BC Formwork Solutions Pty Ltd v Hossain
[2018] ACAT 60
•1 June 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BC FORMWORK SOLUTIONS PTY LTD v HOSSAIN (Civil Dispute) [2018] ACAT 60
XD 1022 of 2016
Catchwords: CIVIL DISPUTE – cash payments without receipts – concrete formwork
Tribunal: Senior Member A Anforth
Date of Orders: 1 June 2018
Date of Reasons for Decision: 1 June 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1022/2016
BETWEEN:
BC FORMWORK SOLUTIONS PTY LTD
Applicant
AND:
ASIK HOSSAIN
Respondent
TRIBUNAL:Senior Member A Anforth
DATE:1 June 2018
ORDER
The Tribunal orders that:
1.Judgment to the applicant in the amount of $8,090.68, comprised of:
(a)$7,000 for the principal sum claimed;
(b)$290 for the Tribunal lodgement fee; and
(c)$800.68 in interest in accordance with the Court Procedures Rules 2006 from 18 April 2016 to the date of this order.
2.The applicant has leave to apply for out of pocket expenses in relation to witness reports and appearances if so desired.
3.The respondent’s counter claim is dismissed.
………………………………..
Senior Member A Anforth
REASONS FOR DECISION
1.On 21 September 2016 the applicant lodged an application with the Tribunal seeking an order against the respondent for the payment of $7,466.68 (inclusive of $290 of the Tribunal lodgement fee). The claim read:
I was asked by Asik Hossain to carry out some footing excavations footing concrete work. And also some off form concrete walls. I worked out the m2 amount then told Asic (sic) of the amount I would charge. The amount was $10,000. I wrote the amount on the drawings he provided. I asked if he was happy to pay this amount he said yes. Then I asked him to sign his name on the amount in agreeance and so he did. To date I have only Recived (sic) $3000.00.
2.The application annexed:
(a)a set of plans of the lot showing the proposed house, fences, walls, and letterbox with handwritten notations of wall heights and areas. The plans contain a handwritten notation of $10,000, the respondent’s signature next to it and the date 18 February 2016. The plans also contained the handwritten notation “8500, 1000, 500, 10,000” and 71m2 the relevance of which appears below;
(b)ten photographs of concrete walls in various stages of construction;
(c)an invoice from the applicant to the respondent for $10,000 dated 18 April 2016;
(d)an authority for Brendan Carey to act for the applicant; and
(e)an ASIC search showing Mr Carey as the director and that the applicant was still registered.
3.The respondent did not file a response to the claim and default judgement was entered on 24 November 2016 in the sum of $7,290.00. On 24 January 2017 the judgment was set aside on the application of the respondent.
4.On 13 February 2017 the respondent filed a response in which he asserted that:
(a)he had in fact paid the applicant $6,000.00 of the $10,000.00 contract price in cash on 5 March 2016 at his home in the presence of his wife;
(b)the notation ‘8500, 1000, 500, 10,000’ had been covered up by the applicant at the time the respondent signed the plans and the respondent had no awareness of the annotation at the time;
(c)the $10,000.00 was the full contract price and was inclusive of materials which the respondent was to pay directly to the suppliers, that is, the labour content payable to the application was $10,000 minus whatever the respondent paid for materials;
(d)he paid $5,760 direct to suppliers for materials;
(e)a total of $11,760 had been paid representing an overpayment of $1,760; and
(f)that the contract included a concrete mailbox that was not constructed.
5.The respondent annexed a counter claim for:
(a)cleaning of site after the applicant had departed in the sum of $400;
(b)completion of the mailbox. The applicant completed only the formwork for the base and did not complete the construction;
(c)compensation for the rendering of an internal feature wall. The respondent claimed the cost of demolition and reconstruction or compensation in lieu thereof. He wrote:
The feature wall was supposed to be smooth on the inside surface and rough on the outside surface. It was constructed either the wrong way around or rough on both sides. As it wasn’t done properly, both sides of the wall were then covered by rendering which was never part of the agreed works.
(d)the cost of rectifying an external concrete wall along part of the perimeter of the property by cutting 0.2m off its height. The respondent wrote:
The height of the wall, as specified in the measurements on the drawings, was to be 1.8 meters. During the formwork stage I thought the wall was too high and I sent a text to Mr Carey with my concerns on 25 February 2016. Regardless, the wall was subsequently constructed to a height of 2 meters. I have received a letter from ACTPLA dated 13 April 2016 stating the wall is an unapproved structure and is to be rectified.
6.On 21 February 2017 the Tribunal made orders for the filing and serving of evidence relied upon including any expert reports, invoices and a timeline of events. The matter was listed for hearing on 5 April 2017 and the parties notified.
7.On 4 April 2017 the applicant filed:
(a)a timeline of events (Exhibit 3);
(b)a statement by himself dated 3 April 2017 (Exhibit 2) which did not go beyond the assertions in this claim;
(c)a report form Eoin Devaney, managing director of Xmplar building solutions dated 5 April 2017, a Quantity Surveyor and experienced in formwork (Exhibit 4). Mr Devaney visited the site and estimate the labour cost of the project at $14,500 exclusive of materials.
8.On 5 April 2017 the respondent again failed to appear at the appointed time and the Tribunal again entered judgment for the applicant in the sum of $7,290.00. The respondent belatedly appeared and sought that the judgment be set aside. The presiding member heard submissions from the parties and declined that request.
9.On 24 April 2017 the respondent lodged an application to set aside the judgment of 5 April. On 9 May 2017 after hearing from the parties, the Registrar set aside the judgment on the basis that neither party had complied with the procedural directions of 21 February 2017 and there appeared to be a genuine dispute between the parties. New procedural orders were made and the matter was listed for hearing on 16 June 2017.
10.On 24 May 2017 solicitors for the respondent, Mr Mansfield of O’Connor Harris, filed Exhibit 5 consisting of:
(a)a statement of Kazi Farzane, wife of the applicant, dated 23 May 2017 (Exhibit 10). Leaving aside hearsay, Ms Farzane said that she personally saw her husband pay $6,500 in cash to the applicant;
(b)a statement from the applicant dated 24 May 2017. The statement admitted a variation of $500 for the installation of pump and denied any agreement for the wall to be more than the 1.8m shown on the plans. It asserted:
(i) the contents of his previous response set out above, only this time the respondent the respondent said he ‘presumed’ that the applicant had covered up part of the plans before asking the respondent to append his signature;
(ii) he paid cash to the applicant of $6,500.00 at the his house on 27 February 2017, $500 of which was for the pump;
(iii) he had expressed concerns to the applicant about the height of the wall on site on 23 February 2017 and again by text message on 25 February 2017;
(iv) the concrete for the wall was poured on 27 February 2017 and the walls were too high;
(v) he received a letter from the ACT Planning and Land Authority (ACTPLA) on 13 April 2017 notifying the wall was too high;
(vi) on 25 February 2017 he noted that one of feature walls had a crack and that the intended rough and smooth sides were around the wrong way;
(vii) the applicant rendered both sides of the feature wall on 28 or 29 February 2017;
(viii) another of the feature walls was built to the wrong height;
(ix) the part of the feature walls that provided insets for lighting were left in a poor state;
(x) the mailbox was not completed;
(xi) on return from his holidays Mr Carey made a demand for a further $7,000 said to be owning for his work. The respondent denied the request and the applicant left the site;
(xii) the total form and concrete work undertaken by the applicant was 51.411m2. The asserted contract price for $10,000 for labour only gave a rate of $194.51 per square metre which is above the ‘typical’ market rate of $150 per square metre. In the alternative, if Mr Carey spent 13 effective full time equivalent (FTE) man days on site then the labour charge was $83.25 per hour which is “too high a rate”.
(c)The statement contained:
(i) a table of materials paid directly by the respondent in the sum of $5,680.31 together with the invoices and/or receipts;
(ii) an undated quote for the reduction of the wall to 1.8m from Russell Taylor in the sum of $2,200 and $2,970 to complete the mail box;
(iii) a claim for $2,000 loss of capital value for the rendered feature wall;
(iv) a total counter claim of $8,850.31;
(v) a copy of the email of 25 February 2017 from the respondent to the applicant asking the applicant to make the wall 1.8m from the ground;
(vi) a report of 6 March 2017 from Tony Fairman of Fairman Homes estimating the total concrete volume at 51.44m2; and
(vii) a set of 12 photographs of the walls in varying degrees of construction.
11.On 16 June the matter was heard. Mr Carey appeared in person and Mr Mansfield of O’Connor Harris appeared for the respondent. The parties each defined their respective claims. The applicant asserted that the construction of the mailbox was not part of the original contract. It was an agreed extra at $1,500.
12.The Tribunal raised the issue of whether the fences and walls at their actual height had been approved by the ACTPLA. The respondent said that they had not. The Tribunal expressed concerns that if the fences and walls are ordered by ACTPLA to be demolished then the whole nature of the case changes in terms of both whether the contract was illegal in its inception and the quantum of damages. Similarly, if they are approved at the existing height then there would be no need to speed money reducing the height and this part of the respondent’s claim would abate.
13.Orders were made, inter alia, that the respondent file and serve by 16 July 2017 correspondence from ACTPLA showing the approval of the fences and the matter was relisted for 24 July 2017. The hearing date was subsequently adjourned to 21 August 2017.
14.On 18 August 2017 the applicant filed a statement from Maya Vite Rodriguez, the applicant’s fiancée. Leaving aside the hearsay, Ms Rodriguez said that Mr Carey produced to her $3,000 in cash on 28 February 2017 which was the day before they departed on holidays to Chile (Exhibit 6).
15.The matter came on for hearing on 21 August 2017. Mr Carey appeared in person and Mr Mansfield appeared with the respondent. The decision on the respondent’s development application had still not been made by ACTPLA. The matter was adjourned to 9 October 2017 to await the ACTPLA decision.
16.A copy of the ACT ‘Fences and Freestanding Walls’ policy was tendered (Exhibit 7).
17.The matter was further adjourned to 5 December 2017 in anticipation of the outcome of the development application.
18.On 5 December 2017 Mr Carey appeared in person and Mr Mansfield appeared for and with the respondent. The respondent advised that his development application for the fences and walls was negative but a review had been sought. A copy of the adverse decision was tendered (Exhibit 8).
19.The matter was further adjourned to await the outcome of the review. It was listed for directions only on 27 February 2018.
20.On 27 February 2018 the respondent advised that his review had been successful on appeal to the Tribunal and the walls and fences had been approved subject to some modifications. Orders were made for the filing of that evidence and any further evidence that the parties relied upon. The hearing was adjourned to 3 April 2018.
21.On 12 March 2018 the respondent filed an unsigned statement of his evidence (Exhibit 9). The statement recounted the history of the development application and said:
(a)the successful review meant that the respondent did not need to reduce the height of the fence along the perimeter and accordingly the counter claim of $2,200 for that cost was withdrawn;
(b)this left the balance of the counter claim at $6,650.31 composed of:
(i) Amount paid to suppliers for materials $5,680.31
(ii) Amount paid to Mr Carey $6,500
(iii) Amount for completion of mail box $2,970
(iv) Compensation for the rendered feature wall $2,000
minus:
(v) Agreed variation for the pump supplied $500
(vi) Amount payable under the contract $10,000
(vii) Total due: $6,650.31
22.The respondent’s statement annexed:
(a)the development application;
(b)the decision of ACTPLA refusing the development application;
(c)the consent orders of the Tribunal made on 25 January 2018 in relation to the respondent’s development application appeal.
23.On 3 April 2018 the hearing resumed. Mr Carey appeared in person and Mr Mansfield appeared for and with the respondent.
24.Mr Carey opened his case and gave evidence under affirmation at the same time. Apart from reiteration the terms of his statement he said that the notation ‘8500, 1000, 500, 10,000’ connotes a labour cost of $8,500 for formwork; $1,000 for the excavator; and $500 to place the steel and concrete.
25.He was cross examined by Mr Mansfield. Part of that cross examination went to the height of wall and how it was measured, and part went to the volume of concrete that was poured by the applicant. The applicant maintained that the wall was 1.8m above the deck off the house but was 2.1m if measured from the footings for the wall which were sunk into the ground 300mm. It was put to Mr Carey that the volume of cement was only 51m2 whereas he had quoted for 71m2 and invoiced for 104m2. Mr Carey said the real volume was 104m2 but that even on the lowest estimate his charge of $10,000 was still conservative.
26.Ms Rodriguez gave evidence under affirmation. She adopted her statement. In cross examination she recalled taking $3,000 cash to Chile.
27.Mr Devaney gave evidence under affirmation. He adopted his statement. In cross examination Mr Devaney said:
(a)that formwork companies do not usually supply the materials (other than the plywood);
(b)the usual charge is $180 per face of a wall for formwork alone not including the concrete;
(c)his relationship with Mr Carey was purely vocational;
(d)he had a degree in quantity surveying and had been in formwork for the last 10 years;
(e)he was unaware of the Expert Witness Code of Conduct.
28.Mr Hossain gave evidence under affirmation. He adopted his statement. In cross examination Mr Carey ask him to note that if the materials cost $5,500 and the plywood supplied by Mr Carey cost $2,000 and asked whether it would be reasonable to expect that Mr Carey was undertaking all that work (including the letter box) for a total of $10,000.
29.At this point ensued a lengthy dialogue between Mr Mansfield and the Tribunal concerning the fairness and relevance of the question. During this exchange the Tribunal made clear (and repeated) it had concern that there had been a fundamental misunderstanding between the parties. The applicant thought he was quoting for labour only and the respondent thought he was accepting a quote for the complete job. The contract was largely verbal and so there was no way to be sure that its fundamental terms were agreed. The Tribunal raised the prospect of a quantum meruit approach to the matter. Mr Mansfield’s position was that the $10,000 was in fact a realistic commercial price and was not the unrealistically good deal that Mr Carey was portraying. He said that there was no evidence that it was such a good deal. There ensued a further dialogue concerning the evidence of Mr Devaney who had provided the only commercial estimates and it disclosed a labour only cost of around $18,000 for the total job. Mr Mansfield questioned the expertise of Mr Devaney and the Tribunal told Mr Mansfield that he could make those points in submissions.
30.Ms Farzan gave evidence by phone. She was affirmed and adopted her statement. She said that her husband had counted the $6,500 in her presence and put it in an envelope before the applicant arrived at their house. She later saw her husband hand the envelope to the applicant.
31.Mr Mansfield tendered a helpful written submissions which drew attention to a number of issues:
(a)the total area of concrete on the plans was estimated at 71m2, Mr Fairman had estimated it at 51.411m2 but the applicant’s invoices showed 104m2. It was suggested that the applicant’s figure was contrived;
(b)the applicant had not produced evidence of his foreign currency cash exchange the day after receiving the cash from the respondent, financial records showing the $10,000 as invoiced and any financial record of the $3,000 that the applicant says he received from the respondent;
(c)a revised counter claim for $5,730 being $400 for clearing the site; $2,970 for the letterbox and $2,000 for the internal feature wall.
32.Mr Mansfield submitted that the quote from Mr Carey for $10,000 was not an under-pricing of his work but may have been an overpricing. He said that 51m2 at $180 per square metre was all that was justified and seemed to suggest that this figure came to nothing like $10,000. The Tribunal pointed out that the evidence of Mr Devaney was $180 per square metre per face, that is, $360 per square metre for the two faces of the free standing walls in question. The rate of 51m2 gives a labour charge of $18,360. If the volume was the 71m2 originally quoted then the labour charge is $25,560; and for the 104m2 invoices, the labour charge is $37,440.
33.Mr Carey said the industry rate two years previously was $120 per square metre. This would have the effect of reducing the above figures by one third. He said that he rendered the internal feature wall not because there was any error on this part but because it added value to the respondent’s wall. Mr Carey thought he was doing the respondent a favour.
34.There were submissions on a time costing basis. The parties seemed to agree that the applicant had spent 13 FTE man days. After deducting $2,000 for the plywood form the $10,000 gives a FTE day rate of $615, or $80 per hour. Mr Mansfield said that this was a fully commercial rate such that it could not be inferred that the applicant was under-pricing.
35.Mr Mansfield submitted that if the applicant had made an error in the way his constructed his price then this was his problem and the respondent was entitled to the benefit of it.
36.The Tribunal informed the parties that one thing that was of particular concern was the dispute over the cash. It seemed possible that the parties had different understandings of the contract arising from the informal manner in which it was made but this would not explain such a stark conflict over the amount of cash handed over. There did not seem to be any explanation other than one of the parties was lying under oath. The Tribunal referred to other cases of alleged cash transactions and noted that prudence demands that the person handing over the cash not do so without a receipt. If cash is handed over without a receipt or witness then it almost invites disputation. The evidential onus in the end rests on the party that asserts they paid the cash in part or full satisfaction of their debt.
37.The matter was reserved for decision.
Consideration of the issues
38.There are five issues to be determined:
(a)What, if anything, did the parties actually agree was to the labour cost of the project?
(b) Did the scope of the project include the mailbox?
(c) Was the rendering the internal feature wall a breach of contract and if so what compensation is payable?
(d) Did the applicant leave the site in a state that needed clearing?
(e) Did the respondent hand over $6,500 or $3,000 cash to the applicant?
39.The issue of the height of the walls and fences was resolved by a favourable development approval and is no longer pressed by the respondent.
40.At the time of entering this agreement the parties were friendly at a social level which appears to have been reflected in the dearth of written contractual content.
41.The plans signed by the respondent showed $10,000 and the ‘8500, 1000, 500, 10,000’ annotation. It showed the areas for the walls (and fences) and estimated the volume of formwork (and subsequent concreting) at 71m2. The respondent at one point alleged that the applicant had covered up this annotation at the time the respondent appended his signature. The respondent subsequently mellowed this allegation to a ‘presumption’ that this is what occurred. The Tribunal does not accept the respondent’s allegation or presumption and finds that the notations on the plans were appended by the applicant to the knowledge of the respondent before the respondent signed the contract.
42.The notations on the plans are generally consistent with the volume of formwork and concreting ultimately undertaken by the applicant. The respondent relies on a report from Mr Fairman who estimated the volume of formwork and concreting at 51.44m2. Mr Fairman was not called to give evidence on this report. The applicant contends that there was in fact 104m2 of formwork and concreting. On their face these figures are a long way apart but the applicant pointed out that the free standing walls and fences were of such thickness that they had to be formed and concreted on both sides so that the figure of 51.44m2 is basically correct if you failed to take the doubled sided nature of the job into account.
43.There was evidence from Mr Devaney, who had qualifications as a quantity surveyor and experience in the formwork industry. He visited the site and prepared a report in which he assessed the labour value of work done by the applicant at $14,500. It is not apparent whether figure includes the $2,000 expended in plywood and other materials for the formwork. In oral evidence he said that the common commercial charge was $180 per square metre. The respondent proffered the lesser figure of $150 per square metre presumably obtained from Mr Fairman. The applicant volunteered against his own interests that the rate at the time the work in question was done was more like $120 per square metre. The Tribunal accepts this figure as the basis for its determination.
44.If the volume of 51.44m2 is adopted at $120 per square metre then the labour cost would be $6,172. This figures assumes that the 51.44m2 represents the volume required to do both the separate sides or faces of the walls and fences. On this assumption the cost of one side only of a fence or wall would be approximately half of the $6,172. To this figure is added the $2,000 for the plywood and other materials used in the formwork (but the concrete of materials used in the concrete) the minimum labour cost for the applicant would be $8,172. This compares with the assessment of $14,500 by Mr Devaney (and possible $16,500 if the plywood cost is added).
45.If the estimated 71m2 noted on the plans is used as the total for both sides of the walls and fences at $120 per square metre, then the figure is $8,520 to which has to be added $2,000 for the plywood etc. giving a total of $10,520. If the 104m2 is used at $120 per square metre gives $12,480 to which the $2,000 for plywood is added to give a figure of $14,480 which is very close to the estimate by Mr Devaney.
46.The Tribunal accepts that Mr Carey was a witness of truth on this matter and that 104m2 forming and concreting was done. But Mr Carey admits that the contract only provided for $10,000 inclusive of the $2,000 plywood. This is a further admission against his interests which the Tribunal adopts.
47.The next issue is whether the contract with the respondent was for $10,000 in total inclusive of the approximately $5,500 paid by the respondent direct to suppliers for the concrete and other materials. Looked at objectively this would amount to a contract for the applicant to perform the scope of work on the plans for $10,000 minus $2,000 for his materials minus $5,500 for the concrete and other materials purchased direct by the respondent, that is, $2,500 for the labour costs alone out of which Mr Carey had to pay his colleague that work with him. At 13 FTE man days this was a rate of $193 per day or $24 per hour.
48.On no scenario of the volume of formwork and charging rate per unit volume is this figure remotely realistic or likely to have been Mr Carey’s intention. On the evidence, the lowest that this purely labour component could have been is $6,172 and on the volume actually disclosed on the plans it would be $8,520.
49.The Tribunal found Mr Carey to be credible. His evidence was consistent from the beginning of the matter and he was prepared to volunteer information against this interests. The Tribunal accepts his evidence that he was not undertaking this project for a total labour cost of the order of $2,500.
50.The Tribunal accepts that Mr Carey’s intention evidenced by the notation on the plans was to charge $10,000 for the labour and plywood etc. This conclusion is further supported by the fact that the agreement provided for the respondent to directly purchase the concrete and other materials of which Mr Carey would have known the approximate price of.
51.The respondent asserts that he genuinely thought that the contract was for $10,000 inclusive of all materials. It was put that he was not knowledgeable in these matters and relied upon the applicant. The respondent would have realised early in the piece what the cost of the concrete and other materials were when he paid $5,500 for them with possibility other costs to come. He must then have realised that the applicant’s margin was rapidly shrinking.
52.The respondent then further alleged that the mailbox was also part of the contract price. The respondent has claimed $2,970 for the erection of the mail box and this is after the foundation work already done by the applicant. Even if the respondent did not know the exact figure for the mailbox at the time he made his original counter claim in the Tribunal, he knew shortly afterwards and maintained this position. If the $2,970 is deducted from the remaining $2,500 margin for the applicant’s total labour (only) costs then it must follow that the respondent seriously contends that the applicant was contracting to do the walls, fences and mailbox not just labour free but would also pay the respondent $470 for the privilege of doing that work for the respondent.
53.In the face of these basic figures the respondent contended that on his construction of the contract that he was not receiving a good deal, but rather the charging was at a commercial rate. The disingenuousness of this position is illustrated by the submission recorded at paragraph 32 above in which it was put that 51m2 at $180 per square metre did not come to anything like $10,000. In fact it comes to $9,180 without taking account of the $2,000 for plywood etc. The respondent even went so far as to assert that he had overpaid the applicant.
54.The Tribunal has great difficulty believing that the respondent was not aware that the $10,000 was not the total figure and that he had to pay the material costs on top. If the most charitable view is taken of the respondent’s evidence then his belief that the $10,000 was the total inclusive of materials was at least a convenient one for him and he has stood by that belief notwithstanding the above simple arithmetic being brought to his attention.
55.The Tribunal finds that at the very least there was no true agreement between the parties in the sense that they had a common understanding the fundamental terms of the agreement; and it may be the case that the respondent did understand the contract as put by Mr Carey but has chosen to say otherwise.
56.On the premise that there was no true agreement on the fundamental issue of price the principles of quantum meruit apply. It would be unconscionable for the respondent to take the benefit of the work and asset improvement at the applicant’s costs. The applicant is entitled to a reasonable commercial price for his work. The evidence before the Tribunal suggests that a reasonable commercial price would be well in excess of the $10,000 that the applicant admits was his total labour cost (including plywood etc.). In these circumstances the Tribunal finds that the $10,000 is the appropriate quantum meruit.
57.For the reasons given above the Tribunal does not accept that the mailbox formed part of the contract. It was an agreed extra at $1,500 which compares favourably to the respondent’s claim for $2,970 to have the job completed. This part of the respondent’s counter claim is dismissed.
58.The respondent claims $2,000 for the difference between an internal wall having the intended rough/smooth face all rendered. There is no evidence that the rendering has caused any loss of capital value or any aesthetic devaluation. There is no evidence of any emotional commitment to the rough/smooth faces or trauma to the respondent caused by the rendered faces. Mr Carey asserts that it has in fact added value. Whether it has added or detracted value is unknown on the evidence and so this part of the respondent’s counter claim is dismissed.
59.The respondent claims $400 for site cleaning arising from the applicant’s precipitous departure from the site. This cost is one that could fairly have formed part of the $10,000 total labour costs. Assuming for present purposes that site cleaning was in fact necessary, the applicant’s position is that they left the site because the respondent indicated his refusal to pay the balance of the applicant’s $10,000 invoice. If the applicant is found to be in the right in asserting the money was due and owing then the respondent’s denial of the claim would be repudiatory. In these circumstances the applicant would be entitled to cease work and vacate the site and would not be further bound by the contract. The Tribunal has found the applicant’s claims were justified and that it was unconscionable for the respondent to have denied payment. This part of the counter claim is dismissed.
60.The final issue is the most difficult one and concerns the issue of how much cash was paid. Mr Carey made the submission that if he were out to cheat the respondent then he would have asserted that he did not receive any money, whereas he admitted receiving $3,000. He has made other admissions against his interest referred to above.
61.On the other hand the respondent appears to have taken an opportunistic approach to the potential gains he stands to make under the contract as construed by him. At no point did he express any empathy with the position that Mr Carey found himself and went so far as to submit he was entitled to the benefit of deal without further ado. The respondent alleged that the Mr Carey deceived him by covering up part of the plans before having him sign them. He then backed down from that position. This does no credit to him.
62.It was the respondent that handed over the cash in partial satisfaction of his debt to the applicant. The handover occurred at this house and he had the opportunity to write out a receipt for the applicant to sign at the time. He did not do so.
63.The Tribunal has to determine which of the two versions of the cash transaction is more likely to be true. On balance the Tribunal prefers the evidence of Mr Carey and finds that only $3,000 cash was paid.
64.The applicant is entitled to the balance of its $10,000, namely $7,000 plus the Tribunal lodgement fee of $290 giving a total of $7,290.
65.The applicant is entitled to interest from 18 April 2016 to the date of the decision in the amount of $800.68
66.The applicant has leave to apply for out of pocket expenses in relation to witness reports and appearances if so desired.
67.The respondent’s counter claims are dismissed.
………………………………..
Senior Member A Anforth
HEARING DETAILS
FILE NUMBER:
XD 1022/2016
PARTIES, APPLICANT:
BC Formwork Solutions Pty Ltd
PARTIES, RESPONDENT:
Asik Hossain
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
N/A
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
O’Connor Harris & Co
TRIBUNAL MEMBERS:
Senior Member A Anforth
DATES OF HEARING:
5 April 2017
16 June 2017
21 August 2017
5 December 2017
27 February 2018
3 April 2018
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