Bushell v Mission Beach Pool and Property Services

CITATION: Bushell v Mission Beach Pool & Property Services [2012] QCAT 462

PARTIES:	Mr Ernest Bushell
(Applicant)
v
Mission Beach Pool & Property Services ABN 66 597 921 370
(Respondent)

APPLICATION NUMBER: MCDO959-12

MATTER TYPE: Other minor civil disputes matters

HEARING DATE: 10 July 2012

HEARD AT:  Brisbane

DECISION OF: Ms Williams, Adjudicator

DELIVERED ON: 24 September 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1. The respondent pays the applicant the sum of $9,376.46 within 28 days being:

(a)  The cost for rectification works of $6,966.50;

(b)  A refund of $2,219.9 for overcharges on the cost of equipment; and

(c)  Filing fee costs of $95.

CATCHWORDS: Minor Civil Dispute – Consumer Trader – Australian Consumer Law – Whether the respondent, during trade or commerce, made false or misleading representation about goods or services – Whether the respondent engaged in unconscionable conduct, during trade or commerce, in connection with the supply or possible supply of goods or services to another person – Whether the respondent breached a statutory guarantee as to the provision of service

APPEARANCES and REPRESENTATION (if any):

The Applicant and the Respondent each appeared, the Respondent by phone.

REASONS FOR DECISION

Relevant Background Facts

1. The applicant is seeking an order to be made in his favour for the amount of $9,376.46 being:

   i.The cost for rectification works of $6,966.50;

   ii.A refund of $2,219.96 for overcharges on the cost of equipment; and

   iii.Filing fee costs of $95.

2. In 2003 the applicant engaged Placid Pools to construct a pool and supply all of the necessary filtration and cleaning equipment.

3. As a result of Tropical Cyclone Yasi, the applicant’s home and pool was damaged.

4. The applicant sought to have the pool restored to its original condition.  Being satisfied with the original works by Placid Pools the applicant claims to have engaged the respondent, Mission Beach Pool & Property Services, on the basis that it was an area agent for Placid Pools.

5. Mr Bushell states in his submissions to the Tribunal:

   “It was verbally agreed the respondent would carry out repairs to [the] cyclone damaged pool and equipment.  [It was] also agreed the equipment replacement would be like for like or equivalent, [with] the only difference decided on was a more environmentally acceptable pump which was requested by us.”

6. The respondent supplied a quote, dated 21 February 2011, which was accepted and works commenced on or about 11 March 2011.  The applicant was unable to supervise the respondent’s works because his home was deemed unliveable, causing Mr Bushell to temporarily relocate to the Sunshine Coast while repairs were completed.

7. The respondent issued an itemised invoice on 28 March 2011.  Upon Mr Bushell’s return to the property to inspect works, he identified a number of concerns and brought it to the attention of Mr Christopher Steele of the respondent business.

   “…[T]he new light had not been installed as per manufactures specifications, the replacement pipe work was leaking severely at several joints, also that the equipment was now installed on loose bricks and not secure…