Farr v Your Local Plumbing Group Pty Ltd ACN 605 979 235 Trading as Canberra Blocked Drains Service (Civil Dispute)
[2020] ACAT 100
•4 December 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
FARR v YOUR LOCAL PLUMBING GROUP PTY LTD ACN 605 979 235 TRADING AS CANBERRA BLOCKED DRAINS SERVICE (Civil Dispute) [2020] ACAT 100
XD 299/2020
XD 374/2020
Catchwords: CIVIL DISPUTE – contract for services – where an assessment and diagnosis of blocked storm water drain – where liability for repairs rests with property owner or Australian Capital Territory Government – property boundary – misdiagnosis of blockage location resulted in the owner incurring additional costs – unnecessary works – duty to use care and skill - provision of services with competence
Tribunal: Senior Member A Anforth
Date of Orders: 4 December 2020
Date of Reasons for Decision: 4 December 2020
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL XD 299/2020
BETWEEN:
GREGORY DOUGLAS FARR
Applicant
AND:
YOUR LOCAL PLUMBING GROUP PTY LTD ACN 605 979 235 TRADING AS CANBERRA BLOCKED DRAINS SERVICE
Respondent
TRIBUNAL: Senior Member A Anforth
DATE:4 December 2020
ORDER
The Tribunal orders that:
1.The respondent is to pay the applicant the sum of $1612.50 on or before 24 December 2020.
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Senior Member A Anforth
AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL XD 374/2020
BETWEEN:
YOUR LOCAL PLUMBING GROUP PTY LTD ACN 605 979 235 TRADING AS CANBERRA BLOCKED DRAINS SERVICE
Applicant
AND:
GREGORY DOUGLAS FARR
Respondent
TRIBUNAL: Senior Member A Anforth
DATE:4 December 2020
ORDER
The Tribunal orders that:
1.The application is dismissed.
………………………………..
Senior Member A Anforth
REASONS FOR DECISION
1.Mr Farr owns a residential house in Canberra. Your Local Plumbing Group (YLPG) is a company registered in NSW with its registered address in NSW.
2.On 10 February 2020 Mr Farr suffered flooding under this house caused by a blocked storm water drain. He contacted Access Canberra (an agency of the ACT Government that owns the storm water pipes located in public lands) to have them attend to the problem. Access Canberra declined to do so on the basis that it was not known to them whether the blockage was in the pipes under Mr Farr’s land or under the adjacent public land.
3.Mr Farr then retained YLPG to attend and ascertain the cause of the blockage. The plumber, Justin Berry, attended. Mr Farr said he asked Mr Berry to first determine the site of the blockage so as to determine whose responsibility it was to clear it. Mr Berry inserted a camera down the drain and believed he discovered tree root blockage located 20.36m down the pipe, which he determined to be on Mr Farr’s side of the boundary. Mr Farr also saw the tree roots on the laptop screen.
4.Mr Berry described how he marked the site of the blockage on the ground. The camera head has sonic sensor attached to it. When the camera could not move any further, Mr Berry waived the sonic receiver over the ground to locate the point below, which was the location of the camera.
5.YLPG charged $401.50 inclusive of GST for the work on 11 February 2020, which Mr Farr paid in full.
6.Mr Berry recommended to Mr Farr that the blockage be excavated, a new length of pipe inserted and a riser be installed on the adjacent boundary. He provided a quote in the sum of $3,411.10 for the further recommended work. The scope of the work was set out in that quote which referred to “a suspected broken pipe” and the installation of the riser. The quote was accompanied by lengthy ‘terms and conditions’. Mr Farr accepted the quote and paid the $1,000 deposit.
7.The next day two different plumbers from YLPG attended Mr Farr’s house. They excavated at the point of the green cross but found no blockage. Mr Farr says that the plumbers informed him that there was no blockage at all at the excavated site and that any blockage must be over Mr Farr’s boundary under the public land. Mr Farr asked the plumbers to run the camera from the excavation point back towards the house. When they did so they found a small bend in the pipe but no blockage. The plumbers excavated at the site of the bend and found that a rock was under the pipe causing it to bow upwards. The rock was removed. The plumbers then inserted the camera in the pipe and ran it across Mr Farr’s boundary into the public land where a tree root blockage was found. Because this blockage was on public land it was the responsibility of the ACT government and no further work was undertaken to clear it. The plumbers did install a riser at the boundary point. A riser is a vertical entry into the drains to avoid the necessity to excavate for entry.
8.Two days later the ACT Government plumbers arrived and cleared the blockage.
9.Mr Berry says that the blockage he originally found was at the bow in the pipe on Mr Farr’s land. The problem with this assertion is that the bow was not located at the point marked with the green paint and so it does not correlate with the blockage located by Mr Berry using the sonic sensor from the camera.
10.Mr Farr says that the blockage at 20.36m was in fact the blockage found under the ACT Government land and was not the bow in the pipe located on his land. He says that Mr Berry made a mistake in positioning the green paint mark and this was the reason that the plumbers found nothing when they excavated at this site.
11.Mr Farr says that Mr Berry wrongly told him that the installation of the riser was the homeowner’s responsibility. A policy document from the ACT Government later produced at the hearing showed that this was not the case. If there was no riser on a boundary then the matter had to be reported to the relevant part of the ACT Government who would then arrange a plumber to install one.
12.Mr Farr says that 20.36m recorded on the camera was correct and had Mr Berry correctly used his sonic detector then he would have realised that the blockage was the responsibility of the ACT Government. Mr Farr later had another plumber, Silva Plumbing Service (Silva Plumbing), insert a camera from the same entry point and measured a distance of 15.8m to the riser on the boundary. At 20.36m the camera was on public land. A copy of the report of Silva Plumbing dated 31 July 2020 was in evidence.
13.Mr Farr claims that YLPG misdiagnosed the problem and then carried out unnecessary work. He seeks a full refund including for the cost of the riser.
The procedural history in the tribunal
14.On 2 March 2020 Mr Farr lodged a claim with the tribunal in which he sought a full refund of all money paid but then nominated the claim in the sum of $1,401.50; $75.50 for the tribunal lodgement fee; $9 for the ASIC company search; and $300 to repair the damaged yard.
15.On 18 March 2020 YLPG lodged a claim against Mr Farr for $4,230.99 being $3,471.99 for unpaid plumbing charges, $319 for the tribunal filing fee, $170 for “collation fee” and $270 for “attendance fee”. The application contained 20 annexures including the quotes, contracts, invoices and photographs of the excavation site and riser.
16.On 17 April 2020 Mr Farr filed his response to the claim by YLPG. The response contained the same recitation of events as above.
17.On 10 August 2020 Mr Farr filed:
(a)a statement by Yvonne Farr dated 7 August 2020; and
(b)a statement by himself dated 7 August 2020 with eight attachments.
18.The statement from Yvonne Farr recounted that on 13 February 2020, after excavating the marked site, the plumbers from YLPG informed her that there was no blockage on her land.
19.The statement from Mr Farr recounted the version of events attributed to him above. He attached the invoices from YLPG; a report and invoice from Silva Plumbing dated 31 July 2020 for $528; and three photographs of paved areas of his yard.
20.On 26 August 2020 YLGP filed a statement by Mr Justin Berry of the same date. Mr Berry said it was himself who attended on 11 February 2020 and did the initial inspection. It was ‘Zac’ and ‘Joe’ who did the excavation work the next day. It was himself who did the final re-inspection and discovered the blockage under the public land. Mr Berry denied wrongly marking the location of the suspected blockage or that it was on the public land side of the boundary. He said that there was no riser on Mr Farr’s boundary with the public land and the law required there to be one. Mr Berry provided a rough sketch showing the first suspected blockage and the second blockage on Government land.
21.On 4 September 2020 the matter was listed for hearing. Mr Farr and Mr Khan for YLPG appeared by telephone. The parties each went over their case and referred to documents filed. No other witnesses were called. The content of the evidence from Mr Farr and Mr Khan is that recited in the summary above.
22.Near the end of hearing Mr Khan revealed that he had not received copies of documents filed in the tribunal by Mr Farr. Mr Farr asserted to the contrary. For this reason the hearing was stopped and orders were made for Mr Farr to re-serve all his documents on YLPG. The parties were given a choice of reconvening the hearing at a later time, or they could file final written submissions after Mr Khan had a chance to study the relevant documents and the matter would then proceed to a written decision. The parties chose the latter option.
23.Orders were made for the parties to file final submissions by 28 September 2020 after which the matter would be determined on the papers.
24.On 17 September 2020 YLPG filed its final submissions. The submissions contained nothing additional to that set out above. The submissions attached a further statement from Justin Berry, this one dated 14 September 2020. Mr Berry said that Mr Farr was billed $3,411.10 for the excavation work and the riser, and $401.50 for the initial camera work. He said that $2,255.45 was attributable to the riser which should be reimbursable by the ACT Government. Mr Berry attached an application for reimbursement for Mr Farr to lodge.
Consideration of the issues
25.Mr Farr originally engaged YLPG to ascertain the site of the blockage. He correctly surmised that if the blockage was under the ACT Government land then he was not responsible for its clearage. The Tribunal is satisfied that Mr Berry did locate a blockage at 20.36m which was in the ACT Government land. Had Mr Berry correctly advised Mr Farr of this fact then there was no need for any further work and the ACT Government would have funded the installation of the riser.
26.Mr Berry must have wrongly marked the blockage point with the green paint. This is consistent with:
(a)the fact that YLPG’s own plumbers that excavated that site on the next day found nothing;
(b)YLPG’s plumbers did find a blockage at or around 20.36m on ACT Government land; and
(c)Silva Plumbing replicated the camera work and found the riser on the boundary at 15.8m so that a blockage at 20.36m must have been on ACT Government land.
27.Mr Berry wrote that the bow in the pipe was the blockage that he found as it was at 20.36m. This cannot be right because it was not Mr Berry who discovered the bow; YLPG’s own plumbers denied that there was any blockage at the bow; and Silva Plumbing confirmed that the riser at the boundary was only at 15.8m.
28.Mr Farr’s contract with YLPG was originally for them to diagnose the location of the blockage. YLPG was retained to advise Mr Farr and then carry out any resulting and necessary work. Mr Berry got it wrong on both accounts. It was the error in diagnosis that caused Mr Farr to enter the second contract for the excavation work and to install the riser.
29.These two errors on the part of Mr Berry as an employee of YLPG constitute a breach of the implied terms of YLPG’s contract with Mr Farr to carry out its functions in a competent and tradesman like manner. Indeed, YLPG’s own contract with Mr Farr contains assurances of “exceptional customer service”, “highest quality services”, a lifetime guarantee of its work and the use only of “qualified experts”.
30.Mr Farr is entitled to refund of the money paid except for the original $401.50. Mr Farr was put to the cost of ascertaining the site of the blockage because the ACT Government would not do so. Had Mr Berry not made the diagnostic errors then Mr Farr would still have been out of pocket this amount and the ACT Government would then have assumed responsibility for the rest of the work.
31.Mr Farr is entitled to the $1,000 deposit, $75.50 tribunal fee, $9 company search fee and $528 for the report from Silva Plumbing, giving a total of $1,612.50. There was no evidence to support the $300 cost of repairing the lawn. He is not required to pay the outstanding charges sought by YLPG.
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Senior Member A Anforth
Date(s) of hearing 4 September 2020 Applicant: In person Respondent: Mr Khan, authorised representative
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