ATLAS AIR CONDITIONING PTY LTD & KOH (Civil Dispute)
[2013] ACAT 25
•23 April 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ATLAS AIR CONDITIONING PTY LTD & KOH
(Civil Dispute) [2013] ACAT 25
XD 12/1576
Catchwords: CIVIL DISPUTE – work for removal and installation of air conditioning unit – issue of contract price – counterclaim for damages for pain and suffering
Tribunal: Mr C.G Chenoweth – Senior Member
Date of Orders: 23 April 2013
Date of Reasons for Decision: 23 April 2013
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 12/1576
BETWEEN:
ATLAS AIR CONDITIONING PTY LTD
Applicant
AND:
MARGARET KOH
Respondent
TRIBUNAL: Mr C.G Chenoweth – Senior Member
DATE: 23 April 2013
ORDER
The Tribunal Orders that
1.The respondent pay to the applicant the sum of $2,647 within 28 days of the date of this order.
2.The counter claim of the respondent is dismissed.
3.There be no order as to costs.
………………………………..
Mr C. G. Chenoweth
Senior Member
REASONS FOR DECISION
This is an application for an order that the respondent pay the applicant the sum of $2,647.00, being the balance outstanding on a contract for the removal of an old air conditioning system and the installation of a new air-conditioning unit at a property in Watson owned by the respondent. The applicant says that the work was quoted in the sum of $4,147.00 and that the respondent agreed to pay this amount. She has only paid the sum of $1,500.00.
The applicant carries on the business of air conditioning installers and suppliers. Its general work is in the area of large commercial undertakings, rather than residential air conditioning units. It undertakes the installation work through a number of sub-contractors. The respondent is a qualified legal practitioner, although not working in that area at the present time.
The applicant claims that the contract between itself and the respondent arose in discussions between the applicant’s officers and the respondent while she was working for them, and that it was confirmed by the forwarding of a quotation for a fixed sum to which the respondent did not object. No deposit was taken, nor any acknowledgement obtained from the respondent in writing. The respondent had allowed the installation work to be undertaken by the applicant’s sub-contractor. The respondent denies that there was any verbal agreement confirming the price for the installation, and maintains that she did not see the quotation until after the work had been undertaken and she had left the employment of the applicant.
The first witness for the applicant was Mr Neale. He is an engineer with the applicant. His role is to assess requests for installation and prepare quotations for the work. He first had discussions with the respondent in early May 2012, when she was employed by the applicant. The applicant told him that the air conditioning unit in a property that she owned and leased out was not working, and that it had to be replaced. Mr Neal indicated that the cost would be of the order of $4,000 for a suitable machine, including installation and the necessary pipework, but that the respondent should treat this as a budgeted figure rather than a formal quotation. Mr Neal confirmed that his role was to prepare quotations for individual jobs. He prepared a quotation dated 11 May 2012 for a total of $4,147 including GST. It was addressed to the applicant at her Turner address. The unit was to be installed at a property in Watson ACT. For some unexplained reason, a further quotation in exactly the same terms appears to have been prepared on 16 May. Mr Neale was unable to explain how this would have come about.
In cross-examination by the respondent, Mr Neale maintained that he had the discussion concerning the likely costs with the respondent in the office, and denied that he had falsified it. He also explained that the installation of the new system would require not just the purchase of the unit, but also the installation of new pipework and electrical fittings, as any unit over five years old when replaced would require new pipe work. He said that he discussed this with the respondent. The respondent indicated that she wished to go ahead and Mr Neale placed an order for the unit.
The second witness for the applicant was Mr Ivan Cengic. He was the sole director and owner of the applicant. He said that the respondent had worked on a temporary basis in the company’s office, and that he had discussed with her the proposal to replace the air conditioning unit. He had received the quotation prepared by Mr Neale which was standard procedure. He had checked it and approved it. Mr Cengic also said that in his discussion with the respondent she wished to have some additional lights installed in the premises. Mr Cengic had allowed some extra for these although they had not been referred to in the quotation. The company had engaged a subcontractor, Van Duren Electrics, to undertake the work. Mr Cengic said that although the usual procedure was to require an advance or deposit when a client agreed to have air conditioning units installed, he had waived that requirement because she was an employee. He also confirmed that he had had a discussion with the respondent about the replacement of the air conditioning unit at a company barbecue that had been undertaken on Anzac Day that year.
In cross-examination, Mr Cengic confirmed that Mr Van Duren had been present at the barbecue on Anzac Day, and may have been involved in the discussions. Mr Cengic confirmed that he had not inspected the unit that the respondent wished to have replaced. He was quite clear that the respondent had told him on Anzac Day that she wished to go ahead with a replacement of the unit. There was also discussion of the replacement of the unit at a company lunch held that a Deakin restaurant sometime after the Anzac Day barbecue, in which the respondent took part.
The third witness for the applicant was Mr Krish Gounder, the finance and administration manager of the applicant. He gave evidence that he had known the respondent for several years before she joined the applicant, and knew that she wanted to replace the air conditioning unit in the Watson premises. In discussions with the respondent he had referred her to Mr Neale, who undertook the quotations. He was aware that the respondent had talked with Mr Neale. The applicant did not normally undertake residential air conditioning unit work because of its small size, but the company had been prepared to undertake it for the respondent as she was an employee. Mr Gounder said that the usual process was for Mr Neale to prepare a quote, he would then check it and it would go to Mr Cengic for final approval. He was unable to explain why there were two quotation forms with different days on them. The usual procedure would be that the quotation forms would be sent out to a client by e-mail.
The respondent gave evidence. Mr Gounder had advised her that there was a temporary job available with the applicant, and she went to the Anzac Day barbecue where she met the company officers and also Mr Van Duren. She discussed her air conditioning unit with Mr Van Duren, who called in and inspected it. This was on or about 28 April. Mr Van Duren indicated that it needed to be replaced, and she went to various suppliers to check on prices. The Deakin lunch was held in the first week of May, and again she discussed the air conditioning unit with Mr Cengic, Mr Neale and Mr Gounder.
The respondent acknowledged that she was aware that the replacement was to be undertaken, commencing on 12 May, when Mr Van Duren went to the property to commence the removal of the old unit and the installation of the new one. She was not clear when the work was completed but she thought it was in about the middle of June. She left employment of the applicant on 9 July. She said that she had not seen the quotations of 11 May or 16 May until 17 July. She denied that she had been informed that the cost of replacing the unit would be about $4,000, and denied that she had entered into a contract for this amount. She denied that there had been any additional lights installed on the premises as all of the work undertaken related to the air conditioning unit. The respondent produced photographs indicating that the model number on the unit installed was different from the model number on the quotation itself. No evidence was available as to whether this made any difference to the performance of the unit, and I was unable to make any judgement about whether there was any significance in this. Further, the respondent claimed that the applicant had not removed the old air conditioning unit, which was still on the premises. I note that the quotation did not refer to removal of the old unit.
The respondent called an expert witness, Mr Marek. He was a licensed B grade electrician and refrigeration mechanic, with over 40 years installation experience in the air conditioning industry in Canberra. While he had retired from that role he was now engaged in consulting to builders and independent contractors about air conditioning issues. He has been to the Watson premises and inspected the unit. His opinion was that he would be able to purchase the unit for about $1,100, plus $7-$800 installation charges including piping and wiring. Labour costs would be about $120 an hour. His view was that it was a simple job to remove the old unit and replace it with a new one and it would take about an hour. Under cross-examination, he acknowledged that there would be different costs at which the unit could be purchased, depending upon the commercial strength of the purchaser.
On behalf of the applicant, it was submitted that the evidence of the witnesses demonstrated that there had been discussions between the respondent and Mr Neale that the work would be about $4,000, the quotation of $4,147 was confirmation of that indicative figure, and that the respondent had verbally agreed to it. Further, the respondent had gone ahead to allow the sub-contractor access to the premises to remove the old unit and install the new one. The respondent had only paid $1,500 of the contract price. On the reference to the different model number, there had been no objection to the performance or installation of the new unit.
The respondent maintained that there had never been a discussion with Mr Neale about the likely cost of the unit, that she had been expecting an invoice cost much lower than this, based on her enquiries from suppliers, and that Mr Neale had told her that if she sent $1,500 this would be enough.
Having heard the witnesses for the applicant and the respondent, I am satisfied that the evidence of the applicant’s witnesses is to be preferred to the respondent where they differ. I am satisfied that there were discussions with the respondent in which she was told that the likely cost of the removal and installation of the new unit was going to be about $4,000, and the quotation is consistent with this. I am also satisfied that the respondent indicated to Mr Neale and Mr Cengic that this was satisfactory to her, as a result of which the company prepared the quotation. Although there is no direct evidence of its receipt by the respondent on or about 12 May, the evidence from Mr Gounder is that this is the company's standard procedure in sending out invoices. While the respondent denies receiving the invoice prior to the work having been done, and maintains that she had no contract with the applicant in relation to the installation, this evidence raises serious questions as to why a person (particularly a legal practitioner) would allow access to her property for the installation of a new unit unless she knew the terms upon which this work was to be done. If she had believed that there was no verbal commitment to a figure of about $4,000, and was still of the view that the work could be done for a lower price, she took no steps to raise that with the applicant at the time of the removal and installation of the new unit. I find it difficult to accept that somebody in her position, both as a landlord and a legal practitioner, would not have had the commercial understanding to check what the cost of the work to be undertaken on her property was likely to be.
I note the evidence from Mr Marek concerning the cost at which he considered he could obtain and install the air conditioning unit. However, the central issue in the case is whether or not there was an agreement at a higher price. If there was such an agreement, then the evidence of Mr Marek cannot alter that contractual conclusion. It may be that if his evidence was accepted, the quotation was higher than a knowledgeable person would have expected. However, the issue is whether there was a contract for a particular price, not whether that price was reasonable or could be bettered in the marketplace.
In her reply, the respondent lodged a counterclaim for damages arising from pain and suffering caused by the institution of proceedings and relations generally between the applicant and the respondent, and also loss of income caused by the applicant. The respondent claimed that she had been severely distressed by the institution of proceedings and that Mr Cengic had sought advice from a friend about where the respondent was presently working, in order to complain to the Law Society about her. There was no independent evidence of this. I explained to the respondent that from my experience, the Law Society would not regard the fact that she might have a civil debt proved against her as grounds of itself for refusing to issue a practising certificate to enable the respondent to obtain employment as a legal practitioner. Legal practitioners, like other people, incur and dispute debts. That of itself is not a ground for deciding that they are not a fit and proper person to practice. There is no evidence to support the counterclaim and it is dismissed.
Having regard to the evidence I am satisfied to the required degree that there was a contract formed between the applicant and the respondent prior to 12 May 2012 for the removal and installation of an air conditioning unit for the price of $4,147. As the applicant has paid $1,500 of this, the tribunal determines that the balance of $2,647 is to be paid to the applicant by the respondent within 28 days.
In its application, the applicant sought an order for costs against the respondent. In accordance with its usual practice, and in the absence of any special circumstances, there are no grounds for a costs order and it is refused.
………………………………..
Mr C. G. Chenoweth
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER: | XD 12/1576 |
PARTIES, APPLICANT: | ATLAS AIR CONDITIONING PTY LTD |
PARTIES, RESPONDENT: | MARGARET KOH |
COUNSEL APPEARING, APPLICANT | |
COUNSEL APPEARING, RESPONDENT | |
SOLICITORS FOR APPLICANT | |
SOLICITORS FOR RESPONDENT | |
TRIBUNAL MEMBERS: | C.G Chenoweth – Senior Member |
DATES OF HEARING: | |
PLACE OF HEARING: |
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
0
0
0