised his expert, Mr Haines that the cost of supervision was an extra to the agreed price of the contract.^[7] 
22. [22]
    Mr Meehan counter-claims $65,926.  He arrives at that figure by taking the contract price of $195,000 less incomplete work of $5090 plus a claimed variation of $18,586 in respect of cladding, minus the moneys paid him before termination.  There is no separate claim for supervision as an extra chargeable at hourly rates. 
23. [23]
    There may have been early discussions between the parties, well before contract, about the builder’s usual daily rates of charge and his charge out rates for employees, but I conclude that was well before signing of the contract and the master builder’s contract clearly excluded such charges as it provided for a fixed remuneration of $195,000.
24. [24]
    The owners say the Gantt chart prepared by the builder reflects his outstanding agreed scope of work under the contract as at time of preparation of the chart.  That document was prepared in June 2013 by the builder, well after the contract of 1 February 2013 was signed. 
25. [25]
    In County Securities Pty Ltd v Challenger Group Holdings Ltd,^[8] Spigelman CJ said at [7]: “In the present case, the subject matter and the concomitant terms of the contract must be inferred from a combination of surrounding circumstances including conversations, documents and conduct none of which provide a definitive form of words.  The issue is not one of interpretation, because there are no words to interpret.  The issue is one of fact: what did the parties agree?”
26. [26]
    Then at [8] he said: “Principles of law based on the parol evidence rule are not applicable.”  At [17]: “In such a case the relevant surrounding circumstances extend to both pre-contractual and post-contractual conduct.  [18] The cases referred to … all had regard to pre-contractual negotiations to determine the subject matter of the contract.  There is significant debate about the admissibility of post-contractual conduct for purposes of interpreting a contract.  This court has maintained the traditional refusal to take such conduct into account, save in certain established respects… [20] Where what is in issue is the identification of the subject matter of the contract, or the identification of necessary terms which were not the subject of express provision in a contract not reduced to writing, then consideration of post-contractual conduct does not contravene the reasons underlying the principle.”
27. [27]
    In Lym International Pty Ltd v Marcolongo [2011] NSWCA 303, Campbell JA agreed with Spigelman CJ’s analysis of the law on this in County Securities: “Where there is a contract that is wholly in writing, there is no doubt what the contract is – it is the writing.  The task of interpretation is ascertaining the meaning that the bystander who knows all the relevant surrounding circumstances would understand from the parties using the words in that writing….. By contrast the task in ascertaining what are the terms of a contract that is not wholly in writing is quite different – the task is finding as a fact what the parties have agreed.  A range of post-contractual conduct could be relevant to ascertaining what the parties have agreed.  For example, their conduct in carrying out the contract could itself be objective evidence of what they had agreed to, an admission of one of the parties could assist in ascertaining what they have agreed, and business records created to record a report on the contract rather than carry it out could also assist in that task.”^[9]
28. [28]
    In Dawnlite Pty Ltd v Riverwalk Realty Pty Ltd & Ors^[10] Margaret Wilson J, citing County Securities and Lym International said “Evidence of post-contractual conduct is relevant to whether they intended to form a binding agreement,[28] what they agreed and whether what they agreed was subsequently varied.[29]  Post-contractual conduct forms a basis for inferring what was agreed, as opposed to the meaning of what was agreed.[30]”
29. [29]
    Here construction commenced mid-February 2013 and in June 2013 the builder provided a Gantt chart to the owners at their request.  The owners maintain the Gantt chart was a forecast of the builder’s construction timeline showing his remaining work to be done under the contract and the weekly cost of that remaining work under the contract. The Gantt chart includes the supply and fixing of external cladding and internal plasterboard. The builder says the cladding was an extra, and not part of the contract though he included it in the Gantt chart.  With respect to the plasterboard, the builder’s evidence in cross-examination was initially that the supply and fixing of plasterboard was outside the scope of his contract and it was included in the Gantt chart simply as a forward planning indicator.^[11]  But in further cross-examination he made the admission that the plastering work had only been taken off him some weeks before the week ending 23 August 2013^[12] implying it had been a part of his contract before that.  He said that the plastering job was his as at June 2013 when he prepared the Gantt chart.  That accords with the evidence of Mrs Harrison who said the owners decided to step in and hire plasterers to do the work because the builder was so far behind program.^[13]
30. [30]
    As at the date of preparation of the Gantt chart, the owners had already paid the builder $74,622.62.^[14]  The builder’s estimate of the cost of completing the work as set out in the Gantt chart was $118,300.  The total of these amounts is $192,922.62, just short of the agreed contract amount of $195,000 provided for in the master builders’ contract.  Included amongst the items of work making up the figure of $118,300 was the cost of supplying plasterboard and exterior cladding.  In the weeks ending 19 July 2013 to 16 August 2013, the work scheduled in the Gantt chart included “exterior clad” and “interior wall sheeting” and little else other than completing the fascia and installing door jambs and doors and windows.  According to the Gantt chart Mr Meehan or his employees would be entitled to remuneration of $46,800 over the period of five weeks from 19 July to 16 August 2013.  The principal work component scheduled in those five weeks was installation of the exterior cladding and interior plasterboard sheeting.  In three of the weeks concerned the only scheduled work was plastering and external cladding.
31. [31]
    I conclude the Gantt chart was prepared by the builder as his proposed timeline to complete his scope of work under his contract as he understood it at that time.  It included supply and fixing of the exterior cladding and internal plasterboard and neither item was an extra to the agreed scope of work.
32. [32]
    In so far as the evidence of the parties differ as to the scope of work of the builder’s contract, I prefer the evidence of the owners to that of the builder.  I find the scope of work of the builder as agreed with the owners was for the builder to perform all carpentry work required on site, which the parties agreed included the supply and fixing of external cladding and internal plasterboard, and also for the builder to supervise other trades on site for an agreed fixed remuneration of $195,000.

Which party fell into breach and was the contract validly terminated?

33. [33]
    The owners were unhappy about the progress of the job in August 2013.  As noted in his Gantt chart, the builder planned on being offsite in the week ending Friday 16 August 2013.  The following week ending Friday 23 August 2013 the Gantt chart shows he intended to take a holiday. 
34. [34]
    The builder issued weekly invoices to the owners throughout the term of the construction.  He issued invoices on 9 and 16 August 2013 for respectively $9478.54 and $5437.65.  The owners did not pay them.  Their evidence is they were concerned that those invoices brought the cost of the work that should have been completed at that time to 90% of the value of the contract.  But they thought the builder had completed far less than 90% of the work under the contract, and was also behind schedule.
35. [35]
    The owners sent a without prejudice letter to the builder on 22 August 2013.
36. [36]
    A meeting between the builder and the owners was arranged for the morning of 26 August 2013.  The builder did not attend that meeting however.  Instead he left the work site that day, removing his tools and men.  He did not return.
37. [37]
    The owners’ solicitors wrote to the builder on 27 August 2013.  By that letter the builder was informed his removal of men and equipment and leaving the work site was considered a breach of clause 20.1 of the contract, failing to proceed with the contract with due diligence and unlawfully suspending work.  They put the builder on notice that the owners intended to terminate the contract unless the builder resumed work within 10 days after receiving the letter.
38. [38]
    The builder not having returned to the site, by letter dated 10 September 2013 the owners’ solicitors terminated the contract.
39. [39]
    The builder also forwarded a document to the owners dated 6 September 2013 entitled Notice of Suspension under clause 16.2 of the contract.  In that document he cited a breach by the owners of their obligations under clause 11.6 of the contract.  That latter clause concerned the builder’s right to claim progress payments as set out in part D of the appendix to the schedule to the contract.  In addition to amounts due pursuant to invoices of 9 and 16 August 2013, amounts totalling $6,519.40 were claimed apparently referrable to a progress claim for 25 August 2013.  The owners’ evidence is that they received the Notice of Suspension on 11 September 2013.  The builder says he gave the notice on 6 September 2013^[15], though it is unclear how that was effected.  The owners say they received the document in the mail.
40. [40]
    Following the hearing of this matter, in submissions, the builder contends the letter from the solicitors of 27 August 2013 referred to the without prejudice letter of 22 August 2014 in which concerns about payment under the contract and progress claims to that date had been raised.  The builder says the assertions in the without prejudice letter were incorrect.  The builder was largely on time under the contract and on budget.  As such the owners were not entitled to rely on over claiming by the builder as grounds for termination.
41. [41]
    I have not read the without prejudice letter of 22 August 2013.  It was annexed to a statement of evidence of the owners^[16] but at hearing the builder’s solicitor objected to it being raised by Mrs Harrison in her cross-examination of Mr Meehan because it was without prejudice.^[17]  The builder cannot now, having objected to Mrs Harrison’s exploration of the letter with Mr Meehan in cross-examination, rely on the same document to support his case and rely on its contents.  That is so regardless of the fact that there was some general mention of it without reliance on its specific contents in the solicitor’s letter of 27 August 2013.
42. [42]
    The notice to the builder in the solicitor’s letter of 27 August 2013 in any case was based on the builder’s suspension of work under the contract, not over claiming.  The builder was clearly advised in the letter of 27 August 2013 that it was the builder’s removal of tools and men from the site which constituted the breach under clause 20.1 of the contract and which, if not remedied, would entitle the owners to terminate the contract. 
43. [43]
    The only issue of significance is whether the owners were entitled to give that notice in light of the builder’s invoices of 9 and 16 August 2013 unpaid at that time.  The invoice of 23 August 2013 is irrelevant.  It was not due for payment until 30 August 2013.^[18]
44. [44]
    Part D of the annexure to the schedule to the contract covers progress payments to the builder.  Under “Name of stage or description of stage of Works” the builder has written “Direct builing (sic) labour billed weekly.  All materials at cost.” 
45. [45]
    The Domestic Building Contracts Act 2000 (Qld) provides in s 65:

1. This section does not apply to a designated stages contract.
2. The building contractor under a regulated contract must not demand or receive an amount under the contract, other than a deposit unless the amount is directly related to the progress of the work-

1. carried out under the contract; or
2. the carrying out of which has been managed under the contract.

46. [46]
    That statutory requirement is also repeated in short form in Part D of the appendix to the schedule to the contract.  As at 25 August 2013 the builder says he had done work under the contract valued at $123,476.78 for labour and $58,743.81 for materials.^[19]  That totalled $182,220.59, an amount in excess of 93% of the entire remuneration due under his contract.  The builder was relieved of the responsibility of supplying trusses for the frame.  Why is not made entirely clear by either party.  The owners say an adjustment was to be made.  I accept that an adjustment reducing the remuneration of the builder under the contract by the cost of the trusses would have been made between the parties.  The supply of trusses was certainly included in the initial scope of work as part of framing. 
47. [47]
    The trusses cost the owners $5,500.^[20]  Subtracting that amount from the contract amount of $195,000 left the value of the remaining scope of work at $189,500.  Given the builder had claimed $182,220.59 of the contract price as at 25 August 2013,that left only $7,279.41 to cover all the remaining work outstanding under the contract.  As at 25 August 2013 no plasterboard had been supplied or installed by the builder.  Only a little over a third of the external cladding had been fixed.^[21]  According to the experts, leaving aside trusses the cost of completing the carpentry work and supervising other trades when the builder walked off the job through another builder was $45,000.  
48. [48]
    I conclude when the owners solicitors served notice of breach on 27 August 2013 the owners were not in substantial breach of the contract^[22] in withholding payment on the invoices of 9 and 16 August 2013 given the extent and value of the work and materials yet to be done under the contract.  The builder was well off budget as at 27 August 2013.  The conclusion of Mr Haines the expert for the builder, that the builder was on time and on budget^[23] was premised on the builder not being responsible for internal plastering or external cladding which was wrong on my findings.  In so far as necessary I conclude the builder was not entitled to issue the invoices of 9 and 16 August 2013 because they were not in keeping with or referrable to the true progress of the work under the contract. 
49. [49]
    The builder was not entitled to walk off site as he did.  He failed to return as required by the owners after appropriate notice had been given.  The owners were entitled to terminate the contract.  The termination was in accordance with the requirements of the contract.

What damages flow?

50. [50]
    By clause 20.4 of the general conditions of the master builder’s contract, if the owner terminates the contract in accordance with clause 20 the owner may engage another builder to complete the work. 
51. [51]
    Alternatively the owners are entitled to claim general damages for the builder’s breach of contract.  That claim is not one pursuant to clause 20 of the contract but under the general law of contract.  It is not made clear by the owners under which head they claim.  In their amended application filed 22 July 2014 they claim liquidated damages and interest on the damages totalling $21,752.83 and costs of completion of the work under the contract of $117,708.84.
52. [52]
    The owners claim to damages made in submissions at conclusion of hearing is confusing.  They claim damages as “articulated” in annexures 1 and 2 to their submissions.  Annexure 1 contains inconsistent totals of $152,406.38 and $107,026.98 and includes items the owners said they were resiling from claiming at hearing.
53. [53]
    Annexure 2 to the submissions has yet another different breakdown of costs and the claim there is for $117,708.84, the original amount sought in the amended application, but with an additional claim for rent paid by the owners from 17 October 2013 to “actual completion date” totalling $7,920.
54. [54]
    The basic purpose of any award of damages is to restore an injured party to the position he would have been in had the wrongful act not occurred.^[24]  In the case of incomplete building work the usual remedy is the cost of completing the building work in accordance with the contract.^[25]
55. [55]
    In the absence of clear and detailed evidence of what the second builder, Inspired Construction, was asked to do and did, and the reasonableness of its charges for what it did, I conclude it is unsafe to base an award of damages on the work done and the charges made for that work by that builder.
56. [56]
    I have determined that the scope of work agreed under the contract was that the builder complete all carpentry work required on site, which the parties agreed included the supply and fixing of external cladding and internal plasterboard, and also for the builder to supervise the other trades on site.
57. [57]
    Evidence was given by experts Mr Haines, a builder appearing for Mr Meehan, and Mr Sim, an architect giving evidence on behalf of Mr and Mrs Harrison.  Those gentlemen had been briefed with very different documentation and given very different instructions as to the scope of the builder’s contract by the different parties.  At hearing they were asked to assume the contract required Mr Meehan to provide the carpentry work and carpentry material and supervise other trades on site and they were asked to advise what the cost of completing that work would reasonably be.  The parties agreed to that defined scope of work for the purpose of the evidence of the experts.^[26]
58. [58]
    I accept the evidence of those experts as the appropriate basis upon which the owners’ damages should be calculated and assessed. 
59. [59]
    The experts concluded that the following expenses constitute the reasonable costs the owners would have had to incur to have the “carpentry work” completed and other trades supervised by a builder:

                   $

Supervision            5,500.00

Carpentry labour stairs          1,700.00

carpentry labour stair posts             100.00

labour decorative columns             900.00

labour blue board           3,419.17

labour Stria cladding           2,344.02

labour Axon cladding              202.01

labour’s soffits            2,895.49

labour aluminium door             276.00

labour locks                 23.00

labour bath tub               160.00

labour’s soffit battens              900.90

labour hollow core doors           1925.00

frame hardware              159.00

labour bi-fold door              280.00

external cladding materials, soffit material, battens, Hardyflex     3,111.95

doorjamb               250.00

French lite sill                 30.94

Raven RP4 door seal                80.46

door jamb timber              510.00

door hardboard 870              150.00

cavity slider               200.00

door hardboard 720              880.00

delivery                  82.50

stair material             1608.90

timber balustrades           3,234.00

          $30,923.34

60. [60]
    A claim for skip bin supply, hire toilet and cost of clean up is not allowed.  The builder was not engaged to perform work as a builder with overall control of the entire construction of the home and site.  The owners apparently assumed responsibility for toilets and skip bins.^[27]  The experts categorise clean up costs as being similarly the concern of a builder responsible for an entire construction project, not limited to carpentry and supervision of other trades as Mr Meehan was here.  I accept the evidence of the experts.
61. [61]
    There is a claim by the owners for the cost of supply of trusses.  As stated previously, that cost was removed from the contract by agreement of the parties when the builder was still on site.  The builder did not charge for it.  The reduction in the price payable to the builder takes that into account, and indeed that reduced contract amount I conclude was taken into account by the owners when the builder’s invoices were queried in August 2013.  The owners have paid for it as agreed and have not been charged for it by the builder. 
62. [62]
    Additionally, I have found the contract between the parties called for the builder to supply and fix the internal plasterboard.  The experts agree on the price of internal linings, however it appears their price covers the cost of supply, fixing and finishing as well.^[28]  The owners paid Inspired Construction $15,000 to supply and fix plasterboard.^[29]   That is approximately 2/3rds the price for supply, fixing and finishing suggested by the experts.  I conclude that is a reasonable sum.  The sum of $15,000 is allowed for the supply and fixing of the plasterboard. 
63. [63]
    That takes the damages to $45,923.34.  The experts allowed a builder’s margin of 10% on the completion of the scope of work by another builder, which is conceded as an appropriate cost by the builder,^[30] which adds another $4,572.34. 
64. [64]
    Under Appendix I to the schedule to the master builder’s contract the builder was also required as part of the contract price to connect the property to water and electricity.   Mrs Harrison is employed by Nardia Plumbing.  The owner’s claim a cost of water connection of $2,100.  There is an invoice from Nardia Plumbing to that effect dated 22 November 2013.^[31]  The owners entered into the poorly documented and entirely careless agreement with the builder to save money.  At hearing Mrs Harrison admitted she paid cash to the builder to avoid GST.  I am not persuaded she paid the invoice from Nardia in full either.  There is no record of any payment to Nardia for this in her bank records which are otherwise fairly complete.  In the circumstances I allow an amount of $1,000 only under this head of claim.
65. [65]
    In respect of the electricity connection, there is evidence of a payment of $2,750 made on 3 December 2013^[32] for this and that amount is allowed in full.
66. [66]
    The total cost of these matters is $54,245.68.  The cost of insurance on that amount is allowed at $9 per thousand, which amounts to an additional $495. 
67. [67]
    The damages appropriately recoverable against the builder is therefore $54,740.68.  Nothing is allowed for delay in completion of the project, such as the rent the owners paid, given Mrs Harrison waited to obtain an owner/builder qualification before engaging another builder, Inspired Construction, to complete the work.

Conclusion

68. [68]
    The owners seek interest and costs.  The only costs claimed are the account of their solicitors covering the solicitor’s involvement to terminate the contract, and the account of the expert they engaged, Mr Sim. 
69. [69]
    The owners’ application did not limit the claim against the builder to carpentry and supervision of other trades.  They referred to the scope of work relied on by their expert, Mr Sim.  But Mr Sim was not advised of the builder’s limited retainer by the owners.  He understood it was the entire construction work set out in item 3 to the schedule to the contract.  The owners therefore purported to claim far more than carpentry and supervision.  In result, the builder was put to additional and unnecessary costs in preparing his case and understandably resisted the owners claim.  In the circumstances, I conclude it would be unfair to order the builder to pay costs or interest.   
70. [70]
    The appropriate order is that the builder pay the owners damages of $54,740.68 within 30 days.