Gamma Wealth Management Pty Ltd v Clair
[2013] QCAT 747
| CITATION: | Gamma Wealth Management Pty Ltd v Clair [2013] QCAT 747 |
| PARTIES: | Gamma Wealth Management Pty Ltd (Applicant) |
| v | |
| Mr Alan Doughlas Clair and Mrs Anita Leonie Clair (Respondents) |
| CLAIM NUMBERS: | MCD709/12; MCD686/12 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 13 and 15 February 2013 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Trueman |
| DELIVERED ON: | 26 July 2013 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. For claim 709/12 the Respondents Mr and Mrs Clair pay to the Applicant Gamma Wealth Management Pty Ltd the sum of $2,607.00 within 7 days. 2 Claim 686/12 is dismissed. 3. There be no order as to costs. |
| CATCHWORDS: | MINOR CIVIL CLAIMS – claim for money by Lessor allegedly owed due to breach of lease agreement – counter claim by tenant for return of Bond lodged for commercial lease – whether the failure of tenants to obtain certification for fit-out works was a breach of the lease – whether Lessor entitled to retention of bond and demand for payment of further costs for rectification works to obtaining certification of the premises – liability for certification of premises – whether parties consented to release tenant from certification obligations – whether parties contracted out of lease agreement obligations upon execution of exit agreement – assessment of damages - claim for legal costs Queensland Civil and Administrative Tribunal Act 2009 s 12 Ace Property Holdings P/L v Australian Postal Corp [2010] QCA 55 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Jonathan Ivanisevic (Counsel) Solicitors: Hopgood Ganim Lawyers |
| RESPONDENT: | Mr Marcin Lazinski (Counsel) Solicitors: Chan Lawyers |
REASONS FOR DECISION
These two claims are minor civil debt matters. The first involving a claim to recover a liquidated demand of money for breach of a lease agreement, and the second a claim for the payment of money being the return of bond monies.[1]
[1] Queensland Civil and Administrative Tribunal Act 2009 s 12.
The Applicant to claim 709/12 is Gamma Wealth (“Gamma”). They are the tenant to a commercial lease agreement for Suite 2503, Level 5, Tower 2, Southport Central, Southport in the state of Queensland. (“the premises’).
The Respondents, Mr Alan Clair and Mrs Anita Clair (“the Clairs”) are the owners and Lessors of the premises.
Gamma entered into a lease agreement on 1 March 2009 with the Clairs for a period of 3 years. The Bond paid to the Clairs was for $5,280.00.
The dispute involves an alleged breach of the lease agreement. The issue to be determined is whether Gamma is liable for alleged damages claimed by the Clairs for works said to be required to be peformed at the premises in order to obtain a certificate of classification for a fitout, following the end of a lease between Gamma and the Clairs.
Gamma seek the return of part of their Bond. Gamma filed a claim in Brisbane on 6 July 2012. The claim was consolidated with the Clairs claim 686/12 filed in Southport on 21 August 2012. The claims were consolidated and heard together.
Gamma are content for some of the bond to be retained by the Clairs for the costs of building certification and fire sprinkler works. Gamma claim that the Bond amount of $5,280.00 be disbursed to them in the sum of $3,319.15 and that the Clairs retain the sum of $1,960.85 for the estimated costs of some building and fire sprinkler works.
The Clairs seek orders in their claim 686/12 that Gamma pay to them the sum of $20,821.90 less the Bond the sum be paid to them of $17,659.40 plus legal costs. The Clairs amended the amount of their claim at the commencement of the hearing to the sum of $17,529.00. The Clairs seek to retain the full bond of $5,280.00 and that Gamma pay a further sum of $12,249.00 plus interest and filing fees.
UNDISPUTED FACTS
Gamma leased Suite 2503 from the Clairs pursuant to a commercial lease agreement dated 23 February 2009[2] for the use of the suite as an office. When the lease was negotiated the Clairs agreed to fit-out the office with partition walls and other works to a total cost of $15,000.00. The works were completed by Airey Projects and complied with the Building Standards at the time.
[2] Exhibit 3.
Gamma carried out further fit-out works to the suite and contracted Airey Projects to perform those further works. The works were quoted at the sum of $3,565.10.[3] Gamma stated the works were completed by Airey Projects and complied with the Building Standards at the time. The lease agreement stated at clause 29.8 that:
The Lessee must obtain all necessary statutory approvals for any work to be carried out at the premises.
[3] Exhibit 7.
Gamma did not obtain the requisite statutory approvals for the works that were carried out by them in 2009. Later Gamma informed the Clairs that they intended on leasing suite 2504 next door and requested permission to put a door way through to connect both units. The Clairs agreed and gave permission conditional on Gamma making no structural alterations and requied them to “make good” on their departure. Gamma did not put a door way in but removed the compete wall between the two units.
On or around January 2012 Gamma informed the Clairs that they would be vacating the premises on 24 February 2012. Gamma requested from the Clairs via email[4] dated 9 January 2012 sent to the Real Estate Agent, Ms Shanna Pepper. Ms Pepper was the agent who was managing the rental property at the time. Gamma were making enquiry as to what was necessary on their part to “make good” on suite 2503.
[4] Exhibit 15.
An Exit Agreement was negotiated between Gamma and the Clairs dated 9 January 2012[5] that Gamma would replace and make good the walls they had removed between the two units,(suites 2503 and suites 2504) that the office blinds would be left at the property and to repair and touch up a couple of internal walls that were damaged where some signage had been removed. Mr Clair signed the exit agreement[6] and sent it to Mr Kahler. Mr Fraser Kahler, as Director of Gamma signed the exit agreement and returned it by email[7] to Shana Pepper on 11 January 2012. Mr Clair as “owner of suite 2503” and “agreeing to the terms outlined” in the agreement
[5] Exhibit 5.
[6] Exhibit 9.
[7] Exhibit 15.
The Exit Agreement required Gamma to undertake some works and “make good” some walls between the premises. The blinds and kitchen cabinets that Gamma had paid for were to be left in the premises and this was on the proviso that there would be no further alterations or touch ups in relation to the “make good” of the premises.
The exit agreement was entered into on the basis that the Clairs had not been provided with a copy of any certification for the fit out works that had been undertaken, either by them or by Gamma. The exit agreement was negotiated on the basis that Gamma would vacate the premises on terms and conditions that would ensure the release of their Bond.
The Clairs were negotiating with a new tenant to move into the premises who were interested in the lease of the adjoining premises and retaining the additional fit out works.
DISPUTED FACTS
Gamma claims that the Clairs entered into the exit agreement with the express intentions that there would be no further alterations or touch ups required to be done to the premises by Gamma and that if the blinds and cabinets were left at the premise then the Bond would be returned in full.
The Clairs claim that the Exit Agreement was entered into on the presumption that the certification of the premises had been performed. They claimed that as a result of Gamma breaching the lease and not having obtained the certification for the fit out works they have suffered loss They claim that they did not become aware of the certification issue until after the agreement was signed. They claim that the exit agreement did not contemplate the issue so the agreement does not cover that matter.
The Clairs claim that they did not waiver any rights to purse the certification matter and that clause 29.8 of the lease specifically requires Gamma to obtain all the necessary certification for the works carried out at the premises. The Clairs contend that there should be no blame on them for having failed to chase up the certification issue and that once Gamma signed the lease they accepted the terms and conditions contained therein.
The Clairs contend that although they did not obtain the certification from Gamma it does not defer from Gamma’s obligations to provide the certification, knew that the lease was a binding document requiring statutory approvals and that certification was a part of the terms and conditions. They claim that Gamma cannot defer from the lease obligations and Gamma has not complied with all of the lease obligations.
Gamma’s claim is that the Clairs claim against them is premised on a contravention of a lease agreement, in particular clause 29.8.Gamma contend that they entered into the exit agreement only on the basis that the parties had agreed to a variation from the lease agreement relating to alterations or touch ups in relation to “make good” of the premises, which were contrary to the terms of the Exit agreement. Gamma contend that upon the strict construct of the varied Exit Agreement that the Clairs have released them from undertaking any further obligations pursuant to the lease agreement and that the Clairs are estopped from raising any claim against Gamma.
Gamma claim that they cannot be liable for any claim for damages by the Clairs alleging that any major repairs, alterations or additions to the premises was not directly required by Gamma and were performed to enable the Clairs to lease the property to the new tenants and request they may have made for additional works. In addition to Gamma denying liability for the damages they contend that in any event the quantum of damages sought are excessive in all the circumstances. Gamma raised points of evidence relating to the fact that the Clairs claim relates to damages and cost for works performed at the adjoining premises which they do not own nor have standing to bring a claim against, were works not relating to the additional fit out works but were the Lessors works and that some of the works were unnecessary.
Gamma claim that the evidence of the Clairs relating to the works that are allegedly required to be performed to achieve the requisite certification is evidenced only by an email from a Mr George Mooney. They contend that this evidence is not expert evidence and is therefore unsafe.
Before assessing quantum of damages I am required to consider and determine the issue of liability for damages. If liability for damages is found to not lay with Gamma then assessing quantum becomes unnecessary.
WHAT ARE THE RELEVANT TERMS OF THE LEASE?
The Lease Agreement[8] executed on 2009 provides various clauses setting out liability and obligations of the parties. The clauses that the Clair’s claim are relevant to their claim for damages are the following:
Clause 1.6INDEMNITY
1.6.1To indemnify the Lessor against all damage and expenses which the Lessor may sustain or expend or be put unto by reason or on account of any neglect or default on the part of the Lessee to observe and perform any of the agreements on the part of the Lessee herein contained or hereby implied
Clause 1.7COSTS
On demand to pay all costs as between Solicitor and own client and expenses of and incidental to the preparation and stamping obtaining mortgagees consent and registration of these presents including the stamp duty hereon as assessed from time to time and also all such costs and any charges and expenses or monies which the Lessor may expend or be put unto or pay in consequence of any default that may be made by the Lessee in the performance or observance of any covenant or condition or agreement herein contained or implied or which shall have been authorised entered into or made by the Lessee.
[8] Exhibit 3.
Clause 1.20 of the lease is the relevant provision that provides the requirement of compliance with statutes, it states:
a)At his own expense from time to time and at all times duly and punctually to comply with conform to and observe the provisions of all Statutes having application to the said premises of the business from time to time being carried on therein and all ordinances regulations and by-laws thereunder and all requirement and orders of any authority statutory or otherwise in all cases in which non-compliance therewith or non-observed thereof would or might impose some charge or liability upon the Lessor or upon the said premise or any part thereof structural alterations or improvements excepted, unless such structural alterations or improvements are required as a direct result of the type of business being conducted on the said premises and/or the number or sex of the lessee’s employees servants and agents.
Clauses 1.26 requires the Lessee to paint the internal walls and ceilings of the premises at the expiration, extension or renewal of the lease with requirement as to the number of coats and colour as approved by the Lessor. Clause 20 provides for the reinstatement of the property to the condition the premises were in when the Lessee entered into the lease. That clause states:
a)Upon the expiration or sooner determination of the said term or any extension or renewal thereof the Lessee shall at the option of the Lessor reinstate the premises in the condition in which they were prior to the Lessee effecting any alteration or additions to the said premises or works defacing the said premises fair wear and tear excepted PROVIDED THAT the lessee shall not be liable to carry out any re-instatement in respect of any alterations or additions or works in respect of which the Lessor has specifically agreed reinstatement shall not be necessary and which are not removed by the Lessee his servants or agents. For the purpose of this clause on the term “Lessee” shall mean the lessee and any parties who were previously Lessees of the premises pursuant to any lease of the premises which was assigned to the original Lessee hereunder.
Clause 21 Removal of Plant is relevant in so far as chattels and items purchased and installed by Gamma were installed in the premises. That clause states;
21.1The Lessee shall at any time during the said term or any extension or renewal thereof provided he is not at the time in breach of this lease have the right to remove all or any materials plant machinery and chattels which he has affixed to the said premises under written agreement with the Lessor or which were affixed by the Lessees predecessors but have become his property.
The Clairs claim for damages arising from the failure by Gamma to undertake the requisite certification is reliant on the provision of clause 29 of the Lease. That clause refers to the “Lessees Fit out Period”. In particular the relevant provision is Clause 29.8, it states:
29.8The lessee must obtain all necessary statutory approvals for any work to be carried out at the premises.
Although there were in effect two fit-out works performed at the premises, the first were paid for by the Clairs and the second fit out works paid for by Gamma, effectively the entire fit out works required the necessary approvals. It is not disputed that Gamma failed to arrange building and fire certificates and did no undertake the necessary approvals at the time the fit out works were performed in 2009.
It is alleged by the Clairs and the evidence of their Building Certifier, Mr Mooney, that the costs to certify the building works retrospectively to comply with the current Australian Building standards requires works to new doors, doorways, circulation spaces, sprinklers, lighting, ventilation, window glazing, plumbing and drainage. He provided a quotation from AC Fitouts Specialists[9] for the remedial works including certification in the sum of $20,821.90. An updated Tax Invoice for the rectification works from AC Fitouts for $20,205.90[10] was provided including additional works and credit for certification. Plans[11], photographs[12] and architectural drawings[13] were provided to the tribunal to assist in viewing the nature and extent of the scope of works.
WHAT ARE THE TERMS OF THE EXIT AGREEMENT?
[9] Exhibit 7.
[10] Exhibit 8.
[11] Exhibit 13.
[12] Exhibit 2 & Exhibit 4.
[13] Exhibit 11.
Gamma relies on the terms and conditions of the Exit Agreement entered into by the parties on 9 January 2012 to extinguish any further obligations under the lease agreement. Gamma claim that they would not have entered into the exit agreement had it not been for the fact the Clairs expressly represented to them that Gamma were not required to undertake any further alterations or touch ups to the premises if Gamma left the blinds and kitchen cabinets at the premises. Further, that Gamma state that the Clairs impliedly represented to them that if Gamma left the blinds and kitchen cabinets behind at the premises that the Bond would be returned to them in full.
Gamma state that but for the representations made to them by the Clairs they would not have entered into the Exit Agreement. Gamma state that on or about 16 February 2012 the parties agreed to vary the terms of the Exit Agreement such that Gamma were not required to erect and make good the wall between the premises and the adjoining premises.
Gamma claim that the construction of the Exit Agreement was to record the terms upon which the parties had agreed for Gamma to be paid its Bond and be released from its obligations under the lease. Gamma alleges that the Exit Agreement effectively meant that the Clairs waived any entitlement or benefit arising from the lease agreement.
Gamma state that they abided with the terms and conditions of the Exit Agreement and vacated the premises and left the blinds and kitchen cabinets in the premises
It is not disputed that a new tenant moved into the premises on or around 21 February 2012.
SHOULD THE EXIT AGREEMENT BIND THE PARTIES?
The Clairs allege that Gamma’s interpretation of the Exit Agreement is too wide and that the alleged agreement is merely a “letter” exchanged between the parties. The Clairs state that the correct interpretation of the letter is simply that Gamma agreed to make good the wall between suites 2503 and suites 2504 and to leave the office blinds and kitchen cabinets behind in the premises on the proviso that there would be no further requirement for alterations or touch ups to “make good’ the offices.
The Clairs contend that the letter dated 9 January 2012 simply complies with the requirements of clause 20 of the Lease to the extent that Gamma were not required carrying out any reinstatement of the premises. The Clairs allege that the letter does not specifically discharge Gamma from its prior obligation under the lease to arrange the necessary approvals regarding the fit out.
The Clairs state that the letter does not discharge Gamma from its responsibilities under the lease to obtain all the necessary certifications. The Clairs state that to consider that the letter of 9 January 2012 should allow a waiver of a non-specified obligation in the lease would be contrary to the Property Law Act 1974.[14]
[14] Section 119.
Mr Clair gave evidence that he had no knowledge that the requisite approvals had been obtained until after 9 January 2013 and that he did not consider the certification issue when entering into the agreement. He stated that the agreement with Gamma only related to the “make good” issue and the leaving of Gamma’s chattels and goods in the premises. He claimed therefore that the agreement did not have implied terms relating to the issue of certification as he was unaware the certification had not been performed and therefore it was never contemplated by him.
The Exit Agreement was more than a just a “letter” exchanged between the parties. It was sent from Gamma to the Clair’s Agent, Shanna Pepper, from Ray White Surfers paradise proposing to amend the terms of the lease relating to the make good. The agreement was signed by Mr Fraser Kahler and required the signature of Mr Alan Clair.
Gamma stated that the Clairs required an amendment to the agreement and it was changed to include the words from “erect the wall between suites 2503 and suites 2504” to “erect and make good the wall between suites 2503 and suites 2504” The agreement required that Mr Clair sign the document “as owner of Suite 2503 agree to the terms outlined above”. The parties later amended the agreement on or around 16 February 2012 and Gamma were not required to reinstate the partition walls between the two units. This amendment was not reduced to writing.
In my view the Exit Agreement was entered into between the parties, with an offer made by one party in writing, with an amendment requested by the Clairs, which was accepted by all parties and the agreement was changed. The parties signed this amended agreement. The Agreement was later amended by an oral term that the parties agreed to remove Gamma’s requirement to reinstate a partitioned wall. The parties’ intentions were that the Exit agreement stood in its varied form. In my view, the Exit agreement forms a legal contract between the parties to be read in conjunction with the Lease Agreement. The terms of the Exit Agreement, entered into by consent, amended the specific terms and conditions of the lease agreement, particularly clause 20 and 21. I accept the evidence of Gamma that the lease was at an end and that communications between the parties, both orally and in writing were attempts by both parties to finalise all matters between them prior to the release of the Bond. The parties complied with the agreement.
In my view the Exit Agreement binds the parties.
SHOULD GAMMA BE REQUIRED TO COMPLY WITH CLAUSE 29.8. OF THE LEASE AGREEMENT
Clause 29.8 is a mandatory condition of the lease that the lessee must obtain all necessary statutory approvals for any work to be carried out at the premises. It is not disputed tow fit outs were carried out during Gamma’s lease period. The works were completed in 2009 and Gamma failed to obtain the necessary approvals at that time.
In my view the Exit Agreement does not go far enough to be interpreted as an Agreement that overrides or discharges Gamma’s obligations, to meet the conditions and requirements that are contained in the Lease Agreement and the obligation on Gamma to obtain all the necessary statutory approvals and certification of the premises.
Gamma raises the defence of estoppel to prevent the Clairs bringing a claim for damages against them. In the recent decision of Ace Property Holdings P/L v Australian Postal Corp [2010] QCA 55[15] it was found that
A party who sets up an estoppel must show that a detriment will ensure to that party if the other party is allowed to depart from the position on which the first party has been induced to act
[15] at paragraph 136.
There was no evidence to support a finding that Mr Clair induced Gamma to enter into the Exit Agreement of 9 January 2013 and that he was aware, at that time, that the Certifications had not been carried out.
Mr Clair gave evidence that he was not aware that certification was not carried out until after 9 January 2013. In my view though it would have been prudent for him to have enquired from Gamma about such matters either in later 2009 or early 2010 after the fit out works were completed, at the very least upon Gamma giving the Clairs Notice of their intention that they did not intend on extending their lease agreement that the enquiries regarding certification should have been made.
The Clairs provided evidence that the works required to ensure current certification were extensive and expensive. The evidence relating to the extent of the scope of works was contained in a written document prepared by Mr George Mooney; a Gold Coast Building Certifier dated 3 April 2012. It was an email and purported to respond to an email sent from Mr Clair requesting an opinion as to what would be necessary to obtain retrospective approval of the fit out to the premises in 2009.
The evidence relating to costs was contained in a quotation from AC Shop Fitouts dated 19 July 2012. Mr Mooney did not give oral evidence and was not available for cross examination or to provide any additional evidence in relation to his opinion and summary regarding the “fit out.” In my view this was a failing of the Clair’s case.
Mr Mooney’s evidence was therefore untested and was limited to the response in written form only, which was requested from him by Mr Clair. The evidence was deficient, firstly, as it only provided a response to the queries raised by Mr Clair. It is unclear what those requests were. It also did not provide any evidence as to the requirement of what was required to certify the premises in 2009. Secondly, it was deficient in that it only noted that the retrospective approval of the fit out was to assess what was required to be done to both unit 2503 and unit 2504 to meet current approval. This case did not involve the requisite approval required of unit 2504, which was owned by someone else, leased to Gamma, and the content of such further lease agreement not being at all relevant to this matter. The evidence of Mr Mooney appears to cover both units when clearly Mr Clair has no interest or standing to pursue a claim for certification costs for unit 2504. The evidence of Mr Mooney might have been different if he had given oral evidence and was required to consider the necessary changes to the premises if the evidence was limited only to those works necessary for unit 2503. In this case that opportunity was not available to the parties and Mr Mooney’s evidence, his summary expressed in his email and opinion of what was necessary to obtain retrospective approval was of little use, his evidence was of limited assistance to me and therefore I have given it little weight.
It follows that the quotation of AC Fitouts is therefore deficient as it refers to a quote for the scope of works as detailed by Mr Mooney and includes the rectification of unit 2503 and unit 2504. I find that the rectification of unit 2504 is of no relevance to his matter whatsoever and that the quotation is for works and costs that are not necessary and therefore must be costs that are excessive in all the circumstances.
ASSESSMENT OF QUANTUM?
In my view there was no evidence presented during the hearing that provided an accurate estimate of the works that were necessary to have the property meet the requisite standards and certification. The fact alone that the Clairs have engaged AC Fitouts to undertake and perform works to the premises does not of itself justify an assessment of damages for that amount. Gamma raised in their evidence that the works performed at the premises after they vacated could include works that were not required to gain certification but works performed at the Lessor’s request. Gamma claimed that the extent of works were unnecessary and were excessive in the circumstances. I concur with Gamma’s on this point and in the absence of any evidence that would justify the total extent of works that have been undertaken at the premises I cannot be satisfied what works were necessary for certification and what works were not.
Gamma alleged that the quantum of damages sought by the Clairs were excessive in that they also claimed GST in circumstances where they are registered for GST purposes and as such have therefore inflated their claim. They also claim that the quantum of damages and the quotation obtained by the Clairs was excessive for what a competent, licensed tradesperson should or might claim for the works, and further that the quantum is in excess of the make good costs for the premises and contrary to the “least cost to the defendant” rule.
I agree with the Gamma that the cost of the rectification works appears excessive in all the circumstances. The works also appear to be for works to units 2503 and 2504 and I am not satisfied that there was sufficient evidence that convinces me that the cost of such works had not been paid for by both unit owners. The quotation also provides for the cost for certification in 2012 and include additional costs that would not have been required if certification was done in 2009.
The Clairs produced a Tax Invoice for $20,205.90[16] for alleged works performed at units 2503 and unit 2504 dated 23 August 2012. .The Clairs did not produce any evidence to prove their allegation that the scope of the works had been performed pursuant to the quotation of 19 July 2012 was paid for in full by them. The tax invoice appears to have additional works including emergency lights for units 2503 and 2504 and for fire services work. In the absence of any evidence that proves payment, I am not persuaded that the works were completed and paid for by the Clairs pursuant to the Tax Invoice. There was no evidence that would persuade me to order that Gamma reimburse the Clairs for the sum contained in the Tax Invoice and in my view to do so would be unfair and unjust in all the circumstances.
[16] Exhibit 8.
When considering what would be an appropriate assessment of damages to be paid by Gamma to the Clairs, I was not assisted with any useful evidence at all. In the circumstances it might be fair to have considered what might have been required to obtain certification of the premises after the fit out in 2009 and the relevant Australian Standards at the time. Of course that is difficult to assess and the standards have changed since then. To require Gamma to pay damages for the works to be performed to change the premises to meet the current Australian Standards would be unfair in the circumstances.
In this case I consider fault by both parties relating to the certification issue. Gamma should have undertaken the necessary approvals to meet the certification after the fit out works were completed in 2009. The Clairs should have made enquiries and followed up with Gamma that the necessary approvals and certification had been obtained during the tenancy. The matter of certification should have been addressed by the parties prior to the negotiations around the Exit Agreement.
Gamma provided to the tribunal a copy of quotations totalling the sum of $3,043.85 for the costs of obtaining building certificate and fire sprinkler works. The quotes were from Queensland Building Approvals for the sum of $696.30 for a tenancy fit out and building approval and Fire Systems quotation for $2,673.00 for fire certification[17]. Gamma claim that they should only be required to make payment of those costs, and together with the filing fee and a claim for half of their legal costs plus interest, the residual part of their bond, of $3,343.83, they claim should be paid to them.
[17] Quotes annexed to Claim 709/12.
Having considered the evidence and taking into account that both parties to some extent have benefited from the Exit Agreement. To the extent that Gamma forfeited their blinds and kitchen installation in lieu of being released from the expense of having to “make good’, paint and reinstall a partition wall and undertake painting and touch up works in. In my view each of the benefits to the parties are equal in value and a trade off that puts each of the parties on an even playing field. I am of the view that the Clairs are entitled to be paid some damages for the failure by Gamma to have undertaken the necessary approvals and certification of the premises. Assessing those damages had proven difficult in the absence of reliable and unequivocal evidence.
On the evidence of Gamma I accept that the quotations for the necessary works and approvals included in the estimates dated February 2012 include and states:
After the inspection from our sprinkler technical it is with pleasure that we submit out quotation to bring the existing sprinkler system in this tenancy up to rule. ..We have broken this quotation into two sections as the second section seems to be out of rule but it is unclear the changes you have made to this area therefore if you have not made any changes it may be a Body Corporate issue to address. Office Area 1xdrain down of the system – in order to do works on the system it has to be drained down $350.00.- 6 new sprinkler heads installed in this area $1,560.00 - Open Area – 2 new sprinkler heads required in this area $520.00 - $2,430.00 plus GST $243.00 TOTAL $2,673.00.
On this evidence I am persuaded that Gamma should pay to the Clairs the sum of $2,673.00 as a contribution towards the cost of the approvals and certification works. The Bond sum is $5280.00. The Clairs are to retain from the Bond the sum of $2,673.00. The Clairs therefore must reimburse part of the Bond to Gamma the sum of $2,607.00
Both parties claim for costs and interest in their respective claims. In this matter I find that I should not make any order for payment of filing fees as both parties have paid a filing fee and neither party has been wholly successful. I consider that on the premise that both parties were not wholly successful that each party should pay for their own legal costs of the proceedings. As such there should be no order as to costs or interest.
ORDER
1. THAT for claim 709/12 the Respondents Mr and Mrs Clair pay to the Applicant Gamma Wealth Management Pty Ltd the sum of $2607.00 within 7 days.
2 THAT claim 686/12 is dismissed.
3. THAT there be no order as to costs.
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