DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal from the decision of a Stipendiary Magistrate at Brisbane who on 24 May 1999 dismissed the appellant’s action against the respondent and ordered the appellant to pay the respondent’s costs of $4,988.50. The Notice of Appeal contains four grounds, but the fourth was abandoned on the hearing of the appeal. It complained of the Magistrate’s having delivered judgment before he received written submissions on behalf of the plaintiff. Given that those submissions were due in early November 1998, and had not been received before the judgment was delivered over six months later, despite several reminders, the abandonment of this ground is unsurprising. The appeal is by way of rehearing, whether under District Court Rule 294(3) or Uniform Civil Procedure Rules 765, 785(1).

The Nature Of The Claim

2. [2]
   The nature of the plaintiff’s claim was contentious before me. By a plaint and summons filed in the Magistrates Court on 13 August 1996, the plaintiff claimed $8,682.51 from the defendant. The Statement of Particulars of the claim is in the following terms:

“The plaintiff claims against the defendant the sum of $8,682.51 being monies due and owing for goods sold and delivered and services rendered by the plaintiff to the defendant at the defendant’s request in this district in or about the period of 1 March 1991 to 1 May 1991 and particulars of which have previously been delivered.”

3. [3]
   It went on to claim an amount of interest. On 24 February 1998, the amount was amended to $8,767.27, and on 3 September 1998, the period was amended to 9 April 1991. This is similar to the formulation in Form 2 of Schedule 2 to the Magistrates Court Rules 1960, one of the forms of endorsements for a liquidated claim on a summons authorised by r. 46(2) of those rules. Prior to amendments made to those rules in 1989, they provided for two types of summons, an ordinary summons and a special summons, the latter being covered by r. 51. That permitted such a summons to be used in an action by which the plaintiff sought to recover a debt or liquidated demand arising in one of four specified ways, one being “on a contract, express or implied”. Such a summons was required to be specially endorsed with a statement of particulars of the plaintiff’s claim in the form set forth in the second schedule, or in such form as was appropriate to the case.

4. [4]
   The scheme appears to have originated in amendments made on 21 November 1924 to the then Magistrates Court Rules 1922 when r. 52A was introduced. The formulations are not unlike those previously contained in part 1 of the first schedule to the Rules of the Supreme Court. For reasons I gave in a judgment in Hargraves Mooney Kenny Pty Ltd v. Balkin (Brisbane Appeal 77/92, 9.10.92, unreported), the form is appropriate both to recover a sum due on a quantum meruit and to recover a sum due under a contract.  The common element was that the claim was for a debt due upon a consideration that was executed: Gino D’Alessandro Constructions Pty Ltd v. Powis [1987] 2 Qd.R. 40 at 45.  The form used here does not quite correspond to Form 2 but I think it may be included within the flexibility contemplated by r. 46(2). 

5. [5]
   It follows that I reject the submission on behalf of the respondent that the claim pleaded in the plaint was one in a quantum meruit, that is to say a restitutionary claim, which is based on the absence of a valid contract between the parties. The ambiguity inherent in the use of this form was removed by delivery of particulars filed on 1 November 1996 which identified the plaintiff’s claim as one which “arises out of an agreement between the plaintiff and the defendant”. The Magistrate however held that “I am unable to find on the evidence the material terms of any agreement between the parties and in those circumstances I find the plaintiff’s claim is upon a quantum meruit and that in that event the law will infer a promise to pay as much as the party doing the service or providing the goods has deserved, or as is generally described, a reasonable sum”. This conclusion was challenged on behalf of the appellant, and reference was made to the fact that the representative of the plaintiff gave evidence which was uncontradicted that he had made an oral agreement with the representative of the defendant.

Background To The Claim

6. [6]
   I should say by way of background that that defendant was at the relevant time the owner of a classic motor vehicle, a 1954 Austin Healy 100S (p. 264), which had the particular distinction of having been in the past driven by Stirling Moss (p. 274). He had engaged a Mr. Biggar to arrange the renovation of this vehicle (p. 265), and the Magistrate found that Mr. Biggar was the agent of the defendant. Mr. Biggar had arranged for a Mr. Gomez to carry out certain work on the body panels: Exhibit 21. The plaintiff company has some experience in specialised painting, and Mr. Contarino, the principal of the company, had been doing some work with Mr. Gomez, and in that way came to the attention of Mr. Biggar: p. 10. Mr. Contarino gave evidence (p. 14) that the amount of money he was to be paid was discussed between himself and Mr. Biggar and that an hourly rate of $30 per hour plus materials was agreed, and that that was the rate that he charged for the work. According to the Magistrate’s reasons, it was not disputed before him that Mr. Biggar had agreed for work to be done at the rate of $30 per hour, and indeed it was conceded before me on behalf of the respondent that that was the agreement (and see p. 277). Nevertheless, it was submitted before me that the agreement was uncertain, in that the scope of the work and the total price were undetermined, and there was no mechanism for determining the price to be charged for materials.

Was There A Contract?

7. [7]
   It seems to me fairly clear that the evidence given by Mr. Contarino was to the effect that there was a contract by him on behalf of the appellant with Mr. Biggar on behalf of the respondent for the appellant to do painting work on the respondent’s vehicle at the direction of Mr. Biggar, for which the appellant was to be paid $30 per hour for the work done, together with payment for materials used. Mr. Biggar was not called as a witness, and this evidence was essentially uncontradicted. It was, of course, open to the Magistrate to reject the evidence, that is simply to disbelieve Mr. Contarino, in which case there was no evidence of an agreement, but he appears not to have done so. Rather, he accepted that “the agreed rate per hour for the work to be done was $30". In these circumstances it was not correct for the Magistrate to say that he was unable to find on the evidence the material terms of any agreement between the parties. There was clear evidence accepted by him as to one of the material terms, that the work done was to be charged for at the rate of $30 per hour. The Magistrate appears to have proceeded on the basis that, because there was no overall figure agreed upon for the work, the contract was not enforceable as a contract because all of the material terms were not the subject of agreement.

8. [8]
   In my opinion, however, that is not correct; if there was agreement to do painting work as directed by Mr. Biggar for $30 per hour plus materials, all of the terms necessary to make a valid contract were present. The parties were identified, the basis of remuneration in respect to the supply of labour was fixed, and the scope of the work was defined, in a way which was certain or could be made certain. The failure to agree on the price for the materials is not enough to render the contract void or insufficient, since it is now well established that an agreement to buy and sell goods where a price is not specified results in the implication of a term that a reasonable price be paid: Wenning v. Robinson (1964) 81 WN (Pt 2) (NSW) 269; Timmerman v. Nervina Industries International Pty Ltd [1983] 1 Qd.R. at 5-6.  

9. [9]
   It has been said that an agreement to sell a growing crop at a particular price per bushel will be valid and enforceable notwithstanding that the total amount payable cannot be ascertained until the crop has been harvested and the quantity produced and measured: Lindgren Carter and Harland “Contract Law in Australia” (1986) p. 65. A “schedule of rates” contract is particularly appropriate for building or civil engineering works where the extent of the work to be done cannot be determined in advance: Arcos Industries Pty Ltd v. Electricity Commission of NSW [1973] 2 NSWLR 186 at 193.  In Upper Hunter County District Council v. Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437, Barwick CJ with whom other members of the court agreed, expressed the view that a contract to build a bridge at cost could not be held void for uncertainty.  “Endless might be the arguments pro and con as to whether or not in marginal cases some item of expenditure is as claimed a cost, or as to how much of an expenditure is a cost, of the particular activity.  But to my mind, generally speaking, the concept of a cost of doing something is certain in the sense that it provides a criterion by reference to which the rights of the parties may ultimately and logically be worked out, if not by the parties then by the courts”. 

10. [10]
    In my opinion, the contract to do painting work as directed at $30 per hour plus materials is not void for uncertainty or incompleteness, and, once the Magistrate accepted there had been an agreement with the defendant’s agent as to the rate, he ought to have concluded that there was a contract between the parties. He does not deal expressly with the question of whether the contract extended to payment for materials as well as the rate for labour, but the evidence supporting that proposition is from the same source as the evidence which was accepted about the agreement as to the rate. It may be that he was unpersuaded that there were any additional terms in the agreement, but once there was an agreement to this extent, then the amount required to be paid for labour is determined simply by reference to how long the work required to be done took. It may be that there should be implied into the contract some restriction as to the reasonableness of the time taken on the work, but that is a separate question. Prima facie, the obligation was to pay whatever time it took at $30 an hour and to pay a reasonable sum for the materials supplied.

11. [11]
    Insofar as the Magistrate did not accept this approach, and concluded that he was “unable to find” a contract between the parties, it seems to me that he fell into error. This was a case where it was certainly open to him to make such a finding on the evidence. It does not appear to be a case where the Magistrate has refused to make a finding on the basis that the evidence of the plaintiff’s witness was unreliable. Indeed, he made what I think was a sufficient finding to form a basis for a sufficient contract between the parties, and seems for reasons which are not entirely clear to have then erroneously failed to make the appropriate finding as to the existence of the contract.

What Work Was Done?

12. [12]
    The next issue becomes one of how many hours of labour were in fact properly incurred. The Magistrate did consider this issue, in the context of investigating the question of what was reasonable remuneration for the work done.

13. [13]
    The plaintiff’s method of recording time spent working on this job, and other jobs, was for each employee to maintain records in an exercise book on a daily basis of the tasks worked on and the hours worked on each: p. 16. A number of these books were put in evidence, but one was said to be missing. The Magistrate accepted that there were hours totalling 588 recorded in such books as were produced, based on submissions by counsel for the defendant. The records of the books were then entered on job cards maintained for each particular job, so that the cards would gather in the one place from all the books the time worked by all employees on particular jobs: p. 92, 170. In theory therefore the job cards and the exercise books should contain the same information, in the one case collected by reference to employees working and in the other case collected by reference to vehicles. From the job cards information was fed into a computer which produced a computerised invoice setting out on a daily basis the date, description of the work done, and the number of hours worked: p. 172.

14. [14]
    Counsel for the appellant produced at the hearing of the appeal an analysis which showed that (subject to occasional errors, the presence of which is understandable) the job cards contained information which corresponded to that recorded in such work books as were available, and that the information on the job cards had generally been translated accurately onto the invoices, although in the case of some employees, fewer hours were claimed on the invoice than were recorded in the book and the job card. Initially the plaintiff under cross-examination was unable to explain this discrepancy (p. 52), but later he said it was attributed to a reduction made in the case of employees who were apprentices so that in effect the amount charged for their time was less than $30 per hour: p. 102. The figures in the invoice are approximately what would be produced by reducing the hours shown on the job cards for such employees by 17%. There is still some discrepancies in calculation if this method is used, but if under the contract the plaintiff was entitled to charge $30 an hour for the hours occupied by its employees, the fact that the plaintiff has charged less is not a matter of which the defendant can complain, although it may amount to some recognition that it was unreasonable to charge for all of the work recorded in the exercise books or the job cards at the rate of $30 per hour.

15. [15]
    The application in a mechanical way of such a discount may have contributed to some rather odd looking figures in the invoices Exhibits 1 and 3 for the hours worked, and further calculations in an analysis document, Exhibit 2, have produced even odder figures by extending to three decimal places of an hour. This is not necessarily suspicious, although it is somewhat puzzling. On the whole I think that this matter, which was adequately explained by Mr. Contarino, achieved a prominence at the trial which it did not deserve: see e.g., p. 231. This is not a situation where the hours claimed on the invoice are in excess of those recorded in contemporaneous records for the work done.

16. [16]
    It was argued on behalf of the appellant that the reliability of the exercise books as records of time actually taken by employees was not challenged when a number of such employees were called to give evidence, the contrary was not asserted on behalf of the respondent and a perusal of the evidence confirms this. Some of the figures adopted by the Magistrate on p. 4 appear to be based on the assumption that the exercise books were accurate and honest, and indeed the Magistrate appears to have accepted that the ones he had show 588 hours worked.

17. [17]
    Reference was made to some expert evidence, and ultimately the Magistrate said that he was “unable to find” the plaintiff had proved that 714 hours were worked on the vehicle. The expert evidence may have been directed to either or both of two quite separate issues; whether the nature of the work was such that the number of hours claimed would not (or indeed could not) have been worked by the appellant’s employees in doing what was done, and whether more work was done than was reasonably necessary in order to achieve what was achieved out of the process, or at least what ought to have been achieved. The Magistrate seems to have been impressed by evidence from one expert, Mr. Bale, that it would have been physically impossible to have 714 hours of work on the vehicle in 33 days even by six people: p. 232. It appears at p. 232A of the transcript that the basis of this conclusion was the view that it would be physically impossible for six people to work on the vehicle at once. Mr. Bale offered at p. 232A to explain his statement that it would be physically impossible, but he was not allowed to do so during cross-examination, and was not asked to do so in re-examination. He also said that he did not believe that six people working a considerable number of hours in a short space of time could do 714 hours. He said that there were 33 days of actual recorded work, so 714 hours is an average of 21.6 hours per day. If that were worked by 6 people on every occasion, that would only be 3.6 hours per person, which is not obviously implausible. To put it another way, three people working an eight hour day on a particular vehicle each day for 33 days would run up rather more than 714 hours, and there is no evidence that it would be physically impossible for three people to work at the same time on this job.

18. [18]
    The proposition that it would be physically impossible for six people to work on the vehicle at once is also difficult to accept in circumstances where (except in the last couple of days) they were not actually working on a vehicle, but rather on a series of body parts which were painted separately, as appears from Exhibit 7. Six people trying to work on the one vehicle as a single unit at the one time may be hard to accept, but it may well be quite plausible for two people to be working on each of three body panels, and there would be no difficulty I would think if three people worked on three body panels. Mr. Contarino denied that there were as many as 6 people working on this job at any one time: p. 50. The exhibits show 5 people working on the chassis and the front scuttle on 12 March 1991.

19. [19]
    Perhaps there was an element of hyperbole in Mr. Bale’s evidence, and the point that he was really trying to make was that 714 hours was just far too much time for the work done. The Magistrate however appears to have taken the evidence quite literally, and with all due respect to Mr. Bale and the Magistrate, it seems to me obvious that, taken literally, the evidence is wrong. There is no obvious physical impediment to 714 hours of work being put in over 33 days on these various car parts, particularly if one bears in mind that, according to the exercise books, on occasions quite long hours were worked on a particular day. The details provided in Exhibits 1 and 3 suggest that various different parts were usually being worked on on the same day, and the hours worked by individuals during April seem to be commonly quite long. For example, according to Exhibit 17, on 4 April Don [Stephens] spent 12½ hours in which he “sanded and primed doors and sanded F[ront] section”. According to Exhibit 5, Mark [Hooper] on the same day worked on the vehicle for 13½ hours during which he “sanded door and deoxidised and accelagold sanded front guard and front scuttle”, and Exhibit 5 records Nick [Contarino] on the same day spending 10 hours on this vehicle to “scour front guard and shroud for polyester sand and fill bonnet, sand polyester on front shroud, make hooks for doors to fit on stands”. According to the job card, Exhibit 16, on the same day Adam [Schmidt] spent half an hour priming guards and 10 hours to “scour panel for spray polyester, sprayed panels, sand poly”. The entries in the exercise books referred to earlier are accurately transcribed on to Exhibit 16 as well. Four people were working on at least three separate parts.

20. [20]
    When comparing these entries with Exhibit 3, 12.08 hours has been attributed to a description which matches the work done by Mark, which was 13.5 hours, but 13.5 hours has been attributed to a description which matches the work recorded on Exhibit 17 for Don. The next entry seems to be accurately recorded as 10 hours, and Adam’s work is shown in two entries of .5 and 10 hours. The position seems to be that the hours worked for Mark and Don have been transposed, and the 12.5 hours worked by Don recorded as 12.08 hours, but Exhibit 3 otherwise corresponds with the contemporaneous records. Such inaccuracies seem to me to be more readily attributable to inaccurate bookkeeping or mechanical error than invention and exaggeration. Insofar as this arises from an assessment of the documentary exhibits, I am in as good a position as the Magistrate to make that assessment. It is not immediately apparent from the description of the work why these four individuals could not have been working on the various parts concerned on that day for that length of time. If these records were accurate, a total of 46.5 hours was worked on that one day by four men. If they really were working at this sort of rate, working 714 hours over the relevant period is by no means implausible.

21. [21]
    Mr. Hooper gave evidence that in 1991 he was working for the plaintiff as an apprentice spray painter when he worked on an Austin Healy: p. 133. He was 18 or 19 years of age at the time: p. 138. Details of the work he did on the vehicle were entered in an exercise book (part of Exhibit 5) and anything used on the vehicle was recorded in the back of that book. By reference to the book he could say that he worked on the vehicle between 1 March and 18 April 1991. He recalled that at the end of the job he did some polishing somewhere away from the plaintiff’s premises, including some work on the day the vehicle departed. He said that when the front scuttle was painted there was some build up of paint around the rivets, although he would not now have repainted it because of that. He said that parts of the job posed particular problems because of vents, and that the work was finished to an exceptionally high standard.

22. [22]
    Mr. Stephens, a spray painter, confirmed that he had worked on the defendant’s vehicle for lots of hours and kept a record in a log book in the workshop of the time he spent, which he identified as Exhibit 17: p. 184. He said that some of the entries in that book which referred to an “Aston Martin” should have referred to the “Austin Healy”: p. 185. He also recalled polishing and cleaning the car just before it left Australia: p. 186. He said the car was difficult to paint, because it was aluminium, had alloy rivets, box sections which were difficult to paint inside and it had to be done in two colours: p. 188. He said that the problem with the rivets was that he had put on too much paint so that it tended to run off them, because he had thinned the paint more than usual in order to get an even flow: p. 189. He thought however that the result achieved on the first occasion was a good result.

23. [23]
    The plaintiff also called a Mr. Schmidt who said that for two weeks in 1991 he worked for the plaintiff during which time he worked on the Austin Healy only: p. 192. He referred to the various people who worked on the vehicle, and said that he recorded the time he spent in an exercise book. He said that he was working 9 to 10 hours a day on the vehicle, and that the work was intensive for those two weeks: p. 193. None of these witnesses were cross-examined to suggest that their records were inaccurate.

24. [24]
    It is, of course, possible that the exercise books were just fraudulent, that is that they purport to record long hours which were not actually worked. But if that is not the case, and (subject to occasional innocent mechanical errors) the exercise books do record what was actually worked by the individuals concerned on the vehicle, and if the information in those records is translated through to the invoices (again subject to innocent mechanical errors, which as my example demonstrates do exist but are unlikely to have much overall effect on the total, as shown by the detailed analysis prepared by counsel for the appellant) then the invoices based on those figures will essentially record the hours worked. In such a situation, I cannot see how such totals could be effectively contradicted by expert evidence, opinions expressed by people who were not present when the work was done. In circumstances where the plaintiff’s claim is based on detailed records of time spent on particular days by particular people doing particular things, which establish that 714 hours (or a little more than that: p. 106-7) was actually worked on this job during the relevant period, it seems to me that a Magistrate who wishes to reject that evidence has to do so on a more substantial basis than the mere acceptance of the evidence of an apparently plausible expert witness that such a thing would be “physically impossible”. It seems to me that, in the absence of a finding that records were false and exaggerated, they ought to have been accepted as doing what they purport to do, and as demonstrating that the plaintiff’s claim is essentially correct. They may not, indeed they do not, prove precisely 714 hours worked; accepted at face value, they show rather more than that was actually worked, but that is sufficient to prove the plaintiff’s claim for remuneration for 714 hours, subject to the question of whether the number of hours put in on the job was excessive.

Implied Term As To Reasonable Efficiency

25. [25]
    It does not necessarily follow however that the plaintiff was entitled to recover for all the hours actually spent on this job at the agreed hourly rate. I think that there would have to be some control placed on the amount of hours for which the defendant could be charged, either on the basis that, if the work is done in too inefficient a fashion, part of the time spent on the work could not be properly regarded as time spent doing painting work, or on the basis that there would be implied in the contract a term which would impose some limitation by an implied obligation of reasonable efficiency. The former approach may derive some support from the analogy with a “cost plus” building contract, where it has been said that a contractor is not disentitled to such costs merely because there is some lack of efficiency on his part so that it exceeds a reasonable sum, but is disentitled to the cost of labour or materials expended in so wasteful a manner that it cannot truly be said to be part of the cost of the contract works: Keating “The Law and Practice of Building Contracts”, (3^rd ed., 1969) at 58, approved by Sheppard J in Triple “C” Holdings Pty Ltd v. Hogan [1983] 1 NSWLR 252 at 255. The current (6^th) edition of Keating says at p. 83:

“The contractor is not, it is submitted, disentitled from such cost merely because it exceeds what was anticipated.  But it is thought that there will normally be an implied term that the contractor would carry out the works with reasonable economy so that expenditure in excess of what was reasonable would be irrecoverable.  It would be a question of fact and degree in each case.”

26. [26]
    With regard to an implied term, it is not difficult to imply into any contract to do work an obligation that the work be done with proper care and skill: Young & Martin v. McManns Childs [1965] 1 AC 454 at 465. One element of reasonable skill is reasonable efficiency, that is, that the work be done within a reasonable time: Charnock v. Liverpool Corporation [1968] 1 WLR 1498 at 1503.  I think this is the better approach.  In the present case I think that if the plaintiff did not undertake the work with reasonable efficiency, there was a breach of that implied term giving rise to a liability in damages which would reduce the extent to which the plaintiff was entitled to recover at the contract rate by any period in excess of a reasonable number of hours for doing the work. The amended Entry of Appearance and Defence pleads that there was an implied term of the contract that the price to be paid for such goods and services was to be a reasonable price.  Although I think this is not the correct term to be implied, this pleading raises the issue of the appropriate implied term.

27. [27]
    That however is a somewhat different question from what was being considered by the Magistrate; he was looking at the question of what was reasonable remuneration for the work, a question which in effect required him to come to a particular figure as the reasonable remuneration for that work. On the other hand, a breach of an implied term could only be established by proof of unreasonable lack of efficiency, which would require proof that the plaintiff had spent more time than any reasonably competent spray painter doing such work; in other words, the plaintiff would not be entitled to recover in respect of the difference between the highest reasonable number of hours for doing such work, and the number of hours actually spent. There is also a difference in onus; on the question the Magistrate was considering the plaintiff had the onus of proving what was reasonable remuneration, whereas the defendant had the onus of proving that there had been a breach of such an implied term, and its extent..

28. [28]
    Because of the approach adopted by the Magistrate, this issue was not dealt with in the reasons for judgment. The Magistrate broadly speaking accepted the evidence of the defendant’s expert witnesses, and found that the plaintiff had failed to prove that reasonable remuneration was in the amount claimed, or indeed any amount greater than that already paid. There is a comment that may amount to a finding that the amount already paid was unreasonable, but that was irrelevant in the circumstances where there was no counter claim. It emphasised the conclusion that the plaintiff was not entitled to recover any more than it had already been paid for this work. Because the issue is different, and because in any case, as I have indicated earlier, I am wary about the approach of the Magistrate to the expert evidence, particular that of Mr. Bale, I think it is appropriate for me to consider the evidence for myself, so far as I can.

Expert Evidence

29. [29]
    The defendant called three expert witnesses, including Mr. Bale referred to earlier. He had qualifications as a panel beater/spray painter and mechanic and had 39 years experience in the automotive repair industry, and had been a loss assessor for approximately 20 years, specialising in claims on classic and restored vehicles: p. 227 and see Exhibit 18. He had seen the vehicle in question. He gave an estimate of $8,250 as a reasonable charge for doing the work required to paint that vehicle to the standard he saw, as set out in a report he prepared, Exhibit 19. This was based largely on a rate of $52 per hour, including materials (p. 228), and assumed 192 hours work was involved: Exhibit 19. He thought a charge of $25,000 for the work to be quite unreasonable because the time applied to the job far exceeded that to be expected from competent experienced tradespeople: p. 229. Under cross-examination Mr. Bale said that the method of working described in the invoices was not unreasonable, nor was the type of materials used, although he could not comment on the actual quantities of materials used and did not think the charges for materials were reasonable: p. 235-6. Mr. Bale maintained that if any painting work had to be redone the owner should not be charged for it a second time.

30. [30]
    Mr. Jorgensen, who carried on business in Toowoomba, specialising in restoring classic motor vehicles, including painting them, and had done so for many years: p. 203. He was quite experienced in work on Austin Healys, having owned a number of them himself, including the one on which this work was done. He said that the model 100S was all aluminium: p. 204. The use of two colours should not make any difference at all to the cost of painting work, and that the only significance of the louvres was that one had to be a bit more careful in masking them up. That should not have a significant impact on the cost of the work overall. He knew Mr. Gomez and thought that his work was pretty good and that little further preparation would be required: p. 205. He had not heard of anyone being charged for hooks used by painters for hanging panels: p. 206.

31. [31]
    He estimated the cost of a high quality painting job on an Austin Healy, internal and external, in 1991 at $8,500 - $10,000, which included taking the car apart and reassembling, which involved a certain amount of labour: p. 207. That estimate was based on charging $25 per hour for labour, and was plus parts, i.e., materials: p. 213. It reflected his charges current at the time when the work was done. That suggests a maximum of 400 hours to do the work. He thought that a charge of over $16,000 for doing the work was exorbitant, and over $25,000 even more so: p. 207. Mr. Jorgensen had however not considered the details of the work done by the plaintiff as set out in Exhibit 4, although he had seen the invoices, Exhibits 1 and 2: p. 210. His response, having considered those invoices, was that there had been “time sort of charged over again on some of the areas” but could not specify which: p. 210. He did not criticise particularly the items of work done, but simply said that the number of hours claimed for doing that work was excessive: p. 217. In other words, the plaintiff was claiming for too much time for doing work which may well have been appropriate.

32. [32]
    Mr. Jorgensen conceded that if the owner was there looking over your shoulder you would definitely take “a little bit more extra time”: p. 211. I suppose the same applies if the owner’s agent is in that position. He agreed that aluminium panels had to be chromate etched primed and sprayed (p. 212) and that all the panels on this vehicle were aluminium: p. 209. One matter which was the subject of some questioning was whether sanding should have been done three times with three different grades of paper; it seems that this was not taken into account by Mr. Jorgensen in his estimate (p. 219) and indeed he thought that that was unnecessary, but if it was done either because the plaintiff reasonably thought it appropriate or because the defendant’s agent required it to be done, then that would presumably increase the number of hours required for the job. Mr. Jorgensen would not charge for preparing hooks or indeed for building a rotisserie, at least in the latter case without some specific agreement with the owner: p. 222.

33. [33]
    The third expert called on behalf of the defendant was Mr. Wilson, who was a professional car restorer whose work included painting of vehicles: p. 239. He had seen the plaintiff’s vehicle and described the finish of the vehicle as near faultless: p. 255. He was familiar with the work of Mr. Gomez, which was of a very high standard (p. 240) and the significance of this is that there would be less filling work to do as part of the painting afterwards: p. 243. His estimate of a reasonable cost for doing the work in 1991 (or even at the time of trial) was $8,000 - $10,000 and he regarded $16,000 as “bordering on unreasonable”: p. 243. His figures included materials, which he would expect would represent about $2,000: p. 244. They were not based on any particular number of hours to do the job, but as his rate of $40 per hour, that makes 200 hours: p. 246. He had painted an Austin Healy in 1995, for which he charged $6,000, including some chrome work: p. 244. Mr. Wilson would not charge for hooks or frames: p. 245. Mr. Wilson had done restoration work for the defendant in the past (p. 252) and was hoping to do similar work for him in the future: p. 254.

34. [34]
    It seemed from his cross-examination that the work done by the plaintiff involved the application of additional coats, and a more thorough sanding between coats, than Mr. Wilson thought was necessary. Under cross-examination when the details of the process followed by the plaintiff were put to Mr. Wilson, he agreed that that process would be more time consuming and labour intensive than the process he had undertaken when he had previously restored an Austin Healy. He accepted that the processes, material and techniques described in Exhibit 4 were reasonable in the circumstances, but his impression was that there was a lot of repetition in the invoices, and he gave as an example the term “sand chassis”: p. 260. This may be a consequence of the way in which the invoice was drawn up, rather than an opinion that too many hours had been applied to sanding the chassis: p. 261. He felt the quality of the job was good but it seemed an abnormally long time for doing it: p. 261. He did not see the need for three different types of sand paper, but agreed that that would take additional time: p. 261. Under re-examination Mr. Wilson gave an estimate of the time he thought the high quality paint job, internal and external, would have taken in 1991 at 240 hours: p. 263. At $40 per hour, plus $2,000 for materials, this comes to $12,000, not $8-$10,000.

35. [35]
    The plaintiff called evidence from a Mr. Dabrowski, a technical expert employed by a paint supplier, who recalled seeing the front scuttle after it had been painted with some build up of paint over the rivets, and thought the finish would ordinarily have been an acceptable standard, but it was a matter which might need to be done again if a very high standard was required: p. 143. He said the plaintiff’s work was well above average quality: p. 141. He said the work involved in doing this job was particularly fiddly, and spraying the inside of the panels was much harder than spraying the outside. He also spoke of the importance of chromate etching to assist the paint to hold the surface, and of some of the details of the work involved in producing a high quality finish. He said he had seen other vehicles being restored where a lot of hours had been spent on the paint work, but that it was difficult for him to comment on the number of hours spent on this job without having actually seen the work done: p. 147. All he could say was that it could be reasonable to spend 700 hours repainting a particular vehicle, depending on the state of the vehicle and the work that had to be done: p. 164. He said that some painters would charge for the construction of a rotisserie or for hooks and brackets for painting: p. 155.

Issues As To Work Done

36. [36]
    There are, I think, three specific issues raised by the evidence as to the number of hours worked, and one general issue. The three specific issues are whether the plaintiff is entitled to charge for the work done to build hooks and a frame on which to paint the various parts of the vehicle, whether the plaintiff was entitled to charge for repainting the front and rear scuttles when the defendant’s agent, Mr. Biggar, required them to be repainted, being dissatisfied with certain aspects of the finish, and whether it was reasonable for the vehicle to be sanded with three grades of sand paper between certain coats. The general issue was simply the question of whether the number of hours charged for was just too great for the work that had to be done.

37. [37]
    On the first specific issue, I can see that from the plaintiff’s point of view, if he did not have equipment necessary to enable these parts to be painted properly, and had to build that equipment before the painting could be done, part of the process of doing the job was preparing that equipment. But the plaintiff was being paid for painting the vehicle, not for remedying any deficiency in his own plant and equipment which would be required for doing that work. If the plaintiff needed a shed in which to do the work and did not have one at the beginning of the contract, he would not have been entitled to have his workmen build one at the expense of the defendant, even if that work would have been necessary in order to create the conditions where he could do the painting. If his spray painting equipment became defective at some stage before the work was completed, he would not be entitled to charge for time spent by the employees in effecting necessary repairs to enable the work to be continued. That, I think, is properly characterised as work for him rather than as work for the defendant. It would have been open for the plaintiff to make some special agreement if the cost this imposed on him was excessive, but in my opinion in the absence of some special agreement this amount was not recoverable.

38. [38]
    The next issue is in relation to the cost of redoing the painting work. The plaintiff’s case here essentially was that in his opinion the work had initially been done with reasonable care and skill, but if Mr. Biggar required it to be redone he was prepared to do it at the defendant’s expense. On the other hand, it is apparent that on this occasion the work done by the plaintiff did not meet Mr. Biggar’s exacting standards. The plaintiff emphasised that his instructions were to do the work to a very high standard, and sought to justify the large number of hours on the basis that it was spent achieving particularly exacting requirements. But I think that if the defendant is paying to have the work done with particular care, he is entitled to expect that it will be done properly the first time. It is not as though the specifications were changed, as occurred with some other part which had to be repainted because the colour selected by Mr. Biggar proved not to be right (p. 114), but because there was something which in the context of this job amount to a defect in the paint work. If there was some dispute as to whether the defendant had to pay for repainting, the time to raise that and resolve it was before the work was done, at the time when the instruction was given by Mr. Biggar to redo this work. If the plaintiff wanted to assert that any repainting would be at the defendant’s expense, he should, in my opinion, have done so at that stage, and the evidence does not indicate that he did. In my opinion, the plaintiff is not entitled to recover for repainting the front and rear scuttle. This took some 62 hours: Exhibit 4.

39. [39]
    With regard to the use of three grades of sand paper, this could have been justified on the basis that it was in accordance with the manufacturer’s requirements, and if that is the case, in my opinion, the use of three grades is clearly appropriate. This issue was not raised in cross-examination of Mr. Contarino or the plaintiff’s other witnesses. The particular paint was specified by the defendant’s agent, and it was apparently a particularly high quality paint, and in my opinion the plaintiff was entitled to do the work recommended by the manufacturer. The witness who thought that this degree of sanding was unnecessary was not a regular user of that brand of paint, and that makes it, I think, difficult to accept his evidence as showing the inappropriateness of this practice. I am not satisfied that the plaintiff was shown to have acted unreasonably by doing this.

40. [40]
    The more difficult question to resolve on the evidence however is the general question, about the number of hours being excessive. Here the position of all of the expert evidence was not, I think, significantly modified notwithstanding careful cross-examination. The basic position remains that the number of hours spent on this work was just excessive, even taking into account the various specific issues raised in cross-examination.

41. [41]
    The respondent has the benefit of the weight of expert evidence to the effect that the time claimed to have been taken was just far too long for the work done, which evidence unsurprisingly impressed the Magistrate. The appellant’s response is that the work done under the direct personal supervision of the defendant’s agent – p. 11:

“Quality was drummed into us by Mr. Biggar [who] was at all times guiding us in detail …”

(and see p. 123 for examples of the matters covered by Mr. Biggar’s instructions). The work that was done was just what the defendant’s agent wanted done, and if what the defendant’s agent wanted done in fact occupied the number of hours recorded the defendant is liable for that amount, even if it is much more than he or others might have expected.  The crucial part of this argument, I think, is the proposition that the plaintiff’s work was being directed in detail by Mr. Biggar; if that is true, it removes the argument that the plaintiff was doing unnecessary or inappropriate work, or doing work in an inappropriate manner, although it would still leave room for the argument that the plaintiff was inefficient in taking far too long to do the work that was required to be done. 

42. [42]
    The defendant did not call Mr. Biggar as a witness but his absence was explained on the basis that the defendant had lost contact with him during the period of several years during which this claim was not pursued: p. 280. That is obviously a reasonable explanation and I do not think that any inference adverse to the defendant should be drawn because of a failure to call Mr. Biggar. Nevertheless, the fact remains that the plaintiff’s evidence about the detailed supervision and direction from Mr. Biggar was left uncontroverted. On the whole I do not think there was sufficient justification for rejecting it, and it is not apparent that the Magistrate did reject this part of Mr. Contarino’s evidence. The defendant’s argument therefore must come down to the proposition that the plaintiff just took too long to do the work that it was supposed to do.

43. [43]
    One thing that does concern me is the generality of the defendant’s expert evidence. There is quite a lot of information available as to what the plaintiff did, or at least claims to have done, in the work books, job cards and invoices, and in the explanation of what was done set out in Exhibit 4. There is some difficulty perhaps in relating the description of the work in Exhibit 4 to the particular entries in the job cards, for example, but there is a surprising lack of detail in the experts’ explanations as to why this job ought not to have occupied the number of hours claimed. I have referred to three specific criticisms earlier, but no other criticism was made of the appropriateness of doing the work specified in Exhibit 4, and it was generally accepted as appropriate. In general there was no criticism of the detail of the work, nor was there any apparent attempt to work out how long the various different items ought to have taken if done reasonably efficiently. No attempt was made to lead evidence from any of these experts that any particular task identified in the work books ought not to have taken the number of hours claimed. Mr. Contarino was cross-examined about the number of hours spent to polish the car on 18 April (p. 62) but no evidence was led from any of the experts that this was unreasonably long for such a task in these particular circumstances.

44. [44]
    Another matter which is of concern is that the apparent reasonable similarity between the defendant’s experts as to the cost of painting such a vehicle in this way gives a superficial appearance of agreement between them which on closer examination is not present. If one looks at the hours that they suggest would be involved in doing work of this nature, there is a much wider disparity, with Mr. Bale basing his estimate, Exhibit 19, on only 192 hours, Mr. Wilson giving an estimate in the witness box during re-examination of 240 hours (p. 263) and Mr. Jorgensen giving a range which suggests a maximum of 400 hours to do the work, including a small amount of time involved in taking the car apart and reassembling it. Mr. Wilson’s figures would have been derived without taking into account the extent of sanding not shown not to be appropriate. It is also apparently a figure of how many hours he thinks would have been involved in doing the job the way he thought was appropriate, rather than an estimate of how many hours it would have taken to do the work described in Exhibit 4. When one compares these three times, they underline the point made by Mr. Dabrowski that it was not possible to say how long it would take to repaint a particular vehicle as it varied from job to job. Nevertheless, each of these estimates is well below the total number of hours claimed by the plaintiff in Exhibits 1 and 3.

45. [45]
    All of the defendant’s expert witnesses were giving evidence as to the amount of reasonable remuneration for doing this work, and were not specifically considering the question of whether the work the plaintiff had performed was carried out with reasonable efficiency. That is the function of the approach that the defendant had adopted to his case at trial, and indeed the approach adopted by the Magistrate, but I think it was not the real issue in the light of the analysis given earlier. Nevertheless, I think that this led to an emphasis in the evidence of the defendant’s experts on how they would have done the job rather than on how long it ought to have taken to do what the plaintiff did if that work were done with reasonable efficiency. I think this is pointed up by the circumstance that not one of the defendant’s experts seems to have gone through the analysis in Exhibit 4 to work out how many hours it ought to have taken to do the work described in that document. The defendant’s case of course was in part that that work had not been done anyway, and he did not accept the reliability of that document, but concentrating attention on the question of what was a reasonable lump sum price for the work as a whole meant that the issue which, in my opinion, was the relevant one of how long the work actually done should have taken if done with reasonable efficiency was not addressed properly by the defendant’s experts.

46. [46]
    The matter is further complicated by the fact that the plaintiff’s claim needs to be reduced to eliminate those things which I found it ought not to have charged, and a couple of other minor matters which have emerged, and the estimates of the defendant’s witnesses need to be adjusted upwards to accommodate the fact that both Mr. Jorgensen and Mr. Wilson conceded that there were things that the plaintiff had done which would have been more time consuming than were allowed in their estimates, particularly the additional sanding. The question of just what effect that would have had was unfortunately not explored, and that makes it hard to say that the estimates, particularly of Mr. Jorgensen and Mr. Wilson which I think were more reliable when adjusted in this way were necessarily so far below the number of hours left in the plaintiff’s claim after deducting those things for which it was not entitled to charge as to be able to say that, notwithstanding the absence of more specific evidence on the point, it must follow that the time taken by the plaintiff was just far too long and that therefore there had been a breach of the implied obligation to do the work with reasonable efficiency. I am inclined to discount the estimate of Mr. Bale, in the light of my views as to his sweeping statement that the number of hours claimed by the plaintiff would have been impossible. This is a matter on which, in my opinion, the defendant had the onus. I have carefully considered the evidence of the expert witnesses more than once, and have taken into account the fact that the Magistrate was generally impressed by their evidence and was disposed to accept what they said. This latter consideration I think loses a good deal of its weight in circumstances where the Magistrate was most impressed by the statements of Mr. Bale which I have found must have been wrong, but I am conscious of the fact the Magistrate had the advantage of actually seeing these witnesses. On the other hand, my approach to the expert evidence, at least of Mr. Jorgensen and Mr. Wilson, is not that I reject it, but that I do not think it adequately addresses the right issues, and I think some of the concessions made in cross-examination are significantly to those issues.

47. [47]
    Perhaps if Mr. Jorgensen and Mr. Wilson had gone through Exhibit 4 and worked out the times that the various items referred to ought to have taken, they would have arrived at figures which would have shown that the plaintiff did not do the work with reasonable efficiency; but it is not for me to speculate about evidence which was not given. On the basis of the evidence led, in my opinion, the defendant has not discharged the onus of showing that there was a breach of this implied term, and it follows that (subject to the adjustments referred to earlier) the plaintiff is entitled to recover for the number of hours in fact worked.

Other Defences

48. [48]
    It is necessary for me to deal with two other issues raised on the defendant’s pleading, which did not arise on the view the Magistrate took of the matter. The first of these is the question of delay: it was alleged that the plaintiff was guilty of prolonged, inordinate and inexcusable delay in bringing this action and seeking to relief claimed, and acquiesced in the matters complained of. Delay and acquiescence can amount to a defence to an equitable claim: Orr v. Ford (1989) 167 CLR 316.  So far as I am aware, they are not a defence  to an action of law, as this is.  In addition, the pleading relies on the proposition that the defendant has suffered prejudice in losing the opportunity to pursue a claim for return of an amount overpaid.  On the view that I take of the matter, no such prejudice is made out.

49. [49]
    The other defence raised the question of estoppel. It was alleged that the plaintiff represented to the defendant the total costs of the work done was $16,669.03 and that acting in reliance on this representation the defendant paid that amount in full and final satisfaction of the goods and services rendered by the plaintiff. This was based on the fact that Exhibit 1 had at the end of the invoice “Total Cost of Job $16,669.03”. The defendant said that he saw this and assumed that this meant that that was all he had to pay for the painting. Whatever the defendant may have thought at the time, it seems to me that any fair reading of Exhibit 1 makes it clear that the reference to “Total cost of job” means the job consisting of the work described in the invoice, which covers the period from 1 March to 1 April 1991, and it obviously does not purport to include any work to be done in the future in order to finish painting the car. Accordingly I do not think the representation pleaded was made out. In any case, that representation could only give rise to an estoppel if in reliance on it the defendant changed his position so that he would now suffer a detriment if the plaintiff was permitted to resile from that representation. But the only matter the defendant said he did in reliance on the representation was pay the amount of the invoice. If that amount is payable anyway, there was no relevant detriment. So long as the total amount properly payable excess the amount already paid and for which credit is given, there is no relevant detriment and there can be no estoppel. The mere fact that there is a liability to pay more than the defendant thought he had to pay is not a relevant detriment for this purpose. The defence of estoppel therefore also is not made out.

50. [50]
    One other matter which was raised was whether some work done on the chassis, and some welding work, were recoverable. I do not think it matters particularly that this was not “painting”; what matters is whether the work was requested by Mr. Biggar and whether it was done. There is, I think, no sufficient reason to doubt that this work was done or to reject Mr. Contarino’s evidence that it was requested by Mr. Biggar even allowing for the fact that Mr. Contarino was a little vague about just what the welding work was. There does not seem to have been much of it, since it is referred to only on 14 March when quite a lot of other things are said to have been done, and a total of almost 47 hours was included on the invoice.

Adjustments To Claim

51. [51]
    With regard to the specific adjustments, the number of hours occupied in redoing the paint work for which I have found the plaintiff was not entitled to charge was 62: Exhibit 4. It emerged during argument that the plaintiff did not in fact charge for the labour involved in constructing the rotisserie, but there were some charges for parts (wheels at $184.32 and material $230.16, totalling $414.48) on Exhibit 1. There was 2½ charged for making up brackets on 11 March and there was time charged on 5 March which included buying wheels for the rotisserie which was not apportioned which I will assume took one hour, but it does not seem that any other time was charged for this, so 3½ hours should be deducted on this basis. One of the matters referred to at the trial was the fact that one employee, Mark, had recorded in his exercise book, Exhibit 5, on 12 March 1991 that for 3 hours he “watched Don spray chassis”: p. 58. It was conceded on behalf of the plaintiff that this should not have been charged for, but suggested in the written submissions reconciling the hours before me that the invoice had only included 1.4 hours for which the defendant had been charged in respect of this. Some of the figures in Exhibit 1 for 12 March are difficult to reconcile with the exercise books or the job cards, and I think there may well have been some of the mechanical errors referred to earlier in translating the information on the job cards on to the invoice. On my calculations there was a total of 45 hours recorded in the job card or exercise books, including the three hours in question, and 45.51 hours charged for that day in Exhibit 1. Overall, the mechanical errors favour the plaintiff as mentioned earlier, but I think I should give credit for the full amount of 3 hours since this amount appears on both the exercise book which is part of Exhibit 5 and the job card, Exhibit 15, and it is not clear that the hours charged in Exhibit 1 did not include the full amount. The amount claimed should therefore be reduced by $2,470. When the plaintiff’s claim is reduced in this way, the balance is $6,290. In view of the delay in bringing the matter to trial I do not think interest should be allowed.

52. [52]
    I will circulate these reasons and invite submissions as to the appropriate consequential orders in relation to costs.