Equipped Plumbing Pty Ltd ACN 625 477 812 v Morgan
[2025] ACAT 4
•8 January 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
EQUIPPED PLUMBING PTY LTD ACN 625 477 812 v MORGAN
(Civil Dispute) [2025] ACAT 4
XD 775/2024
Catchwords: CIVIL DISPUTE – where applicant claim respondent to pay for earthworks and plumbing – debt owed under contract for provision – services provided by the applicant rendered to the respondent in the first half of 2024 at respondent’s property
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 2, 20
List of Text:N C Seddon and R A Bigwood, Cheshire & Fifoot Law of Contract (12th ed, LexisNexis, 2023)
Tribunal:Senior Member J Francis
Date of Orders: 8 January 2025
Date of Reasons for Decision: 29 January 2025
Date of Publication: 05 February 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 775/2024
BETWEEN:
EQUIPPED PLUMBING PTY LTD ACN 625 477 812
Applicant
AND:
JUNE MORGAN
Respondent
TRIBUNAL:Senior Member J Francis
DATE:8 January 2025
ORDER
The Tribunal orders that:
The respondent is, by 29 January 2025, to pay the applicant a total of $16,656.44, comprised of:
(a)$15,154.56 (debt owed under contract for provision of earthworks and plumbing services
(b)$1,270.00 (Tribunal filing fee)
(c)$10.00 (ASIC search fee)
(d)$221.88 (interest)
The respondent’s counterclaim is dismissed.
……………………Signed………….
Senior Member J Francis
REASONS FOR DECISION
Outcome
For the reasons that follow, the Tribunal accepts the applicant’s claim and orders the respondent to pay it monies for earthworks and plumbing services the applicant rendered to the respondent in the first half of 2024 at a property in Dickson (with interest, the ASIC search fee and the Tribunal filing fee).
The Tribunal also dismisses the respondent’s counterclaim for losses she alleged she sustained because the applicant did not finalise the relevant services. The respondent ended the contract, denying the applicant an opportunity to so finalise.
Background
The applicant’s claim
By its application the applicant seeks an order that the respondent pay to it the sum of $17,568.83, (GST Inc.) for earthworks and plumbing services provided from the end of February to end April/early May 2024 in Dickson (the property). For convenience in these reasons, because the applicant is a small business owned and operated by Mr Connor who appeared at the hearing for the applicant, I refer to the applicant as if it were a natural person.
The applicant’s invoice 1620753 dated 3 May 2024 given to the respondent demanded payment of this sum for the relevant services (as detailed further below) within 7 days.
At hearing, however, the applicant clarified that, and as explained further below, the correct amount for which he sought payment was $15,154.56 (GST Inc.).
The applicant also claims the filing fee of $1,270.00 and ASIC search fee of $10 with interest accrued to the date of its application, 12 July 2024 of $221.88. That is a total of $16,656.44.
The applicant’s claim is made in reliance on a contract which he says is evidenced by:
(a) His Quote 1617199, dated 28 November 2023 based on floor plans for block 15 section 26 Dickson (and included in the respondent’s bundle of documents at A54), for the provision of:
(i) sewer drainage earth works and elevated drainage works, for $12,452.25 (GST Exc);
(ii) water supply earth works and hot and cold water works, for $13,032.85 (GST Exc); and
(iii) storm water earth works and stormwater drainage works for $11,856.35 (GST Exc).
for a combined total of $37,341.45 (GST Exc) and $41,075.60 (GST Inc).
(b)Payments by the respondent on 14 February 2024 and 29 February 2024 of a total of $21,000, for the applicant’s first invoice, 1620715, dated 27 February 2024 for $20,537.78 (GST Inc), and in accordance with the respondent’s requirement set out in quote 1617199 of payment of 50% before commencement of the works (noting that this was, because the respondent wished, on the second payment to pay a rounded amount of $8,000, $462.22 more than what was required to be paid).
There is no dispute that the contract included a requirement that the applicant would complete the plumbing services with reasonable care and skill.
The respondent claims, however, that the applicant failed to exercise reasonable care and skill because he was tardy in carrying out the contracted for services, described by the respondent as a simple job. This caused various “tie ins” to Canberra mains infrastructure to be belatedly finalised in May 2024, 10 weeks after contract commencement.
The respondent did not appear to maintain a claim that, by his failure to provide adequate backfill for the new sewerage pipes, the applicant also failed to exercise reasonable care and skill. If it were pressed, the applicant disputed such a claim relying on the relevant Aus/NZ standard, 3500 (excerpts of which were in evidence) and oral discussions that he had with the inspector at Access Canberra. The inspector was not called as a witness by either party.
The respondent also says that, on 3 May 2024, the applicant breached the contract by his abandonment. In any event, the respondent also disputes that the applicant delivered the services in the amount for which he has claimed by his corrected second invoice, 1620753, dated 3 May 2024.
The respondent’s counterclaim
Indeed, the respondent has made a counterclaim alleging that, because the applicant breached the contract by abandonment, she has incurred costs in completing the plumbing services not done by the applicant for which she is entitled to compensation:
(a)Excavation services carried out by Pure Image Signs and Services for the value of $3,712.50 (A29).
(b)Plumbing services carried out by Woody’s Plumbing and Gas Fitting P L for the combined value of $3,520 (invoices 2753 and 2973).
(c)CCTV services carried out by Deetect for the sum of $330 (invoice 0213).
(d)Finalisation of the works not completed by the applicant:
(i)2 showers;
(ii)2 charged floor drains;
(iii)1 toilet;
(iv)1 laundry tub;
(v)1 basin;
(vi)1 garden tap;
in the amount of $23,000 (the average of the 3 quotations/estimates that the respondent received for the completion of these works – from Level Plumbing, Duncan’s Plumbing Service and ‘Watertight’).
(e)Preparation of the work as executed (WAE) drawing for the drainage.
The respondent therefore seeks an order that the applicant pay to her the sum of $30,563 (GST Inc). The respondent did not maintain her claim for accommodation expenses.
The respondent has, in accordance with sub-section 20(2) of the ACT Civil and Administrative Tribunal Act 2008, abandoned the excess by limiting their claim to $25,000.
In defence to the respondent’s counterclaim, I understood the applicant to say that he did not breach the contract. I understood, rather, that he says he was prevented from completing those services because the respondent failed to make payment of the 3 May 2024 invoice or indeed to engage with him about it; the respondent, without a lawful basis to do so, repudiated the contract, that is brought the contract to an end. Accordingly, as I understood it, the applicant sought dismissal of the counterclaim.
The hearing
At the hearing, on 16 and 17 December 2024, each of the applicant and the respondent represented themselves. I decided not to require either of them to give evidence under oath or affirmation, because in the circumstances I did not think it would assist me. Each was invited to, and did, respond to the submissions made by the other and to questions posed by the Tribunal.
Both parties filed materials on which they relied at the hearing.
I am satisfied that each of the applicant and the respondent did their best to give me an honest account from their memory of events. Of course, recollections of events can vary, and to the extent that there is a difference, where possible and relevant, I have been aided by reference to materials contemporaneous with the origin of the dispute.
For clarity, I note that I did not accept the respondent’s application at hearing to refuse the admission of the applicant’s evidence sourced by subpoena on Access Canberra on the basis that ‘several of them seem to present public slander of me by the applicant’. Among other things, there was no such evidence.
There were, however, examples of emails with Access Canberra, in which the respondent called into question the applicant’s character including his truthfulness. See for example the respondent’s email of 4 September 2024 to Access Canberra in which the respondent referred to the applicant as a liar. Also see the respondent’s email of 1 May 2024 in which they advised Access Canberra that the applicant refused to backfill to meet ACTPLA requirements and that he refused to do the work instead ‘insisting that clay soils backfill adequate’. As set out further below, the latter allegation is inconsistent with the evidence that the applicant used backfill in accordance with what was required by the relevant standard. There was no other evidence supporting the allegation.
Findings of fact – and legal analysis
It is trite to observe that as civil claims, the onus is on the applicant and the respondent to prove their cases on the balance of probabilities. Findings of fact are made on that civil standard of proof.
Because the issues about which I need to make findings of fact are intimately bound with the issues of law, as follows, I combine the findings of fact with the legal analysis. All findings of fact have been made because I am satisfied, on the balance of probabilities, of that fact.
The applicant’s claim and the respondent’s counterclaim require me to decide three issues: first the terms of the contract and second the three circumstances in which the respondent bases her claim for compensation. That is:
(a) Whether the applicant breached the contract by failing to provide the required backfill for the sewer drainage (to the extent that the respondent maintained the proceedings her position on the backfill) and/or failed to deliver the required services in a timely manner (and if so, what is required to put the respondent in the position she would have been in had the breach not been committed);
(b) Whether, by the applicant’s 3 May 2024 invoice and other actions on that day, the applicant demonstrated his intention not to deliver the balance of the required services – and if so, what is required to put the respondent in the position she would have been had the contract been completed; and
(c) Whether, after receipt of the 3 May 2024 invoice, the respondent demonstrated her intention to no longer be bound by the contract, to bring it to an end (and therefore whether her counterclaim is sustainable and, if it is sustainable, the extent to which she is entitled to the compensation sought).
The final issue for consideration is whether the applicant delivered the earth works and plumbing services to the degree to which the 3 May 2024 invoice evidenced and is therefore entitled to payment for the amount claimed.
Contract
I find that, in February 2024, the parties entered a contract for the applicant to provide earthworks and plumbing services for the sum of $41,075.60 (GST Inc), broadly identified as
(a)sewer drainage earth works and elevated drainage works,
(b)water supply earth works and hot and cold water works, and
(c)storm water earth works and stormwater drainage works.
The contract provided for 50% deposit of the contracted sum on commencement, 25% on completion of ground and rough in works and the balance on completion of the quoted works.
I note that, at the hearing, the respondent did not appear to maintain what she may have initially claimed, relying on contemporaneous evidence about her state of mind in February 2024, that she had not agreed a contract with the applicant. Regardless, I maintain my finding that on the respondent’s payment of 50% of the contract value there was a contract the terms of which are principally set out in the applicant’s 23 November 2023 quote. That some of the correspondence with the respondent, for example the email of 10 February 2024 attaching the quote, referred to it as an estimate does not affect my conclusion.
Whether the applicant failed to deliver the services as required
The first issue raised by the respondent is whether the applicant breached the contract because he did not deliver the services as required.
Backfill
In the event that the respondent could be understood to have maintained that the applicant did not provide backfill as required, I find as follows. Despite, the respondent’s protestations on 1 May 2024 with Access Canberra and in separate communication with the applicant, that the pipe overlay used by the applicant to backfill the sewer drain was not as she had undertaken with Access Canberra would be provided, there was no evidence that the law required anything other than what the applicant had used. There was no evidence that it was inconsistent with the requirements of the Australia/N Z standard 3500 and, at least according to the applicant’s texts, it is what Access Canberra advised was appropriate. In her 17 May 2024 email to ACTPLA seeking ‘final certification’ by reference to the 30 April 2024 passed audit, the respondent impliedly relies on and accepts the applicant’s work.
The applicant did not breach the contract for failure to backfill the sewer drain.
Timeliness
There was no evidence of an expressed time within which the services were required to be delivered.
As follows, the evidence of whether the services met the requirement to be carried out in a timely manner is, at its best for the respondent, equivocal, and at worst, not persuasive.
It is true that the respondent raised with the applicant her concerns about the time that the plumbing services were taken to be delivered. For example, by email of 30 March 2024 the applicant noted that it was 5 weeks since commencement of the contract, noted the commitment to have 2 fit working crew on site for 4 days of the previous week and alleged that the failure to engage staff “unconscionably” delayed the build by 2 to 3 weeks. The respondent also claimed “costs are running to you”. The email concluded with “Distressed by your delaying this build”. At hearing, the respondent also noted her concerns that the applicant’s employee took a lot of time off and that the applicant had promised “two fit workers” and that “none appeared.”
By another email on 10 April 2024, the applicant recorded that it was the seventh week of the contract and that at 8.40am no worker was as yet on site. That email did, however, record the arrival at 8.41am of the applicant’s employee.
There was also a 6-day period between the successful audit by Access Canberra of the applicant’s sewerage works on 30 April 2024 and the 24 April 2024 failed audit (for failure to separate the grey water and black water sewerage from the house to the mains).
It is also true, however, that the applicant, by reply email on 2 April 2024, set out a detailed response to the respondent’s 30 March 2024 email, explaining that the delay was outside of his control and setting out his reasons for the services being provided within the relevant times.
There was no evidence of a reply from the respondent.
On 15 April 2024, the applicant also responded by email to the respondent’s email of 10 April 2024 addressing what was described as “the respondent’s concerns of the progress of her job”. Among other things, the applicant stated that the respondent had not allowed access to the site for a period of 3 days which required the applicant to “move other jobs around to accommodate this unexpected change”. The applicant said that they had “done works out of your quoted scope to help the process of your job in this time frame”. The applicant said that “sewer and water tie ins are completed on our end and are ready to go and are waiting on your end to be submitted for dates Icon does tie ins to mains”. The applicant noted that the carpenter was not, on 15 April 2024, on site to deal with the cut in for the mixer for the bath, as the respondent had advised that he would be. In addressing the respondent’s complaint that the applicant had committed to having “2 fit crew on the site for 4 full days this week”, the applicant noted his activities and claimed “Me being on site any further would not speed up your jobs progress which you were advised several times.”
There was no evidence of a reply from the respondent.
The respondent’s explanation at hearing for her failure to reply to the applicant’s two emails, that she feared a walk off, does not, noting their reasonableness, detract from the weight I give to the applicant’s explanations. Indeed, it says nothing about the applicant’s explanations; there is no counter factual.
There is additional evidence that denies that the applicant did not discharge the contract in a timely manner.
As alluded to in the applicant’s 15 April 2024 email, the respondent remained in email correspondence with Icon from 15 April 2024 to 23 April 2024 to complete the documentation Icon sought before its sewerage drainage onsite inspection. The respondent submitted final documents to Icon on the morning of 23 April 2024 with amendments continuing up to 6 May 2024. These latter email exchanges raise sufficient doubt that the delay for the sewerage drainage tie ins, on which, the respondent said she was completely focussed to finalise following 3 May 2024, was caused by the applicant.
The 4 April 2024 email correspondence between the respondent and the senior associate engineer at ‘Smec’ confirming the inspection of the stormwater tie in was set for 5 April 2024 although calling into question the veracity of the applicant’s comment in his 15 April email about the stormwater tie in, does not dispute my finding about the respondent’s contribution to the delay in sewerage drainage tie in inspection.
It is also clear that, despite the respondent’s submissions to the contrary at hearing, the applicant met the respondent’s request to meet on site on either 3 or 4 May 2024. This was by his email on 2 May – “I have text messaged you in regards to this Friday the 03/05/24 if would work in with you as per your request via text message in regards to the options above.” Whilst the respondent submitted that she did not receive that email because she did not have a record of it in her email inbox, on the basis that it was included in the applicant’s evidence, I am satisfied that it was sent to the respondent. It is not necessary to conclude whether, as the applicant posited at hearing, the computer hard drive “crash” the respondent experienced in late November 2024 in preparing material for the Tribunal caused the loss of the email.
Finally, I am not persuaded by the respondent’s illustration of the applicant’s tardiness by reference to “lock up” occurring 4 weeks from “first earthworks”, in contrast to the plumbing works as contracted for (described by the respondent as “an incredibly simple job”) being only partially complete by 10 weeks. The nature and complexity of the work required to “lock up” was not in evidence and, even if it were, bears little or any relevance to whether the entirely separate plumbing works were delivered in a timely manner.
Accordingly, I am not persuaded that the applicant has failed to carry out the required earth works including for tie in of water and sewer in a timely manner. There is also insufficient evidence to support the respondent’s claim that the applicant failed to carry out the additional works, for which he was contracted to provide and for which he made a claim on 3 May 2024, in a timely manner.
There is no relevant breach of contract. The respondent has no right to any compensation because of the applicant’s alleged tardiness.
I turn to consider the issue of breach of contract raised by each party – the intention of each to be bound by the contract after the events of 3 May 2024 and the extent to which, if any, one or the other is entitled to compensation for the other’s failure to deliver on the contract.
Applicant’s and respondent’s intention to complete the contract
Applicant’s intention
Before considering the applicant’s intention to complete the contract it is necessary to set out my findings on the events leading to the applicant’s 3 May 2024 invoice.
First, I find, for the reasons that follow, that the applicant’s 3 May 2024 invoice is the applicant’s response to the respondent’s request of 8 April 2024 repeated on 10 April 2024 for an itemised accounting of what the applicant says he has earned to that date.
In his text of 30 April 2024, explaining that, contrary to the respondent’s concerns the backfill was done correctly, the applicant also said that he would be sending “a progress payment as per quote and on site discussion today” and asked “Please make sure that this payment is made before the 7th”.
The applicant foreshadowed providing the 3 May 2024 invoice in his 15 April 2024 email, itself a response to the respondent’s 8 and 10 April 2024 requests. The invoice also refers to the 15 April 2024 email and advises “Please see below invoice amounts of what is owed to date based off a % bases [sic] to the works completed as per the quote”. In another implied reference to the respondent’s request for an itemised accounting of what the applicant says has been earned to date, the invoice clearly specifies, under a capital letter heading for each of the 3 streams of work, the “works left to do per quote”.
I accept the applicant’s statement at the hearing that he was motivated to give the invoice for the works done to the date of the invoice because he was concerned by the respondent’s behaviour and feared not being paid. However, I am not persuaded that this disrupts my finding.
Whether the applicant handed the respondent the invoice on 3 May 2024, or he did not (as were the differing recollections of the applicant and the respondent) does not affect the issues in dispute and, it is therefore not necessary to reach a concluded view. For clarity, I note that the applicant contends, and the respondent denies, that this was in addition to the applicant’s email attaching the invoice which the respondent says she received on the morning of 4 May 2024. The applicant says that he did so including advising that he was happy to continue with the contracted plumbing works provided that the respondent paid what was due.
As I understood it, the respondent raised two issues. First, in the respondent’s mind, in making her demand on 8 and 10 April 2024, the applicant was required to give to her a log of date and time of “man hours” work done. I understood the respondent to submit that, as at no time, did the applicant do so, it was either suggestive of a breach of contract or at least was a gap in evidence supporting the applicant’s claim that he delivered the works for which he invoiced.
I do not accept that the invoice did not meet the respondent’s demand for itemisation. I find that the expression of the applicant’s 3 May 2024 invoice and demand for payment in accordance with the percentage of works provided is consistent with the contract based on a fixed price quote for provision of specified outcomes. The absence of the detail the respondent says that she required did not demonstrate the applicant’s failure to comply with the contract. I address its implications for whether the applicant can substantiate his demand for payment further below.
Second, the respondent raised the issue of the import of the applicant’s demand for payment greater than what was allowed by the contract. At hearing, the respondent repeatedly referred to it as a demand for 50% payment of the contracted works (in effect, following the February 2024 50% payment, 100% of the value of the contract) which the applicant denied. The respondent also said that she received the invoice as an intimidatory threat demanding payment greater than the works that had been delivered. Her text on 1 May 2024 had previously recorded that “she does not meet angry men alone or in isolated spots”. Further I understand that the respondent also felt threatened because, as explained at hearing, she was unable to attend a bank to make payment before the Monday following the invoice and that the project was at a critical stage for Icon approvals for sewerage and water tie ins in that week. I also understood the respondent to say that this was emphasised by, on 3 May 2024, the applicant’s removal of equipment and some temporary fencing from the site including the manner in which that was executed. Further, the respondent had experienced frustrations at least in the applicant’s employee’s repeated absences from the site. I understood the respondent’s submission to be that these actions and the context in which they took place were evidence both that the applicant failed to act in accordance with the contract and indicated an intention to no longer perform the outstanding works.
The respondent is right to question the status of the 3 May 2024 invoice. It demanded payment for an amount greater than that for which, being a demand for payment at the completion of ground and rough in works, the contract provided. Quantitatively as first issued, it demanded twice the amount that is the equivalent to 25% of the total price. If we accept, as I do, that the invoice was incorrectly calculated, that there was effectively a typographical error and that the correct summation is $15,154.56 (GST Inc), it remains over a third of the contract price. As inconsistent with the terms of the contract, the applicant was not, at this point in the project, entitled to a progress payment of this amount.
The issue that then arises is whether submission of the 3 May 2024 invoice is, by its demand in excess of that for which the contract provided, and the effect that the respondent says that it (together with the other circumstances) had on her, evidence that the applicant no longer wished to be bound by the contract.
As noted in Cheshire and Fifoot Law of Contract, 12th edition,[1]“repudiation is a serious matter and is not to be lightly found or inferred; it is a drastic conclusion which should only be held to arise in clear cases of refusal in a matter going to the root of the contract to perform contractual obligations”.
[1] At [21.12]
There is reasonably strong evidence that the applicant continued to intend to finalise the delivery of the services for the contract. The demand for payment greater than the contract provided, even when taken together with the other circumstances, does not upset the weight of this evidence.
Although the applicant sought payment within 7 days, by the terms of the submission of that invoice the applicant communicated his intention to complete the contracted for works: “Please be made aware this invoice is not due for 7 days but please also be made aware that no further works can take place until this invoice amount is paid in full”. This was consistent with the applicant’s 2 May 2024 email to the respondent which finished with “Looking forward to your response so we can progress further with your quoted works”.
At hearing, the applicant, referring to legal advice that he had received, submitted (and I accept) that he remained ready to perform the contract.
At worst for the applicant and best for the respondent, the applicant’s removal of his equipment and some temporary fencing from the site on the evening of 3 May 2024 is equivocal. On the one hand, it is consistent with the applicant’s notation in the invoice and, as the applicant said at hearing, protection of his business. On the other hand, it may be, with the respondent’s evidence that the applicant stormed onto the site and the apprehension it caused in the respondent, indicative of the applicant’s intention not to finalise the services.
The applicant’s intention to finalise the works is also supported by his maintenance of the Access Canberra permit to carry out relevant plumbing works at the site until the issue was raised with him for the first time (following 3 May 2024) on 4 September 2024 at the first directions hearing. It may be, by reference to the materials filed by the respondent in response to the applicant’s claim, that he was aware of the concern that the respondent had, at least by the date of that response filing in August 2024. Nevertheless, the applicant subsequently cancelled the permit after being approached by Access Canberra later in September 2024 to ask if he wished to do so. Whilst seemingly a long time to maintain the permit on a site without any further consideration, it remains as evidence of the applicant’s intentions to finalise the contract.
I address further below the respondent’s claim that she suffered loss because of the applicant’s “greenmail”.
The applicant’s absence from the Icon tie ins for the sewer and water services is not inconsistent with the finding that he remained ready to perform the contract. It is arguably a function of the respondent’s failure to, following receipt of the 3 May 2024 invoice, engage with the applicant including to, if she required it, seek his attendance. I note that his text message of 30 April expresses his commitment to 2 people for a full day on site for the 7th “to complete the fit off as well as expose the sewer tap in location to make ready for Icon the following day.” I note that this anticipates that there may have been further work to carry out of the kind done by Pure Image Signs and Services, for example, “digging the trench around pipe lower for connection”.
That the respondent perceived the invoice and the circumstances in which it was given as a threat does not affect the objective evidence that the applicant remained ready to perform the contract.
Primarily because of the notations included in the invoice and the email of 2 May supported by the applicant’s submissions at hearing, I find that the applicant remained willing to perform the contract in substance.
Respondent’s intention
In considering the respondent’s intention whether to continue to be bound by the contract following 3 May 2024, I have given careful consideration to the cases at the passage in Cheshire and Fifoot Law of Contract to which I earlier referred, that repudiation is not to be lightly found or inferred.
I am, however, satisfied on the balance of probabilities that, following receipt of the 3 May 2024 invoice, the respondent no longer sought to be bound by the contract. I find that the following 4 indications demonstrate the respondent’s clear refusal, going to the root of the contract, to perform her contractual obligations - pay the correct instalment and enable the applicant to render the balance of the services.:
72. First, the respondent did not respond to the applicant’s invoice and made no effort to do so. The respondent’s evidence at the hearing that she had ‘no intention not to pay the applicant’s invoice’ including by referencing her payment in February 2024 of the first instalment is not supported by her actions, on receipt of the 3 May 2024 invoice, in failing to take steps to do so. The respondent’s email of 30 May 2024 to Somerville Legal confirms that the respondent did not intend to pay the invoice. Despite the instructions in the 24 June 2024 letter of demand from Somerville Legal to address “any enquiry” relating to the debt to the applicant, the respondent responded to Somerville Legal. She requested their client to send a fully itemised account, deduct all monies received by them and then deduct the costs and penalties of the “10-week delay to the build caused by their inadequate and or untimely work and remit the overpaid balance”.
73. Second, the respondent continued, after 3 May 2024, to take steps to finalise the relevant works without the applicant. She continued to engage with Icon to finalise approvals of the water and sewer mains. See, for example, engagements by email including immediately after advising Access Canberra of the applicant’s departure from site (email 3.52pm on 3 May 2024) and confirming water mains and sewer mains inspections (email 2.08pm on 6 May 2024). On 9 May 2024 at 4.16pm, the respondent thanked Icon’s representative for doing the water tie in on 7 May 2024 and confirmed the sewer tie in was scheduled for 14 May 2024.
74. Third, the respondent also engaged an earthworks contractor to reopen the sewer trench for Icon tie in on 7 May 2024 for which the contractor invoiced the respondent $3,713.
75. Finally, the respondent engaged Woody’s Plumbing and Gas Fitting Pty Limited at least by 15 May 2024 (see the respondent’s 17 May 2024 email to Access Canberra) including to, as that plumber’s 16 May invoice records, instal the supplied toilet, basin, bath and kitchen sink and to test same. In her 14 June 2024 email to Access Canberra, the respondent described these as “4 end use items”.
The respondent’s submission at the hearing that she felt threatened by the applicant’s behaviour on 3 May 2024 does not upset the objective indications that the respondent did not want to continue with the contract. I am unable to find that the alleged fear gave the respondent the unilateral right to decide that she was no longer bound by the contract including to refuse to pay the applicant’s 3 May 2024 invoice and to instruct the applicant about steps to finalise provision of the services.
Effect of the applicant’s intention to remain available to complete the contract and respondent’s intention not to be so bound
Accordingly, I find that the applicant remained available to complete the contract; the respondent did not.
The respondent repudiated the contract at least on 11 May, following the expiration of 7 days after the applicant demanded payment of the 3 May 2024 invoice.
The respondent’s repudiation of the contract extinguishes any right she may have had against the applicant for damages for breach of contract. Accordingly, I dismiss the respondent’s counterclaim.
In any event, whether the contract was repudiated by the respondent does not affect the applicant’s entitlement to be paid for the work that he had done to 3 May 2024. He is so entitled.
I therefore turn to consider the evidence in support of the applicant’s claim for payment of the amended 3 May 2024 invoice.
Services delivered and services remaining outstanding following 3 May 2024
I am persuaded as follows that, in accordance with the 3 May 2024 invoice, the applicant provided the earth works and plumbing services. It is not relevant that this amount is greater than the 25% sum the contract provided was relevantly due as a progress payment. The respondent’s debt to the applicant in these proceedings arises from the actual services provided as accrued before termination:
First, ninety-five per cent of the sewer drainage earth works and elevated drainage works for the amount of $11,829.64.[2] The works not completed under this stream is the drawing of the drainage WAE.
[2] This is evidenced by the applicant’s photos: A9/125, A58/125, A60/125, A61/125, A62/125, A63/125 and A72/125 and by the successful Access Canberra audit of 30 April 2024.
There was some discussion at hearing about whether the applicant had completed the work described as “compaction of trench after inspection by the plumbing authority”. There is some merit in the respondent’s submission that the excess spoil included at A72 of 125 is evidence that the applicant failed to carry out the compaction, that the fill remained soft to allow inspection for tie in. It was not compacted. The respondent supported this submission referencing the applicant’s commitment to assist her to final certification – of the required stormwater, water and drainage tie-ins.
However, it is not persuasive. In one of his texts of 1 May 2024, the applicant explained “I believe you are misinterpreting what compact means concerning the different processes of how to compact when backfilling a trench”.
I am satisfied that the applicant fulfilled the task of compaction of the sewer drainage trench following the successful Access Canberra audit on 30 April 2024, that is the “plumbing authority” to which the quote refers. That a reopening was required for Icon tie in inspection does not dissuade me from this view. I do not accept the respondent’s submission that because the sewer is across a very active public park very active cycleway, walkway, pram way that it was inherent in the contract that the applicant would open the relevant trench twice. I also do not accept that the “normal intent” of a plumbing contractor for a contract bound by a quote for an outcome, would be to provide backfill on a second occasion, to achieve certification. How many times backfill was to be provided was specified in the terms of the contract as once; it was not open ended as contended by the respondent.
Second, seventy-five per cent of the water supply earth works and hot and cold water works in the amount of $9,774.64 as demonstrated by the applicant’s photos at A9/125, 42/125 and 43/125 and also see A 65/125 for the dry floor waste.
The works remaining to be completed were the restoration works to the government property, connection of pump at rainwater tank, fit off stage for laundry tub, kitchen sink, vanity, 2 toilet suites, bathtub tap set and 2 shower tap sets.
The respondent raised the issue that the 3 separate quotes/estimates she received for completion of the works in the amount of an average of $23,000 evidence that the works that the applicant says that he completed fell short of the amount claimed. At first blush, there appears to be some weight in the view that three quotes of roughly the same value, an average of $23,000, for the balance of the work demonstrates that the applicant claimed more than he was entitled at least for the work under this stream (water supply earth works, hot and cold water works).
But there are competing considerations including that the entire valuation the applicant gave to all of the works under this stream of work was $13,032.85 (GST Exc) – almost half of the average quoted for only some of the works. Their relevance is questionable.
This consideration alone undermines the suggestion that the 3 quotes/estimates support the view that the applicant’s fear of not being paid created an incentive to inflate his 3 May 2024 claim for payment greater than the work he had done. Further, none of the three authors gave evidence at the hearing. At most, the three quotes/estimates are a demonstration that the three different possible contractors valued the provision of their services more highly than the applicant allowed for his. I am persuaded by the aforementioned evidence that the invoice was consistent with what was delivered.
Third and final, ninety-five per cent of the storm water earth works and stormwater drainage works for the amount of $11,263.54. The works remaining to be completed included the connection of the rainwater tank with down pipe and overflow which I accept is 5% of this stream of work.
As earlier noted, I understood the respondent to submit that the absence of time logs for works carried out was a gap in evidence supporting the applicant’s claim that he delivered the works for which he invoiced. That is, the absence of the applicant’s time logs has the effect of causing sufficient doubt about the value of the invoiced works that I could not be satisfied on the balance of probabilities that the applicant did so.
I am not persuaded by the respondent’s submission. My conclusion about the percentage of works delivered in accordance with the evidence in the invoice, photographs and applicant’s evidence at hearing is not challenged by the applicant’s failure to provide the time log material.
Applicant did not cause delay to finalisation of the Access Canberra approvals
The respondent also claimed that she has sustained loss by result of the applicant’s delay in cancelling the Access Canberra permit on the site, the respondent described as the applicant’s “greenmail” behaviour. I am uncertain of the nature of that claim at law. In any event, I find as follows that, apart from a short window in September, there is no evidence of the alleged behaviour. The window is insufficient to demonstrate the applicant engaged in “greenmail”:
(a)On 3 May 2024, by email at 3.49 pm, the respondent advised Access Canberra “I record your early issue, on my assurances, of a PASSED Certificate, have caused Plumber Ashleigh CONNOR to abandon further work at this build.” The email does not include a request for cancellation of the applicant’s permit. There is no reason for Access Canberra to do anything in response. Contrary to what I understood to be the respondent’s assertions at hearing, the absence of any response from Access Canberra does not demonstrate a “sweetheart deal” between ACTPLA inspectors and the plumber to ensure that the latter is paid.
(b)On 17 May 2024, in an email to Access Canberra, the respondent, in noting the engagement of two plumbers and requesting the final certification said that “they acted for themselves and required all communications with ACTPLA to be only with them”.
(c)By its email on 21 May 2024, Access Canberra confirmed that the applicant held the active plumbing and drainage permit and the certificate of compliance to be submitted on completion.
(d)On 12 June 2024, Icon issued a provisional certificate of operation advising that water and sewer assets had been completed and were accepted for connection to the permanent system.
(e)In response to the respondent’s 1 July 2024 email (following up her 14 June 2024), on 2 July 2024, Access Canberra clarified that it was still waiting for a certificate of compliance and a WAE drawing before it could issue a certificate of compliance.
(f)The respondent did not pursue Access Canberra again until 4 and 6 September 2024 when she requested the certificate.
(g)Access Canberra advised on 6 September 2024 that the plumber holding the permit did not want to cancel the permit until resolution of the legal dispute.
(h)Access Canberra advised the respondent that the applicant had relinquished the permit on 19 September 2024, two days after there is a record of its request for him to do so.
Orders
The Tribunal orders that:
(a)The respondent is, by 29 January 2025, to pay the applicant a total of $16,656.44, comprised of:
(i)$15,154.56 (debt owed under contract for provision of earthworks and plumbing services;
(ii)$1,270.00 (Tribunal filing fee);
(iii)$10.00 (ASIC search fee); and
(iv)$221.88 (interest).
(b)The respondent’s counterclaim is dismissed.
………………………………..
Senior Member J Francis
| Date(s) of hearing: | 16 and 17 December 2024 | |
| Applicant: | In person | |
| Respondent: | In person | |
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