VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
BUILDING AND PROPERTY LIST	
vcat reference No. BP1634/2015	
CATCHWORDS	
Australian Consumer Law (Victoria): Tribunal assumes jurisdiction; assessment of damages following damages hearing on 16 June 2023; findings previously made in substantive decision published in February 2022 published at [2022] VCAT 182; application by applicants made in August 2022 for further orders for damages rejected on the basis that with respect to those matters the Tribunal is functus officio; application by respondent to file further evidence and submissions after hearing on 16 June 2023 rejected and Frugtniet v Law Institute of Victoria Ltd [2012] VSCA 178 applied; claim by second applicant dismissed; first applicant’s entitlement to damages assessed; damages in respect of respondent’s counterclaim assessed; respondent’s entitlement to damages set off against first applicant’s entitlement to damages; issues of costs and reimbursement of fees reserved.	

FIRST APPLICANT	Mr Kamalesh Kapadia 	
SECOND APPLICANT	Ms Rajvee Kapadia	
RESPONDENT	Mr Adrian Porto t/as AP Concreting and Landscaping (ABN: 84 539 905 373)	
WHERE HELD	Melbourne	
BEFORE	C Edquist, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	16 June 2023	
DATE OF ORDER	7 July 2023	
CITATION	Kapadia v Porto (Building and Property) [2023] VCAT 768	

ORDERS
1	The Tribunal declares that it has jurisdiction in respect of the applicants’ claims as relief is sought under the Australian Consumer Law (Victoria).
2	In respect of the applicants’ application dated 4 August 2022 for an order for damages , the application is dismissed as the Tribunal is functus officio in relation to the matters raised by reason of the Orders and Reasons dated 18 February 2022.
3	Subject to Order 11, the respondent must pay to the first applicant damages for defective brickwork in the sum of $2,400.
4	The Tribunal declares that:
a.	the cost to complete the lower retaining wall in December 2015 would have been $2,485; and accordingly
b.	the respondent has been overpaid in respect of the lower retaining wall contract by $1,229.
5	Subject to Order 11, the respondent must pay to the first applicant in respect of the lower retaining wall contract the sum of $1,229.
6	Subject to Order 11, the respondent must pay to the first applicant the sum of $640 to adjust the height of the lower retaining wall so that it does not exceed 1m in height.
7	The total amount due to the first applicant under Orders 3, 5, and 6 is $4,269.
8	The Tribunal declares that the land upon which the subject work was performed by the respondent is owned by Golden Landmark Investments Pty Ltd. 
9	The claim of the second applicant Ms Rajvee Kapadia against the respondent is dismissed. 
10	The Tribunal declares that the first applicant is indebted to the respondent in respect of variations in the sum of $1,620.
11	The respondent’s entitlement to $1,620 is to be set off against the sum of $4,269 due to the applicant under Order 7 with the result that the respondent must pay to the first applicant the sum of $2,649. 
12	The first applicant and the respondent may each make a claim for costs or for reimbursement of fees within 30 days.
13	The principal registrar is directed to refer any claim made by a party for costs or reimbursement fees to Member Edquist.

C Edquist
Member			

APPEARANCES:		
For First Applicant	Mr K Kapadia in person, with the assistance of Mr R Kapadia, his son	
For Second Applicant	Mr R Kapadia, as representative of Ms R Kapadia, his sister	
For Respondent	Mr A Porto, with the assistance of Mr Porto, his father	

Reasons
Introduction
1	In this determination, monetary orders are made in connection with a long-running dispute between the first applicant Mr Kamalesh Kapadia (Mr Kapadia) and the respondent Mr Adrian Porto (Mr Porto), who trades as AP Concreting and Landscaping. The parties entered into several contracts in late 2015 in connection with work to be performed at a property at 101 David Collins Drive, Endeavour Hills, Victoria (the property). The works respectively were the construction of concrete steps in the garden and a concrete landing, the construction of a lower retaining wall along much of the boundary to the street, and the construction of an upper retaining wall in the garden.
2	This proceeding has a long and tortured history. Mr Kapadia and his daughter Ms Rajvee Kapadia instituted the proceeding in 2015. It came on for hearing in 2016. The Kapadias were unhappy with the orders made and appealed with partial success to the Supreme Court. The Supreme Court remitted the proceeding to the Tribunal by order made 27 October 2017.
3	After the remittal, the substantive hearing came on before me on 23 and 24 January and 1, 2 and 16 October 2020. Following the hearing, the Kapadias filed submissions in November 2020 and Mr Porto filed responsive submissions in February 2021.
The Orders of 18 February 2022
4	I published orders with reasons (the Reasons) on 18 February 2022 which are reported at [2022] VCAT 182.
5	In respect of the contract relating to the creation of the steps and landing, I found that nothing was owing from Mr Kapadia to Mr Porto and that Mr Porto was not liable for defects except in respect of the brickwork. In respect of the brickwork, I found Mr Porto to be liable to Mr Kapadia for damages in the sum of $2,400. No award was made for payment that sum on 18 February 2022 as the Tribunal was at that point not in a position to finalise monetary orders.
6	In respect of the contract for the creation of the upper retaining wall, I found that nothing was owing from Mr Kapadia to Mr Porto and that Mr Kapadia had no entitlement to damages against Mr Porto.
7	In respect of the third contract, which related to the creation of the lower retaining wall, I found that the contract price was agreed at $6,688. I also found that Mr Kapadia was entitled to:
a.	a sum to be fixed in respect of the cost of having the lower retaining wall completed after Mr Porto left the site, assessed on the basis of what it would have cost Mr Porto to complete the work in late 2015; and
b.	an award of damages in a sum to be fixed in respect of the fact that the wall as constructed is in excess of 1m, such damages to be assessed on the basis of what it would have cost Mr Porto to rectify the work in late 2015.
8	As a matter of procedural fairness, the parties were given an opportunity to give evidence about those two matters. Mr Porto was directed to file an affidavit setting out his evidence concerning each issue by 2 March 2022 and Mr Kapadia was directed to file an affidavit setting out his evidence in response by 30 March 2022.
9	An issue had been identified by me after the hearing regarding the ownership of the property and it was directed that Mr Kapadia file and serve an affidavit appending a copy of the title to the property. The parties were also given leave to put forward evidence concerning the standing of the second applicant Ms Rajvee Kapadia to bring a claim. Ms Kapadia was also given leave to file a submission regarding her standing to bring a claim.
10	I also gave leave to the parties to give evidence concerning variations claimed by Mr Porto. Mr Porto was directed to file an affidavit setting out his evidence by 9 March 2022 and Mr Kapadia was to respond by 30 March 2022.
11	A further hearing was scheduled for 2.15pm on 29 April 2022. 
The directions hearing on 29 March 2022
12	A directions hearing was listed for 29 March 2022 before Senior Member Kirton to consider material filed by the parties following the orders of 18 February 2022.
13	At that directions hearing, the Kapadias applied for an order that I be recused from hearing the balance of the proceeding. Senior Member Kirton refused to list that application on the basis that it was misconceived.
14	Senior Member Kirton noted in her orders that she had explained to the parties that the February Order and Reasons are the final disposition of all matters in the proceeding other than the five discrete questions listed in the orders. Senior Member Kirton noted some difficulties with the affidavit filed by Mr Porto and indicated that paragraphs 6 and 7 did not comply with the Orders made. She also ruled that paragraphs 7, 8, 9 and 10 of Mr Kapadia’s statutory declaration of 7 March 2022 did not comply, that the photographs filed by Mr Kapadia in March 2022 did not comply, and that the material filed with the Kapadias’ application dated 23 March 2022 did not comply.
The hearing scheduled for 29 April 2022 did not take place
15	The further hearing scheduled for 29 April 2022 was adjourned because Mr Kapadia was unavailable as he was overseas. The hearing was rescheduled for 5 August 2022.
The August application for orders
16	On 4 August 2022, the Kapadias made an application that I recuse myself. In the alternative, orders regarding damages were sought.
17	I was not satisfied there was any basis for me to recuse myself. On 5 August 2022, I referred the proceeding to a presidential member so that an application for reconstitution could be dealt with under s 108 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act). That application came on before Deputy President Lulham. He did not deal with it substantively, but referred the proceeding to a Vice President and made orders for the filing of material.
18	Senior Member Kirton made further procedural Orders in Chambers on 29 September 2022. 
19	Vice President Judge Marks heard the reconstitution application on 24 November 2022 and by order dated 25 November 2022 dismissed it.
20	The hearing before me resumed on 16 June 2023 (the damages hearing). 
THE DAMAGES HEARING– PRELIMINARY MATTERS
21	Before I could turn to the five issues which were to be determined pursuant to my Orders of 18 February 2022, it was necessary to deal with three preliminary matters at the damages hearing.
The email of 15 June 2023
22	First, I had read an email sent by the Kapadias at 6.09pm on 15 June 2023 to the Tribunal but marked for my urgent attention. That email asserted that there had been a serious miscarriage of justice in the case. I understood the email to be an application that I should recuse myself. When I raised that with the Kapadias at the damages hearing, I was informed that no application for recusal was being made. 
The contention that the Tribunal had no jurisdiction to hear a matter arising under the Australian Consumer Law
23	The second matter is that in an email of 5 June 2023 the Kapadias asserted that the Tribunal did not have jurisdiction to conclude the hearing by reason of the fact that the dispute had been found by me to arise under the “ACL”. The Tribunal had dealt with this concern prior to the hearing by noting in an email that in the decision published on 18 February 2022 – [2022] VCAT 182 – the Tribunal acknowledged the Kapadias’s claim under the ACL at [123] as follows:
The Kapadias contend that in the alternative to the DB Contracts Act, they are entitled to remedies under the ACL.[16]
Footnote 16 reads: 
The Australian Consumer Law applies in Victoria by operation of s8 of the Australian Consumer Law and Fair Trading Act 2012 (Vic).
Section 8 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) relevantly provides:
(1)	The Australian Consumer Law text, as in force from time to time—
(a)	applies as a law of this jurisdiction; and
(b)	as so applying may be referred to as the Australian Consumer Law (Victoria); and
(c)	as so applying is a part of this Act.
It is implicit that the Tribunal has made a finding that the claim is being brought under the Australian Consumer Law (Victoria).
The Tribunal takes the view that it has jurisdiction where relief is sought under the Australian Consumer Law (Victoria).
Accordingly, the hearing will proceed next Friday, 16 June 2023 at 2:15pm.
24	The Kapadias confirmed at the damages hearing that they were satisfied with that response and that the jurisdictional issue was not being pressed.
The application for orders made 4 August 2022
25	I then confirmed that the five matters to be dealt with were those referred to in the orders of 18 February 2022. At this point, Mr Reynal Kapadia submitted that I had to deal also with the application made by the Kapadias in August 2022. 
26	In order to give context to my disposition of the issue, it is necessary to set out the orders which were sought in that application (the August application) as an alternative to my recusal. They were:
2.	Consideration of the Counterclaim issue be limited to the issue of quantum of [Mr Porto’s] award for removal and disposal of the [Kapadias’s] old stairs as determined by the Supreme Court.
3.	An allowance be made for damages for the brick landing in favour of the [Kapadias] as follows:
a.	Cost of skip,
b.	Cost of removing concrete paving on brick landing (this will necessarily have to be demolished with the defective brickwork),
c.	Cost of re-concreting top of landing,
d.	Cost of concreting new stairs which are connected to the brickwork of the landing.
4.	An allowance be made for the replacement of the Brick Landing foundation, on the basis that an incorrect decision was made regarding its stabilisation and cause of subsistence.
5.	The costs of removal and replacement of the upper wall be allowed to remedy the failure as deemed by the Expert’s in attendance.
6.	The costs be allowed to rectify the defective inconsistent threads [sic] and risers of stairs.
7.	The [Kapadias] be allowed a loading of 30% for the contractor’s margin, and a loading of 10% for GST.
27	I refused to deal with the August application because it required me to revisit matters which I had considered and determined in my decision of 18 February 2022. 
28	Mr Kapadia disputed that ruling, saying that he made his application under “the slip rule”. No doubt he was referring to s 119 of the VCAT Act. This relevantly provides:
(1)	The Tribunal may correct an order made by it if the order contains—
(a)	a clerical mistake; or
(b)	an error arising from an accidental slip or omission; or
(c)	a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or
(d)	a defect of form.
29	I responded that s 119 applied where there had been a mistake in a particular number or word in an order but did not give me jurisdiction to open up a decision and insert a new order for damages which I had declined to make in the original order. Later in the hearing, when time permitted, I returned to the August application for orders and explained that in so far as the application was one for recusal or reconstitution, it had been dealt with. Insofar as it was a claim for new orders, each of the orders sought related to matters which had been dealt with in the decision of February 2022. Accordingly, with respect to those matters, I was functus officio.
Mr Porto attempted to submit further evidence after the hearing on 16 June 2013
30	Before I now turn to the five matters which remain for determination it is necessary to address an email the Tribunal received from Mr Porto on Monday, 19 June 2023 which was marked for my attention. From a perusal of the email, it appears to combine an application for leave to tender three further photographs into evidence and a set of submissions concerning evidence previously supplied.
31	Inevitably, Mr Porto’s email prompted a response from Mr Kapadia which started with the proposition that “This is manufactured evidence and should not be accepted”. The letter goes on to say that the case was closed on 16 June 2023.
32	It is not necessary for me to closely analyse everything said by Mr Porto on 15 June 2023 and by Mr Kapadia in response because I take the view that it would be quite inappropriate to have regard to the new evidence and submissions which Mr Porto has endeavoured to put before me. I have taken this position for a number of reasons.
33	First, as a matter of law, it is established that the Tribunal generally should not have regard to submissions received after the conclusion of a hearing without leave. The principle is illustrated by Frugtniet v Law Institute of Victoria Ltd [2012] VSCA 178 which was discussed in the Reasons at [152]–[155]. In a number of cases, the Tribunal has declined to look at submissions received without leave after the conclusion of a hearing. Two of those cases were referred to in the Reasons at [28]. Other cases can be added to the list.
34	Quite apart from this overarching legal principle, there is a matter of fairness arising out of how the Tribunal has treated material which the Kapadias have attempted to submit after the conclusion of the main hearing. The Tribunal was resolute in excluding further evidence which the Kapadias sought to file in February 2021: see Reasons, [26]. And, as has been noted, at the directions hearing on 29 March 2022, Senior Member Kirton noted some difficulties with the affidavit filed by Mr Porto and indicated that certain paragraphs paragraph did not comply with the Orders made. She also ruled that certain paragraphs of Mr Kapadia’s statutory declaration of 7 March 2022 and other materials filed on 23 March 2022 did not comply with the orders. She warned that they would not be considered by the Tribunal.
35	There is also a strong recognition of case management principles underpinning my decision on the point. There was a five day hearing before me after which the parties filed substantial submissions. The evidence given at the hearing was considered in the Reasons, which ran to 55 pages (excluding the Orders). There has been a further hearing of two and a half hours at which evidence has been given regarding a limited number of matters. If I was to have regard to the further evidence and submissions lodged by Mr Porto, it would be necessary to give leave to the Kapadias to file further evidence and submissions. There may well be a further attempt by Mr Porto to submit evidence and submissions after that. There is accordingly a real risk that the finalisation of this litigation, which has been on foot on any objective view for far too long, will be further delayed.
36	I now turn to the five remaining issues.
The cost of having the lower retaining wall completed after Mr Porto left the site
37	Mr Porto filed an affidavit dated 27 February 2022 which made reference to my orders dated 18 February 2022. However, he did not engage with the task of quantifying the cost of having the lower retaining wall completed. At [3], he invited me to follow the 2016 decision where Member Buchanan had made an assessment of the percentage of work completed under the relevant contract. I do not accept this as evidence, as the matter has been remitted by the Supreme Court to the Tribunal differently constituted for determination. Accordingly, it falls to me to make a decision based on the evidence before me. 
38	Mr Porto’s evidence regarding completion of the lower wall is to be found at [5] of his affidavit. Relevantly, he deposes at [5(a)]:
Considering all posts were previously placed, the only thing left to do is place sleepers to match the level of already placed sleepers. This would take approximately 1.5 hours to do. Plastic needs to be placed, which would take approximately 30 minutes. An aggi pipe also need to be placed, taking another 10 minutes. Lastly, 200mm scoria needs to be placed over the aggi pipe, which would take approximately 45 minutes, bringing the front wall to complete [sic].
39	Mr Porto summarised the cost of this work at [5(b)] as follows:
Placing sleepers:  2 people for 1.5 hours @ $40 per hour, a total of $120.
Placing plastic, agricultural (aggi) pipe, and scoria: 2 people for 1.5 hours @ $40 per hour, a total of $120.
Total labour: $240
All materials were available, save for the balance of sleepers.
40	The Kapadias engaged an expert, Mr Branko Mladichek, to provide a costing of the completion work. His report was dated 28 March 2022 and was appended to an affidavit sworn by Mr Kapadia dated 29 March 2022.
41	Mr Mladichek had inspected the site on 11 December 2018 and provided a report which was tendered by the Kapadias at the main hearing. It appears from the face of his report that he did not reinspect the site, but proceeded on the basis of instructions received from “Kapadia”. It is not clear which of the Kapadias briefed him.
42	Mr Mladichek was not called by the Kapadias even though they were well aware from previous hearings of the importance that is attached by the Tribunal to an expert being available for cross examination. This point was discussed by me extensively in the Reasons, at [154]-[182]. Mr Mladichek’s report was put into evidence, but the fact that he was not available to answer questions about it may lessen its value as evidence.
43	The instructions received by Mr Mladichek in respect of the completion of the lower wall were as follows:
Costings for lower wall
We need the following costings:
-To install 17m of aggi pipe, black plastic and scoria,
-To install 7m of sleepers and retaining wall posts.
44	It is to be noticed that this evidence contains no reference to three significant matters, namely: 
a.	the costings are to be assessed from the point of view of Mr Porto, not a third party contractor;
b.	the costings are to be assessed as at December 2015;
c.	the materials other than the sleepers had all been obtained by Mr Porto in December 2015.
45	Mr Mladichek’s costing to complete 17m of drainage comes to $4,118.40, which is broken down at page 11 of his report as follows:
•	hand excavate for agi (sic) drains behind retaining wall: 
16 hours @ $65 per hour plus loading of 43%: $1,487.20;
•	plumber to lay and connect to stormwater: 
8 hours @ $100 per hour with a loading of 43%: $1,144;
•	drain materials, connectors and sundries: 
$250 plus loading of 43%: $357.50;
•	backfill remove excess soil and clean up:
8 hours @ $85 plus loading of 43%: $972.40;
•	scoria:
1 m³ @ $90 plus loading of 43%: $128.70;
•	building plastic:
20m² @ $1m² plus loading of 43%: $28.60.
No margin allowable
46	I address each of these items below in turn. However, it is convenient to make the observation immediately that I will not allow recovery of margin of 43%. It is clear from Mr Mladichek’s report that the margin of 43% comprises a builder’s margin of 30% plus GST of 10%.
47	Mr Mladichek either was not made aware of, or has overlooked, the fact that the order of 18 February 2022 was to the effect that the works were to be costed on the basis of what it would have cost Mr Porto to complete the work. Builder’s margin is not relevant, as no third party contractor will be performing the work. Furthermore, Mr Porto will not be paying GST to anyone.
Hourly rate for a labourer
48	It is also convenient to address now the issue of a labourer’s hourly rate as at December 2015. There was an argument at the hearing regarding the applicable rate. The Kapadias relied on Mr Mladichek, who costed the work of a labourer at $65 per hour. It is clear from the instructions given to Mr Mladichek that he had costed the work at today’s rates. In my experience, $65 per hour is certainly consistent with that approach, but inconsistent with costing the work as at December 2015. 
49	It is necessary to address an observation made by Mr Raynal Kapadia at the hearing, who drew my attention to the fact that in the Reasons, when assessing damages for the brickwork, I had accepted a rate of $65 per hour for a labourer, at [339]. I highlight that in making the assessment of damages in relation to the brickwork, I had made a finding, at [337], that because the contract for the landing and brickwork had been discharged by performance rather than being terminated for breach, the Kapadias were entitled to damages assessed on ordinary contractual principles. That meant that they were entitled to damages assessed at today’s prices. It was in that context that I accepted the figure of $65. 
50	I find that $65 per hour as the rate for a labourer is not relevant in the present context, as the work has to be assessed using December 2015 costings. 
51	Mr Porto suggested that $40 an hour was the appropriate rate in 2015. I think, on the basis of my experience sitting in the Tribunal since late 2014, that this is much more realistic than $65 per hour, and I will adopt it.
Hand excavation
52	Mr Raynal Kapadia submitted that the hand excavation referred to was not excavation of the soil which presently sits behind the lower retaining wall, but hand excavation which would have been required to insert agricultural drains behind the wall. Mr Porto disputed the item, saying it was not needed. I do not accept the position of either party.
53	As noted, Mr Mladichek was not present for cross examination. Accordingly, he could not explain whether he was referring to excavation of the massed soil or whether he was referring simply to the excavation of a small trench in which to insert the agricultural drain behind the wall. Mr Mladichek’s contention that 16 hours’ excavation was necessary very much suggests that he was talking about removal of the massed soil. The excavation of a narrow trench to insert the agricultural drain would not have taken anything like 16 hours. I accordingly find that this item is not allowable, because the order of 18 February 2022 was to the effect that the works were to be costed on the basis of what it would have cost Mr Porto to carry out the work in December 2015. At that point, no soil had been deposited behind the lower retaining wall.
54	However, I accept the Kapadias’s submission that the agricultural drain will have to be laid in a shallow trench behind the wall, and I reject Mr Porto’s suggestion that no excavation at all will be required. There were 17m of agricultural drain to be laid. I do not accept Mr Porto’s assertion that the labourer’s work in placing the agricultural drain could be wrapped up with placing the plastic and laying the scoria and that all this work could be performed within one and a half hours. I consider that six man hours of work is a reasonable assessment for the task of digging a shallow trench for 17m and placing the agricultural drain in it. At an hourly rate of $40 per hour, I allow $240 for this item.
Plumber to lay connect agricultural drain to stormwater
55	Mr Porto at the hearing disputed the claim that a plumber would be engaged for eight hours to do the work. He said that he would not use a plumber at all, but even if a plumber was engaged, he would place the agricultural drain and the plumber would only make the connection to the stormwater drain. Mr Raynal Kapadia submitted that a plumber had to be used and that irrespective of the actual time engaged in doing the work, there would be a minimum call out fee.
56	I find that a plumber will be necessary to connect the agricultural drain to the stormwater drain. I also accept the Kapadias’s submission that there will be a minimum call out fee to the site. However, I do not accept that eight hours’ work will be involved. A labourer could carry out the unskilled work of laying the agricultural pipe in a shallow trench behind the wall. I have allowed for this work above. I think a two hour allowance for plumber’s work would be sufficient.
57	Mr Porto also disputed the plumber’s hourly rate claimed of $100 per hour. I agree that the claimed rate appears to be too high as it is the sort of rate which might be claimed in respect of a plumbing job to be performed today. It appears clear from the briefing given to Mr Mladichek that he has worked out his costings on today’s rates. On the basis of my experience this would have been too high for a plumber in December 2015. However, Mr Porto did not assist by providing any evidence of what a plumber would have charged in December 2015 other than to say that at that time, rates were about half what they are today. Doing the best I can with the limited evidence available, I think an hourly rate of $75 for a plumber would be more appropriate for December 2015. I allow $300 for the plumber inclusive of a call out fee of $150.
Placing plastic
58	As noted, Mr Porto deposed that placing the plastic, placing the scoria and placing the agricultural drain could all be done in one and a half hours. I do not accept this. However, Mr Mladichek did not make a separate allowance for laying the plastic. Given that 20 m² of plastic has to be laid, I will allow half an hour’s work for two men. At $40 per man hour, the total cost allowed is $40.
Scoria
59	Mr Mladichek said that one cubic metre of scoria had to be spread. Mr Porto agreed with this volume. Mr Mladichek did not estimate the time it would take to spread the scoria. Mr Porto did not itemise how long it would take to spread the scoria either, because he wrapped this work up with laying the plastic and laying the agricultural drain. Doing the best I can on the limited evidence, I will allow one hours’ work for each of two men, at $40 per hour. The total is $80.
Materials
60	Mr Porto’s gave evidence that he had acquired the materials required for the job, save for the balance of the sleepers. However, I consider that this is not to the point, as in order to complete the work, Mr Porto would have had to use the materials he had acquired, rather than save them and use them on another job as he presumably did. For this reason, I think the cost of acquiring materials must be taken into account. 
61	At the hearing, Mr Porto was asked about the acquisition of 20m² of plastic and he accepted a rate of $1 per m². I will allow $20 for plastic. He also agreed that $90 was a reasonable cost for the delivery of 1m³ of scoria, and I will allow that sum also. Mr Porto deposed that he did not know if the $250 allowed for drain materials, connectors and sundries was appropriate. In the absence of any evidence from him to the contrary I will allow that figure too. The total allowance for materials is, accordingly, $360.
Summary regarding laying the drainage
62	I have found above, at [55], that there is to be an allowance of $240 in respect of hand excavation. At [58], I have allowed $300 for the attendance of a plumber to connect the stormwater drain. At [59], I have allowed $40 for placing the plastic and at [60], I have allowed $80 replacing the scoria. Finally, I have allowed $360 for materials. The total of these allowances is $1,020.
The cost to complete the lower wall by installing 7 m of sleepers
63	Mr Kapadia summarised the cost in his affidavit, at [9], at $2,545.40. This figure was based on the following figures found in Mr Mladichek’s report at page 13:
•	mini bobcat operator to lift concrete sleepers and replace when base rectified:
4 hours @ $120 per hour plus 43% loading: 	         $686.40
•	labourer:
8 hours at $85 per hour plus 43% loading:	         $972.40
•	clean up on completion:
2 hours @ $85 per hour plus 43% loading: 	         $243.10
•	carpenter in attendance to mark and control levels:
4 hours @ $85 per hour plus 43% loading:	         $486.20
•	allowance for sleeper damage replacement:
2sleepers @ $55 each plus 43% loading: 		         $157.30
Placing the sleepers
64	At the hearing, Mr Porto strongly contested that it would be necessary to use a bobcat to lift the concrete sleepers. He emphasised that the posts were in place and all that had to be done was the adjustment of the sleepers between the posts. The usual way of doing would be for two men to place the sleepers one at a time.
65	Mr Raynal Kapadia drew my attention to [276] of the Reasons in which it was recorded that Mr Porto’s father, Frank, had given evidence that the problem of the sleepers being higher than 1 m could have been fixed by raising the five sleepers in situ using a forklift before resetting them.
66	Mr Porto and his father insisted that the solution was relevant to raising a set of sleepers which were in place. It was not relevant to the placing of sleepers one by one for the first time.
67	I accept Mr Porto’s submission on this point, and now turn to the evidence of what it would have cost for Mr Porto to lay 7 m of sleeper by hand in 2015. He said it would take two labourers one and a half hours to place the sleepers and that the cost of each labourer would be $40 per hour. His allowance, accordingly, was $120.
68	I do not accept that the work could be done properly with an allowance of only six minutes for each of 15 sleepers. After he was terminated, Mr Porto dropped the sleepers on-site into place and the height of the top sleepers has been found to exceed 1m. To be placed correctly the sleepers will need to be positioned with care so that they do not exceed 1m in height and that as far as possible the sleepers in one bank line up with the levels in the next bank. Doing the best I can with evidence from Mr Porto that I regard as unrealistically conservative and with evidence from Mr Mladichek which is not to the point, I find that an allowance of 30 minutes for two men to properly place one sleeper is appropriate, after allowing for purchasing and unloading all the sleepers, site preparation and clean up after all the work has been completed. For 15 sleepers, the total allowance is seven and a half hours for each of the labourers. Realistically, this should be rounded up to eight hours per person. At $40 per hour – which I have found above, at [52], is the appropriate rate – a total allowance for 16 hours of $640 is appropriate.
Carpenter in attendance
69	Mr Mladichek opined that it was appropriate that a carpenter be in attendance to “mark and control levels”. He allowed 4 hours’ work at $85 per hour plus a loading of 43%, resulting in a total cost of $942.40. Mr Porto, at the hearing, strongly disputed that it was necessary for a carpenter to attend. Mr Mladichek was not present to answer questions about the issue but his opinion is to be viewed in the light of the fact that he was proceeding on the basis that the concrete sleepers would be placed by a bobcat. In those circumstances, it is understandable why Mr Mladichek thought someone other than the bobcat operator should be present. 
70	While I have already emphasised that it is important for the sleepers to be placed with care, I can see no necessity for a carpenter to be present in circumstances where I accept Mr Porto’s view that the sleepers should be placed by two men working together. They can mark levels and use a spirit level. It is not necessary for a carpenter to be in attendance.
Allowance for sleeper damage
71	Mr Mladichek, in his costings, allows for two replacement sleepers at a cost of $55 each. Given that only 15 sleepers are required, this is a high replacement rate. Mr Mladichek was not available to justify his position under cross-examination. It is possible that if the sleepers are placed using a bobcat, as he recommends, some will be marked or even damaged. However, if the sleepers are placed by hand, as I find they should be, then the risk of marking or damage will largely be eliminated. Accordingly, I disallow this item.
Materials
72	It is clear from Mr Porto’s affidavit that he accepts that the new sleepers would have had to be acquired by him if he was to have done the work. He did not challenge the allowance of $55 per sleeper contained in Mr Mladichek’s costing. I will allow 15 sleepers at $55 per sleeper, a total of $825.
Summary
73	The allowance for labour for placing the sleepers is limited to $640. I have allowed $825 for the cost of the sleepers themselves. The total is $1,465. This is the relevant figure, because, for the reasons explained above, no builder’s margin or GST loading will be allowed.
Conclusion regarding completion of lower wall
74	I have found above, at [63], that the cost of completing the drainage will be $1,020. The cost of acquiring and placing the required 15 sleepers will be $1,465. The total is $2,485.
75	I note that in the Reasons, the Kapadias’s evidence that they paid $2,376 to have the remaining 7 m of the wall completed is recorded at [439]. I consider that this figure provides verification that my assessment of what it would have cost Mr Porto to complete the work in December 2015 is reasonable.
Consequence of this finding
76	In the Reasons, I found at [430] that the contract price for the lower retaining wall was $6,688 inclusive of GST. At [442] of the Reasons I noted that it was common ground between the parties that the deposit of $3,000 had been paid and that this reduced the balance of the contract price to $3,688. At [443], I noted that it had been conceded by Mr Porto in his points of defence that amounts of $1,786 and $646, a total of $2,432, had been made by Mr Kapadia to a landscape centre for the purchase of sleepers, and that Mr Kapadia was entitled to a credit in respect of these payments. This notionally reduced the balance due in respect of the lower retaining wall to $1,256.
77	The Kapadias dispute that they are indebted to Mr Porto in respect of the sum of $1,256. They submit that they are entitled to a credit in respect of the cost to them of having the lower retaining wall completed.
78	I accept this submission, for the following reasons. It was Mr Kapadia who repudiated the contract for the lower retaining wall: see Reasons, [191]. Mr Porto is entitled to be put in the same position that he would have been had he completed the contract. This means that against the full contract price that would have been paid to Mr Porto had he completed the work, namely $6,688, there must be a set off for the amounts paid to or on behalf of Mr Porto and also the cost to him of having the work completed had he done the work in December 2015. The amounts, accordingly, to be set off against the contract price of $6,688 are the sum of $3,000 paid in cash, the $2,432 paid on behalf of Mr Porto by Mr Kapadia to a landscaping centre, and the amount I have found it would have cost Mr Porto to complete the lower retaining wall in December 2015, namely $2,485. It follows that in respect of the lower retaining wall, Mr Porto has been overpaid by the amount of $1,229. I will make a declaration to this effect. 
The claim for damages in connection with the cost of re-levelling the lower retaining wall. 
79	Mr Kapadia in his affidavit of 29 March 2022, at [7], asserts that the cost of re-levelling the lower wall will come to $5,169.45. This figure is derived from Mr Mladichek’s costings at page 15 of his report, which are as follows:
•	mini bobcat with operator to lift concrete sleepers and replace when base rectified: 
8 hours @ $120 per hour plus a loading of 43%: 	$1,372.80.
•	labourers
16 hours @ $85 per hour plus a loading of 43%: 	$1,944.80.
•	cleanup on completion
4 hours @ $85 per hour plus a loading of 43%: 	$486.20.
•	carpenter in attendance to mark and control levels:
8 hours @ $85 per hour plus a loading of 43%: 	$972.40
•	Allowance for sleeper damage replacement
5 sleepers @ $55 each plus a loading of 43%: 		$393.25
80	In addition to these figures, Mr Kapadia in his affidavit at [8] sought $1,944.80 to remove the soil from behind the sleepers, having regard to the fact that the area had been backfilled since Mr Porto left the site. Mr Raynal Kapadia, at the hearing, confirmed that this figure was claimed in addition to the $1,944.80 sought as part of the re-levelling costs.
Removal and replacement of soil behind the sleepers
81	It is convenient to deal with these 2 items first. The Kapadias have no basis upon which to claim them, as the damages are to be assessed on the basis of what it would have cost Mr Porto in December 2015 to modify the height of the sleepers. At this point, the area behind the lower retaining wall had not yet been backfilled. This means that the claim for 16 hours’ work by labourers to remove the soil from behind the sleepers, and the additional 16 hours’ work to replace the soil after the lower retaining wall has been levelled at the right height, must be disallowed.
Mini bobcat with operator
82	Mr Raynal Kapadia justifies this claim by referring to the evidence given by Mr Frank Porto at the main hearing that the height of the sleepers of the lower retaining wall could be adjusted in situ by using a bobcat to raise the sleepers, excavating the soil below the lowest sleepers, and then re-loading the sleepers. The evidence is to be found in the Reasons, at [274]–[276].
83	Mr Porto and his father Frank argued that the use of a forklift (not a bobcat) had been suggested by Frank Porto at the hearing on the basis of an assumption that the soil had already been backfilled behind the lower retaining wall. They say the appropriate way to adjust the height of the sleepers when there was no backfilling would be to remove the sleepers one by one using the manpower of two labourers. In his affidavit of 27 February 2022, Mr Porto described the rectification method at [4(g)], as follows:
The top two sleepers would be manually removed to reduce weight on leverage bar. The bar would be used to lift the sleepers to lever the sleepers up, one end at a time. I would then remove the required amount of debris (10-15mm), lower the sleepers by removing the bar and place the top two sleepers back in place.
84	I do not accept Mr Porto’s submission on this point. I understood Mr Frank Porto’s evidence at the main hearing to be that the appropriate way to rectify the height of the sleepers in situ was to use a forklift. This is what I recorded in the Reasons. Accordingly, I find that Mr Mladichek’s opinion that a machine ought to be used is reasonable. I will allow the cost of the hire of a forklift with operator.
85	Mr Mladichek considered that a bobcat with operator would be required for four hours. The time was not the subject of dispute, but the hourly rate of $120 suggested by Mr Mladichek was. Mr Mladichek had costed the hire of the bobcat at today’s rates. Mr Porto suggested that $80 per hour might be an appropriate rate for 2015. Presumably he had in mind a forklift, not a bobcat. However, he did not put into evidence any invoice, quotation or hire shop price list from 2015 in order to justify his view. Doing the best I can with the imperfect evidence available, I will allow four hours forklift hire at $100 per hour, a total of $400.
Minor excavation underneath the sleepers
86	I refer to Mr Frank Porto’s evidence at the main hearing, recorded at [274] of the Reasons, that once the sleepers have been raised using a forklift, the soil beneath the lowest sleepers could be excavated in order to create sufficient depth to allow the sleepers to be reloaded at the appropriate height.
87	Neither party gave evidence directly addressing the cost of this work. It was presumably included in Mr Mladichek’s allowance of 16 hours’ work for a labourer. While I disagree that 16 hours’ work should be allowed, as this appears to relate to the cost of removing all the soil which is now backfilled behind the retaining wall, I am satisfied that some allowance should be made for the excavation that will be required under the sleepers.
88	The lower retaining wall was to have been 17m in length. 7m were not installed by Mr Porto, which means that 10m were. It follows that a shallow lineal excavation of 10m length will have to be created underneath the elevated sleepers along the property line which abuts a concrete footpath. The work will have to be done by hand while the machine which is to be used to lift the sleepers is on-site. I will allow 4 hours for a labourer at $40 per hour for this item, a total of $160.
Cleanup on completion
89	Mr Mladichek allowed 4 hours for clean up on completion. He did not attend at the hearing to answer questions as to why so much clean-up work would be required. Mr Porto opposed any allowance at all. Having regard to the nature of the relevelling work, I consider it more likely than not that some clean up will be needed. Doing the best I can on the inadequate evidence available, I will allow two hours for clean up at $40 per hour, a total of $80.
Carpenter on-site to mark and control levels
90	Mr Mladichek opined that there should be an allowance for eight hours attendance by a carpenter to mark and control levels. Mr Porto disputed the need for this.
91	In my view, there will be no need for a further person to be on-site merely to control the levels. The levels could be marked out by the labourer who will be present on-site before the forklift operator begins his work. The depth of the excavation required under the lowest sleepers can be measured by that labourer and the labourer can excavate to the required depth. Accordingly, I reject any allowance for a third person, whether that person be a carpenter or a labourer, to be on-site while the height of the lower retaining wall is adjusted.
Replacement of damaged sleepers
92	Mr Mladichek allowed for five sleepers to be replaced. It is not clear why he did this, as he was not available to answer questions under cross-examination. It appears to me that he may not have exercised independent judgement about the need for replacement sleepers, nor about their cost, because in their instructions to Mr Mladichek the Kapadias stated:
Because removal of sleepers likely to lead to damaged sleepers, need an allowance for damaged sleepers to be replaced. So maybe about 10 sleepers at $55.
93	I do not think this claim for replacement sleepers is justified. If there is a real risk of the original sleepers being damaged by the use of a machine to lift them, then it might be reasonable to have them lifted by hand as suggested by Mr Porto. To allow $275 as a contingency for replacement sleepers seems excessive in the context of such a small job, particularly when the need for the use of a machine to do the work is disputed by Mr Porto.
Summary regarding damages for adjustment to the height of the fence
94	For the reasons set out above, I have allowed $400 for the hire of a forklift with operator to lift the sleepers. I have allowed $160 for minor excavation beneath the lowest sleepers, and $80 for clean-up after the machine has left the site. The total allowance is, accordingly, $640.
Who owns the property?
95	Mr Kapadia filed a statutory declaration dated 7 March 2022 in which he deposed that the property at 101 David Collins Drive, Endeavour Hills was currently registered to Golden Landmark Investments Limited. This statement is substantially correct. A copy of the title was exhibited to the affidavit. It indicates that the owner of the property is Golden Landmark Investments Pty Ltd. I will make a finding that this is the case.
96	In so far as Mr Kapadia is concerned, this finding makes no difference to the outcome of the proceeding because I have already found in the Reasons, at [104], “that Mr Kapadia, as the organiser and director of the works was a builder and that he engaged Mr Porto as a sub-contractor”. The only significance of the finding that a company owns the land is that Mr Kapadia is to be regarded as a builder rather than an owner builder.
97	The finding that Golden Landmark Investments Pty Ltd owns the property is relevant to the standing of Ms Rajvee Kapadia to bring a claim against Mr Porto, because she clearly is not doing so as a proprietor of the property. This segues into the issue of whether she had standing in some other way to pursue a claim against Mr Porto.
The standing of Ms Rajvee Kapadia to bring a claim against Mr Porto
98	In his statutory declaration, Mr Kapadia deposes that Ms Rajvee Kapadia was, at the time the works were carried out by Mr Porto, resident at the property. He says that she contributed towards the cost of the works. She also inspected the work from time to time and made commentary as to her opinion. Mr Kapadia exhibits a statement signed by Ms Kapadia. This confirms the three matters just referred to.
99	What is missing from this evidence of Mr Kapadia is any reference at all to the question of agency. Mr Kapadia does not depose that he was acting as the agent of Ms Kapadia when he formed the contracts with Mr Porto. Moreover, the statement from Ms Kapadia does nothing to fill this gap in the evidence. She does not say that her father was contracting on her behalf as a disclosed agent. Nor does she state that she directly formed a contract with Mr Porto.
100	In the circumstances, I have no hesitation in finding that Ms Kapadia did not form any contract with Mr Porto. I will dismiss Ms Kapadia’s claim against Mr Porto.
Mr Porto’s claims for variations
101	In the Reasons, at [447] it was noted that:
In his amended points of counterclaim filed in August 2016, Mr Porto indicates that during the course of discussions with Mr Kapadia, there were many changes to the proposed scope of works. A number of these changes have been discussed above, and insofar as they have been incorporated into the respective final agreed scopes of work, they have no financial ramifications. However, Mr Porto says that there were a number of packages of work which it was necessary for him to perform, but which were not referred to in any of the finally agreed scopes of work. He also says that he was told to invoice these works at end of the project. The additional works, he says, include:
(a)	breaking down and removing the old concrete steps and tiles, valued at $1,300;
(b)	removing and disposing of 8m³ of rubble: $1,000;
(c)	disposing of a steel and iron fence and concrete footings: $1,500;
(d)	disposal of old timber retaining walls: $770.
102	The Kapadias relied on a technical defence in relation to all Mr Porto’s variation claims, namely that he was not entitled to be paid for variations because as a builder performing domestic building work he had not complied with the requirements arising under s 37 of the Domestic Building Contracts Act 1995 (Vic) (DB Contracts Act). Because I found the in the Reasons that the DB Contracts Act did not apply to Mr Porto’s works, this defence fails. However, it is also necessary to deal with the Kapadias’ other defences, which are factual. 
Requirements of a claim for a quantum meruit
103	As I noted at [450] of the Reasons:
In respect of each of the claimed variations, it is necessary to enquire whether the variation was directed by the Kapadias and performed by Mr Porto. If it was performed, was the price agreed, or is Mr Porto to be paid on a quantum meruit, literally “as much as he has earned”.
104	At [454], I explained:
quantum meruit…. is an equitable remedy which is available in a range of situations. These situations include where a contractor has received instructions, either express or implied, from a person to perform a service without remuneration being determined beforehand but where the circumstances are such that the contractor expects to be paid and the instructor expects to have to make payment.
105	At the main hearing before me little evidence was given by the parties regarding the variations, because at the start of the hearing I was of the view that the part of the counterclaim that had been remitted to the Tribunal was limited to the quantification of an error in calculation which had been identified at the appeal hearing. 
All aspects of the counterclaim must be considered
106	However, in preparing the Reasons, it became clear to me that I must determine all aspects of the case including the counterclaim. As the only evidence regarding variations was that contained in the transcript of the original hearing in 2016, the parties were as a matter of procedural fairness, in the orders made on 18 February 2022, given a further opportunity to file evidence concerning the variations claimed by Mr Porto.
Mr Porto’s affidavit 27 February 2022 contains no evidence about variations 
107	As noted, Mr Porto filed an affidavit dated 27 February 2022. Although this affidavit contained evidence regarding the issues of the cost to complete the lower retaining wall contract and the damages arising from the need to re-level the lower retaining wall, he gave no evidence regarding his variation claims.
108	This oversight was almost fatal to Mr Porto’s variation claims. Although there is some evidence regarding variations contained in the transcript of the original hearing, I am not disposed to rely on it alone. 
109	However, at the damages hearing, Mr Porto did give evidence in relation to each of the variation claims. I will shortly discuss the variations one by one. First, it is convenient to address a general defence raised by the Kapadias.
Mr Porto’s policy of documenting changes to scopes of work and invoicing variations promptly
110	In Mr Kapadia’s affidavit of 9 March 2022, he highlights that Mr Porto had a policy of quoting for work and then altering the quotation if the scope of work changed. An example, given at [39] of the affidavit, is the revised quotation dated 24 October 2015 for the steps contract to reflect the increased cost of using Hawthorne coloured bricks. Mr Kapadia also referred to Mr Porto’s policy of invoicing variations as he went along. Thus, at [41], Mr Kapadia refers to an amended invoice to reflect the change in height of the upper retaining wall sent on 7 November 2015. At [42], he refers to an amended invoice sent on 22 November 2015 reflecting an increased price for stone sleepers.
111	I am satisfied that Mr Kapadia makes a fair point. The history of the quotations and invoices justifies the view that, generally speaking, Mr Porto was alive to protecting his financial interests by adjusting quotations in respect of any changed scope of work and also by invoicing promptly for variations. However, I do not accept that this history means that Mr Porto is automatically disbarred for making a claim for a variation which was not documented at the time. But I do accept that it means that any claim for an undocumented variation must be looked at with some scepticism.
Removal of old concrete steps and tiles
112	It is clear that the old steps had to be removed from the property before the new stairs were installed. There is no dispute about this, as Mr Kapadia contends that the removal of the steps was included in the price of the contract for the creation of a new landing and steps. In this he relies not on the quotation of 8 November 2015, which I have found at [64] of the Reasons formed the basis of the contract, but on an earlier quotation dated 22 October 2015 which he says required Mr Porto to remove the old steps. I find against Mr Kapadia on this point, as there is a detailed list of works set out in the quotation of 8 November 2015 which formed the basis of the contract which did not include the demolition of the steps, although they did include the demolition of a concrete platform.
113	I acknowledge Mr Kapadia’s fallback argument about the final quotation of 8 November 2015, which is that it came about as a result of the advice given by Mr Porto on 7 November 2015 that he would be making a change to the quotation to allow for “removal of the concrete and broken bricks also”. Mr Kapadia deposes, at [56], that:
The change in the quote was specifically discussed and agreed between the parties and outlined that only additions would be made to the quote. There is no mention of any removals from the earlier quotes.
114	I acknowledge that it may be that Mr Kapadia had an expectation that the quotation of 8 November 2015 somehow still included the removal of the steps, as he deposes in his affidavit at [59]. However, his subjective expectation is not to the point. Under the law of contract, the objective meaning of the contract is paramount. Because the quotation of 8 November 2015 was detailed but did not include the removal of the steps, I confirm my finding that the removal of the steps was not part of the contract arising from the quotation. It follows that that the removal must be treated as a variation. I turn now to an assessment of the value of the variation. 
The value of the step removal variation
115	At the damages hearing, Mr Porto deposed that he had discussed the price for the removal of the stairs with Mr Kapadia. He said he would charge $1,500 for removal of the stairs if they contained steel reinforcement. In the event, he discovered that only part of the stairs were reinforced, and he charged only $1,300. At the damages hearing, he deposed that the tipping fee was $300, which would have left him with $1,000 in hand for the work.
116	In his affidavit, Mr Kapadia says at [59] that “There was never an indication that the disposal of the old steps was not included in the significantly more expensive quote…”. From this it is to be inferred that he denies that there was a discussion about the cost of removing the steps.
117	I have indicated in the Reasons, at [152], that I consider that Mr Porto “presented as an honest and accurate witness”. On the other hand, I found, at [146], that in relation to the issue of who had carried out the second excavation that Mr Kapadia “was not a witness of credit”. In the face of an apparent conflict between Mr Porto and Mr Kapadia as to whether there was a discussion about the cost of removing the steps, I prefer the evidence of Mr Porto. As noted, Mr Porto’s evidence was that the price for the removal of the steps was agreed at $1,500, but he later reduced the price to $1,300. I will declare that Mr Porto is entitled to $1,300 in respect of this item.
Removal and disposal of 8 m³ of rubble
118	Mr Porto gave evidence at the damages hearing that the excavation contractor engaged by the Kapadias deposited soil at the site. In order to prove the existence of this soil, he referred to one of the photographs appended to his affidavit of 27 February 2022 (photograph N 12). I accept that this photograph shows a substantial pile of soil and building debris such as bricks piled in the lower garden at the end of the excavated area.
119	I understand that the excavation in question was “the second excavation”, referred to at [144] of the Reasons, which was performed after Mr Porto had built the steps and the upper retaining wall. 
120	Mr Kapadia, in his affidavit at [61], deposed that he did not recall that Mr Porto ever informed him that he was removing or disposing of any soil. He also said, at [64], that to the best of his knowledge “the soil was simply shifted to other parts of the property, none was taken away”. He added, at [66], that he never requested Mr Porto to take any soil away. 
121	Mr Reynal Kapadia robustly contested at the damages hearing that Mr Porto removed the soil from the site, deposing that the soil was left on the site and that he and his father ultimately threw the soil into a skip.
122	Mr Reynal Kapadia also highlighted that Mr Porto’s evidence about the removal of the soil and debris had changed. In his points of defence Mr Porto had claimed $1,000 for the removal of 8 m³ of soil. Mr Kapadia highlighted that at [391] of the Reasons, the claim was one for $800 “in respect of the removal or disposal of approximately 6 m³ of dirt and gravel.
123	There is contemporaneous evidence about the removal of the soil by Mr Porto in the form of his email dated 1 December 2015 which was exhibited by Mr Kapadia to his affidavit. On the third page of the email Mr Porto complains of Mr Kapadia making the job “extremely dangerous as new and unstable mounds of dirt were added to the worksite changing the conditions of the job further limiting my access to the areas I needed to excavate from”. 
124	Mr Porto goes on:
This not only created danger for me, it also forced me again to change the manner in which I undertook construction of the wall causing me further disruption. In addition I had to move and dispose of some of the stockpiled soil excavated by yourself to continue my work which I did at no extra charge and only completed as I deemed the jobsite extremely unsafe. The removal and disposal of this excavated material, including bricks, was not originally quoted for and was created by your decision to get the area excavated over the weekend.
125	From this email, I conclude three things. First, I am satisfied that Mr Kapadia did place soil on the worksite from the second excavation. Second, Mr Porto agreed to move and dispose of some of the stockpiled soil at his own expense. Third, Mr Porto confirmed contemporaneously that he would not be charging for this work.
126	Mr Kapadia makes the point in his affidavit, at [67], that had he known Mr Porto was now going to raise a charge for moving the soil, he would have kept “a video camera surveillance of him doing this work”. I accept that Mr Kapadia is materially disadvantaged by the fact that so many years after the event a claim is now being made for a variation which he thought was not going to be pursued. In these circumstances it would be unfair to allow Mr Porto to resile from his representation that he would not be charging for this work.
127	I will dismiss this claim.
Disposal of a steel and iron fence and concrete footings
128	Mr Porto in this counterclaim sought $1,500 for the dismantling of an old corrugated iron fence around the site, and the disposal of 10 sheets at the tip. 
129	Mr Kapadia in his affidavit, at [61], said that to the best of his knowledge no “sheets of steel” were taken by Mr Porto and he referred to a photo of iron sheets sitting at the site on a date after Mr Porto had left. 
130	At the damages hearing, Mr Porto referred to photograph N18 which showed corrugated iron resting against excavated soil in several places. He said this was evidence of the fact that the old corrugated iron fence had come down. He said some of the sheets were left on site to stabilise the soil where it had been excavated and that he took the balance of the sheets away in his truck. He said that he still had corrugated iron sheets at his place.
131	Mr Reynal Kapadia highlighted that Mr Porto’s claim had not been consistently made. In the counterclaim, $1,500 was sought. However, in the Reasons, at [391], the claim for the removal of the fence was put at only $700. Mr Porto offered no explanation for this discrepancy in the figures at the damages hearing. 
132	Although Mr Porto’s evidence was poor, I am satisfied that there was a corrugated iron fence around at least part of the property line and that it had to be removed to enable the lower retaining wall to be built. Accordingly, I find that there was at least an implied direction to Mr Porto to remove the fence.
133	Clearly there was no agreement regarding the price to be paid for the removal of the fence. Mr Kapadia, at [71] of his affidavit, deposed that he did not agree to Mr Porto doing this extra work. At the hearing, Mr Porto did not suggest that a price had been agreed for the work. Accordingly, this item is being claimed on a quantum meruit. 
134	It is necessary to assess the value of the work to demolish the corrugated iron fence, which included steel posts and would have included railings as well. Mr Kapadia gave no evidence in his affidavit about the cost of removal of the fence, and limited his evidence to what the cost of a skip would have been to take the rubbish away. 
135	Mr Porto did not give evidence regarding the time it took to demolish the fence, nor did he indicate how many corrugated iron sheets he actually removed from the site. However, it appears in the Reasons, at [458], that Mr Porto had said that he had taken 10 sheets of iron to the tip. Mr Porto’s affidavit exhibited a photograph, N18, which showed five pieces of corrugated iron still on-site. Mr Kapadia’s affidavit, at Annexure D, shows what appear to be 4 sheets of iron on site in a different configuration. I infer that they are different pieces of iron. From this, it appears that the fence was constructed of at least 19 sheets of corrugated iron. This is understandable when it is remembered that the lower retaining wall contract called for the installation of 17m of sleepers. It is reasonable to infer that the corrugated iron fence would have been of that length. If corrugated iron sheets of 850mm were used, and an overlap of 50mm was created at both edges of each sheet, I calculate that there may have been 23 sheets involved. However, this is to a degree, speculation. Doing the best I can with the limited evidence available, I make a conservative estimate that 19 sheets in total were dismantled.
136	Having regard to the fact that in addition to the iron sheets, railings, steel posts and concrete post footings would have had to be removed, it is hard to see how the fence could have been removed by two men in less than half a day. This may be an underestimate, but as the absence of better evidence is attributable to Mr Porto, it is appropriate that he does not receive a windfall by reason of the lack of evidence. 
137	I will adopt an hourly rate of $40 per hour for a labourer as the applicable rate in December 2015, for the reasons explained above, and will allow for 2 men at 4 hours each. The resulting calculation is $320.
138	In addition, I would ordinarily have allowed Mr Porto an award in respect of the time involved in taking the balance of the corrugated iron sheets away and tipping them. I would have allowed the tip fee if there had been evidence of that. However, it appears from Mr Porto’s evidence that he took the 10 corrugated iron sheets home and did not tip them. He has received a benefit in this way, and I will award no damages for removal and tipping.
139	The award for this item is limited to $320.
Disposal of old timber retaining walls
140	Before Mr Porto started work, he says that he had to remove the old timber retaining walls. In this counterclaim, he sought $770. However, Mr Reynal Kapadia pointed out that in the Reasons at [391] that this variation not referred to. The final variation claim referred to there was for $200 in respect of extra staff for one day. Mr Porto had no explanation for this discrepancy.
141	Mr Reynal Kapadia gave evidence that the old timbers were thrown into a skip by him and his father. Mr Kapadia exhibited a photograph to his affidavit showing pieces of timber in a skip. I am unable to say from that photograph whether the timber was likely to have come from an old retaining wall, and so I draw no conclusion about this either way. 
142	Mr Porto insisted that he had removed the timbers from the old retaining wall but in the absence of any direct evidence in the nature of photographs showing Mr Porto removing the timber I find that on the balance of probabilities that Mr Porto must fail in respect of this claim.
Summary
143	At [118] above, I have allowed Mr Porto $1,300 in relation to the removal of the old steps. At [140], I have in addition allowed $320 in respect of the demolition of the old corrugated iron fence. I will declare that Mr Porto is entitled to a total of $1,620 in respect of variations and that this sum is to be set off against the monies which have been found to be due from Mr Porto to Mr Kapadia.

C Edquist
Member