ANESBURY & BRUCEWORKS LANDSCAPING PTY LTD (Civil Disputes)
[2010] ACAT 8
•18 December 2009
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ANESBURY v BRUCEWORKS LANDSCAPING PTY LTD (Civil Disputes) [2010] ACAT 8
XD 715 of 2009
Catchwords: CIVIL DISPUTES – essential terms of contract – breach of contract
Tribunal: Ms J Lennard Senior Member
Date of Orders: 18 December 2009
Date of Reasons for Decision: 1 March 2010
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 715 of 2009
BETWEEN:
GERALD WILLIAM ANESBURY Applicant
AND:
BRUCEWORKS LANDSCAPING PTY LTD
Respondent
Tribunal:Ms J Lennard Senior Member
Date: 18 December 2009
ORDER
Respondent to pay $2500 to the Applicant within 28 days of the date of this Order.
……………………………….
Ms J Lennard
Senior Member
REASONS FOR DECISION
The applicant is the owner of property at Gordon, ACT.
The Respondent is a corporation conducting the business of Landscape Contractor from premises in Pialligo, ACT.
On or about 25 September 2008 the applicant entered into a contract with the Respondent for the provision by the Respondent of landscaping works at his property in Gordon, ACT.
On 13 July 2009 the applicant made an application to ACAT for compensation for breach of that contract. The details of the dispute set out in the application were:
a) On 10 September 2008, the applicant entered into a contract with the Respondent for the provision of landscaping services to the applicant’s property located at Gordon.
b) Between 29 September and 21 November 2008, the applicant paid the Respondent $40,000 in accordance with the terms of the contract.
c) An essential term of the contract was the supply and installation of a new balustrade and the supply and installation of a new water feature.
d) Despite repeat demands the Respondent has failed, neglected or refused to supply and install a new balustrade and/or supply and install a new water feature, thereby breaching the contract.
e) As a result of the Respondent’s breach, the applicant has suffered loss and/or damage in the amount of $9414.00.
In their written response and counterclaim the Respondent stated:
a) We have not charged for the balustrade.
b) The original contract was for $46,860 which was signed by the applicant.
c) The total amount charged to date is $40,000.00.
d) The cost of the steel balustrade from AB Fabrications which Judy Anesbury requested directly from the manufacturer was $6840.00 with additional works of $2350.00.
e) We requested the client deal direct with the fabricator due to the fact that they had previous dealings with them and a relationship had been formed.
f) On completion of our works Mr Bruce Cross negotiated the final bill outstanding including the variations with Mr. Gerald Anesbury a handshake was offered and accepted and the finals bill was paid.
g) The Water Bowl that was covered with a total Budget of $1000.00 was yet to be chosen by the applicant and since then we have offered to credit then [sic] the monies of the water bowl and suggested they went elsewhere for the purchase.
h) Mr Bruce Cross has not failed, neglected or refused to supply and or not install the balustrades nor have we charged the applicants for this work.
The Respondent made a counter claim for $800 being the cost of supplying and installing synthetic grass to a portion of the applicant’s property.
ACAT conducted a hearing of this matter on 8 December 2009.
Issue 1 - When was the contract formed and what were its terms?
ACAT had before it evidence from both parties that the contract had been negotiated through a series of quotes supplied by the Respondent:
a) The first quote was for an amount of $38,610;
b) The second quote was for an amount of $48,860;
c) Each quote contained in the list of works:
Supply and install new balustrade to match existing
Supply and install a new water bowl feature to create serenity and bring in bird life.
The difference in the price between quote 1 and quote 2 arose from three extra options:
i) Pull up and relay pavers under existing pergola - $2000/30 hours;
ii) Supply and install new steel fencing. Budget price $3500/65 hours;
iii) Supply and install timber merbeau screening door $2000/65 hours.
This extra work was quoted at a teal of $8250 including GST.
It is common ground that the extra work was not done. The applicant stated that he had not agreed to the extra work because it was beyond his anticipated budget. The applicant gave evidence that because he was about to leave the Territory for work purposes he informed the Respondent that he did not intend to accept the quote for the extra work, but wanted the work detailed in quote 1 to be performed. He therefore signed the acceptance of quotation and faxed it to the Respondent. The Applicant acknowledges that he did not complete the space left for the contract amount, but he did so in good faith and trust in the Respondent to complete the form in accordance with their agreement.
The Respondent gave evidence that the Applicant had signed an acceptance of quotation form for the higher amount of $48,860, following discussion of some work additional to the first quote, but not including that extra work set out in the second quote. The parties were in heated disagreement as to the circumstances surrounding this assertion. The Respondent asserted that the form had been signed on 25 September 2008, the Applicant denied this. The Applicant provided ACAT with Affidavit evidence that he was not in the Territory on that date.
ACAT does not accept the contention of the Respondent that the Applicant agreed to changes to work of such a high value immediately after rejecting the extras in the second quote as beyond budget. It appears to ACAT to be more likely than not that the Respondent has filled in the amount at a later date, possibly in preparation for the hearing of this matter. In this regard ACAT prefers the evidence of the Applicant.
ACAT finds that in early September 2008 the parties entered into an express contract for the performance of the work detailed in the first quote for a price of $38610, and that that work included the supply and installation of the balustrades and water bowl.
Issue 2: was work beyond that included in the contract completed?
The parties agreed that the Applicant paid an amount of $40,000 to the Respondent. Each party agrees that balustrades and water bowl had not been completed. The Applicant asserts that he expected that although he had paid the full amount the Respondent would return at a later date and complete the work. The Respondent states that he believed that the final payment completed the contract between the parties. The Respondent argues that there were many changes requested by the Applicant during the time the work was being completed and that the amount of $40,000 was agreed. He stated that had he understood that the Applicant expected extra work he would have calculated the full price of the extra work and asked to be paid for it.
ACAT finds that the parties were not ad idem at the time the final payment was made, each party had a definite view which was fundamentally different form that of the other.
ACAT was provided with evidence of the actual cost of the work done and the extra work that was requested during the course of the landscaping. ACAT finds that there were changes to the planned work throughout the time that the work was being done. These variations included extra works, and changes to the material used in the works. Each of them incurred extra costs.
ACAT received evidence from each party in the hearing. The applicant asserted that there were no extra works but this is not consistent with having paid more than the quoted price. ACAT also received detailed invoices and work records form Bruceworks as well as written statement from the Respondent’s employees. ACAT recognises that such statements must be treated with caution, but they confirm that there were requests for extra work, that it was often difficult to negotiate with the Applicant and his wife. Taking into account the evidence and demeanour of each party, the final payment of $40,000 and ACAT’s understanding that in landscaping and building contracts there are frequently changes made as the work progresses, ACAT prefers the evidence of the Respondent as to both the fact and extent of the extra work performed.
The Respondent provided detailed documentation which showed that the total cost of the work actually completed was $41,565.28, and that those calculations had not included the cost of extra treads and replacement grass. ACAT accepts that some of the calculations submitted by the Respondent were estimates of the work done, reconstructed from records more than 1 year old.
ACAT finds:
a) that the quote for $38,610 included all work contemplated by the parties at the commencement of the landscaping work. This is reflected in the invoice issued by the Respondent on 21/11/08. That price included the provision and installation of the balustrades and water bowl;
b) that the balustrades and water bowl were not provided or installed;
c) that during the course of the landscaping work extra items, materials and work was requested by the Applicant and/or his wife;
d) that the Respondent did work and provided materials beyond the scope of the quote;
e) the payment of $40,000 did not included all extra costs.
Based on the information provided by the parties, ACAT determined that the Respondent should pay an amount of $2500 to the Applicant:
i) The original quoted price plus agreed extras came to a total of $40,000;
ii) The Respondent had not included the cost of extra tread ($4460) or replacement grass ($4880) in that amount;
iii) Thus the total due from the Applicant for the work contemplated under the first quote plus the extra work was $45,340;
iv) The Respondent had not completed all work contemplated by the first quote and the Applicant is entitled to $7840 compensation being the cost of the balustrades and water bowl.
v) The total amount whish the Applicant has to pay for the work done is therefore $37,500.
vi) The Applicant has paid an amount of $40,000, thus overpaying by $2500.
………………………………
Ms Jann Lennard
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: XD 09/715
APPLICANT: GERALD WILLIAM ANESBURY
RESPONDENT: BRUCEWORKS LANDSCAPING PTY LTD
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT: SELF
RESPONDENT: CROSS
TRIBUNAL MEMBER/S: MS J LENNARD Senior Member
DATE/S OF HEARING: 8 DECEMBER 2009 PLACE: CANBERRA
DATE/S OF DECISION: 1 MARCH 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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